TITLE: B-297323, L-3 Systems Company Wescam Sonoma, Inc., December 3, 2005
BNUMBER: B-297323
DATE: December 3, 2005
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B-297323, L-3 Systems Company Wescam Sonoma, Inc., December 3, 2005

   Decision

   Matter of: L-3 Systems Company Wescam Sonoma, Inc.

   File: B-297323

   Date: December 3, 2005

   Kathleen Little, Esq., Amanda J. Kastell, Esq., and Amy R. Napier, Esq.,
   Vinson & Elkins LLP, for the protester.

   John S. Pachter, Esq., Jonathan D. Shaffer, Esq., Tamara F. Dunlap, Esq.,
   and Erin R. Karsman, Esq., Smith Pachter McWhorter & Allen PLC, for FLIR
   Systems, Inc., an intervenor.

   Angela J. Cosentino, Esq., Naval Sea Systems Command, 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 is dismissed as untimely where protester learned of independent
   bases for protest as a result of letter from agency, but raised the issues
   with our Office more than 10 days later in its comments on the agency
   report.

   DECISION

   L-3 Systems Company Wescam Sonoma, Inc. (Wescam) protests the award of a
   contract to FLIR Systems, Inc. under request for proposals (RFP) No.
   N00164-04-R-8534, issued by the Department of the Navy, Naval Sea Systems
   Command, for electro-optic sensor systems.

   We dismiss the protest.

   The RFP, issued on September 17, 2004, contemplated the award of an
   indefinite-delivery/indefinite quantity (ID/IQ) contract, with fixed unit
   prices for orders of electro-optic sensor systems over a period a period
   of 5 years. As amended, the solicitation provided the Navy would order a
   minimum quantity of one unit and a maximum quantity of 94 units over the
   5-year contract term. Award was to be made on a "best value" basis
   considering three evaluation factors, price, technical, and past
   performance. The technical factor included three subfactors: (1) product
   sample; (2) performance specification compliance; and (3) statement of
   work compliance.

   As a general matter, offerors were "encouraged to submit multiple offers
   presenting alternative terms and conditions or commercial items satisfying
   the requirements of [the] solicitation." RFP, Instructions to Offerors,
   Federal Acquisition Regulation (FAR) sect. 52.212-1(e). Under a section
   entitled "Alternate Proposals," the RFP advised as follows:

     Offerors may submit more than one proposal, each of which must satisfy
     the mandatory requirements of the solicitation, including any Benchmark
     Tests, in order to be considered. As a minimum, one of the proposals
     submitted must be complete. The alternative proposal(s) may be in an
     abbreviated form following the same section format, but providing only
     those sections which differ in any way from those contained in the
     original proposal. . . . If alternate proposals are submitted, such
     alternatives will be clearly labeled and identified on the cover page of
     each separate document. The reason for each alternate and its
     comparative benefits shall be explained. Each proposal will be evaluated
     on its own merits.

   RFP, Instructions to Offerors, FAR sect. 52.212-1 addend.

   As part of the technical evaluation, offerors were required to submit
   product samples for testing and evaluation. In this regard, the RFP
   instructed:

     (e) Product Samples are to be submitted to the [point of contact (POC)]
     on page 1 at the same time technical proposal[s] are required . . . .
     One unit (Electro Optic System) is required as a product sample. If
     alternate proposals are submitted one product sample per system type is
     to be provided. The product sample will be tested to ensure compliance
     with the technical requirements.

   Id.

   With regard to price, the RFP provided under "CLIN 0001" for unit prices
   within "stepladder quantities" for each year of the contract term as
   follows:

   +------------------------------------------------------------------------+
   |                  |     |Year 1  |Year 2   |Year 3   |Year 4   |Year 5  |
   |------------------+-----+--------+---------+---------+---------+--------|
   |Pricing Quantity  |    2|$_____  |$_____   |$_____   |$_____   |$_____  |
   |------------------+-----+--------+---------+---------+---------+--------|
   |Pricing Quantity  |    6|$_____  |$_____   |$_____   |$_____   |$_____  |
   |------------------+-----+--------+---------+---------+---------+--------|
   |Pricing Quantity  |   11|$_____  |$_____   |$_____   |$_____   |$_____  |
   |------------------+-----+--------+---------+---------+---------+--------|
   |Pricing Quantity  |   21|$_____  |$_____   |$_____   |$_____   |$_____  |
   |------------------+-----+--------+---------+---------+---------+--------|
   |Pricing Quantity  |   51|$_____  |$_____   |$_____   |$_____   |$_____  |
   +------------------------------------------------------------------------+

   RFP amend. 2, CLIN 0001.

   The Navy received timely proposal submissions from Wescam and FLIR. As
   required by the RFP, Wescam included a product sample with its initial
   proposal submission and, after an initial round of evaluations, the agency
   sought final proposal revisions from the offerors. With its final
   proposal, Wescam submitted several alternate proposals, but did not submit
   product samples with any of these alternates. As part of its final
   evaluation of proposals, the Navy did not consider Wescam's alternate
   proposals because it considered them to be "late offers" and because they
   did not include "product samples for the exact systems." Agency Report
   (AR), Tab 15, Post Negotiation Business Clearance Memorandum, at 5. In
   evaluating price, the contracting officer calculated each offeror's total
   price assuming what the Navy characterized as a "worst case scenario," a
   total order of 94 units in year five based on a single unit price
   quantity. Id. at 6. As a result of its evaluation, the Navy determined
   that FLIR's offer represented the best value.

   By letter dated September 20, the Navy notified Wescam of the award
   decision, identified Wescam's total evaluated price, as well as that of
   FLIR, and explained that its "alternate proposals were not evaluated as
   they were considered late offers." AR, Tab 18, Letter from Navy to Wescam,
   Sept. 20, 2005. In response, Wescam sent the Navy a letter requesting a
   postaward debriefing and further indicated that it disagreed with the
   agency's rejection of its alternate proposals as late offers. AR, Tab 20,
   Letter from Wescam to Navy, Sept. 23, 2005.

   In a letter dated September 30, the Navy responded as follows:

     The alternate proposals were received after close of the solicitation.
     Further, the late offers also did not meet the requirements as specified
     in 52.212-1: `(e) Product Samples are to be submitted to the POC on page
     1 . . . .' Wescam did not advise during negotiations that alternate
     systems would be proposed and did not submit product samples for the
     alternate proposals.

   AR, Tab 21, Letter from Navy to Wescam, Sept. 30, 2005.[1]

   In addition, the Navy responded to a concern raised to the agency by
   Wescam in a September 26 e-mail message questioning how the agency had
   calculated the offerors' total evaluated prices. Specifically, the Navy
   provided its calculation of the awardee's and Wescam's total prices, thus
   revealing that the agency had calculated prices based on the purchase of
   94 total units, one unit at a time, at an offeror's fifth year unit price.
   Id.

   Also on September 30, Wescam filed a protest with our Office arguing that:
   (1) "[t]he agency's failure to consider Wecam's alternate proposals
   because they were `late offers' is contrary to the terms of the
   Solicitation and the applicable GAO case law"; and (2) the Navy's award
   decision was based upon a calculation of evaluated prices that was not
   supported by the evaluation criteria and was clearly wrong. Protest at 6.
   With regard to the second issue, Wescam added the caveat that it was
   unable to ascertain how the Navy calculated its price or the price of the
   awardee without receiving further information from the Navy. Protest at 8.

   On November 1, the Navy provided the parties and our Office with the
   contracting documents relevant to the issues in the case, including the
   agency's September 30 letter to Wescam, and on November 7, the Navy
   submitted its report addressing the two issues raised in the protest. With
   regard to the first issue, the Navy effectively conceded the protester's
   contention that it would have been improper to reject Wescam's alternate
   proposals on the ground that they were late, but reiterated its alternate
   position, which it had articulated in the September 30 letter to the
   protester, that it did not evaluate Wescam's alternate proposals because
   they failed to include product samples as required by the solicitation.
   With regard to the price evaluation issue, the agency again reiterated its
   September 30 price calculation explanation and noted that the solicitation
   did not specify a particular method for calculating offerors' total
   prices.

   In its November 18 comments on the agency report, Wescam withdrew its
   protest related to two of its alternate proposals, noting that it had
   failed to submit product samples as required by the solicitation for these
   alternative proposals. With regard to one of its alternate proposals,
   however, Wescam argued, for the first time, that the Navy's decision not
   to consider its "Alternate A" proposal, because Wescam did not provide a
   product sample in connection with this alternate offer, was contrary to
   the terms of the solicitation. Protester's Comments at 5. According to
   Wescam, a product sample was not required because it had submitted a
   product sample with its initial proposal for the same system type as its
   Alternate A proposal. Id. In support of this contention Wescam provides a
   detailed discussion of the similarities between its original product
   sample and the system proposed in its Alternate A offer.

   Wescam also challenged, in its comments, the specific price evaluation
   methodology used by the Navy. According to Wescam, the Navy's "worst-case"
   calculation of offerors' total prices, which was based on an assumed
   purchase of 94 units in year five, one unit at a time, did not bear any
   relation to the Navy's anticipated needs and was therefore misleading and
   unreasonable. Id. at 11.

   As a general matter, under our Bid Protest Regulations, protests based on
   other than solicitation improprieties must be filed within 10 days of when
   the protester knew or should have known their bases. 4 C.F.R. sect.
   21.2(a)(2) (2005). Moreover, where a protester initially files a timely
   protest, and later supplements it with independent grounds of protest, the
   later-raised allegations must independently satisfy the timeliness
   requirements, since our Regulations do not contemplate the unwarranted
   piecemeal presentation or development of protest issues. FR
   Countermeasures Inc., B-295375, Feb. 10, 2005, 2005 CPD para. 52 at 9.

   Here, in its November 18 comments, Wescam challenges, for the first time,
   the Navy's rejection of one of its alternate proposals because Wescam did
   not provide the agency with a product sample for the alternate offer, as
   well as the specific price evaluation methodology used by the Navy. The
   record, however, demonstrates that Wescam knew or should have known of
   these issues as a result of the Navy's September 30 letter to Wescam. The
   letter specifically informed Wescam that, aside from rejecting its
   alternate proposals as late, the Navy did not consider its alternate
   proposals because Wescam did not provide the agency with product samples
   for the alternate offers. The letter also put Wescam on notice of the
   agency's price evaluation methodology--information, which, as noted above,
   Wescam asserted in its initial protest was required to assess the basis of
   the agency price evaluation. Because Wescam first raised these challenges
   in its November 18 comments on the agency report, more than 10 days after
   it learned of these bases for protest, Wescam's challenges are untimely.

   Wescam maintains that the contentions presented in its comments are not
   untimely because they merely provide further support for its general
   protest contentions that the Navy improperly failed to consider its
   alternate proposals and that the agency's price evaluation was
   unreasonable, and that the issues raised therefore are not independent
   protest grounds. Wescam's reliance on general articulations of its bases
   of protest is misplace. Where a protester raises a broad ground of protest
   in its initial submission but fails to provide details within its
   knowledge until later, so that a further response from the agency would be
   needed to adequately review the matter, these later, more specific
   arguments and issues cannot be considered unless they independently
   satisfy the timeliness requirements under our Bid Protest Regulations.
   Biospherics, Inc., B-285065, July 13, 2000, 2000 CPD para. 118 at 12-13.
   In this regard, we have found supplemental protest grounds untimely which
   present "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. QualMed,
   Inc., B-257184.2, Jan. 27, 1995, 95-1 CPD para. 94 at 12-13.

   The protest is dismissed.

   Anthony H. Gamboa

   General Counsel

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

   [1] The Navy indicated that it sent the letter to Wescam via e-mail that
   day and then followed up with a telephone call to Wescam; the protester
   has not contested its receipt of the letter on September 30.