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.