TITLE: B-296194.3, TMC Design Corporation, August 10, 2005
BNUMBER: B-296194.3
DATE: August 10, 2005
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B-296194.3, TMC Design Corporation, August 10, 2005

   DOCUMENT FOR PUBLIC RELEASE
   The decision issued on the date below was subject to a GAO Protective
   Order. This redacted version has been approved for public release.

   Decision

   Matter of: TMC Design Corporation

   File: B-296194.3

   Date: August 10, 2005

   Robert H. Koehler, Esq., Patton Boggs LLP, for the protester.

   Capt. Victor G. Vogel, U.S. Army Materiel Command, for the agency.

   Jennifer D. Westfall-McGrail, Esq., and Christine S. Melody, Esq., Office
   of the General Counsel, GAO, participated in the preparation of the
   decision.

   DIGEST

   Agency properly excluded protester's proposal from the competitive range
   before field testing protester's hardware system samples where agency
   reasonably concluded that protester's written proposal contained
   weaknesses and deficiencies that could not be overcome through performance
   in field testing, and which rendered the proposal technically
   unacceptable.

   DECISION

   TMC Design Corporation protests the exclusion of its proposal from the
   competitive range prior to field testing of its hardware samples under
   request for proposals (RFP) No. W15P7T-05-S502, issued by the U.S. Army
   Communications-Electronics Life Cycle Management Command, Fort Monmouth,
   New Jersey, for a Counter Remote Control Improvised Explosive Device
   (RCIED) Electronic Warfare (CREW) System.

   We deny the protest.

   BACKGROUND

   The solicitation seeks to acquire a next-generation CREW system, to be
   used to prevent and defeat improvised explosive device ambushes
   [redacted]. The goal is to improve on the capabilities of the
   currently-fielded CREW system by providing for simultaneous coverage
   against all RCIED threats at increased ranges, broader frequency coverage
   extendable to higher frequencies, ease of programmability, reduced size,
   weight, and power, and built-in capacity for future growth.

   The RFP, which was issued on February 4, 2005, contemplated the award of
   one or more 4-year, indefinite-delivery/indefinite-quantity and
   time-and-materials contracts to the offerors whose proposals were
   determined most beneficial to the government. The solicitation provided
   for the evaluation of proposals on the basis of the following four
   factors, listed in order of importance: technical performance, price,
   performance risk, and small business participation. The technical
   performance factor included the following subfactors, listed in order of
   importance: technical approach, schedule and production capacity, and
   supportability. The solicitation advised offerors that to receive
   consideration for award, proposals had to be rated no less than acceptable
   under the technical performance factor, each of its three subfactors, and
   the small business participation factor.

   The RFP's Statement of Objectives identified Band A (required) and Band B
   (desired) capabilities of the systems to be procured. The RFP advised that
   the government would evaluate the offeror's ability to meet the Band A
   requirements, as well as any offered capabilities from Band B. The RFP
   further advised that failure to meet any Band A requirement would render a
   proposal unacceptable. Offerors were cautioned that "[u]nsupported
   promises to comply with contractual requirements will not be sufficient,"
   and that "[p]roposals must contain supporting rationale for any statements
   relating to proposed performance." RFP sect. M-3(C)(1). Similarly,
   offerors were advised that one of the criteria that would be considered in
   evaluating their proposals under the technical performance factor and its
   subfactors was completeness/adequacy of responses and that "[m]ere
   statements of compliance or repetition of the technical requirements
   without a complete discussion and analysis [are] unsatisfactory." Id.

   The solicitation required the submission of at least two hardware system
   samples for testing in a laboratory anechoic chamber at Fort Monmouth and
   in the field at Yuma Proving Ground in Arizona, with results of the
   testing to be considered in the evaluation of proposals under the
   technical approach subfactor. The solicitation provided that the test
   results would be used to verify the content of the offeror's written
   proposal and to help the government assess the risk in the offeror's
   ability to meet solicitation requirements. The RFP further provided that
   an offeror's failure to submit at least two system samples for laboratory
   anechoic chamber and Yuma Proving Ground testing at the time of proposal
   submission would render the offeror's proposal ineligible for award.

   Eight proposals were received by the March 21 closing date. TMC was
   randomly selected to proceed first with testing in the anechoic chamber.
   The testing began on March 23, but was aborted when the government
   determined that TMC's system samples, as submitted, were incomplete. By
   letter dated March 28, the contracting officer notified TMC that its
   proposal had been determined ineligible for award because the samples were
   incomplete. TMC protested to our Office. In response to the protest, the
   agency agreed to reinstate TMC in the competition and permit it to return
   to the anechoic chamber to continue testing. Upon receipt of notification
   from the agency that it had rescinded its determination of ineligibility
   and would allow the protester to resume testing, we dismissed TMC's
   protest as academic.

   The protester proceeded with chamber testing of its samples. On May 5, the
   agency notified TMC that its proposal had been excluded from the
   competitive range and thereby eliminated from the competition. The letter
   directed the protester's attention to section M-3 of the RFP, which placed
   offerors on notice that to receive consideration for award, a proposal had
   to be rated no less than acceptable under the technical performance factor
   and each of its three subfactors. The agency noted that TMC's proposal had
   been rated as follows:

   TECHNICAL PERFORMANCE FACTOR UNACCEPTABLE

     Technical Approach Unacceptable

     Schedule/Production Capacity Susceptible

     Supportability Susceptible

   PERFORMANCE RISK In progress

   SMALL BUSINESS PARTICIPATION Acceptable

   Agency Letter to Protester, May 5, 2005, at 1. On May 13, TMC protested
   the exclusion of its proposal from the competitive range to our Office.

   ANALYSIS

   TMC protests the exclusion of its proposal from the competitive range
   prior to field testing of its hardware samples. The protester contends
   that the solicitation did not provide for a competitive range
   determination until after completion of field testing.

   As a preliminary matter, while the agency's May 5 letter to the protester
   stated that TMC's proposal was excluded from the competitive range because
   it was not among the most highly rated proposals, suggesting that the
   protester's proposal was excluded based on comparison to other proposals,
   it is clear from other parts of the letter and the record that the
   proposal was in fact excluded because the agency determined it to be
   technically unacceptable. In this regard, we think that the agency's
   rating of TMC's proposal as unacceptable under both the technical
   performance factor and the technical approach subfactor can only
   reasonably be construed as a determination of technical unacceptability,
   given the RFP's admonition that ratings of no less than acceptable under
   the technical performance factor and each of its subfactors were required
   for a proposal to receive consideration for award. Similarly, as discussed
   below, the grounds for the agency's conclusion that the proposal was
   technically unacceptable are set out in the competitive range
   determination, which describes in detail the deficiencies in the proposal
   under the technical performance factor and the technical approach
   subfactor.

   It is well settled that a technically unacceptable proposal cannot be
   considered for award, LifeCare, Inc., B-291672, B-291672.2, Feb. 20, 2003,
   2003 CPD para. 95 at 4 n.13, 7, and thus properly may be excluded from the
   competitive range. CMC & Maint., Inc., B-290152, June 24, 2002, 2002 CPD
   para. 107 at 2. In our view, then, the issue is not whether it was proper
   for the agency to make a competitive range determination prior to field
   testing, but rather whether it was appropriate for the agency to reach a
   conclusion regarding the technical unacceptability of the protester's
   proposal prior to field testing. As we explain in further detail below,
   because it is clear from the record that the agency's determination of
   technical unacceptability was based on deficiencies and weaknesses in the
   protester's written proposal that could not have been overcome through
   performance on the field test, no matter how outstanding, we do not think
   that the agency acted improperly in determining TMC's proposal technically
   unacceptable prior to field testing.

   It is clear from the evaluation record that the protester's proposal was
   determined technically unacceptable due in large part to the proposal's
   lack of detail and elaboration regarding the capabilities of TMC's system
   vis-`a-vis the solicitation's requirements. In this regard, both the
   competitive range determination and the agency's May 5 letter to the
   protester noted that TMC's proposal had received a rating of unacceptable
   under the technical approach subfactor due to the lack of detail furnished
   in the proposal and its failure to address significant technical matters
   dealing with fundamental system capabilities. The letter and competitive
   range determination further noted that TMC's proposal did not demonstrate
   a clear understanding of the solicitation's requirements, with the
   proposal often merely repeating requirements or stating intended
   compliance without a complete discussion and/or analysis to substantiate
   the claims. The letter and competitive range determination concluded that
   a major rewrite of the proposal would be required to make it eligible for
   award.[1]

   The protester has not challenged the agency's conclusions regarding the
   deficiencies in its written proposal; its only argument is that these
   deficiencies could have been overcome through performance on the field
   test. It was clear from the terms of the solicitation that offerors were
   required to demonstrate compliance with the Band A requirements in their
   written proposals and that the test results would be used to verify that
   compliance, but were not a substitute for the proposal requirements. Thus,
   we think that it was clear that the test results could not be used to cure
   deficiencies in a written proposal. Accordingly, we are persuaded that the
   agency reasonably concluded that the deficiencies in TMC's proposal could
   not have been overcome through further testing of its samples.

   TMC also argues that the agency improperly failed to consider price and
   performance risk in determining to exclude its proposal from the
   competitive range. While an agency may not exclude a technically
   acceptable proposal from the competitive range without consideration of
   price, Kathpal Techs., Inc.; Computer & Hi-Tech Mgmt., Inc., B-283137.3 et
   al., Dec. 30, 1999, 2000 CPD para. 6 at 9, where, as here, the agency
   reasonably concludes that a proposal is technically unacceptable, and thus
   cannot be considered for award, it is proper to exclude the proposal from
   the competitive range without considering price. LifeCare, Inc., supra;
   Aid Maint. Co., Inc.; TEAM Inc., B-255552, B-255552.2, Mar. 9, 1994, 94-1
   CPD para. 188 at 8. Similarly, given TMC's unacceptable rating under the
   technical performance factor, which rendered the proposal as a whole
   technically unacceptable, its rating under the performance risk criterion
   is irrelevant.[2]

   The protest is denied.

   Anthony H. Gamboa

   General Counsel

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

   [1] Details regarding the deficiencies and weaknesses in the protester's
   proposal were furnished in briefings to the source selection advisory
   council (SSAC) and the source selection authority (SSA). The briefing
   documents identified 12 deficiencies and 11 weaknesses in TMC's proposal,
   including the following:

   --System architecture not adequately described
   --No technical detail on major hardware components
   --Proposed SOW [Statement of Work] is merely a reiteration of the SOO
   --Proposed Performance Specification is merely a reiteration of the
   Government
   PBS [Performance Based Specification]
   --Growth is not addressed
   --Programming is not described with any detail.

   SSAC and SSA Briefings at 29.

   [2] While the protester also initially alleged that the agency was biased
   against it, it abandoned this argument in its comments. Moreover, we see
   no evidence of bias in the record.