TITLE: B-298297, Lakota Technical Solutions, Inc., August 4, 2006
BNUMBER: B-298297
DATE: August 4, 2006
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B-298297, Lakota Technical Solutions, Inc., August 4, 2006
Decision
Matter of: Lakota Technical Solutions, Inc.
File: B-298297
Date: August 4, 2006
Keith W. Fitch for the protester.
Andrew C. Saunders, Esq., and Ellen Lynch, Esq., Naval Sea Systems
Command, for the agency.
Jennifer D. Westfall-McGrail, Esq., and Christine S. Melody, Esq., Office
of the General Counsel, GAO, participated in the preparation of the
decision.
DIGEST
1. Protest alleging that firm that developed technical data package (TDP)
for item to be procured has an unfair informational advantage over other
competitors is denied where record establishes that TDP contained
sufficient information to permit prospective offerors to formulate
proposals.
2. A competitive advantage that derives from an offeror's previous
performance under a government contract is not an unfair competitive
advantage that agency is required to neutralize.
DECISION
Lakota Technical Solutions, Inc. protests the terms of request for
proposals (RFP) No. N00024-06-R-5112, issued by the Naval Sea System
Command for Signal Data Processor (SDP) assemblies. Lakota objects to the
unwillingness of the agency to warrant the quality and completeness of
certain items in the RFP's technical data package (TDP).
We deny the protest.
BACKGROUND
In 2004, the Navy issued a task order to Science Applications
International Corporation (SAIC) for the design and development of an
improved (i.e., smaller, lighter, and less costly) version of its
Cooperative Engagement Capability (CEC) system, of which the SDP assembly
is a core component.[1] The order required SAIC to provide "all of the
necessary information to fully describe the hardware product and to
support life cycle maintenance of the hardware product by the Government."
SAIC Task Order, sect. 3.3.4.3. In addition, the order required SAIC to
build and deliver four production representative terminal units to the
government for test and evaluation. Id. sect. 3.3.4.1.
In 2005, SAIC completed the design and development of the SDP assembly
(which, according to the agency, consists of a rectangular box containing
13 circuit card assemblies) and delivered to the Navy documentation
consisting of schematics, block diagrams, parts lists, unit
specifications, wiring diagrams and what the agency describes as "other
information necessary to conduct a `build to print' competition for the
fabrication, assembly and test of the CEC SDP assembly." Agency Report
at 4. In November of 2005, the Navy conducted a physical configuration
audit of the SAIC design. According to the agency, a part of that review
was to ensure that the TDP adequately described the equipment to be built
under the RFP at issue in this protest. The audit resulted in the Navy's
requiring multiple corrections to the documentation, which SAIC furnished
over the course of the next few months.
The Navy issued the RFP on March 23, 2006. The solicitation contemplated
award of a fixed-price contract to the offeror whose proposal represented
the best value to the government, with proposals to be evaluated on the
basis of the offeror's production and engineering capabilities, past
performance, and price. The RFP's statement of work required fabrication
of the data processors in accordance with the TDP provided as
government-furnished information (GFI). The RFP, as amended, set the
closing date for receipt of proposals as June 15. Amend. 2 at 2.[2]
DISCUSSION
Lakota protested to our Office on May 10, objecting to the agency's
failure to furnish as part of the TDP certain information generated by
SAIC in its development of the improved SDP. In particular, the protester
objected to the agency's failure to furnish "electronic formats of
schematics and computer aided design artifacts." Protest at 2. Lakota
complained that the failure of the agency to furnish this information
would result in an unequal competition because competitors of SAIC would
be required to include the cost of developing this information in their
proposed prices, whereas SAIC had already developed the information at
government expense. Similarly, the protester objected to the agency's
failure to provide equations or software for programmable devices, arguing
that competitors of SAIC would be required to develop this information,
whereas SAIC would not be. Lakota further objected to the agency's failure
to furnish as part of the RFP vendor information obtained by SAIC in its
performance of its task order. The protester also complained that while
the agency had permitted prospective offerors to view the components of a
sample SDP, the components had been placed in heavily tinted electrostatic
packaging that had prevented prospective offerors from seeing component
information, part numbers, mechanical layout, and custom fabrication.
The Navy updated the TDP in response to Lakota's protest. As explained
below, the updated version included the "native" versions of "gerber
files," as well as all available information regarding vendors used by
SAIC. The Navy also amended the RFP to include field programmable gate
array software as GFI and improved visual access to the sample assembly by
removing the circuit cards from the electrostatic packaging.
With regard to the gerber files, the agency explained that a gerber file
is a standard file format used by printed circuit board (PCB) fabrication
firms to, among other things, drill holes, mill, and cut the PCBs. The
Navy further explained that the gerber files released in the original TDP
were in a PDF "read only" format, whereas the updated TDP provided the
gerber files in a "native format" that manufacturers using the same
software format as SAIC could use to program their machines for
manufacture of the PCBs. In other words, as we understand the agency's
explanation, the gerber files released in the original TDP defined the
required characteristics of the circuit boards, whereas the native gerber
files described the particular manufacturing process that SAIC had used to
create them.
In its report, the Navy argued that it had produced all relevant
documentation in its possession regarding the SDP assembly and that the
TDP was adequate to manufacture the item. In support of its position, the
agency submitted a declaration from the Navy engineer responsible for the
CEC Pre-Planned Product Improvement (P3I) project, which advised that he
was not aware of any defects in the TDP and associated
government-furnished equipment and information that would "negatively
impact an offeror's ability to provide a bid on [RFP] N00024-06-R-5112 and
ultimately build the Signal Data Processor assembly." Declaration of the
Deputy Director for Systems Engineering, Integrated Warfare Systems, June
8, 2006. The agency asserted that the real crux of Lakota's protest was
not that the TDP was inadequate, but rather that SAIC would have a
competitive advantage over other offerors based on its prior experience in
developing and manufacturing the item; such an advantage, the agency
maintained, was not an advantage that the agency was required to
neutralize.
In responding to the agency report, Lakota conceded that the agency had
addressed two of its initial complaints by making the field programmable
gate array software available as GFI and by improving visual access to the
sample assemblies through removal of the electrostatic packaging. The
protester maintained that the agency had not released all appropriate
schematics and drawings, however, and that, as a consequence, the RFP
remained defective. Lakota cited as evidence that the agency had not
released all available documentation the following offeror question and
agency response from the RFP:
QUESTION 74: As the RFP is described as a "build-to-print" solicitation,
the gerber files and any other electronic design material associated
with the TDP must be provided to the organizations interested in this
solicitation. Otherwise, the solicitation is defective, because SAIC has
an unfair competitive advantage. SAIC was paid for engineering services
to develop the P3I terminal (i.e., the CEC SDP which is on display . .
.) under [the preceding task order]. Thus, they alone have the
information in order to build-to-print. . . . it is clear that the
government's intent is to have the contractor build CEC SDPs that are
identical to the ones produced under the P31 Terminal effort. Without
the gerber files and any other electronic design material that provides
the details for how each circuit card assembly was manufactured for the
unit on display, all vendors other than SAIC will be forced to incur
[non-recurring engineering] charges to redevelop this material, which
may result in the produced units not being "built-to-print."
ANSWER 74: The Government will release available Gerber files and vendor
list with the updated TDP (Library Set). The Government does not warrant
the quality or completeness of the Gerber files or the vendor list.
These files and the list are being provided for guidance only. The
government will provide any available electronic design information with
the updated TDP (Library Set). The government does not warrant the
quality or completeness of the available electronic design information.
Question and Answers Set #5, Agency Report, Tab 7. According to the
protester, the agency's unwillingness to warrant the quality and
completeness of the gerber files, vendor list, and electronic design
information demonstrates that the agency is aware that SAIC has
documentation that it is not furnishing.[3]
We see no basis to conclude that the agency's refusal to warrant the
quality and completeness of the native gerber files and the electronic
design information pertaining to manufacture of the circuit cards
demonstrates that the agency is aware of the existence of documentation
that it is not providing or otherwise casts doubt on the adequacy of the
TDP. As the agency explains, the requirement here was that the item
produced conform to the schematics, block diagrams, parts lists,
specifications, wiring diagrams, and other information in the TDP; the
Navy did not require offerors to use a specific manufacturing process to
produce the item. As a result, given that the native gerber files and the
electronic design information relate to the specific manufacturing
software SAIC used to build the assembly, and would not ordinarily be
included in a TDP of this type, the fact that the Navy did not "warrant"
this information has no bearing on the adequacy of the TDP. Moreover, even
assuming that SAIC is in possession of information pertaining to
manufacture of the SDPs that it has not furnished to the agency (and that,
accordingly, has not been made available to other prospective offerors),
the record nonetheless establishes that the TDP contained sufficient
information to permit prospective offerors to formulate proposals. In this
regard, as noted above, the Navy engineer responsible for the CED P3I
project attested that he is unaware of any defects in the TDP that would
impair the ability of prospective offerors to prepare proposals and build
the item, and the protester has offered no specific evidence to question
the agency's position. Also, the agency reports that more than one offer
was received in response to the RFP.[4]
There remains the question of whether the Navy's unwillingness to warrant
the quality and completeness of the information furnished in the TDP
regarding SAIC's process for manufacturing the circuit boards gives SAIC
an unfair competitive advantage over other prospective offerors who will
have to incur the expense of verifying the correctness and completeness of
the information furnished and/or developing their own process for
manufacture of the circuit boards. In our view, while SAIC's access to
information that other offerors will have to develop gives it a
competitive advantage, it is not an unfair competitive advantage and thus
is not one that the agency is required to neutralize. See Government Bus.
Servs. Group, B-287052 et al., Mar. 27, 2001, 2001 CPD para. 58 at 10.
The protest is denied.
Gary L. Kepplinger
General Counsel
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[1] The Navy explains that the CEC system greatly enhances the air defense
capabilities of Navy ship, aircraft and land-based units by sharing radar
and other data among participating units in a manner that improves
situational awareness and enables longer range engagements. The agency
notes that, for example, the CEC system allows a ship to fire on a hostile
target before it crosses that ship's radar horizon, thereby enabling the
ship to intercept a target at the maximum possible range of its weapons.
[2] At the time Lakota filed its protest, closing was set for May 22; on
May 17, following receipt of the protest, the agency amended the RFP to
extend the closing date to June 15.
[3] To the extent that in its comments on the agency report, the protester
alleged a conflict of interest on SAIC's part in competing under a
solicitation for which it had prepared the TDP, a protester's allegation
that another firm has an impermissible conflict of interest, and thus must
be precluded from competing under a solicitation, is generally premature
when filed before an award has been made. REEP, Inc., B-290688, Sept. 20,
2002, 2002 CPD para. 158 at 1-2. In any event, the Federal Acquisition
Regulation (FAR) does not require the exclusion of a contractor that has
developed an item from a competition for production of the item. See FAR
sect. 9.505-2(a)(3) ("In development work, it is normal to select firms
that have done the most advanced work in the field. These firms can be
expected to design and develop around their own prior knowledge.
Development contractors can frequently start production earlier and more
knowledgeably than firms that did not participate in the development, and
this can affect the time and quality of production, both of which are
important to the Government. In many instances the Government may have
financed the development. Thus, while the development contractor has a
competitive advantage, it is an unavoidable one that is not considered
unfair; hence no prohibition should be imposed."). See also FAR
sect. 9.508(c) ("Company A develops new electronic equipment and, as a
result of this development, prepares specifications. Company A may supply
the equipment.")
[4] Because the procurement is still ongoing, information regarding the
specific number and identity of the offerors was not furnished to the
protester and is not discussed in this decision.