TITLE: B-298489.4; B-298489.5, Compunetix, Inc., January 12, 2007
BNUMBER: B-298489.4; B-298489.5
DATE: January 12, 2007
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B-298489.4; B-298489.5, Compunetix, Inc., January 12, 2007
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: Compunetix, Inc.
File: B-298489.4; B-298489.5
Date: January 12, 2007
James K. Kearney, Esq., Holly E. Svetz, Esq., and Erin L. Roberts, Esq.,
Womble Carlyle Sandridge & Rice, for the protester.
Joseph A. Artabane, Esq., Robert F. Condon, Esq., and Maura E. Molloy,
Esq., Artabane & Belden, for Frequentis USA, Inc., an intervenor.
Jerald J. Kennemuth, Esq., Laura M. Giza, Esq., Daniel C. Hymer, Esq., and
John H. Eckhardt, Esq., National Aeronautics and Space Administration, for
the agency.
Ralph O. White, Esq., and Christine S. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest that agency performed an unreasonable evaluation of proposals is
denied where the record shows that the agency's conclusions were
reasonable, and were consistent with the stated evaluation scheme and
applicable procurement statutes and regulations.
DECISION
Compunetix, Inc. protests the award of a contract to Frequentis USA, Inc.
by the National Aeronautics and Space Administration's (NASA) Goddard
Space Flight Center, pursuant to request for offers (RFO) No.
NNG05096022R, issued to procure Mission Operations Voice Enhancement
(MOVE) systems. Compunetix, whose proposal was lower rated and higher
priced than the awardee's, challenges virtually every evaluation
conclusion reached by the agency, and contends that Frequentis is not a
small business eligible for award under this small business set-aside
procurement.
We deny the protest.
BACKGROUND[1]
The solicitation here was issued on July 29, 2005, and sought offers "for
the design, acquisition, development, integration, test, delivery and
maintenance of all hardware, firmware, and software components" for the
MOVE system configurations to be delivered to each site. RFO, Cover
Letter, at 1. The Contracting Officer (CO) explains that the MOVE system
being procured will "provide real time switching, conferencing, and
monitoring of mission voice services in support of launches, simulations,
landings, spacecraft emergencies, and critical operations." CO's
Statement, Nov. 13, 2006, at 6. NASA anticipates replacing its existing
mission voice systems--which were custom-designed and are aging--with
standardized products over a 5-year period, followed by product support
and maintenance for an additional 10 years. Id. To achieve
standardization, the solicitation anticipates the use of commercial
off-the-shelf (COTS) hardware and software to the maximum extent possible,
RFO, Statement of Work (SOW), at 1-2, but also anticipates the development
of certain products to meet NASA's unique requirements. Id. at 3-8.
The RFO anticipated the award of what NASA terms "a commercial
firm-fixed-price hybrid contract with both a basic requirement and
indefinite delivery indefinite quantity" requirements, RFO at 78, for a
period of 15 years. The basic requirement is to provide voice systems to
three NASA centers: Goddard, the Marshall Space Flight Center, and the
Johnson Space Center. The RFO also includes 15 options for installing the
MOVE system at various other NASA sites, including the Jet Propulsion
Laboratory, the Mission Control Center Moscow, and Vandenberg Air Force
Base. CO's Statement, supra, at 7. The competition was limited to small
business offerors.
The RFO advised potential offerors that proposals would be evaluated under
three factors, in declining order of importance: mission suitability,
price, and past performance. RFO at 94. Although the price factor was more
important than past performance, offerors were advised that mission
suitability and past performance combined would be more important than
price. Id.
With respect to the mission suitability factor, the RFO advised that
proposals would be evaluated using a 1000-point scale, divided into four
subfactors, as follows: (1) understanding the requirements and technical
approach, 450 points; (2) management and capabilities, 200 points; (3)
technical and schedule risk, 300 points; and (4) safety and health plan,
50 points. RFO at 99. In addition, NASA anticipated assigning adjectival
ratings to the resulting point scores of: excellent, very good, good,
fair, or poor. AR, Tab 50, at 15. Similarly, NASA anticipated assigning
the same adjectival ratings (but not point scores) under the past
performance evaluation factor, with the addition of a rating of "neutral"
for offerors without relevant past performance. Id. at 14.
With respect to price, the RFO advised that the agency would calculate a
total evaluated price comprised of the price for the basic requirement
identified above, the price for 13 of the 15 option sites (the 2 remaining
option sites were deemed less likely to be needed), and the total
evaluated indefinite-delivery/indefinite-quantity (ID/IQ) price (i.e., the
price per unit of the ID/IQ items multiplied by the estimated quantities
needed). RFO amend. 6, at 5-6.
On September 5, 2005, NASA received proposals from five offerors, which
were reviewed by a source evaluation board (SEB) team. By the end of an
evaluation process that stretched over a year until the September 27,
2006, final award date, the agency held two rounds of discussions;
obtained two sets of final proposal revisions; eliminated one offer from
the competitive range; made an initial award decision; took corrective
action in response to a protest filed with our Office by one of the other
offerors; again prepared revised evaluation documents and a new selection
decision; and waited for a decision on a size protest from the SBA, which
ultimately held that Frequentis is a small business eligible for the award
of this contract. At the conclusion of this extended process, the results
of NASA's evaluation were as follows:
+------------------------------------------------------------------------+
| | Mission Suitability | Past |Total Evaluated Price |
| | | | |
| | (Points -- Rating) | Performance | |
|-------------+---------------------+-------------+----------------------|
|Frequentis | 822 -- Very Good | Very Good | $48.3 million |
|-------------+---------------------+-------------+----------------------|
|Compunetix | 778 -- Very Good | Excellent | $56.5 million |
|-------------+---------------------+-------------+----------------------|
|Offeror A | 710 -- Very Good | Excellent | $44.0 million |
|-------------+---------------------+-------------+----------------------|
|Offeror B |675 -- Good | Excellent | $51.0 million |
+------------------------------------------------------------------------+
AR, Tab 50, at 66.
These results were presented to NASA's selection authority for this
procurement, who reviewed the evaluation materials and prepared a source
selection statement memorializing his considerations. AR, Tab 51. He noted
first that Frequentis received the highest score under the mission
suitability factor, the most significant evaluation factor, and submitted
the only proposal rated excellent under the most heavily-weighted mission
suitability subfactor, understanding the requirement and technical
approach.[2] AR, Tab 51, at 14. With respect to past performance, the
selection official noted the difference between the offerors' levels of
relevant experience and past performance, and concluded that past
performance was not a significant discriminator between the
offerors--specifically, he noted that the slightly lower past performance
rating of very good for Frequentis did not offset the differences in the
mission suitability ratings and prices. Id.
The selection official next compared Frequentis to both Compunetix and
Offeror B, noting that the Frequentis proposal received higher technical
ratings and offered a lower price than either of the proposals submitted
by those offerors. He then compared the higher score given the Frequentis
proposal relative to Offeror A's proposal under the mission suitability
factor, and under three of the four mission suitability subfactors. Based
on his assessment of the technical merits of the Frequentis proposal, he
explained that the "value of the superior mission suitability [score] when
viewed in terms of the modest additional price" ($48.3 million for
Frequentis versus $44.0 million for Offeror A), led him to select
Frequentis for award. Id. at 15. This protest followed.
DISCUSSION
In protesting the award decision here, Compunetix, as mentioned above,
challenges virtually every evaluation conclusion reached by the NASA
evaluators.[3] Our standard in reviewing such challenges is to examine the
record to determine whether the agency's judgment was reasonable and
consistent with stated evaluation criteria, and with applicable statutes
and regulations. ESCO, Inc., B-225565, Apr. 29, 1987, 87-1 CPD para. 450
at 7. Based on our review of all of the arguments raised here, the
agency's detailed responses, and the comprehensive evaluation materials
provided, we think Compunetix has failed to show that NASA's evaluation
was unreasonable.
While we have reviewed all of Compunetix's challenges regarding the
technical evaluation here, we need not address each in detail. Instead, we
set forth below two representative examples. First, Compunetix complains
that NASA unreasonably found that Frequentis deserved a strength for
offering "a T1 interface that has only one port on a single interface
card, minimizing the loss of voice circuits in the event of a failure on
the interface card." AR, Tab 51, at 4. The protester explains that it also
should have received a strength because, while its T1 interface could
accommodate up to [deleted] ports on a single interface card, NASA could
have used only one port per card to minimize the loss of voice circuits in
the event of a failure. The protester also complained that this result was
unfair because NASA had instructed that it was "satisfactory" to offer up
to [deleted] ports per T-1 unit. Initial Protest at 11.
In answer, NASA explains that while it was willing to accept up to
[deleted] ports per card, as the protester contended, using [deleted]
ports per card was not the optimal solution. Agency Memorandum of Law,
Nov. 13, 2006, at 9. The agency additionally explains that while
Compunetix met the requirement, Frequentis exceeded it, and the agency
evaluators reasonably saw this feature as a strength in the proposal.
Nothing the protester argues in response shows that this conclusion was
unreasonable.
Second, and in many ways more significant, is the protester's challenge to
the weakness assigned the Frequentis proposal by the agency in the area of
technical and schedule risk.
As discussed above, NASA's RFO for the MOVE system sought the use of COTS
hardware and software to the maximum extent possible, but also anticipated
the modification of products and development of items to meet the agency's
requirements. RFO, SOW, at 1-8. There is no dispute that the balance of
commercial items versus modified or development items identified by
Frequentis in its approach was a subject of concern for the agency. This
matter was identified by NASA as a weakness and raised during discussions.
The final evaluation report prepared for this procurement includes the
following comments on this subject:
Weakness: The number of concurrent development efforts when combined
with their complexity represents a technical risk.
The Government requires capabilities in the MOVE voice systems that are
based upon large numbers of simultaneous conferences where each
conference has many participants. The Offeror's hardware that has been
designed and deployed is dissimilar to the NASA mission environment,
thus driving elements of redesign throughout the system.
Although the Offeror has proposed a very effective development
management plan, and has identified the development efforts and
associated risks in detail, the concern still remains that the amount
and complexity of modification that is required and has not been
performed in the deployment of similar systems; this constitutes a
technical risk to the Government.
The number and severity of the development effort leads to an increased
risk of unsuccessful contract performance.
AR, Bates Stamped page 7,028.[4] In a distilled form, these concerns are
also set forth in the selection statement. Specifically, the selection
authority notes:
Frequentis USA received one weakness in relation to its development
effort. Although they proposed a very effective development management
plan, and identified the development efforts and associated risks in
detail, the number of concurrent development efforts when combined with
their complexity represents a technical risk.
AR, Tab 51, at 6. In the protester's view, the risk described above should
have been considered a significant weakness, rather than a weakness.
In our view, the protester's arguments regarding the extent of the
weakness that should be assigned to the Frequentis proposal due to the
development efforts required, and the complexity of those efforts, is a
matter of judgment best reserved for agency evaluators; we will not
substitute our judgment for the agency's. See Foundation Eng'g Sciences,
Inc., B-292834, B-292834.2, Dec. 12, 2003, 2003 CPD para. 229 at 3. The
record shows that NASA clearly recognized and understood this issue, and
carefully examined the facts surrounding it. The protester cannot claim
that this weakness was buried in earlier reports, or somehow forgotten;
instead, the selection official included his own summary of the extent of
the weakness in his decision selecting Frequentis for award. AR, Tab 51,
at 6.
In addition, the agency's supplemental report explains that NASA decided
this matter did not rise to a significant weakness because
none of the proposed development was internal to the core switching
system, and only 3.3 percent of the proposed development--the key set
interface--was internal to the switch at all. . . . The remaining 96.7
percent of the development was targeted at keyset or LSA [Local Site
Administrator subsystem] software development, rightly regarded by NASA
as less risky. [Citation omitted.] In addition, the amount of
development that was required was well documented and appeared to NASA
to be well managed, as evidenced by the Strength awarded to Frequentis
for its understanding of the risk.
Supp. Agency Memorandum of Law, Dec. 4, 2006, at 13.
Finally, we note that five of the seven voting members of NASA's
evaluation board are career voice system engineers, four of whom authored
the requirements here. Agency Memorandum of Law, Nov. 13, 2006, at 27.
Despite the protester's arguments to the contrary, we find it unlikely
that NASA's evaluators did not understand the issues here, and, as stated
above, we will not substitute our judgment for theirs based on the
disagreement of the protester and its expert. See Rockhill Indus., Inc.,
B-278797, Mar. 16, 1998, 98-1 CPD para. 79 at 4.
We turn next to the protester's argument that NASA unreasonably evaluated
Frequentis with respect to its status as a manufacturer and as a result
improperly failed to find its proposal ineligible for award. Supp.
Protest, Nov. 20, 2006, at 9. For the reasons set forth below, we think
the protester's argument ultimately and essentially challenges the
awardee's size, which is a matter reserved for the SBA, not our Office.
The RFO here advised that this procurement was a 100-percent small
business set-aside. The protester's arguments are that Frequentis is not
itself the manufacturer of this equipment, as required by the SBA's
regulations, 13 C.F.R. sect. 121.406(a) (2006), and is, therefore, other
than a small business and ineligible for award.
In this procurement, Frequentis certified that it was a small business
under the applicable size standard. When a concern self-certifies that it
is eligible for award under the applicable size standard, the Federal
Acquisition Regulation (FAR) provides that the CO shall accept that
representation unless another offeror challenges the concern's
representation, or the CO has a reason to question the representation. FAR
sect. 19.301(b). Although there was initially no outside challenge--that
came later--the CO raised questions about the extent to which Frequentis
was relying on a large business subcontractor for manufacturing space.
After these questions were answered, the CO decided she had no reason to
further question the self-certification, or to refer the matter to the
SBA. Supp. CO's Statement, Dec. 4, 2006, at 1-2.
Although a challenge to the size status of a particular firm is for review
solely by the SBA, see Bid Protest Regulations, 4 C.F.R. sect. 21.5(b)(1)
(2006), we have considered protests asserting that an awardee's proposal,
on its face, evidences a clear intent not to comply with the
subcontracting limitation applicable to small business procurements. See,
e.g., KIRA Inc., B-287573.4, B-287573.5, Aug. 29, 2001, 2001 CPD para. 153
at 3; Parmatic Filter Corp., B-285288, B-285288.2, Aug. 14, 2000, 2000 CPD
para. 185 at 10. Assuming that we likewise would review a challenge to an
awardee's intent, as evident from the face of its proposal, to manufacture
the items being procured under a small business set-aside, there is
nothing in the record here to support a finding that Frequentis clearly
indicated it did not intend to comply with the SBA's manufacturing
requirements. Instead, the CO investigated the issues and was satisfied by
the answers she received. The SBA then reviewed the matter and
concluded--as did the CO--that Frequentis is the manufacturer of these
items for purposes of the SBA size regulations. This question squarely
raises a matter reserved for the SBA, not our Office.
In conclusion, as indicated above, we have reviewed all of the issues
raised in this protest, including the technical challenges not expressly
discussed above, as well as the allegations that the agency did not
reasonably evaluate prices (in this fixed-price competition), the
assessment of past performance was unreasonable, and discussions were
unequal. In every instance, we have seen nothing in this record to support
a conclusion that this evaluation was anything other than reasonable and
well-supported.
The protest is denied.
Gary L. Kepplinger
General Counsel
------------------------
[1] This protest challenges a procurement that has already been the
subject of two other protests--one resulting in agency corrective action,
the other withdrawn--and a small business size challenge (which the Small
Business Administration (SBA) decided in favor of Frequentis). As a
result, there are numerous procedural events recounted in the record not
relevant to our current review. Only the details relevant to the protest
now before us are included in this decision.
[2] We have omitted the details regarding the scores and ratings given the
offerors at the mission suitability subfactor level. As the selection
official indicates however, Frequentis received a higher score under three
of the four mission suitability subfactors. AR, Tab 50, at 22. Frequentis
received a lower score than Compunetix under the technical and schedule
risk subfactor, and was assessed by the evaluators as having a weakness in
the area of technical and schedule risk. As discussed below, Compunetix
argues that the evaluators acted unreasonably in not assessing this risk
as a significant weakness rather than a weakness.
[3] There is no overstatement here. Under the most heavily-weighted
mission suitability subfactor (understanding the requirement and technical
approach), Compunetix first quotes the findings of the evaluators
supporting their conclusion that the Frequentis proposal offered a
significant strength under the subfactor. Compunetix then parses the quote
and raises eight separate arguments regarding how, it, too, should have
received a significant strength in each of those areas. Similarly, the
protester raises six separate arguments regarding strengths of Frequentis
proposal--all alleging that the protester, too, should have received a
strength in each area. Finally, the protester identifies 28 separate
features of its proposed system that it argues should have been assigned a
strength by the agency evaluators. In addition to the 42 separate
arguments raised regarding the first mission suitability subfactor, the
protester raises similar challenges to the evaluation of the second and
third mission suitability subfactors--i.e., management and capabilities,
and technical and schedule risk. This leads, ultimately, to 58 separate
contentions regarding the mission suitability factor alone.
[4] We cite here to the Bates Stamped page in the record because Tab 49 of
the agency report, which contains the Final Evaluation Report, contains
two versions of the report. We are citing to the second version, which the
agency advises contains minor edits of the first version.