TITLE:  FR Countermeasures, Inc., B-295375, February 10, 2005
BNUMBER:  B-295375
DATE:  February 10, 2005
**********************************************************************
   Decision

   Matter of:   FR Countermeasures, Inc.

   File:            B-295375

   Date:              February 10, 2005

   Ronald Henry, Esq., and Julie Klusas Gasper, Esq., Kaye Scholer LLP, for
the protester.

   Lee P. Curtis, Esq., Eric A. Aaserud, Esq., and Richard W. Oehler, Esq.,
Perkins Coie LLP, for Esterline Armtec Countermeasures Co., and Michael B.
Hubbard, Esq., Joseph J. Dyer, Esq., Z. Taylor Shultz, Esq., and Kevin P.
Connelly, Esq., Seyfarth Shaw LLP, for Kilgore Flares Co., Inc.,
intervenors.

   Capt. Victor G. Vogel and Bradley J. Crosson, Esq., Department of the
Army, for the agency.

   Edward Goldstein, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest that agency unreasonably assigned protester a neutral past
performance rating of "unknown" under evaluation subfactor relating to
on-time delivery because the agency failed to consider protester's
delivery record between the closing date for receipt of proposals and the
time of award is denied since, while the solicitation reserved to the
government the right to consider an offeror's past performance information
after the proposal closing date through the time of award, there was no
requirement that the agency consider that information.

   DECISION

   FR Countermeasures, Inc. (FRC) protests the awards to Esterline Armtec
Countermeasures Co. (Armtec) and Kilgore Flares Co., Inc. under request
for proposals (RFP) W52P1J-04-R-0078, issued by the Department of the
Army, for M206 aircraft countermeasure flares and MJU7 infrared
countermeasure flares.  In challenging the awards, the protester argues
that the agency improperly evaluated proposals.

   We deny the protest in part and dismiss it in part.

   The agency issued the solicitation on June 17, 2004 to procure 1,084,000
M206 aircraft countermeasure flares and 557,760 MJU7 infrared
countermeasure flares.  Both the M206 and MJU7 flares are deployed as
defense countermeasures against enemy heat-seeking missile attacks on
aircraft.  The M206 is used for protection of helicopters and other
low-altitude Army aircraft and can also be used on several types of low-
and high-altitude Air Force aircraft, while the MJU7 is used exclusively
for protection of Air Force aircraft.  The RFP contemplated the award of a
fixed-price contract for 100 percent of the requirement or a split award
to two firms--one receiving 55 percent of the requirement and the other
receiving 45A percent.[1]  The RFP provided that award would be made to
the offeror or offerors, in the event of a split award, whose proposals
represented the best value to the government based on an evaluation of
four factors:  (1) technical (including four subfactors, manufacturing
plan, quality plan, safety plan, management plan); (2) past performance
(including two subfactors, quality and/or quality program problems and
on-time delivery); (3) price; and (4) small business utilization.[2] 

   As it relates to the protest, section L of the RFP identified the
information offerors were required to include in their proposals;
specifically regarding the manufacturing plan subfactor, the RFP warned
offerors that "[t]he Government will not assume the duty to search for
data or information to cure problems it finds in proposals."  RFP S L,
amend. 3, at 1.  The RFP also instructed that the agency's past
performance evaluation would be based on "recent and relevant" past
performance.  The RFP defined recent as having occurred within the 3 years
prior to the solicitation's initial closing date; however, the government
expressly reserved the right to consider information about an offeror's
past performance up to the date of award.[3]  RFP S L, amend. 3, at 3.

   By the RFP's August 3, 2004 closing date, the agency had received
proposals from Armtec, Kilgore, and the protester.  Based on its
evaluation of their proposals, the agency assigned the following
adjectival rating under the technical, past performance and small business
utilization factors and related subfactors:

                                                              
Armtec           Kilgore            FRC

   Technical

               Manufacturing Plan              Excellent       
Excellent        Good                         

   Quality Plan                           Excellent        Good             
Good

               Safety Plan                             Good             
Good              Excellent

               Management Plan                 Excellent       
Excellent        Good

   Past Performance

               Quality Program                    Good             
Good              Good

               On-time Delivery                   Excellent       
Excellent        Unknown

   Small Business Utilization               Excellent        Excellent       
Excellent

   With regard to price, the agency considered the offerors' prices for 100
percent of the requirement as well as pricing for 55 percent and 45
percent of the requirement.  The evaluated prices were as follows:

   +------------------------------------------------------------------------+
|A               |Armtec              |Kilgore             |FRC          |
|----------------+--------------------+--------------------+-------------|
|A               |A                   |A                   |A            |
|----------------+--------------------+--------------------+-------------|
|100 Percent     |[deleted]           |[deleted]           |[deleted]    |
|----------------+--------------------+--------------------+-------------|
|55 Percent      |$127,177,145.06     |[deleted]           |[deleted]    |
|----------------+--------------------+--------------------+-------------|
|45 Percent      |[deleted]           |$104,949,045.52     |[deleted]    |
+------------------------------------------------------------------------+

   Because both Armtec's and Kilgore's proposals were more highly rated and
lower in cost than FRC's, the agency concluded that a split award between
Armtec and Kigore, with Armtec receiving 55 percent and Kilgore receiving
45 percent of the agency requirement, was in the best interest of the
government and made the awards on October 20.  Upon learning of the Army's
decision FRC requested a debriefing, which the Army provided on November
2. 

   At the debriefing, the agency provided the protester with charts
containing summaries of the weaknesses and deficiencies that the agency
found with its proposal.  The agency also provided FRC with the detailed
source selection decision document, which included the detailed evaluation
of FRC's weaknesses and deficiencies, as well as Armtec's and Kilgore's
total evaluated prices and final ratings, and the agency's rationale for
its source selection decision.[4]  FRC, thereafter, filed this protest.

   FRC's protest challenged the agency's evaluation of proposals in several
respects.  With regard to its own ratings, FRC argued that the agency had
downgraded it for failing to address various required elements in its
technical proposal when FRC had in fact addressed the identified elements
in its proposal.  FRC also challenged its "Unknown" rating under the
on-time delivery subfactor, in two respects.  The protester first argued
that the rating was improper because the agency failed to consider its
perfect record of on-time conforming deliveries, which was available to
the agency prior to award.  Second, the protester asserted that the agency
treated its "Unknown" rating as a deficiency rather than as a "neutral"
rating as required by the solicitation.

   FRC also challenged the agency's evaluation of the proposals submitted by
Armtec and Kilgore.  FRC prefaced its challenges in this regard, however,
by stating that the agency's debriefing provided "only the most general
information regarding the evaluations of Armtec and Kilgore," and that
despite the general information provided by the agency with respect to
Armtec's and Kilgore's proposals, "certain broad outlines of the defects
in those evaluations are apparent and the details will be confirmed when
the Agency responds to the document request that is part of this
protest."  Protest at 3, 6. 

   With regard to past performance, FRC asserted that it should have received
higher ratings than Kilgore because Kilgore had been found nonresponsible
under a prior Navy contract, a determination that was affirmed in a
decision by our Office, Kilgore Flares Co., B-292944 et al., Dec. 24,
2003, 2004 CPD P 8.  With regard to Armtec, the protest concluded that it
"also had past performance difficulties that render it clearly inferior to
FRC."  Protest at 4.  FRC, also argued, as a general matter, that "the
Agency awarded excessively high scores for Armtec and Kilgore in its
defective evaluation of those proposals."  Protest at 6. According to the
protester, its own facilities and procedures are superior to those of
Kilgore and Armtec, and it is well-known in the industry that Kilgore and
Armtec are suffering from "severe manufacturing problems, quality control
problems, and delivery delays" and that the quality of many rounds they
supply are deficient.[5]  Id.

   On-Time Delivery

   At the time FRC submitted its proposal, it was a relatively new entrant
into the flare business.  FRC was so new that it had not in fact delivered
any production units of flares by the August 3 closing date for receipt of
proposals.[6]  As a consequence, the agency assigned FRC a neutral rating
of "unknown" for on-time delivery.  FRC contends that its "unknown" rating
was unjustified because the agency failed to consider deliveries it made
after the RFP closing date, but before the date of award.  Had these
deliveries been considered, FRC argues, the agency would have recognized
that it had a perfect record of on-time delivery.

   While the solicitation reserved to the government the right to consider
past performance information with regard to an offeror up until the time
of award, it did not require consideration of that information.  Rather,
under the terms of the solicitation, the agency was required to consider
only an offeror's performance history for the 3-year period prior to the
RFP closing date.   Because the protester did not have a history of
on-time delivery that was deemed relevant to the subject contract during
the 3-year period prior to the RFP closing date, and because the protester
does not allege, nor does the record suggest, that the agency treated
offerors unequally in limiting its consideration of past performance to
the period up through the RFP closing date, the protester's challenge to
its neutral rating for
on-time delivery is without merit.

   Even if its "unknown" rating for on-time delivery was justified, FRC
argues that the agency misapplied this rating by treating it as a
deficiency as opposed to a neutral rating as required by the RFP.  This
argument, however, is premised on FRC's mistaken understanding of the
agency's evaluation and therefore fails to establish that the agency's
evaluation was inconsistent with the RFP.  Specifically, as support for
its contention, the protester cites to the agency's conclusion that FRC's
past performance history was limited and that its ability to achieve
full-scale production was unproven.  Protest at 5.  The Army, however,
raised this concern in its evaluation of FRC under the past performance
subfactor, "quality and/or quality program problems," for which FRC
received a rating of "Good," and not with regard to its evaluation of FRC
under the on-time delivery subfactor.  AR, Tab 9, Source Selection
Decision Document, at 8.          

   FRC's Technical Evaluation

   FRC also challenges the agency's evaluation of its proposal, asserting
that the agency had "farmed out" parts of its technical proposal to
different evaluators, and, as a result, the agency identified weaknesses
and deficiencies that were "nonexistent and appear to have been alleged
simply because the evaluator making the allegation did not have access to
all of the relevant parts of the FRC proposal."[7]  Protest at 4.  With
its protest, FRC included an attachment that purported to cite to the
sections of its proposal that addressed the weaknesses and deficiencies
identified by the agency during its debriefing.  As to the management plan
subfactor, however, FRC's attachment in several instances does not cite to
information contained in its management plan; rather, FRC cites to
information that it included under a different subfactor.  

   For example, FRC takes exception to the agency's conclusion that FRC's
manufacturing plan did not include a list of key personnel specifically in
charge of various areas of production, alleging that it had addressed this
issue under its management plan.  FRC, however, may not rely on
information contained in its management plan to challenge the
reasonableness of the evaluated weaknesses and deficiencies in its
manufacturing plan.  The government was not required to search for
information regarding FRC's manufacturing plan under one of the other
subfactors; rather, the burden was on FRC to submit a clear and logically
written proposal.  See Sam Facility Mgmt., Inc., B-292237, July 22, 2003,
2003 CPD P 147 at 5.  Moreover, the RFP's instructions for the submission
of proposals expressly advised offerors, under the manufacturing plan
subfactor, that the government would not search for data or information to
cure problems in proposals.  Thus, FRC's allegations in this regard do not
render the agency's evaluation unreasonable.     

   In addition, FRC's challenge is based on the mistaken premise that the
agency simply concluded that FRC had failed to address certain issues in
its technical proposal.  As noted above, when the agency debriefed the
protester, it provided FRC with briefing slides, which included summary
bullets identifying the weaknesses and deficiencies found during the
agency's evaluation of FRC's proposal, and FRC based its protest on these
slides.

   The agency, however, also provided FRC with the portion of the agency's
source selection decision document regarding its evaluation of FRC's
proposal.  This document provided FRC with the detailed discussion of the
evaluated weaknesses and deficiencies found in FRC's proposal, which were
not conveyed by the slide bullet statements.  The following examples
illustrate that the agency's concerns were not simply based on a perceived
omissions as the bullets in the briefing slides might suggest, but rather
were substantive in nature as reflected in the agency's source selection
decision.   

   FRC challenged the agency's conclusion, as reflected in the bullet
statements that it had failed to address procedures for identification,
control, correction, and resolution of deficiencies.  According to FRC, it
had in fact addressed this issue.  While the agency concluded that the
protester did in fact provide a general overview of its procedures, it
found fault with the general nature of the overview.  This analysis was
expressly set forth in the agency's source selection decision document,
which had been provided to the protester at its debriefing and clearly
reflects the fact that the agency's judgment was based on the substantive
aspects of FRC's proposal, not a perceived omission as alleged by FRC. 
AR, Tab 9, Source Selection Decision, at 4.     

   FRC also challenged one of the comments in the debriefing slides, which
stated that FRC had "[l]eft out application step in M206 First Fire
process."  Protest, exh. 2, at 13.  FRC cited to its proposal's
manufacturing plan and an appendix to indicate that it had in fact
included an application in the M206 First Fire (9311656) process.  The
agency's complete evaluation finding, however, was that "FRC left out an
application step in the M206 First Fire (9311656) process where the First
Fire is applied prior to taping and demonstrates that they misread the
M206 Extruded Pellet Assembly drawing . . . ."  AR, Tab 9, Source
Selection Decision Document, at 4.  Thus, the record reflects the fact
that the agency did not fault FRC for omitting the First Fire process;
rather, the agency faulted FRC for misreading RFP drawings and placing the
First Fire out of order.   

   While in comments filed during the course of the protest FRC also
challenged the substantive nature of the agency's analyses and argued that
the agency's conclusions were flawed, FRC's arguments in this regard are
untimely since FRC filed these challenges more than 10 days after FRC had
received the source selection decision document, which informed FRC of the
substantive aspects of the agency's concerns.  See 4 C.F.R. S 21.2(a)(2)
(2004). 

   By way of example, FRC cited the agency's debriefing statement that FRC's
manufacturing plan did not provide a "list of alternate sources for
components/material or associated risk."  Protest, exh. 2, at 13. 
Regarding this point, the source selection evaluation board in its
decision document stated that "FRC did not list alternate sources for
components/material, and any associated supplier risks or
component/material lead times."  AR, Tab 9, Source Selection Evaluation
Document, at 4.  While FRC initially asserted that it had addressed this
weakness in its proposal, FRC ultimately argued in supplemental comments
that the RFP did not require offerors to provide alternate sources for
each part, or to address supplier risks.  This argument, which challenges
the substantive nature of the agency's evaluation, is clearly untimely. 
FRC was informed of the basis for the agency's evaluation when it received
the agency's source selection decision document at the debriefing.  FRC,
however, waited until it had filed supplemental comments to raise this
issue, more than 10 days after FRC learned the substantive basis for its
evaluation through the source selection decision document provided to FRC
at its debriefing.  

   Evaluation of Armtec's and Kilgore's Proposals

   In its initial protest filing FRC specifically challenged the agency's
evaluation of Kilgore's past performance, arguing that Kilgore's rating
was unjustified because Kilgore had been found nonresponsible for purposes
of the award of a Navy contract almost identical to the subject contract,
a decision that was affirmed by our Office in Kilgore Flares Co., supra. 
FRC's reliance on the Navy's prior finding and our decision Kilgore Flares
is misplaced.  Each federal procurement stands on its own, so that the
fact that Kilgore was found nonresponsible for the purposes of award of a
similar contract did not render the Army's evaluation of Kilgore improper
in this case.  Sabreliner Corp., B-275163 et al., Dec. 31, 1996, 96-2 CPD
P 244 atA 2 n.2.  Moreover, the circumstances of the Navy's decision in
Kilgore Flares as reflected in our decision do not suggest that the
agency's evaluation of Kilgore's past performance in this case was
unreasonable.[8]  Here, the agency considered Kilgore's past performance
information, its production capability, completed facility renovations and
modernization program, and delivery performance, rating Kilgore as "Good"
under the quality subfactor and "Excellent" for on-time delivery.  FRC's
challenge ultimately amounts to little more than disagreement with the
agency's ratings, and does not render them unreasonable.  The OMO Group
Inc., B-294328, Oct. 19, 2004, 2004 CPD P 212 at 7.              

   In addition, in comments dated December 22, FRC supplemented its more
general arguments concerning the agency's evaluation of Armtec and
Kilgore's proposals, with allegations of specific defects in the
evaluation record with regard to the various technical and past
performance subfactors.  As noted above, FRC had prefaced its general
arguments in its initial protest filing by stating that only "broad
outlines" of the defects in the evaluations of Armtec and Kilgore's
proposals were apparent from the agency's debriefing, and explained that
the "details" would be "confirmed" when the agency provided the underlying
source selection materials pertaining to Armtec and Kilgore, as well as
Armtec and Kilgore's proposals, which FRC had requested as part of its
protest.  On November 24, under a protective order issued by our Office in
this protest, FRC's counsel received the Army's entire procurement record
as part of an early production of documents (i.e., furnished to the
protester prior to the filing of the agency report).  These documents
formed the basis for FRC's detailed supplementation of the general
allegations raised in its protest. 

   For example, FRC argued in its comments that Armtec's "Excellent" rating
for its manufacturing plan was improper because Armtec failed to address
the experience and skills of its personnel and failed to explain who was
responsible for testing or inspecting sub-contractor provided parts. 
Regarding the agency's evaluation of Kilgore's manufacturing plan, FRC
maintained that the agency gave Kilgore credit for its prior production, a
consideration that was not within the selection criteria set forth in the
RFP.  Similarly, FRC challenged the agency's evaluation of Kilgore's
quality plan, arguing that the Army gave Kilgore a rating of "Good"
"[d]espite *extreme deficiencies' in its Technical Quality Plan." 
Protester's Comments at 11.  FRC's arguments, however, are untimely.  

   Under our Bid Protest Regulations, a protest not based on an apparent
solicitation impropriety must be filed within 10 days after the basis of
protest is known, or should have been known, whichever is earlier.  4
C.F.R. S 21.2(a)(2).  Where a protester files supplemental protest
grounds, each new ground must independently satisfy the timeliness
requirements of our Bid Protest Regulations, which do not contemplate the
piecemeal presentation or development of protest issues.  QualMed, Inc.,
B-257184.2, Jan. 27, 1995, 95-1 CPD P 94 at 12-13.  This is true even if
the supplemental protest grounds may be merely "examples" of flaws in the
agency's evaluation generally alleged in the initial protest since such
staggered presentation of "examples," each of which involves different
factual circumstances and requires a separate explanation from the agency,
constitutes precisely the piecemeal presentation of issues that our
timeliness rules do not permit.  Id. 

   FRC received the documents containing the information upon which it based
the above challenges as part of an early production of documents on
November 24.  Because FRC waited until its December 22 comments to raise
these issues, they are untimely and will not be considered.  The fact that
FRC received the source selection documents as part of an early production
of documents did not suspend application of our timeliness rules. 
Protests based on documents that the protester receives as part of an
early document production must be filed within 10 days after their
receipt.  See Garco Constr., Inc.; Triton Marine Constr. Corp., B-282231,
B-282231.2, June 15, 1999, 99-2 CPD P 8, at 5; Consolidated Eng'g Servs.,
Inc., B-279565.5, Mar. 19, 1999, 99-1 CPD P 75 at 9 n.4.    

   The protest is denied in part and dismissed in part.  

   Anthony H. Gamboa

   General Counsel

   ------------------------

   [1] The RFP informed offerors that the agency favored a split award.

   [2] Under the RFP, the technical evaluation factor was significantly more
important than past performance, price, or small business utilization
factors.  Technical and past performance, when combined, were
significantly more important than price and small business utilization
individually.  Past performance was more important than price and
significantly more important than small business utilization.  Price was
significantly more important than small business utilization, which was
the least important factor.  Under the technical subfactors, the RFP
provided that manufacturing plan was significantly more important than
quality plan, safety plan or management plan individually.  Quality plan
was slightly more important than safety plan, which was slightly more
important than the management plan subfactor.  Under the past performance
subfactors, quality was slightly more important than
on-time delivery.  

   [3] With regard to the submission of past performance information, the RFP
stated:  "Offerors shall submit . . . [a] description of your
Government/commercial contracts received or performed during the past
three years prior to closing of this solicitation.  In addition, the
Government has the right to consider information regarding contractor
performance up to the date of award."  RFP S L, amend. 3, at 3. 

   [4] The Army had redacted proprietary and source selection sensitive
information concerning the offerors in the source selection decision
document that it provided to FRC.

   [5] FRC also abandoned a number of its protest arguments (e.g., that the
agency failed to apply objective standards when rating proposals and that
the agency's system for assigning ratings was incoherent and
inconsistent).  The agency addressed these issues in its agency report and
FRC failed to respond in its comments.  See Planning Sys., Inc., B-292312,
July 29, 2003, 2004 CPD P 83 at 6. 

   [6] With regard to the evaluation of FRC's on-time delivery performance,
the record reflects that the agency considered one of FRC's Navy contracts
to be relevant. Based on a telephone conversation with the Navy, however,
the agency learned that first production of flares under the contract was
not due until August 15, 2004; thus the agency concluded that it could not
evaluate FRC under the on-time delivery subfactor and assigned FRC a
neutral rating of "unknown."  See AR, Tab 5B, Source Selection Evaluator
Reports for FRC; AR, Tab 9, Source Selection Decision, at 9.    

   [7] The record reflects that discrete teams of evaluators did in fact
separately conduct the evaluations under each of the four technical
subfactors and that the teams were provided only with the portion of an
offeror's proposal that was relevant to the subfactor under evaluation by
the team.  Thus, the team evaluating the manufacturing plan subfactor
received only the manufacturing plan portion of each offeror's proposal. 

   [8] In Kilgore Flares, Kilgore had suffered a serious explosion at its
production facilities in 2001 and discontinued production in connection
with an extended accident investigation.  As a consequence, Kilgore had
only just begun re-commencing production at the time it submitted a
proposal for a Navy flare procurement in 2003.  The Navy found Kilgore
nonresponsible based on its determination that Kilgore could not meet both
its backlog of existing flare delivery commitments, resulting from the
shutdown, as well as the Navy's requirements.  While Kilgore challenged
the Navy's finding, our Office concluded that the Navy's decision was
reasonable.  The case did not turn on an evaluation of Kilgore's past
performance.