TITLE: B-297691, Israel Aircraft Industries, Ltd.--TAMAM Division, March 13, 2006
BNUMBER: B-297691
DATE: March 13, 2006
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B-297691, Israel Aircraft Industries, Ltd.--TAMAM Division, March 13, 2006
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: Israel Aircraft Industries, Ltd.--TAMAM Division
File: B-297691
Date: March 13, 2006
Howard J. Stanislawski, Esq., Patrick K. O'Keefe. Esq., and Richard L.
Larach, Esq., Sidley Austin LLP, for the protester.
John S. Pachter, Esq., Jonathan D. Shaffer, Esq., and Erin R. Karsman,
Esq., Smith Pachter McWhorter, PLC, for FLIR Systems, Inc., an intervenor.
Anthony Condurso, Esq., for the Department of the Navy, for the agency.
Scott H. Riback, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest challenging agency's rejection of protester's technical proposal
as technically unacceptable is denied where record shows that agency
reasonably found numerous instances where protester's proposal failed to
meet material solicitation requirements.
DECISION
Israel Aircraft Industries, Ltd.--TAMAM Division (IAI) protests the award
of a contract to FLIR Systems, Inc. under request for proposals (RFP) No.
N00164-04-R-8543, issued by the Department of the Navy to acquire, on
behalf of the United States Coast Guard, a quantity of shipboard infrared
visual sensor systems (SIRVSS) to be installed on Coast Guard cutters and
other maritime craft. IAI asserts that the Navy misevaluated proposals in
connection with its award decision.
We deny the protest.
The RFP contemplated the award of a fixed-price, indefinite-delivery/
indefinite-quantity contract to the firm whose proposal was deemed to
offer the government the overall "best value." Product samples tendered
with the proposals were to be evaluated initially using 12 go/no-go
criteria. RFP at 15. If a firm's product sample passed the go/no-go
evaluation, its proposal and product sample were to be evaluated under
four equally-weighted factors (and subfactors): technical evaluation
(evaluation of the written technical proposal's performance specification
compliance, evaluation of the written technical proposal's statement of
work compliance, and product sample evaluation in the field), capability
(delivery/ production schedule, logistics capability, and management
capability/ relationship with subcontractors), past performance (quality,
customer satisfaction, business practices and subcontracting
reliability/compliance), and price. Under both the technical evaluation
and capability factors, the first subfactors were significantly more
important than the second, and the second were more important than the
third. The past performance subfactors were listed in descending order of
importance.
The agency received two proposals, the protester's and the awardee's, and
following an initial evaluation, followed by discussions, obtained final
proposal revisions (FPR), which were rated as follows:
+------------------------------------------------------------------------+
|Factors/Subfactors | FLIR | IAI |
|---------------------+----------------------+---------------------------|
|Go/No-Go Criteria | Pass | Pass |
|---------------------+----------------------+---------------------------|
|Technical Evaluation | Satisfactory/Low | Marginal |
| | Risk[1] |(Unacceptable)/High Risk[2]|
|---------------------+----------------------+---------------------------|
|Performance Spec. |Satisfactory/Low Risk | Marginal/Medium Risk |
|---------------------+----------------------+---------------------------|
|Statement of Work |Satisfactory/Low Risk | Satisfactory/Low Risk |
|---------------------+----------------------+---------------------------|
|Product Sample Eval. | Marginal/Low Risk | Marginal/High Risk |
|---------------------+----------------------+---------------------------|
|Capability |Satisfactory/ Low Risk| Satisfactory/Low Risk |
|---------------------+----------------------+---------------------------|
|Delivery/Product | Highly | Satisfactory/Low Risk |
|Schedule |Satisfactory/Low Risk | |
|---------------------+----------------------+---------------------------|
|Logistics Capability |Satisfactory/Low Risk | Satisfactory/Low Risk |
|---------------------+----------------------+---------------------------|
|Management Capability|Satisfactory/Low Risk | Satisfactory/Low Risk |
|---------------------+----------------------+---------------------------|
|Past Performance |Favorable/Medium Risk | Highly Favorable/Medium |
| | | Risk |
|---------------------+----------------------+---------------------------|
|Price | $45,974,128[3] | $39,448,255 |
+------------------------------------------------------------------------+
AR, exh. 26, at 6, 13. On the basis of these evaluation results, the
agency concluded that IAI's proposal was technically unacceptable. In
particular, the agency found that IAI's proposed product did not meet
numerous requirements of the solicitation and that, overall, its proposal
contained a large number of weaknesses and deficiencies. Consequently, the
Navy eliminated the IAI proposal from further consideration and made award
to FLIR as the only firm submitting a technically acceptable proposal.
IAI challenges the agency's evaluation, and resultant rejection, of its
proposal. In reviewing protests against allegedly improper evaluations, it
is not our role to reevaluate proposals. Rather, we will examine the
record only to determine whether the agency's evaluation was reasonable
and consistent with the RFP evaluation scheme and applicable procurement
statutes and regulations. DeLeon Tech. Servs., Inc., B-293783, June 4,
2004, 2004 CPD para. 145 at 2. We have reviewed the record here and find
no basis to object to the agency's evaluation conclusions. We discuss the
primary evaluated proposal deficiencies below.
HAND CONTROL UNIT (HCU)
The RFP called for an HCU to operate the SIRVSS, and further required that
the HCU include adjustable backlighting that is night vision goggle (NVG)
compatible. The Navy found that the IAI proposed by HCU did not include
adjustable, NVG compatible backlighting. The protester asserts that the
[deleted] design of its HCU is such that [deleted], and that, as a
consequence of its unit [deleted], it was unnecessary to show that it is
NVG compatible. In any case, IAI asserts, its November 9, 2005 proposal
included an option to furnish a backlit HCU.
The evaluation in this area was unobjectionable. It is undisputed that the
protester's HCU did not include backlighting, contrary to the express RFP
requirement. IAI's belief that its HCU did not require backlighting did
not provide a basis for IAI to ignore the requirement, and does not render
the agency's downgrading of its proposal on this basisunreasonable. To the
extent IAI believed the requirement overstated the agency's needs, it was
required to protest on this ground prior to the deadline for submitting
proposals, since the requirement was apparent from a reading of the RFP. 4
C.F.R. sect. 21.2(a)(1) (2005). IAI did not do so, and there is no basis
for questioning the requirement at this juncture.
IAI's claim that it offered the agency the option of a viable backlit
version of its HCU is not supported by the record. Its proposal stated in
this regard as follows:
[deleted]
AR, exh. 15, at 2. This statement indicated that IAI was [deleted], but
that it did not have [deleted]; it did not unequivocally offer a backlit
HCU as a part of its proposal. We therefore find that the agency
reasonably found that IAI's proposed HCU failed to meet the backlighting
requirement.
ENVIRONMENTAL REQUIREMENTS
Blowing Sand
One of the product sample test requirements related to the SIRVSS's
ability to withstand blowing sand. The agency's testing showed that one of
[deleted]; the other of the [deleted] at IAI's request because IAI was
[deleted]. After being asked about the matter during discussions, IAI
stated in its proposal revision that its product could not meet the
blowing sand test. AR, exh. 15, at 23. The agency concluded that IAI's
proposed unit did not meet the RFP requirements in this area. IAI does not
refute the agency's finding, but asserts instead that there is no
practical reason for its product to meet this requirement, since a
sandstorm of the magnitude being simulated would render the unit useless
because of a lack of visibility. IAI Comments, Jan. 3, 2006, attachment 1,
at 9. As with IAI's claim, discussed above, that there is no need for its
HCU to have backlighting, IAI's position regarding the need for the
solicitation's blowing sand requirement is no more than an untimely
challenge to the agency's requirements. IAI's proposal was facially
noncompliant with this aspect of the requirement, and the agency acted
reasonably in finding this aspect of IAI's proposal unacceptable.
Ice and Freezing Rain
Another test requirement involved subjecting the product samples to
freezing temperatures and rain for a period of time until ice formed on
the unit; thereafter, the unit was to be powered up for a specified
interval, during which the ice was to melt. IAI's [deleted] because the
[deleted]. The agency discussed the matter with IAI, in response to which
IAI stated in its revised proposal, without elaboration, that its
production units would have a deicing mechanism [deleted]. AR, exh. 15, at
22. The agency remained concerned, finding that such a redesign effort
would cause disruption to the delivery schedule, increase cost, and affect
the performance of IAI's proposed unit. AR, exh. 24, at 14. IAI does not
dispute the agency's conclusion, but maintains that, because it committed
in its FPR to redesigning its product with a deicing mechanism, its
proposal should not have been found unacceptable for this reason. IAI
Comments, Jan. 3, 2006, attachment 1, at 8. This argument is without
merit. The testing was intended to ascertain the offered unit's compliance
with the deicing requirement, and IAI's unit [deleted]. While IAI's
proposal to redesign its unit to add a deicing mechanism addressed the
test failure, this did not overcome the fact that the unit [deleted] in
the first instance. Moreover, the risks identified by the agency that
would be associated with any redesign effort on the part of IAI appear
legitimate, and IAI has not shown that the agency's concerns regarding
these risks were unreasonable.
CONTROL OF THE SIRVSS
The purpose of the HCU that was to be included with the proposed SIRVSS
was to allow the device to be manually operated. However, the device also
is to be operable automatically by the ship's command and control system
(SCCS), which would provide the SIRVSS with a series of pre-established
target coordinates. When the device is being automatically operated by the
SCCS, it is said to be "slaved" to the ship's navigational system, in
which mode it does not respond to commands inputted through the HCU. The
RFP required the HCU to include a "slave override" function which, in
effect, permits the operator to momentarily take control of the SIRVSS and
manipulate it manually for fine tuning purposes. See RFP Amendments 1, 3
and 4, AR, exhs. 5, 9.
During the evaluation, the agency found conflicting information in IAI's
proposal regarding whether its SIRVSS was properly integrated with the
SCCS. It appeared that, even when IAI's device was in the slave mode, it
could be [deleted]. In sum, the agency found that the HCU and SCCS
interface were [deleted] of the SIRVSS. AR, exh. 24, Executive Summary, at
4. This was deemed noncompliant with the RFP requirements. AR, exh. 24, at
11.
IAI asserts that its proposed system is fully compliant with the RFP
requirements, and that the Navy simply misunderstood its proposal. We find
that the evaluation was reasonable.
The agency issued several amendments to clarify this control requirement,
in response to which IAI's revised proposal stated as follows:
[deleted]
AR, exh. 11, at 4. We agree with the agency that this language indicates
that IAI's SIRVSS can be [deleted], even when the device is set to the
slave mode [deleted]. This interpretation is supported by another
provision of the IAI proposal. The user manual submitted with IAI's
proposal provides as follows:
[deleted]
AR, exh. 8, user manual, at 83. Again, it appears from these statements
that the SIRVSS can be [deleted] during slave mode [deleted], and this was
inconsistent with the agency's requirement, which was that the device not
be available for manual manipulation during slave mode. AR, exh. 24, at
11.
We conclude that the agency's concern in this area was reasonable; the
proposal includes information showing that the IAI device does not meet
the agency's requirement to have the device be unavailable for manual
manipulation during slave mode. Accordingly, the agency reasonably found
IAI's proposed SIRVSS noncompliant with this requirements.
TRADEOFF
IAI maintains that the agency improperly based its determination that its
proposal was technically unacceptable on just one or two of the subfactors
under the technical evaluation factor; since its proposal was rated equal
or superior to FLIR's proposal under all of the remaining factors, it
claims, the agency should have performed a price/technical tradeoff
between the two proposals. This argument is without merit. Since IAI's
proposal failed to meet the agency's requirements in several material
respects, it was technically unacceptable and could not provide a proper
basis for contract award. Plasma-Therm, Inc., B-280664.2, Dec. 28, 1998,
98-2 CPD para. 160 at 3. Accordingly, the fact that IAI's proposal may
have been evaluated as more favorable under the other factors is
irrelevant, and no tradeoff was required.[4]
MISCELLANEOUS
In its comments responding to the initial agency report, IAI alleged that
the agency improperly failed to take into consideration a weakness in
FLIR's proposal, and otherwise evaluated proposals disparately. In its
comments responding to the agency's supplemental report (in which the
agency provided a specific response to these assertions), IAI makes no
substantive response. Where, as here, an agency provides a detailed
response to a protester's assertions and the protester either does not
respond to the agency's position or provides a response that merely
references or restates the original allegation without substantively
rebutting the agency's position, we deem the initially-raised arguments
abandoned. Citrus College; KEI Pearson, Inc., B-293543 et al., Apr. 9,
2004, 2004 CPD para. 104 at 8 n.4. We therefore will not consider these
arguments.
The protest is denied.
Anthony H. Gamboa
General Counsel
------------------------
[1] IAI asserts that, since risk was not set forth as an evaluation factor
in the RFP, the risk ratings assigned proposals evidence application of an
unstated evaluation factor. However, even where risk is not identified in
the solicitation as an evaluation factor, an agency may always consider
risk intrinsic to the stated evaluation factors, that is, risk that
arises, for example, from an offeror's approach or demonstrated lack of
understanding. Davies Rail & Mech. Works, Inc., B-278260.2, Feb. 25, 1998,
98-1 CPD para. 134 at 10.
[2] The record shows that in evaluating proposals, where the agency
assigned an initial adjectival rating of marginal for a factor, and then
subsequently continued to assign a marginal rating to the factor after
discussions, the source selection plan called for the factor rating to be
changed from marginal to unacceptable. AR, exh. 6 at 5.
[3] The agency's post-negotiation business clearance memorandum contains a
mathematical error in the calculation of FLIR's price, but the Navy's
debriefing letter to IAI included the correct price, which is reflected in
the table above. Compare AR, exh. 26, at 13, with exh. 28, at 6.
[4] IAI asserts that the agency was precluded from rejecting a proposal as
unacceptable once it passed the initial go/no-go evaluation. We disagree.
The RFP stated that the go/no-go criteria applied to the offerors' sample
products, and then went on to state that the agency would make a best
value award determination, selecting the proposal that conforms to the
solicitation and is determined to be the most advantageous to the
government. RFP at 15. There was no indication that proposals that passed
the go/no-go evaluation could not subsequently be rejected for failure to
conform to other RFP requirements.