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."