TITLE: B-298235; B-298235.2, DeTekion Security Systems, Inc., July 31, 2006
BNUMBER: B-298235; B-298235.2
DATE: July 31, 2006
********************************************************************
B-298235; B-298235.2, DeTekion Security Systems, Inc., July 31, 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: DeTekion Security Systems, Inc.
File: B-298235; B-298235.2
Date: July 31, 2006
Michael A. Hordell, Esq., Charles H. Carpenter, Esq., and Sean P. Bamford,
Esq., Pepper Hamilton LLP, and Barbara Duncombe, Esq., and Suzanne Sumner,
Esq., Sebaly Shillito & Dyer, for the protester.
Robert K. Tompkins, Esq., and Michael J. Carrato, Esq., Patton Boggs LLP,
for Sigcom-GDI Fencing Solutions, LLC, an intervenor.
William D. Robinson, Esq., Federal Bureau of Prisons, 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
1. Protest that source selection official improperly made award on a low
price/technically acceptable basis where solicitation provided for award
on a "best value" basis is denied where the record reflects that the
source selection official reasonably found the proposals of the awardee
and the protester to be substantially equal and selected the lower-priced
proposal.
2. Protest challenging source selection official's determination that
protester's and awardee's proposals were substantially technically equal
is denied where source selection official reasonably determined that the
strengths and weaknesses attributed to the proposals by the technical
evaluation panel did not reflect a substantial difference between the
offerors' technical proposals; the fact that the source selection
official's decision did not accept the findings and ratings of agency
evaluators is unobjectionable where it is otherwise supported by the
record.
DECISION
DeTekion Security Systems, Inc. protests the award of a contract to
Sigcom-GDI Fencing Solutions, LLC under request for proposals (RFP) No.
R00-0531, issued by the Federal Bureau of Prisons (BOP) for the
design/build of electrified fence systems at seven BOP correctional
facilities. DeTekion argues that the agency's source selection decision
was not consistent with the terms of the solicitation, the agency failed
to hold meaningful discussions with DeTekion, and the agency's evaluation
of Sigcom-GDI's proposal was flawed.
We deny the protest.
The RFP at issue is the "phase two" process of a two-phase design-build
selection conducted in accordance with Federal Acquisition Regulation
(FAR) subpart 36.3 for the award of a fixed-price contract for the design
and installation of "non-lethal/lethal" electrified fencing systems at
seven BOP penitentiaries: (1) United States Penitentiary (USP) Coleman I,
Florida; (2) USP Coleman II, Florida; (3) USP Pollock, Louisiana; (4) USP
Tucson, Arizona; (5) USP Hazelton, West Virginia; (6) USP McCreary,
Kentucky; and (7) USP Terre Haute, Indiana. On May 27, 2005, the BOP
issued the "phase one" RFP, which provided for an evaluation of offerors'
past performance and their responses to technical evaluation factors,
which were evaluated by a past performance evaluation panel and technical
evaluation panel (TEP), respectively. Phase one did not include an
evaluation of price; rather, it was designed solely to determine which
offerors were qualified to submit proposals for phase two. Three firms,
including DeTekion and SigCom-GDI, submitted phase one proposals and all
were deemed qualified for the purpose of advancing to phase two.
On September 2, 2005, the BOP sent the phase two RFP, which is at issue in
this protest, to the three phase one offerors. The phase two RFP provided
for award to the offeror proposing the fence system representing the "best
value" to the government, and set forth, in descending order of
importance, the following non-price evaluation factors: (1) past
performance; (2) preliminary design and proposed technical solutions, and
system demonstration; (3) specialized experience and proposed
organization; and (4) management and scheduling approach, including
quality control and quality assurance and post-construction maintenance
and service. When combined, these factors were "significantly more
important than price" according to the RFP; however, "as Proposals are
determined to be more equal in non-price factors, price becomes more
important and may become the determining factor for Award." RFP at 55.
With regard to price, the RFP stated that it
shall be a major factor in the selection of a proposal for Award when
Offerors are substantially equal technically. If the Government's
evaluation renders an Offeror to be significantly technically superior,
the Government reserves the right to warrant payment of a premium and make
an Award to an Offeror other than the low Offeror.
RFP at 54.
The second non-price evaluation factor (preliminary design and proposed
technical solutions, and system demonstration) included five subfactors
with the most important being a "system demonstration" required of the
offerors. Under this subfactor, offerors were required to construct a
100-foot section of their proposed fence, which would be "energized" and
demonstrated to the contracting officer and the TEP pursuant to an
extensive demonstration checklist. In addition, as it relates to the
protest, under the third non-price factor, specialized experience and
proposed organization, offerors were required to describe their "relevant
experience" with projects of "comparable size and complexity." RFP at 39.
Also as it relates to the protest, the RFP included specifications
requiring compliance with International Electrotechnical Commission (IEC)
standard 60335-2-76, which is an international standard pertaining to the
safety of electric fence energizers for security fences in non-lethal
applications--there are no similar standards governing lethal fences, as
explained by the parties. The agency indicated that this standard was
included "to establish a non-lethal threshold of 1 hertz and to require
compliance with the safety concerns imbedded in the IEC." Second
Supplemental Agency Report (AR) at 20.
By October 26, 2005, the amended closing date for receipt of phase two
proposals, the BOP had received proposals from two of the phase one
offerors, DeTekion and Sigcom-GDI. The fence systems proposed by the two
offerors were significantly different. DeTekion proposed a fence system
with a [DELETED] configuration with [DELETED] alternating current (A/C)
[DELETED] at a price of [DELETED]. Sigcom-GDI proposed a [DELETED]
configuration with [DELETED] direct current (D/C) [DELETED] at a price of
[DELETED]. Demonstrations of the systems were held in mid-November and an
initial round of discussions were held in late December. During this first
round of discussions, the BOP identified to each offeror weaknesses and
deficiencies found in their proposals. Revised proposals were timely
submitted by both DeTekion and Sigcom-GDI by January 12, 2006. DeTekion
reduced its price to $16,250,000, while Sigcom-GDI's revised proposal
reflected an increase in price to $12,661,918.96.
On January 26, the BOP opened a second round of discussions in which it
sought more detailed pricing information from both offerors. During its
discussions with DeTekion, the agency indicated that it found no
significant weaknesses or deficiencies in its proposal, and solely sought
the additional pricing information. In addition, the agency explained that
DeTekion could submit a revised price proposal to provide its "best value
pricing." AR, Tab 13A, Second Discussions--DeTekion. With regard to
Sigcom-GDI, because its revised proposal represented a "significantly
different system" when compared with its initial proposal, the BOP sought
a new demonstration of the revised system, which Sigcom-GDI conducted on
March 2. Contracting Officer's (CO) Statement at 10.
After receipt of second revised proposals, the BOP opened a third and
final round of discussions in which the agency, due to perceived
conflicting language in the solicitation, sought to clarify that a "basket
weave" design was not a requirement of the RFP. The agency was concerned
that [DELETED]. In addition, the agency noted one weakness with
SigCom-GDI's proposal. By March 29, both offerors had submitted their
final proposals. DeTekion [DELETED] but it did not alter its proposal or
price. SigCom-GDI's final proposal addressed the one weakness identified
by the agency in the third round of discussions without changing its
price.
In evaluating the offerors' final proposals, the TEP considered the
proposals solely under the technical evaluation factors (each of the
non-price evaluation factors except for past performance). With regard to
DeTekion's proposal, the TEP identified eight strengths and no weaknesses.
Of a possible 1,270 points, DeTekion received 1,158 points, which
corresponded to an overall adjectival rating of "outstanding to superior"
and a "high probability" of successful performance. AR, Tab 20, TEP
Consensus Report, at 2. In connection with the fence demonstration,
DeTekion received 420 of 429 total available points. AR, Tab 2A, Statement
of TEP Chairperson, at 7. With regard to Sigcom-GDI, the TEP noted two
strengths and nine weaknesses. Sigcom-GDI received a total of 875 points,
corresponding to an overall adjectival rating of "Good to Excellent" with
a "good probability" of successful performance. AR, Tab 20, TEP Consensus
Report, at 3. In connection with its demonstration of its final system,
Sigcom-GDI received 420 of the 429 total points available. AR, Tab 2A,
Statement of TEP Chairperson, at 13. At the contracting officer's request,
the TEP prepared an award recommendation and recommended award to
DeTekion.
The TEP forwarded its technical evaluation report and award recommendation
memorandum to the contracting officer, who was also the source selection
authority. The contracting officer reviewed the proposals and the TEP's
findings, evaluated the offerors' past performance--DeTekion was rated
more highly than Sigcom-GDI under this factor as well--and considered the
difference between the offerors' pricing.[1] Specifically, with regard to
price, the contracting officer price conducted a detailed analysis of the
offerors' pricing information, comparing it with the initial government
estimate (IGE) of $16,307,552.50, as well as pricing information obtained
in connection with the BOP's prior unsuccessful attempts to procure
non-lethal/lethal fence systems through competitive acquisitions. CO
Statement at 11-12; AR, Tab16A, Price Analysis Spreadsheet. Based on this
analysis the contracting officer concluded that the offerors' prices were
reasonable for their chosen technical approaches. CO Statement at 12. The
contracting officer also documented his analysis of the TEP's technical
evaluation, which discussed the relative strengths and weaknesses
identified by the TEP, his consideration of the TEP's award
recommendation, as well as his final source selection decision.
In considering the TEP's evaluation of the relative strengths and
weaknesses of the offerors' proposals, the contracting officer disagreed
with many of the TEP's conclusions. Specifically, as one of DeTekion's
strengths, the TEP had noted that DeTekion's fence system was "simple,"
utilizing [DELETED] energizer, and was therefore a "superior solution."
AR, Tab 25, CO's Analysis of Technical Evaluation Report, at 1. In this
regard, the TEP explained that DeTekion's fence "utilizes a minimum number
of components . . . while providing sophisticated detection capabilities."
Id. While agreeing that a simpler system could offer greater reliability
since there would be fewer parts to break down, the contracting officer
did not agree that simplicity demonstrated superiority. Id. The TEP had
also identified a strength in connection with DeTekion's proposed
energizer because it provided for [DELETED]. This provision is above and
beyond the minimum requirements." Id. The contracting officer, however,
regarded this evaluated strength as "equally a weakness" stating that the
agency has "security and safety concerns that the energizer [DELETED] to
prevent breach of security or accidental electrocution." Id. at 2.
The TEP had also found DeTekion's proposed [DELETED] to be a strength
because they utilized a [DELETED]. Id. According to the TEP, [DELETED] was
a "superior solution," which provided "the highest level of safety to
Bureau staff." Id. The contracting officer discounted this strength,
concluding that the system was not a superior solution, but rather a
[DELETED]. Id. Also regarding DeTekion's [DELETED], the TEP noted that the
type of [DELETED] thus, "[w]ith the proper procurement controls in place,"
this feature would limit the possibility of [DELETED] being made which
could result in an operator defeating the [DELETED]. Id. The contracting
officer agreed that DeTekion's [DELETED] system was a "strength," albeit
qualified by the fact that "its superiority is dependent upon future
procurement controls" and that "[t]here is no way to know whether
[DELETED] could or could not be procured." Id.
While DeTekion's use of a [DELETED] configuration for its fence system was
listed as one of its strengths by the TEP, the contracting officer
rejected this view. Specifically, the TEP concluded that the [DELETED]
configuration would provide "superior detection of tamper and passage
attempts"; the [DELETED] thus making it "much more sensitive to very
slight manipulation" and "greatly increasing the potential that two wires
being spread apart will come in contact with other wires [DELETED] Id. at
3. The contracting officer, however, viewed the sensitivity as potentially
leading to "a greater number of false alarms" and wrote that "arguments
can be made against this configuration (such as entanglement in the fence,
etc.)." Id.
The TEP had also evaluated DeTekion's proposed team as a strength and
"superior" due to the fact that DeTekion included in its proposal charts
and resumes for personnel at all seven fence sites--information beyond
that required by the RFP. The contracting officer concurred to the extent
that DeTekion had provided information in excess of that required by the
solicitation; however, he noted that this did not demonstrate
"superiority" as suggested by the TEP. Id. The TEP further identified the
experience of DeTekion, its subcontractors, and their proposed personnel
as a strength based on their "relevant experience," including DeTekion's
installation of non-lethal/lethal fence systems at correctional facilities
in Wisconsin, Alabama, and Mississippi, as well as the fact that the
proposed team had "extensive experience working together on projects of
similar scope." Id. at 3,4. While agreeing that the proposed team had
experience working together, and that this was a strength, the contracting
officer did not agree that DeTekion's team had "extensive experience
working on projects of similar scope" and afforded little weight to the
particular experience attributed to DeTekion and its team by the TEP. Id.
at 3. The contracting officer noted that not all of DeTekion's staff had
relevant experience, and that DeTekion had never previously manufactured
or installed the actual fence system it had proposed to the BOP, and
concluded that DeTekion's experience at correctional facilities in
Wisconsin, Alabama, and Mississippi was not in fact comparable to the
solicitation requirements. AR, Tab 26, TEP Recommendation for Award
Memorandum, at 2.
Specifically, the contracting officer reviewed DeTekion's work at the
Wisconsin, Alabama, and Mississippi facilities and found that the projects
in each instance involved fence systems of a different design and
configuration, with other than a [DELETED] wire array. Moreover, the
contracting officer indicated that DeTekion had performed as a
subcontractor completing a smaller portion of the work under the Wisconsin
and Mississippi projects, for $280,000 and $1.6 million, respectively, and
that the Alabama project involved upgrading an existing system for
$380,000. With respect to the Wisconsin project the contracting officer
also noted that there had been problems with "many false alarms, and that
there may also be grounding problems." AR, Tab 25, CO's Analysis of
Technical Evaluation Report, at 3-4.
Regarding the TEP's assessment of Sigcom-GDI's proposal, the contracting
officer noted, as a general matter, that the weaknesses identified by the
TEP were not considered "significant" by the TEP, since it had not
identified these weaknesses as issues that needed to be raised with
Sigcom-GDI during discussions. Id. The contracting officer also
specifically addressed each weakness attributed to Sigcom-GDI's proposal.
In this regard, the contracting officer concluded that two of the
weaknesses identified by the TEP, which concerned Sigcom-GDI's design,
were not significant and could be addressed during the design phase of the
contract. The TEP had further downgraded Sigcom-GDI for failing to
identify "site superintendants" (an issued that had been raised with
Sigcom-GDI during discussions), or "sitework," concrete, and electrical
subcontractors. Id. at 6. The contracting officer dismissed these concerns
as minor in nature and insignificant since they pertained to the lack of
information, which the RFP did not call for offerors' to submit. The
contracting officer, however, agreed with the TEP's view that Sigcom-GDI's
lack of "any actual experience fabricating, manufacturing, installing,
maintaining, or servicing non/lethal or lethal electrified fence systems"
was a weakness since Sigcom-GDI did not have experience with the system it
proposed. The TEP also noted as a weakness the fact that Sigcom and GDI
did not have any previous experience working together. In response, the
contracting officer described it as a "nominal weakness," which the TEP
"evaluated accordingly." Id. As a final weakness, the TEP had indicated
that Sigcom-GDI's proposed fence utilized "galvanized wire," which is not
as durable as steel wire. The contracting officer noted that this was a
consequence of Sigcom-GDI's use of a system with direct current, as
opposed to alternating current. Id.
Two strengths had been attributed to Sigcom-GDI's proposal by the TEP and
the contracting officer agreed with the TEP's assessment in this regard.
Specifically, the TEP noted that Sigcom-GDI proposed [DELETED]. In the
contracting officer's view this "greatly enhanced" security. Id. at 5. In
addition, the TEP credited Sigcom-GDI with offering a warranty of 5 years
on all parts manufactured by GDI, including the energizer units. This was
3 years beyond the 2-year warranty required by the RFP. The contracting
officer concurred in finding this a strength of Sigcom-GDI's proposal.
As noted above, the TEP had prepared a memorandum with a recommendation
for award to DeTekion. In doing so, the TEP emphasized two of the
strengths it had attributed to DeTekion's proposal. Specifically, the TEP
highlighted the fact that DeTekion had proposed a [DELETED]. The TEP wrote
that "[t]his is a superior solution which will provide the highest level
of safety to Bureau staff." AR, Tab 26, Recommendation for Award
Memorandum, at 1. However, according to the TEP, the most important reason
for making award to DeTekion was its greater experience with the
manufacture and installation of non-lethal/lethal fence systems. In this
regard, the TEP indicated that Sigcom-GDI did not demonstrate any
experience with the manufacture and installation of such systems, while
DeTekion had demonstrated comparable experience, specifically its
experience at correctional facilities in Wisconsin, Alabama, and
Mississippi. The TEP concluded that Sigcom-GDI's lack of experience
"greatly" increased the risks of system failure and disruption of
institution operations, thus leading to increased cost to the government.
Id. at 2.
In making the best-value determination, the contracting officer rejected
the TEP's award recommendation and the findings therein. Specifically, as
he had concluded in addressing the TEP's technical evaluation, the
contracting officer explained that DeTekion's fence system was a [DELETED]
and was not superior to Sigcom-GDI's fence system, which [DELETED]
dissipated fence capacitance when the fence is de-energized.[2]
Specifically, the contracting officer indicated that both systems required
stored energy to be dissipated from their systems after being de-energized
and stated that he "[did] not consider either solution to be superior to
the other, but more a matter relative to the system being offered. Both
Offerors meet the specified safety requirements." AR, Tab 27, Best Value
Consideration Memorandum.
The contracting officer further disagreed with the TEP's reliance on
DeTekion's experience as a rationale for award. While acknowledging
Sigcom-GDI's lack of experience and agreeing that it was a weakness of its
proposal, the contracting officer indicated that not all of DeTekion's
staff had relevant experience, and that DeTekion had never previously
manufactured or installed the actual fence system it had proposed to the
BOP. He concluded that DeTekion's experience at correctional facilities in
Wisconsin, Alabama, and Mississippi, which the TEP had identified as
"comparable non-lethal/lethal system experience," was not in fact
comparable to the RFP, as he had explained in his assessment of the TEP's
consensus evaluation. AR, Tab 27, Best Value Consideration Memorandum, at
2-3.
Ultimately, the contracting officer concluded that Sigcom-GDI's proposal
represented the best value to the government. DeTekion's proposal,
although higher in score, was "not significantly technically superior," in
the contracting officer's view, when compared with Sigcom-GDI's proposal;
rather, he found that they were "substantially equal," thus making price
the determining factor for award. As a consequence, the contracting
officer concluded there was no justification for paying a premium of more
than $3.5 million for DeTekion's proposal. AR, Tab 28, Source Selection
Decision.
After learning of the agency's award decision and receiving a debriefing,
DeTekion filed this protest. DeTekion argues that the contracting officer
deviated from the RFP's requirement for a best-value tradeoff decision,
where non-price evaluation factors were "significantly more important than
price," and instead made award on a low price/technically acceptable
basis. In this regard, the protester essentially argues that the
contracting officer was so concerned with price that he unreasonably
disregarded the strengths of DeTekion's proposal and ignored the weakness
of Sigcom-GDI's proposal, as found by the TEP, in order to reach the
conclusion that the two offerors' proposals were technically equivalent.
DeTekion also argues that the agency's discussions in connection with its
proposal were not meaningful because the agency failed to identify its
higher price as a weakness and failed to identify weaknesses attributed by
the contracting officer in his assessment of the TEP's technical
evaluation. Moreover, DeTekion challenges technical aspects of
Sigcom-GDI's proposal, arguing that its fence system may not prove fatal
while in its lethal mode due to its reliance on direct current and that it
fails to comply with IEC 60335-2-76, section 22.109, as required by the
RFP, since, according to the protester, Sigcom-GDI's fence system utilizes
[DELETED].
Best Value Decision
As a general matter, where price is secondary to technical considerations
under a solicitation's evaluation scheme, the selection of a lower-priced
proposal over a proposal with a higher technical rating requires an
adequate justification, i.e., one showing the agency reasonably concluded
that notwithstanding the point or adjectival differential between the two
proposals, they were essentially equal in technical merit, or that the
differential in the evaluation ratings between the proposals was not worth
the cost premium associated with selection of the higher technically rated
proposal. In making these determinations the propriety of a
price/technical tradeoff turns not on the difference in technical score
per se, but on whether the contracting agency's judgment concerning the
significance of that difference was reasonable in light of the
solicitation's evaluation scheme. In this regard, adjectival ratings and
point scores are but guides to, and not substitutes for, intelligent
decisionmaking. SAMS El Segundo, LLC, B-291620, B-291620.2, Feb. 3, 2003,
2003 CPD para. 44 at 17. They are tools to assist source selection
officials in evaluating proposals; they do not mandate automatic selection
of a particular proposal. Jacobs COGEMA, LLC, B-290125.2, B-290125.3, Dec.
18, 2002, 2003 CPD para. 16 at 31; PRC, Inc., B-274698.2, B-274698.3, Jan.
23,1997, 97-1 CPD para. 115 at 12. Source selection officials have broad
discretion in determining the manner and extent to which they will make
use of, not only the adjectival ratings or point scores, but also the
written narrative justification underlying those technical results,
subject only to the tests of rationality and consistency with the
evaluation criteria. Development Alternatives, Inc., B-279920, Aug. 6,
1998, 98-2 CPD para. 54 at 9; Midwest Research Inst., B-240268, Nov. 5,
1990, 90-2 CPD P 364 at 4.
In challenging the agency's best value decision, DeTekion first contends
that the contracting officer's improper "price centric analysis" is
evidenced by his statement that "my primary concern is always the overall
price the Government will actually pay." DeTekion's Comments at 5; CO
Statement at 16. Given the full context of the comment, however, the
protester's argument is misplaced. Specifically, the contracting officer
wrote the statement in describing to our Office his decision to advise
offerors, during the first round of discussions, that they should provide
their "best value pricing," that their pricing should reflect their
"latest negotiations held with the Government," and that, while the
non-price factors were significantly more important than price, as
proposals were determined to be more equal, price would become more
important and might become the determining factor. CO Statement at 16-17.
These comments, according to the contracting officer, were intended to
keep the offerors "mindful that price was always under consideration." Id.
at 17. Thus, it is clear that the contracting officer's characterization
of price as a "primary concern" merely reflected his view that price was
an important evaluation factor, and not, as protester suggests, the most
important factor.
The protester also argues that the contracting officer's focus on price
led him to disregard the TEP's evaluations and best-value judgment and to
unreasonably conclude that DeTekion's proposal, which, based on the TEP's
evaluation, had a 23 percent higher score than Sigcom's proposal, was
"substantially equal" to Sigcom-GDI's proposal, which was 22 percent lower
in price. Protester's Comments at 10. Since the bulk of the protester's
argument challenging the agency's selection of Sigcom-GDI concerns the
contracting officer's disagreement, in many instances, with the opinions
expressed by the TEP, it is important to recognize from the outset that
there is nothing per se improper about the contracting officer's decision
not to adopt the analysis and recommendation of the TEP here. Selection
officials are not bound by the recommendations or evaluation judgments of
lower-level evaluators, even though the working level evaluators may well
have technical expertise in the matters under their review. TPL, Inc.,
B-297136.10, B-297136.11, June 29, 2006, 2006 CPD para. 104 at ___; University
Research Co., LLC, B-294358.6, B294358.7, Apr. 20, 2005, 2005 CPD para. 83
at 28; PRC, Inc., B-274698.2, B-274698.3, Jan. 23, 1997, 97-1 CPD para. 115
at 12; Loral Aeronutronic, B-259857.2, B-259858.2, July 5, 1995, 95-2 CPD para.
213 at 8. The judgments of selection officials are governed not by the views
of those who advise them, but by the tests of rationality and consistency with
the stated evaluation criteria. In considering such judgments we will not
evaluate offerors' proposals anew or substitute our judgment for those of
selection officials. Rather, we will examine the record to determine whether
the decisionmaker's judgments were reasonable and in accord with the RFP
evaluation criteria and with applicable procurement statutes and
regulations. Cooperativa Muratori Riuniti, B-294980, B-294980.2, Jan. 21, 2005,
2005 CPD para. 21 at 3.
Here, the record reflects that the contracting officer engaged in a
comparative assessment of DeTekion's and Sigcom-GDI's proposals,
considering the point scores of the offerors, their adjectival ratings,
the strengths and weaknesses attributed to the proposals by the TEP, and
the TEP's recommendation for award to DeTekion. The record further
reflects that, looking behind the TEP's ratings, the contracting officer
considered the underlying qualitative merits that distinguished DeTekion's
and Sigcom-GDI's proposals and specifically documented his assessment of
each of the strengths and weaknesses of the proposals identified by the
TEP. Based on this assessment, the contracting officer concluded that
DeTekion's and Sigcom-GDI's proposals were "substantially equal" in
technical merit. Consistent with the RFP's provision stating that
"proposed price shall be a major factor in the selection of a proposal for
Award when Offerors are substantially equal technically," the contracting
officer reasonably concluded that price became the determining factor for
award and decided that payment of a premium of more than $3.5 million for
DeTekion's proposal was not justified. Under these circumstances, we see
no basis to question the agency's decision to make award to Sigcom-GDI.[3]
DeTekion challenges the contracting officer's assessments of the strengths
of its proposal as identified by the TEP. In the protester's view, the
contracting officer's evaluation was unreasonable and inconsistent with
the RFP. Specifically, DeTekion argues that the contracting officer had
unreasonably downgraded its proposal where the TEP had evaluated the
simplicity of its system combined with its "sophisticated detection
capability" as a strength. The record reflects, however, that the
contracting officer did not downgrade DeTekion's proposal in this regard.
Rather, the contracting officer agreed with the TEP regarding the
reliability advantages associated with DeTekion's simpler system; but he
disagreed with the TEP's conclusion that DeTekion's system was
"technically superior." As explained by the contracting officer, both
offerors proposed and demonstrated the required detection capabilities and
there was no information provided by the TEP, or contained in the
proposals, to determine the relative sophistication of either offeror's
detection capability. Second Supplemental CO Statement at 8. While
DeTekion faults the contracting officer's judgment, it does not cite any
aspect of the record or the offerors' proposals which would suggest that
the contracting officer's determination was unreasonable; thus, DeTekion's
challenge in this regard amounts to little more than mere disagreement
with the contracting officer's judgment and does not render it
unreasonable.
According to DeTekion, the contracting officer "does not adequately
explain" how its proposed energizer, [DELETED] could be viewed as a
weakness, which raised "safety and security concerns." DeTekion's Comments
at 11. DeTekion notes that the TEP found this to be a strength which was
"above and beyond" the RFP's requirements. The contracting officer,
however, clearly explained that "the energizer [DELETED] to prevent breach
of security or accidental electrocution." AR, Tab 25, CO's Analysis of
Technical Evaluation Report, at 2. While the protester maintains that the
contracting officer's concerns about "accidental electrocution" are
unfounded given the safety aspects inherent to its system, DeTekion failed
to address the reasonably articulated "breach of security" concerns also
raised by the contracting officer. As a consequence, we have no basis to
conclude that the weight attributed to this strength by the contracting
officer was improper or inconsistent with the terms of solicitation.
DeTekion also challenges the contracting officer's assessment of its
safety interlock system, which the TEP evaluated as a strength stemming
from its utilization of a [DELETED] of the system's grounding switch to
dissipate fence energy in conjunction with a [DELETED] to prevent
accidental energizing of the fence circuit. Id. DeTekion argues that the
contracting officer ignored these advantages of its system and
unreasonably downgraded its proposal. The record reflects that the
contracting officer disagreed with the TEP's determination that being able
to [DELETED] that the fence had been [DELETED] disconnected and grounded
was "a superior solution." Id. The contracting officer noted that
SigCom-GDI's system provides for the fence capacitance to [DELETED]
dissipate when the fence is de-energized. In the contracting officer's
view, this [DELETED] system was equivalent to DeTekion's [DELETED]
solution. AR, Tab 27, Best Value Consideration Memorandum, at 2.
Ultimately, discerning the relative safety of each system is a judgment
for the agency. The protester has not suggested that the basis of the
contracting officer's analysis was erroneous; rather, the protester merely
believes that the [DELETED] assurance associated with its system is
superior to the [DELETED] nature of SigCom-GDI's system and that the
contracting officer's analysis was therefore unreasonable. In view of the
discretion afforded the agency in determining its needs and evaluating the
relative merits of proposals, and given that the record shows that the
agency reasonably considered the relevant differences between the systems
and adequately documented its analysis, we see no basis to question the
agency's judgment regarding the relative safety of the two systems.
Regarding DeTekion's [DELETED] the contracting officer considered this to
be a "nominal strength," since it provides "security." AR, Tab 25, CO's
Analysis of Technical Evaluation Report, at 2. The contracting officer,
however, qualified this strength, explaining that its superiority was
"dependent upon future procurement controls," as the TEP had noted, and
that there was "no way to know whether [DELETED] could or could not be
procured." Id. While the protester contends that this concern was
unreasonable since DeTekion states in its proposal that [DELETED] are
permitted on site preventing any circumventing of the safety features
built into the [system]," Protester's Comments on Second Supplemental AR,
exh. 1, at 2, this feature does not address the contracting officer's
concern regarding the need to maintain proper procurement controls in
relation to the creation of or ability to obtain [DELETED].
DeTekion also asserts that the contracting officer's concern was
unreasonable because, had the agency raised this issue with DeTekion
through discussions or clarifications, it would have explained that no
[DELETED] can be procured. It is incumbent on an offeror, however, to
prepare a well-written proposal, with adequately detailed information,
which clearly demonstrates compliance with the solicitation requirements
and allows a meaningful review by the procuring agency. Ace Info.
Solutions, Inc., B-295450.2, Mar. 7, 2005, 2005 CPD para. 75 at 8;
Communications and Data Sys. Assocs., B-223988, Oct. 29, 1986, 86-2 CPD
para. 491. Moreover, the agency was not required to raise this issue with
DeTekion during discussions since agencies are not required to afford
offerors all-encompassing discussions or to discuss every element that
receives less than the maximum score. American Ordnance, LLC, B-292847 et
al., Dec. 5, 2003, 2004 CPD para. 3 at 4-5. Nor would clarifications on
this issue have been appropriate since they do not permit revisions to
proposals. FAR sect. 15.306(a)(2); A.G. Cullen Constr., Inc., B-284049.2,
Feb. 22, 2000, 2000 CPD para. 45 at 5-6.
DeTekion also challenges the contracting officer's determination that its
[DELETED] fence design was not a valid strength. According to the
protester, the contracting officer ignored the TEP's finding that the
[DELETED] configuration was "superior" and reached the unreasonable
conclusion that such a configuration is more susceptible to false alarms.
The record reflects that the contracting officer did not ignore the TEP's
evaluation and specifically addressed its comments regarding the
advantages associated with the [DELETED] design, explaining that the
sensitivity attendant to the configuration, which the TEP preferred,
created the potential for a greater number of false alarms. While the
protester asserts that such a conclusion is unjustified, DeTekion cites
nothing in the record to suggest that this conclusion was unreasonable.
Rather, the contracting officer notes sections of Sigcom-GDI's proposal
specifically discussing how its [DELETED] fence configuration reduces the
possibility of false alarms. CO's Second Supplemental Statement of Facts,
at 10; Sigcom-GDI's Proposal, Vol. 1, Tab 1, at 1. In addition, the
contracting officer noted other arguments against the [DELETED]
configuration, i.e., entanglement in the fence and problems associated
with tensioning sagging wires, issues simply ignored by the protester. AR,
Tab 25, CO's Analysis of Technical Evaluation Report, at 3; CO's Second
Supplemental Statement of Facts, at 10. Based on this record, there is
nothing to suggest that the contracting officer's conclusions in this
regard were unreasonable or inconsistent with the terms of the RFP.
The TEP had also indicated that DeTekion's identification of its personnel
for all seven sites was a strength since this information was not required
under the RFP. DeTekion alleges that the contracting officer unreasonably
dismissed this strength. The record reflects, however, that the
contracting officer did in fact consider this to be a strength, which was
properly credited to DeTekion and reflected in its evaluated score. He did
not believe, however, that the inclusion of this additional detail
demonstrated superiority significant enough to justify payment of a price
premium. CO's Second Supplemental Statement of Facts at 10. While the
protester may not agree with this conclusion, this disagreement does not
render the agency's conclusion unreasonable.
As a final challenge to the contracting officer's evaluation of its
strengths, DeTekion argues that the contracting officer improperly
downgraded the strength of its experience by misjudging the relevance
requirements of the RFP. According to DeTekion, the contracting officer
downgraded its experience because it did not have specific experience
installing non-lethal or lethal fences at BOP sites. DeTekion maintains
that the solicitation did not require such experience at BOP sites and
that no offeror would have relevant experience with the BOP, since the BOP
had never previously procured electrified fences. According to DeTekion,
the contracting officer raised this concern only to "obfuscate the fact
that Sigcom-GDI had no relevant experience designing, fabricating,
manufacturing, installing, maintaining or servicing non-lethal/lethal or
lethal electrified fence systems." Protester's Comments at 15.
DeTekion's argument, however, misapprehends the contracting officer's
evaluation of its experience. Specifically, the contracting officer noted
that DeTekion "does not have any actual experience fabricating,
manufacturing, installing, maintaining or servicing the non-lethal/lethal
fence proposed to the [BOP]." AR, Tab 25, CO's Analysis of Technical
Evaluation Report, at 3. In this regard, the contracting officer
considered DeTekion's actual experience at correctional facilities in
Wisconsin, Alabama, and Mississippi, concluding that the systems installed
or serviced at each of these locations was different from that proposed by
DeTekion to the BOP. Thus, the record reflects that the contracting
officer was concerned by DeTekion's lack of experience with the actual
fence system it had proposed, not its lack of experience with the BOP. The
contracting officer found this lack of experience with the fence actually
proposed to be a common trait of both DeTekion and Sigcom-GDI. The
protester's challenge to this aspect of the evaluation is therefore
without merit.
In challenging the award to Sigcom-GDI, DeTekion also argues that the
contracting officer's best value decision did not properly consider the
weaknesses attributed to Sigcom-GDI's proposal by the TEP. Specifically,
DeTekion notes that the contracting officer unreasonably concluded that
the weaknesses listed by the TEP were not significant. DeTekion maintains
that the weaknesses must have been "significant" since the TEP's report
stated that it did not list any of Sigcom-GDI's "minor" weaknesses. AR,
Tab 20, TEP Consensus Report, at 3. The record reflects that the
contracting officer reasonably concluded that the weaknesses identified by
the TEP were not "significant" since they had not been identified by the
TEP as issues that needed to be raised with Sigcom-GDI during discussions.
The fact that the weaknesses identified by the TEP were not considered
significant is further bolstered by the fact that the TEP's award
recommendation discussed only one of the weaknesses it had identified in
its technical evaluation--Sigcom-GDI's lack of relevant experience--as a
justification for award to DeTekion. Moreover, the record reflects that
the contracting officer addressed each weakness, specifically concluding
in most instances that they were not significant. In this regard, DeTekion
alleges that the contracting officer disregarded concerns raised by one of
the evaluators regarding Sigcom-GDI's proposal, specifically, Sigcom-GDI's
lack of experience with lethal fencing as well as the fact that its system
"continues to be a work in progress." AR, Tab 2C, TEP Panel Member Notes.
In fact, the record reflects that the contracting officer considered
Sigcom-GDI's lack of relevant experience, and its lack of experience with
the specific system which it had proposed, to be weaknesses, which were
noted and considered in his best value determination. Based on this
record, we find nothing unreasonable with the agency's evaluation or
source selection decision.
Meaningful Discussions
DeTekion argues that its discussions with the agency were not meaningful
because the agency failed to identify its price, which was higher than
that of Sigcom-GDI, as a weakness in its proposal and because the agency
failed to raise the weaknesses attributed to its proposal by the
contracting officer.[4] Regarding the issue of DeTekion's price, where, as
here, an offeror's price is high in comparison to competitors'
prices--DeTekion's price was 22 percent higher than Sigcom-GDI's
price--the agency may, but is not required to, address the matter during
discussions.[5] Hydraulics Int'l, Inc., B-284684, B-284684.2, May 24,
2000, 2000 CPD para. 149 at 17; see FAR sections 15.306(d)(3), (e)(3).
Accordingly, if an offeror's price is not so high as to be unreasonable
and unacceptable for contract award, the agency may reasonably conduct
meaningful discussions without advising the higher-priced offeror that its
prices are not competitive. See Hydraulics Int'l, Inc., supra.
Here, the record reflects that the agency conducted a detailed comparison
of the offerors' price information, comparing DeTekion's proposed price of
$16,250,000 to the IGE as well as pricing information obtained in
connection with the BOP's prior unsuccessful attempts to procure
non-lethal/lethal fence systems through competitive acquisitions. While
DeTekion's price was higher than the awardee's price, its price was lower
than the IGE of $16,307,552.50. Relying on this information, the agency
concluded that the price differential between DeTekion and Sigcom-GDI was
the result of their different technical approaches and that DeTekion's
price was reasonable for its chosen approach. Therefore, the agency's
decision not to raise the issue of DeTekion's higher price during
discussions does not provide a basis to sustain the protest.
DeTekion also contends that the contracting officer was obligated to
discuss with DeTekion his reasons for downgrading DeTekion's proposal as
reflected in his analysis of TEP's technical evaluation and award
recommendation. As a general matter, although discussions must address at
least deficiencies and significant weaknesses identified in proposals, the
scope and extent of discussions are largely a matter of the contracting
officer's judgment. In this regard, we will review the discussions
provided to ensure that the agency pointed out weaknesses that, unless
corrected, would prevent the offeror from having a reasonable chance of
receiving the award. An agency is not required to afford offerors
all-encompassing discussions or to discuss every element that receives
less than the maximum score, and is not required to advise an offeror of a
minor weakness that is not considered significant, even where the weakness
subsequently becomes a determinative factor in choosing between two
closely ranked proposals. MarLaw-Arco MFPD Mgmt., B-291875, Apr. 23, 2003,
2003 CPD para. 85 at 4.
Here, the protester misconstrues the contracting officer's consideration
of its proposal and the TEP evaluation. The record reflects that the
contracting officer did not find any significant weaknesses in connection
with DeTekion's proposal; rather, the contracting officer's comments
regarding DeTekion's proposal were in the context of his consideration of
the weight of the strengths attributed to DeTekion's proposal by the TEP.
While in some instances the contracting officer found that the strengths
were not supported and may have used the term "weakness" in several
instances, his analysis was in the context of determining that a perceived
strength had disadvantages negating it as a strength, as opposed to the
finding of a significant weakness. Thus, since there were no weaknesses or
deficiencies that kept DeTekion's proposal from being fully acceptable, or
from otherwise having a reasonable chance of being selected for award, the
agency was not required to provide more extensive discussions with
DeTekion.
Technical Acceptability of Sigcom-GDI's Proposal
DeTekion argues that Sigcom-GDI's proposal was not technically acceptable
because its system utilizes direct current, which "even when in `fatal
mode' would push the person touching the fence away, which in many
instances would prove to not be fatal, but would rather have a potential
maiming effect"[6] and because the system proposed does not comply with
required IEC standards.[7] Supplemental Protest at 4.
As noted above, it is not the role of our office to independently evaluate
and determine the qualifications or technical capabilities of offerors'
proposed systems. Federal Envtl. Servs., Inc., B-260289, B-260490, May 24,
1995, 95-1 CPD para. 261 at 3. Regarding the first issue, the agency
explains that there are no standards set for determining the lethal
requirements for fence systems. Rather, considering Sigcom-GDI's
successful demonstration of its fence's lethal mode, which delivers
[DELETED] volts of direct current pulsing at [DELETED] hertz--[DELETED]
times the non-lethal IEC standard of 1 hertz impulse frequency--the agency
determined that Sigcom-GDI's demonstration of lethality was satisfactory.
As explained by the agency, no system can be evaluated to guarantee
lethality "short of throwing different sized people against each [fence]
under various circumstances." Second Supplemental AR at 18. Moreover,
assuming that the protester's main objection were true--that direct
current could cause a muscle contraction strong enough to push a person
who touches the fence away--it does not explain how or why this undermines
the lethality of the fence; rather, DeTekion assumes the possibility of a
non-lethal result. Thus, we find DeTekion's unsupported allegations in
this regard to be speculative in nature and without merit.
Regarding the second issue, DeTekion asserts that Sigcom-GDI's proposal
fails to comply with IEC 60335-2-76, a requirement of the RFP.
Specifically, DeTekion alleges that the Sigcom-GDI's fence system utilizes
[DELETED], which, according to DeTekion, is precluded by sections 22.108
and 22.109 of the IEC standard.[8] The agency explains that the design of
Sigcom-GDI's system is compliant with the IEC standards since its system
provides for [DELETED] thus safeguarding the system from operating in
excess of the 1 hertz non-lethal limit specified by the IEC standards.
More specifically, the agency notes that while Sigcom-GDI's system
utilizes [DELETED], Sigcom-GDI's proposal explained that its non-lethal
and lethal energizers [DELETED] to ensure safety and meet the requirements
of IEC 60335-2-76. Specifically, Sigcom-GDI's proposal reads: "In keeping
with the requirements of IEC 60335-2-76 . . . the proposed stun/lethal
system [DELETED] as is required by IEC 60335-2-76, and are powered from a
[DELETED] and explains that [DELETED] it is not possible to accidentally
activate the lethal subsystem while the system operates in non-lethal mode
only." Sigcom-GDI Proposal, Vol. 1, Tab 3, at 1 and 2. Given the record in
this case, we find nothing unreasonable with the agency's conclusion that
Sigcom-GDI's proposal is compliant with the applicable IEC standards.
The protest is denied.
Gary L. Kepplinger
General Counsel
------------------------
[1] Of 1,070 possible points under the past performance factor, DeTekion
received a score of 850, while Sigcom-GDI received 696 points. When the
past performance scores were combined with the technical scores DeTekion
received 1,993 total points and Sigcom-GDI received 1,571 points--the
maximum possible point score was 2,340. AR, Tab 28, Source Selection
Decision, at 5-6.
[2] Capacitance is a measure of the amount of electric charge stored.
Merriam-Webster Online Dictionary, available at
http://www.merriam-webster.com/.
[3] In support of its protest, DeTekion mistakenly relies on our decision
in SOS Interpreting, Ltd., B-293026 et al., Jan. 20, 2004, 2005 CPD para.
26. In SOS Interpreting, we sustained a protest where lower-level
evaluators found and documented that the protester's higher-priced
proposal was technically superior, and the source selection authority
determined the proposals were technically equal and made award based on
the low-priced proposal. The key factor in that decision was the fact that
the record did not reflect the source selection authority's consideration
of all the areas where the protester's proposal was found technically
superior. Here, as more fully discussed below, the record reflects that
the contracting officer did in fact consider each of the offerors'
strengths and weaknesses as identified by the TEP.
[4] Premised on the notion that the agency had changed the basis for award
to one based on technical acceptability and low price, DeTekion argued
that the agency was required to inform DeTekion of this fact during
discussions. As discussed above, however, the protester's contention is
incorrect--the agency's award decision was based on a best value analysis
as required by the RFP--and its challenge is therefore without merit.
[5] DeTekion also argued for the first time in its comments on the agency
report that Sigcom-GDI's price was unrealistic and as a consequence
demonstrated that the awardee's proposal was technically unacceptable and
represented a substantial risk to the agency. Where, as here, the RFP
calls for award of a fixed-price contract and there is no relevant
evaluation criterion pertaining to realism or understanding, a
determination that an offeror's price is too low generally concerns the
offeror's responsibility, i.e., the offeror's ability and capacity to
successfully perform the contract at its offered price. CSE Constr.,
B-291268.2, Dec. 16, 2002, 2002 CPD para. 207 at 4-5; Cromartie Constr.
Co., B-271788, July 30, 1996, 96-2 CPD para. 48 at 5. Thus, to the extent
DeTekion is challenging the agency's affirmative determination of
responsibility for the first time in its comments, this basis of protest
is untimely since it was not raised within 10 days of DeTekion learning of
the agency's award decision. Bid Protest Regulations, 4 C.F.R. sect.
21.2(a)(2) (2006).
[6] DeTekion argues that the injuries caused by Sigcom-GDI's fence could
result in the BOP's violation of the Eighth Amendment of the United States
Constitution, which prohibits "cruel and unusual punishment," and further
asserts that "individuals who are maimed . . . will be selected
arbitrarily, based on the failure rate of the system, which could also be
considered torture." Supplemental Protest at 4-5. The jurisdiction of our
Office, however, is limited to deciding protests concerning alleged
violations of procurement statutes or regulations. See 31 U.S.C. sect.
3552 (2000). Because the questions raised do not implicate violations of
procurement statutes or regulations, they are not for resolution by our
Office and are instead matters for the courts to ultimately decide. DePaul
Hospital and the Catholic Health Ass'n of the United States, B-227160,
Aug. 18, 1987, 87-2 CPD para.173; Onshore SOG, Inc.-Recon., B-210406.3,
Feb. 15, 1984, 84-1 CPD para. 203.
[7] In its report the agency argued, in part, that these bases of protest
were untimely challenges to the solicitation, which should have been
raised prior to the RFP's closing date. We disagreed because they stemmed
from Sigcom-GDI's specific technical approach, which DeTekion was not
required to anticipate. As a result, we requested further development of
the merits of these issues from the parties. The protester argued that the
agency's response should be "stricken" on the ground that the agency
abandoned the merits by principally relying on its procedural arguments.
We view the protester's argument as a baseless objection to the decision
of our Office to seek further development of the issues from the agency.
In reviewing the agency report, we found the agency's discussion of the
underlying facts regarding technical acceptability of Sigcom-GDI's
proposal to be general in nature and, as a consequence, requiring further
amplification. Our decision to seek additional information from the agency
in this regard is consistent with our Bid Protest Regulations, which
expressly provide that "GAO may request or permit the submission of
additional statements by the parties . . . as may be necessary for the
fair resolution of the protest." Bid Protest Regulations, 4 C.F.R. sect.
21.3(j).
[8] Section 22.108 of the IEC standard sets forth the maximum energizer
output for non-lethal fence applications. Section 22.109 provides that
where a system utilizes multiple circuits for an energizer, "the output
characteristics shall be within the limits specified in 22.108 for any
possible connection of the fence circuits."