TITLE: B-297176, Raloid Corporation, November 10, 2005
BNUMBER: B-297176
DATE: November 10, 2005
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B-297176, Raloid Corporation, November 10, 2005

   Decision

   Matter of: Raloid Corporation

   File: B-297176

   Date: November 10, 2005

   Anthony Jadra for the protester.

   George C. H. Chou for DE Technologies, Inc., an intervenor.

   Timothy Lasko, Esq., Department of the Navy, for the agency.

   Linda C. Glass, Esq., and Michael R. Golden, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1. Protest is denied where the record shows that the agency's evaluation
   was reasonable and consistent with the solicitation's evaluation factors.

   2. Where proposal, on its face, does not reasonably lead the agency to
   conclude that the offeror will not comply with the subcontracting
   limitation contained in the solicitation, the offeror's compliance
   concerns a matter of responsibility or contract administration not for
   review by the Government Accountability Office.

   DECISION

   Raloid Corporation protests the award of a contract to DE Technologies,
   Inc. (DET) under request for proposals (RFP) No. N68335-05-R-0046, issued
   by the Department of the Navy for aircraft adapters. The protester
   primarily objects to the agency's evaluation of the Raloid and DET
   proposals.

   We deny the protest.

   The solicitation was issued on February 1, 2005 for one pre-production
   ADU-876/E aircraft adapter unit and 450 production units.[1] The
   solicitation also contained four 1-year option periods for 450 units per
   option year, for a total of 2,250 production units manufactured in
   accordance with a government-furnished drawing package.

   The RFP provided that award would be made on a "best value" basis. The RFP
   listed the following evaluation factors and subfactors: (1) technical
   ((a) technical approach, consisting of manufacturing, assembly, and
   welding; production evaluation, testing, and quality assurance; and
   production plan, and (b) management, consisting of manufacturing capacity,
   facilities, and personnel resources; management approach; quality
   assurance program; and extent of small business and small disadvantaged
   business participation); (2) past performance (quality of product and
   processes; timeliness of performance; business professionalism and
   business relations; and customer satisfaction; (3) experience (similarity
   of product and similarity of environment); and (4) price. RFP para. M.27.

   Under the RFP, the technical evaluation factor was more important than the
   past performance and experience evaluation factors and the past
   performance and experience evaluation factors were equal in importance.
   The evaluation subfactors under the technical and past performance
   evaluation factors were listed in descending order of importance and the
   experience subfactors were identified as equal in importance. Offerors
   were further advised that price was significantly less important than the
   non-price evaluation factors combined, but the degree of importance of
   price would increase with the degree of equality of the proposals.

   The agency received 18 proposals by the closing date. As relevant here, as
   a result of the agency's evaluation, two proposals, including DET's, were
   rated highly satisfactory and low risk under the technical evaluation
   factor and the proposals of both of these offerors received a low risk
   rating under the past performance and experience evaluation factors.
   Agency Report (AR), Tab 2, Source Selection Evaluation Board (SSEB)
   Evaluation Summary. DET, whose proposal was rated highly satisfactory
   overall, proposed the lowest total price of all offerors. The cost
   evaluation team determined that DET's proposed price was reasonable. DET
   was requested to verify its price to ensure that its price proposal did
   not contain any mistakes; DET subsequently confirmed its price. AR, Tab 3,
   E-mail from DET to Agency. Raloid's proposal was rated satisfactory and
   low risk under the technical evaluation factor, and low risk for both the
   past performance and experience evaluation factors. AR, Tab 6, Business
   Clearance Memorandum, at 15. Raloid submitted the lowest price of the six
   proposals rated satisfactory overall. Id. at 20. Raloid's price was
   significantly higher than DET's.

   The source selection advisory counsel (SSAC) recommended to the source
   selection authority that DET be selected for award because its proposal
   represented the best value to the government based on DET having submitted
   one of the two highest rated proposals at the lowest overall evaluated
   price. AR, Tab 4, SSAC Source Selection Memorandum. Following the Small
   Business Administration's dismissal of Raloid's size status challenge to
   DET, award was made to DET on August 19. After receiving a debriefing,
   Raloid filed this protest with our Office on September 6.

   Regarding the evaluation of DET's proposal, the protester maintains that
   DET cannot satisfy any of the RFP requirements because DET has no
   documented quality assurance system and lacks the equipment, employees,
   and facilities necessary to perform the requirement.

   For the technical evaluation factor, based on the agency's rating of DET's
   proposal as highly satisfactory and low risk under the technical approach
   subfactor and as satisfactory and low risk under the management subfactor,
   the agency rated DET's proposal as highly satisfactory with low risk
   overall. AR, Tab 6, Business Clearance Memorandum, at 18. Specifically,
   under the technical approach subfactor, the evaluators found that DET
   provided detailed explanations of how components and subassemblies would
   be fabricated and DET described its plans for the manufacture of each
   part. The agency also found that DET provided exceptional detail,
   including illustrations, of how its manufacturing approach would minimize
   warping and deflection during welding operations. In its proposal, the
   evaluators noted that DET provided several other benefits, including a
   detailed plan for the pre-production unit and a commitment to provide the
   unit earlier than required under the RFP. With respect to the management
   subfactor, the evaluators found that DET described in detail its system to
   manage and track the project and provided details on its key personnel and
   its experience and qualifications. The agency also found that DET's
   quality assurance system exceeded the requirements of the RFP.

   DET's proposal received a low risk rating under the experience evaluation
   factor. DET provided information on five relevant, similar contracts, all
   of which required the type of machining, welding, finishing, and assembly
   required for this procurement. The agency noted that DET also previously
   manufactured other adapters using similar design configurations and
   manufacturing approaches. AR, Tab 2, SSEB Evaluation Summary. Under the
   past performance evaluation factor, the agency found that all of DET's
   contracts were "performed well in terms of schedule and quality." Id.
   Additionally, DET had eight contracts listed in the contractor past
   performance assessment report system--three contracts which were rated
   very good and five contracts which were rated exceptional.[2] As a result
   of this information, DET was rated low risk under the past performance
   evaluation factor.

   Based on its evaluation of DET's proposal under the non-price evaluation
   factors, the agency concluded that DET had the manufacturing, assembly,
   welding, and management capability, as well as the experience and
   performance record, necessary to successfully execute the aircraft adapter
   project.[3] In short, the agency's evaluation of DET's proposal is
   documented and reasonable. While Raloid believes that DET does not have
   the necessary resources to perform, Raloid's protest in this regard
   constitutes nothing more than mere disagreement with the agency's
   evaluation of DET's capabilities as reflected in its proposal. Such
   disagreement, however, does not demonstrate that the evaluation was
   unreasonable or inconsistent with the evaluation factors. See McDonnell
   Douglas Corp., B-259694.2, B-259694.3, June 16, 1995, 95-2 CPD para. 51 at
   18.

   Raloid also questions whether DET will comply with the limitations on
   subcontracting provision at Federal Acquisition Regulation (FAR) sect.
   52.219-14 contained in the RFP because, in its view, DET does not have
   adequate facilities, equipment, or employees to manufacture the adapters.

   The FAR limitations on subcontracting provision requires that a prime
   contractor perform at least 50 percent of the cost of the contract
   incurred for personnel with its own employees. An agency's judgment as to
   whether a small business offeror will comply with the limitations on
   subcontracting provision is a matter of responsibility and the
   contractor's actual compliance with the provision is a matter of contract
   administration. Coffman Specialties, Inc., B-284546, B-284546.2, May 10,
   2000, 2000 CPD para. 77 at 5. However, where a proposal, on its face,
   should lead an agency to the conclusion that an offeror could not and
   would not comply with the subcontracting limitation, the proposal may not
   form the basis for an award. KIRA, Inc., B-287573.4, B-287573.5, Aug. 29,
   2001, 2001 CPD para. 153 at 3. There is nothing on the face of DET's
   proposal evidencing that the firm cannot and will not comply with the
   RFP's subcontracting limitation provision. Accordingly, we have no basis
   to question the agency's reliance on DET's representations in concluding
   that DET agreed to perform as required.[4]

   Raloid contends that its proposal was not fairly evaluated, maintaining
   that it demonstrated superior and outstanding benefits through its
   certified quality assurance system and its previous experience building
   the adapters.

   Under the technical evaluation factor, the evaluators rated Raloid's
   proposal as satisfactory with low risk. AR, Tab 2, SSEB Evaluation
   Summary. The RFP required offerors to provide a detailed discussion of
   their manufacturing and assembly approach, including manufacturing,
   welding, and assembly techniques, equipment to be used, and requirements
   for specialized equipment, tools, and fixtures. RFP para. L.I.A. The
   proposal narrative was to include a description of how any specialized
   equipment, tools, and fixtures would be used in the process. Id. The
   evaluators found that Raloid's proposal lacked detail in certain areas,
   such as its failure to describe the process for fabrication of individual
   major components. The evaluators also noted that Raloid's proposal did not
   fully identify assembly line layout and did not adequately address the
   pre-production unit test equipment. The evaluators also noted that Raloid
   stated that it "will be formulating processing and designing . . . [for
   the] fixtures required," but did not describe the processes in the detail
   required by the RFP. AR, Tab 16, Affidavit of SSEB Chairperson. While
   recognizing that Raloid's proposal provided some potential benefits, such
   as noting that Raloid, like DET, had a certified quality assurance system
   that exceeded the RFP requirement, the evaluators concluded that, based on
   Raloid's lack of detail concerning its proposed manufacturing and assembly
   processes, Raloid's technical proposal merited a rating not higher than
   satisfactory overall. Although Raloid expresses general disagreement with
   its rating, Raloid does not meaningfully rebut the agency's evaluation
   concerns. Based on our review of the record, we have no basis to question
   the reasonableness of the agency's evaluation of Raloid's proposal.[5]

   The protest is denied.

   Anthony H. Gamboa

   General Counsel

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

   [1] The adapter is used primarily to transport air-launched weapons and
   stores from the magazine and storage sites to the aircraft and is part of
   the ground support equipment for the United States Marine Corps
   Expeditionary Airfields. The adapter is secured to the bed of a trailer.
   Contracting Officer's Statement at 2.

   [2] The protester argues that the evaluation was improper because members
   of the evaluation team had, and considered, recent, first-hand knowledge
   of the performance of both DET and the other highly rated offerors.
   However, the RFP specified that references other than those identified by
   the offeror in its proposal may be contacted by the government for
   information to be used in the evaluation of the offeror's past
   performance. RFP at 43. Moreover, an evaluator's personal knowledge of an
   offeror may properly be considered in a past performance evaluation. Omega
   World Travel, Inc., B-271262.2, July 25, 1996, 96-2 CPD para. 44 at 4.

   [3] The agency reports that during a post-award meeting, the awardee's
   plant layout and equipment were verified. AR, Tab 16, Affidavit of SSEB
   Chairperson.

   [4] Raloid also argues that DET's price is unreasonably low. With respect
   to a fixed-price award, a protester's claim that an offeror submitted an
   unreasonably low price--even that the price is below the cost of
   performance--is not a valid basis for protest. An offeror, in its business
   judgment, properly may decide to submit a price that is extremely low.
   Diemaster Tool, Inc., B-238877, Apr. 5, 1990, 90-1 CPD para. 375 at 2. An
   agency decision that the firm can perform the contract at the offered
   price is an affirmative determination of responsibility, which we will not
   review except in circumstances not alleged here. Bid Protest Regulations,
   4 C.F.R. sect. 21.5(c) (2005).

   [5] Raloid suggests that some of the evaluators were biased in favor of
   the awardee because of prior experience with the awardee. Government
   officials are presumed to act in good faith; we will not attribute unfair
   or prejudicial motives to procurement officials on the basis of inference
   or supposition. Triton Marine Constr. Corp., B-250856, Feb. 23, 1993, 93-1
   CPD para. 171 at 6. Accordingly, Raloid's speculation in this regard
   provides no basis to question the award. Raloid also complains that the
   agency did not respond to its Freedom of Information Act (FOIA) request
   for information related to this procurement. Our Office has no authority
   to determine what information an agency must disclose in connection with a
   party's request to an agency under FOIA. The protester's recourse in this
   regard is to pursue the disclosure under the remedies provided by FOIA.
   LNM Corp., B-247669, Apr. 29, 1992, 92-1 CPD para. 405 at 2.