TITLE: B-297447.2, Gemmo-CCC, July 13, 2006
BNUMBER: B-297447.2
DATE: July 13, 2006
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B-297447.2, Gemmo-CCC, July 13, 2006

   Decision

   Matter of: Gemmo-CCC

   File: B-297447.2

   Date: July 13, 2006

   Reed von Maur, Esq., for the protester.

   Damon A. Martin, Esq., Naval Facilities Engineering Command, for the
   agency.

   Susan K. McAuliffe, Esq., and Christine S. Melody, Esq., Office of the
   General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

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

   2. Protest that agency should have engaged in clarifications with
   protester to resolve material omissions in its proposal is denied since
   any such exchange would have constituted discussions, not clarifications,
   and agency generally has no obligation to hold discussions where, as in
   the solicitation at issue, it put offerors on notice of its intent to make
   award on the basis of initial proposals.

   DECISION

   Gemmo-CCC protests the award of a contract to Consortium
   Montservis-DeFranceschi under request for proposals (RFP) No.
   N33191-02-R-1063, issued by the Department of the Navy to upgrade the
   electrical power distribution system at Aviano Air Base, Italy. The
   protester contends that the evaluation of proposals was improper and that
   the firm should have been given an opportunity to cure a cited deficiency
   in its proposal regarding its omission of low voltage switchboard
   equipment vendor product data, and other cited weaknesses in the proposal.

   We deny the protest.

   The RFP, issued on June 10, 2005, contemplated the award of a fixed-price
   contract to the firm with the proposal determined to offer the best value
   to the agency considering organizational past performance, technical
   approach, and price; the first two factors were of equal importance, and,
   combined, were equally weighted with price. RFP at 19. The RFP instructed
   that initial proposals were to contain the firms' best terms, since award
   upon initial proposals was anticipated, without conducting discussions
   (although the agency reserved the right to conduct discussions, if
   determined necessary). Id. at 13, 17.

   For the evaluation of past performance, each offeror was to demonstrate
   its successful management of relevant and similar contracts within
   parameters set out in the solicitation. For the evaluation of technical
   approach, each offeror was to provide vendor product data sheets to
   demonstrate that the equipment it proposed complies with industry
   standards and solicitation specifications, and that it is a regularly
   produced design. Id. at 20. Vendor product data sheets were to be provided
   for seven types of proposed equipment: high voltage switchgear, low
   voltage switchboard, cast resin transformer, medium voltage cable, medium
   voltage terminator, medium voltage splice, and protective relay system.
   RFP amend. 3, at 2. Vendor product data sheets detailing this equipment
   were to describe its main characteristics, product standards, dimensions
   and ratings, ordering codes, warranty, and manufacturer-recommended
   maintenance requirements. Id.

   Adjectival ratings were to be assigned to the proposals under the past
   performance and technical approach evaluation factors. Ratings were to
   range from "excellent" to "poor" (the latter rating was to be assigned
   where a proposal contained "major errors, omissions, significant
   weaknesses and/or deficiencies"). RFP at 17-18. The RFP further advised
   that only proposals rated at least "satisfactory" were to be considered
   for award; a proposal rated "marginal" or "poor" in any category, if not
   improved through discussions, would result in the overall technical
   proposal being rated "marginal" or "poor" and thus ineligible for award.
   Id. at 19.

   Six proposals were received and evaluated. The initial award, made to
   Consortium Montservis-DeFranceschi on September 23, 2005, was protested by
   Gemmo-CCC; that protest was dismissed as academic after the agency
   reported that it was going to reevaluate the proposals. On March 27, 2006,
   Gemmo-CCC was informed that upon reevaluation, its technical proposal,
   cited as having a deficiency for omitting required vendor product data,
   was rated "poor" and deemed ineligible for award. Award was made without
   discussions to Consortium Montservis-DeFranceschi, the firm submitting the
   only technically acceptable proposal; the awardee's proposal, rated "good"
   overall, was found to offer a reasonable price as it was the third low
   price received of the six proposals and it was below the agency's cost
   estimate for the work. This protest followed.

   Gemmo-CCC initially challenges the evaluation of its proposal as "poor"
   under the technical approach factor for omitting data regarding its low
   voltage switchboard. The protester generally argues that, contrary to the
   technical evaluation board's (TEB) report which cited a deficiency in the
   firm's proposal "because no data was provided" for the low voltage
   switchboard, TEB Report at 13, it did include detailed low voltage
   switchboard equipment data in an attachment to its proposal. Gemmo-CCC
   contends the agency improperly failed to give its proposal credit for the
   low voltage switchboard data it provided to meet the RFP's vendor product
   data requirement for that equipment.

   In response, the agency reports that despite the statement in the TEB
   report that "no data" was provided for Gemmo-CCC's low voltage
   switchboard, evaluator weeksheets supporting that report more accurately
   explain that, although the agency recognized that some vendor product data
   information was provided in the firm's proposal, for a limited number of
   low voltage switchboard components, including circuit breakers, the data
   was not sufficient to allow evaluation of whether Gemmo-CCCs' proposed
   equipment met the RFP's requirements.[1] For example, the agency reports,
   the data did not clearly identify which manufacturer's low voltage
   switchboard equipment was proposed or which model and components were to
   be provided to perform the project requirements; the agency adds that the
   lack of information also precluded its evaluation of whether the proposed
   equipment was a regularly produced design meeting industry standards and
   RFP specifications, as required.

   Where a protester challenges an agency's evaluation of a technical
   proposal, our review is limited to considering whether the agency's
   judgment was reasonable and consistent with the stated evaluation criteria
   and applicable procurement statutes and regulations. See Knoll, Inc.;
   Steelcase, Inc., B-294986.3, B-294986.4, Mar. 18, 2005, 2005 CPD para. 63
   at 3. Clearly stated RFP technical requirements are considered material to
   the needs of the government, and a proposal that fails to conform to such
   material terms is technically unacceptable and may not form the basis for
   award. Id.; National Shower Express, Inc.; Rickaby Fire Support, B-293970,
   B-293970.2, July 15, 2004, 2004 CPD para. 140 at 4-5. An offeror is
   responsible for affirmatively demonstrating the merits of its proposal and
   risks rejection of its proposal if it fails to do so. HDL Research Lab,
   Inc., B-294959, Dec. 21, 2004, 2005 CPD para. 8 at 5. Our review of the
   record provides us no basis to find that the agency's evaluation here was
   unreasonable or otherwise objectionable.

    

   As set forth above, the solicitation informed all offerors of the detailed
   vendor product data sheets required for evaluation of proposed equipment,
   and to show it is a regularly produced design. Gemmo-CCC does not dispute
   that its proposal was required to describe its proposed low voltage
   switchboard equipment by detailing main characteristics, product
   standards, dimensions and ratings, ordering codes, warranty, and
   manufacturer-recommended maintenance requirements. The protester, however,
   does not demonstrate in any persuasive way that its proposal contains all
   of this required data. Rather, the firm only generally states that it
   attached several vendor product data sheets to an electronic file of its
   proposal which was labeled as relating to low voltage switchboard
   equipment. Our review of the data identified by the protester confirms the
   reasonableness of the agency's conclusion that the data does not
   demonstrate, for instance, which low voltage switchboard equipment models
   (among several included in the catalog pages and descriptive product data
   sheets it provided) or which of various pictured accessories the firm
   proposes to use to meet the RFP's requirements. Our review further
   confirms the reasonableness of the agency's position that while certain
   related components, including circuit breakers and controllers, are
   generally referenced in the proposal attachment cited by Gemmo-CCC, the
   protester has not pointed to where in that data it included, for instance,
   a clear identification of the actual low voltage switchboard equipment it
   proposes to meet the RFP's requirements, or the required information
   regarding proposed accessories, warranty terms, or
   manufacturer-recommended maintenance requirements.

   It is an offeror's obligation to submit an adequately written proposal for
   the agency to evaluate. See Independence Constr., Inc., B-292052, May 19,
   2003, 2003 CPD para. 105 at 5. Here, as the agency reports, the omissions
   in the firm's low voltage switchboard data alone justify the "poor" rating
   given the proposal, as those material omissions clearly precluded a
   meaningful evaluation of required equipment. Accordingly, given the RFP
   requirement that only satisfactory proposals would be eligible for award,
   we see no basis to question either the reasonableness of the evaluation or
   the removal of the protester's proposal from further consideration for
   award.[2] The fact that a protester does not agree with an agency's
   evaluation of its proposal does not render the evaluation unreasonable.[3]
   See Idaho Norland Corp., B-230598, June 6, 1988, 88-1 CPD para. 529 at 4.

   Gemmo-CCC next asserts that in light of the protester's substantially
   lower price, the agency should have informed it of any omitted vendor
   product data and allowed the firm to cure the proposed defect. Any further
   opportunity for Gemmo-CCC to provide such information would not be
   clarifications, as the protester suggests, but rather would constitute
   discussions, since it would involve submission of information necessary to
   make the proposal acceptable. Lockheed Martin Simulation, Training &
   Support, B-292836.8 et al., Nov. 24, 2004, 2005 CPD para. 27 at 8. There
   is generally no obligation that a contracting agency conduct discussions
   where, as here, the RFP specifically instructed offerors of the agency's
   intent to award a contract on the basis of initial proposals without
   conducting discussions. See Colmek Sys. Eng'g, B-291931.2, July 9, 2003,
   2003 CPD para. 123 at 7. Contrary to the protester's assertion that the
   agency was required to hold discussions before making award in light of
   the protester's lower price, an agency is not precluded from awarding on
   the basis of initial proposals basis merely because an unacceptable
   lower-priced offer might be made acceptable through discussions. See
   Integration Techs. Group, Inc., B-274288.5, June 13, 1997, 97-1 CPD para.
   214 at 6. Further, a contracting officer's discretion in deciding not to
   hold discussions is quite broad, and our Office will review the exercise
   of that discretion only to ensure that it was reasonable based on the
   particular circumstances of the procurement. Id. Here, Gemmo has provided
   no basis, nor have we found one in the record, to call into question the
   agency's decision not to engage in discussions.[4]

   The protest is denied.

   Gary L. Kepplinger

   General Counsel

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

   [1] The record contains affidavits from a TEB member as well as the source
   selection authority (SSA) affirming that, despite the TEB report stating
   that no data was submitted, both the TEB and SSA considered the limited
   vendor product data in the Gemmo-CCC proposal regarding the low voltage
   switchboard, but found it materially insufficient and, consequently,
   assessed the proposal as "poor."

   [2] Given the reasonableness of the agency's assessment of the proposal as
   "poor" for failure to provide the required low voltage switchboard vendor
   product data, rendering the overall proposal "poor" and ineligible for
   award under the terms of the RFP, we need not discuss the remaining
   challenges raised by the protester regarding several other weaknesses
   found in the firm's proposal (e.g., regarding proposal information in
   other than the English language, or the protester's contention that
   several of its products that were found not to meet RFP specifications are
   functionally equivalent or meet more recent specifications than those
   included in the RFP).

   [3] Similarly, the protester's disagreement with the agency's evaluation
   of the awardee's past performance provides no basis to question the award
   here. While Gemmo-CCC challenges the agency's acceptance of the awardee's
   claim that a contract performed by one of its consortium members met the
   RFP's price threshold for relevant prior work, the record provides no
   basis to find the agency's actions unreasonable, since that contract
   amount was confirmed by the awardee's past performance reference for the
   contract at the time of the past performance evaluation, and, we note,
   again during the pendency of this protest. The protester provides no
   persuasive basis for its allegation of improper agency action in this
   regard.

   [4] To the extent the protester contends that the agency's request prior
   to the re-evaluation for updated past performance reference contact
   information constituted discussions requiring the agency to have also
   informed the protester of its low voltage switchboard data deficiency, the
   argument is not only untimely (as it was first raised in the firm's
   comments months after it should have known the basis for the contention),
   see Bid Protest Regulations, 4 C.F.R. sect. 21.2(a)(2) (2006), but, as the
   agency points out, the informational inquiry did not constitute
   discussions. See Exploration Prods., B-279251.2, B-279251.3, June 1, 1998,
   98-2 CPD para. 15 at 9 n.6.