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.