TITLE: B-298626, Lockheed Martin Aeronautics Company, November 21, 2006
BNUMBER: B-298626
DATE: November 21, 2006
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B-298626, Lockheed Martin Aeronautics Company, November 21, 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: Lockheed Martin Aeronautics Company
File: B-298626
Date: November 21, 2006
Marcia G. Madsen, Esq., David F. Dowd, Esq., Michael E. Lackey, Jr., Esq.,
and William L. Olsen, Esq., Mayer, Brown, Rowe & Maw LLP, for the
protester.
Paul W. Searles, Esq., Sharon N. Freytag, Esq., Jacqueline K.
Shipchandler, Esq., and Christopher A. Rogers, Esq., Haynes and Boone,
LLP, for L-3 Communications Integrated Systems LP, an intervenor.
Joseph P. Hornyak, Esq., Mark D. Colley, Esq., and Stuart W. Turner, Esq.,
Holland & Knight LLP, for Raytheon Company, an intervenor.
Jeffrey I. Kessler, Esq., and Tina Marie Pixler, Esq., Department of the
Army, for the agency.
Jonathan L. Kang, Esq., and Glenn G. Wolcott, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Agency reasonably concluded that protester's proposal failed to comply
with solicitation requirements where solicitation required that certain
mandatory capabilities be "embodied" in aircraft and required delivery of
first aircraft 12 months after award, but protester's proposal provided
that it would not deliver aircraft equipped with the mandatory
requirements until more than 4 years after award.
2. Agency meaningfully advised protester that its proposal failed to
comply with solicitation's mandatory requirements when it asked protester
how it intended to provide the mandatory requirements by the time of first
aircraft delivery.
3. Agency reasonably limited its evaluation of offerors' production
capability to the criterion identified in the solicitation.
DECISION
Lockheed Martin Aeronautics Company protests the Department of the Army's
exclusion of Lockheed Martin's proposal from further consideration under
request for proposals (RFP) No. W58RGZ-06-R-0213 to provide the joint
cargo aircraft (JCA) to the government. Lockheed maintains that it was
improper for the agency to conclude that Lockheed's proposal failed to
comply with certain mandatory solicitation requirements.
We deny the protest.
BACKGROUND
On March 17, 2006, the Army issued solicitation No. W58RGZ-06-R-0213
seeking proposals to provide the JCA[1]--that is, to provide a
"multi-functional aircraft, able to perform logistical resupply, casualty
evacuation, troop movement, airdrop operations, humanitarian assistance,
and Homeland Security support," with a "primary mission . . . to move
mission critical/time sensitive cargo to forward tactical units in remote
and austere locations and land or take off from short unimproved runways."
Agency Report (AR), Tab B, RFP at 2.[2] The solicitation further stated
that the JCA program "was established to . . . replace the C-26 and C-23
fleet and selected C-12 aircraft beginning in FY [fiscal year] [20]07,"
and provided for three 1-year base "ordering periods," and two 1-year
"option ordering periods." Id. at 2, 4.
As amended, the solicitation advised offerors that the first phase in the
proposal evaluation process would be an "entry gate" evaluation,[3] during
which proposals would be evaluated for compliance with certain "minimum
performance standards," which the solicitation further defined as
"mandatory capabilities that shall be embodied in the candidate
aircraft."[4] (Underlining in original.) AR, Tab C, RFP,
at 8-9; Tab D, Purchase Description at 1. Further, offerors were advised
that the solicitation's entry gate requirements would be evaluated on a
"Go/No Go" basis, and that "[o]fferors failing to meet these Go/No Go
requirements will be eliminated from the competition." AR, Tab C, RFP at
8. Finally, the solicitation provided that initial proposals were to be
submitted in June 2006, advised offerors that award was intended to be
made during fiscal year 2007, and provided that "the first aircraft shall
be delivered within 12 months after contract award." AR, Tab B, at 2; Tab
C, at 25; Tab E, at 5.
With regard to the entry gate evaluation, the solicitation identified
certain aircraft capability requirements to be evaluated, including
requirements related to "Communication, Navigation and Surveillance
operations in the global Air Traffic Management environment" (CNS/ATM).
[5] AR, Tab C, RFP sect. M-3, at 73. Among other things, the solicitation
provided that the agency's entry gate evaluation would assess each
offeror's current capability with regard to the following:
The [JCA] shall have a dual GPS [global positioning system]
capability[[6]] compliant with [specified standards]. Selective
Availability Anti-Spoofing Module (SAASM)[[7]] and Precise Positioning
Service (PPS).[[8]]
AR, Tab D, RFP, Purchase Description, para. 6.2.1.1.
On or before the June 7 closing date, proposals were submitted by
Lockheed, L-3 Communications Integrated Systems, and Raytheon Company.[9]
Lockheed proposed to provide the "short fuselage version" of the C-130J
aircraft. Protest, Aug. 14, 2006, at 2. [10] In addressing the entry gate
requirement to provide GPS with SAASM, Lockheed stated that this
capability would be met through a "Block Upgrade Program" that currently
exists as part of a separate contract between Lockheed and the Department
of the Air Force.[11] AR, Tab H-8, Lockheed Proposal Vol. 3, at 3-203,
3-207. More specifically, Lockheed stated that it would provide GPS with
SAASM capabilities under "Block 8.0" of that Air Force contract--but also
stated that `fielding" of the capabilities provided under "Block
8.0"--that is, physical incorporation into the aircraft--would not begin
until some time during the year 2012. AR, Tab H-7, Lockheed Proposal Vol.
1, at 1-26; Tab H-8, Lockheed Proposal Vol. 3, at 3-203, 3-207.
In evaluating Lockheed's initial proposal, the agency was concerned that
Lockheed had not offered to meet the solicitation's mandatory entry gate
requirement to provide GPS with SAASM in all delivered aircraft--beginning
with the first aircraft to be delivered 12 months after contract award, in
2008.[12] Accordingly, the agency sent an "error, omission and
clarification" (EOC) notice to Lockheed,[13] seeking additional
information regarding certain aspects of Lockheed's proposal, including
Lockheed's proposed approach to meeting the GPS with SAASM requirement.
Specifically, the EOC notice questioned Lockheed as follows:
How does [Lockheed] propose to meet the PD paragraph 6.2.1.1 MPS
[minimum performance standard] requirement for Global Position System
(GPS) Selective Availability Anti-Spoofing Module (SAASM) and Precise
Positioning Service (PPS) at the time of first aircraft delivery.
AR, Tab I-4, at 2.
Lockheed responded by confirming that its proposal to provide GPS with
SAASM was conditioned upon incorporation of Lockheed's block upgrade
program into the JCA contract, stating:
[I]t is Lockheed Martin's intent to have contractually satisfied the
Selective Availability Anti-Spoofing Module (SAASM) requirement no later
than the scheduled first delivery thru the Joint Program Office's
acceptance of the Block Mod program.
AR, Tab I-4, at 4.
However, in pursuing this protest, Lockheed expressly states its
understanding that "[t]he qualifying language of `contractual
satisfaction' indicates something less than physical incorporation or
implementation [of GPS with SAASM capabilities] in the aircraft."[14]
Protester's Comments on Supplemental Agency Report, Oct. 16, 2006, at 28.
Further, nothing in Lockheed's response altered the provision in its
proposal which provided that the required GPS with SAASM capabilities
would be "fielded," or physically incorporated, in the aircraft through
"block 8.0" of the Air Force contract, and that this would not occur prior
to the year 2012. Accordingly, the agency concluded that Lockheed's
proposal offered to provide "something less than physical incorporation or
implementation" of GPS with SAASM capabilities in the aircraft delivered
under the contract between the time of award and Lockheed's "fielding" of
the block 8.0 upgrades in 2012.[15]
Based on the provisions of Lockheed's proposal stating that Lockheed would
not deliver aircraft equipped with GPS with SAASM until 2012, along with
Lockheed's confirmation, in response to the agency's EOC notice, that GPS
with SAASM was only proposed in conjunction with the "block upgrade"
program, the Army concluded that Lockheed's proposal failed to comply with
the solicitation's entry gate requirements, stating:
Since the required GPS with SAASM . . . capability will not be available
until after first aircraft delivery (April 2008), the offeror does not
provide any evidence of current capability (Reference RFP: M.2.1.3 and L
2.2.3) to meet the CNS/ATM requirement in PD paragraph 6.2.1.1.[[16]]
AR, Tab K-4, Lockheed Evaluation, at 8.[17]
The agency subsequently notified Lockheed that its proposal had been
eliminated from the competition. This protest followed.
DISCUSSION
Lockheed first protests that exclusion of its proposal was improper
because it believes that significant changes will subsequently be made to
the solicitation requirements. Lockheed Protest, Aug. 14, 2006, at 12.
Referencing various "press reports" and other documents, including the
Army's and Air Force's Memorandum of Agreement, Lockheed maintains that
the JCA program requirements are "evolving" and that the current
solicitation "primarily reflects Army needs -- and does not yet reflect
additional Air Force requirements,"[18] concluding that "[c]hanges to the
RFP will have to be made." Lockheed Protest, Aug. 14, 2006, at 7; Lockheed
Comments on AR, Sept. 25, 2006, at 1. With reference to what Lockheed
asserts are pending organizational and funding changes, Lockheed maintains
that such changes will require modification of the solicitation to reflect
the government's "actual needs." [19] Protester's Comments on Agency
Report, Sept. 25, 2006, at 7.
The Army, designated as the "lead Service" in this procurement, responds
that, "Solicitation W58RGZ-06-R-0213 is based on the Government's minimum
needs at this time," and states that "[t]he basic requirements set forth
in the solicitation have not changed." Contracting Officer's Supplemental
Statement, Oct. 10, 2006, at 4-5. Further, the contracting officer states
that the Army does not anticipate material changes to the solicitation's
requirements during the 5-year contract performance period contemplated
under this procurement. Id.
Protests that are based on a protester's anticipation of future agency
actions, which the protester believes may subsequently provide a basis for
protest, are speculative and premature. See, e.g., Saturn Indus.--Recon.,
B-261954, July 19, 1996, 96-2 CPD para. 25 at 5. On this record, and in
the face of the Army's affirmative assertion that it does not anticipate
material changes during performance of the contract at issue, Lockheed's
assertions regarding pending changes to the program and to the
solicitation requirements do not provide a basis for protest at this time.
Lockheed next protests that it was unreasonable for the agency to exclude
Lockheed's proposal for failing to meet the solicitation's mandatory entry
gate requirement to provide GPS with SAASM. We conclude the agency's
decision to exclude Lockheed's proposal was proper.
Lockheed first asserts that the solicitation "does not identify a specific
time by when this capability [GPS with SAASM] must be obtained or
implemented." Lockheed's Comments on Agency Report, Sept. 25, 2006, at 37.
Accordingly, Lockheed asserts that its proposal to delay physical
incorporation of GPS with SAASM into delivered aircraft until 2012 met the
solicitation requirements.[20]
As discussed above, the solicitation provided that GPS with SAASM is a
"minimum performance standard" and unambiguously defines "minimum
performance standards" as "[m]andatory capabilities that shall be embodied
in the candidate aircraft." (Underlining in original.) AR, Tab D, at 1.
Further, the solicitation advised offerors that contract performance is
intended to begin in 2007, and directed that "the first aircraft shall be
delivered within 12 months after contract award." AR, Tab B, at 2; Tab C,
at 25; Tab E, at 5. Lockheed effectively argues that the terms of the
solicitation permit Lockheed to deliver aircraft in which "minimum
performance standards" are not physically incorporated into the aircraft.
We believe this is simply not a reasonable reading of the solicitation
and, in fact, directly contrary to the solicitation's explicit
requirements.
In reviewing a procuring agency's evaluation of an offeror's technical
proposal, our role is limited to ensuring that the evaluation was
reasonable and consistent with the terms of the solicitation and
applicable statutes and regulations. Urban-Meridian Joint Venture,
B-287168, B-287168.2, May 7, 2001, 2001 CPD para. 91 at 2. Where a
protester and agency disagree over the meaning of solicitation language,
we will resolve the matter by reading the solicitation as a whole and in a
manner that gives effect to all its provisions. M & M Ret. Enters., LLC,
B-297282, Dec. 15, 2005, 2005 CPD para. 224 at 3.
Here, consistent with the discussion above, we believe the solicitation,
read as whole, clearly put offerors on notice that GPS with SAASM was a
mandatory requirement that must be "embodied"--that is physically
incorporated--in all delivered aircraft, and that an offeror's capability,
and commitment, to meet that requirement would be evaluated on a "Go/No
Go" basis during the entry gate evaluation. Further, if Lockheed had any
genuine doubt regarding the solicitation's requirements regarding the time
for delivery of aircraft that are "embodied" with GPS with SAASM, such
doubt was, or reasonably should have been, removed by the agency's EOC
notice which unequivocally advised Lockheed that compliance with the
solicitation's mandatory capabilities, specifically including GPS with
SAASM, was required by "first aircraft delivery." AR, Tab I-4, at 2.
Lockheed's assertion that it properly interpreted the solicitation to
require anything other than delivery of aircraft equipped with this
specified mandatory capability is not reasonable.[21]
Lockheed also complains that the Army evaluated offerors unequally in
determining that L-3 and Raytheon satisfied the entry gate requirement
regarding GPS with SAASM because the agency did not perform, in Lockheed's
view, a sufficiently rigorous assessment of the other offerors' proposals.
We reject Lockheed's complaint regarding unequal evaluation of the
offerors' proposals based on the following: Lockheed's proposal
unambiguously provided that Lockheed would not deliver aircraft equipped
with GPS with SAASM until 2012, more than 4 years after first aircraft
delivery; in contrast, L-3's and Raytheon's proposals each stated that
they would provide aircraft equipped with GPS with SAASM, beginning at the
time of first aircraft delivery. In short, L-3's and Raytheon's proposals
committed to comply with the mandatory requirement, while Lockheed's
proposal did not. On this record, we find no basis for Lockheed to assert
that the agency's evaluation of the offerors' proposals to provide GPS
with SAASM reflected unequal treatment.
Next, Lockheed protests that the agency failed to meaningfully advise
Lockheed regarding the agency's concerns that Lockheed's proposal failed
to comply with the mandatory entry gate requirement to provide GPS with
SAASM in delivered aircraft.
Here, as noted above, the agency specifically questioned Lockheed with
regard to how Lockheed intended to meet the mandatory solicitation
requirement to provide GPS with SAASM "at the time of first aircraft
delivery." [22] AR, Tab I-4, at 2. That is, the agency directly questioned
Lockheed regarding the specific basis on which Lockheed's proposal was
subsequently rejected. Accordingly, Lockheed's assertion that the agency
failed to meaningfully advise Lockheed of the agency's concerns in this
regard is contrary to the record.
Finally, Lockheed asserts that the Army should have rejected L-3's and
Raytheon's proposals for failing to meet the solicitation's entry gate
requirements regarding production capability. In this regard, the
solicitation established the following entry gate requirement:
The offeror shall provide evidence of a current operational production
facility with the existing capacity to produce eleven [JCA] per year as
described in the production requirements in Performance Work Statement
(PWS), Paragraph 3.1.2 and subparagraphs.
AR, Tab C, at 8.
Lockheed protests, that in addition to an assessment of an offeror's
"existing capacity to produce eleven [JCA] per year," the agency was
obligated to also consider whether an offeror's production capacity would
subsequently be "available for the JCA." Protester's Comments on Agency
Report, Sept. 25, 2006, at 31. In short, Lockheed asserts that the agency
was required--as part of the entry gate evaluation--to determine whether
the offerors' future commitments to other customers would conflict with
its commitment to produce the JCA. Very simply, this is not what the
solicitation's entry gate criterion contemplated. Rather, an offeror's
demonstration of a sufficiently large existing capability to produce
eleven JCA per year was all that the solicitation required in this phase
of the evaluation process, and was all that the agency properly
assessed.[23] Accordingly, Lockheed's assertion that the agency should
have considered additional unstated evaluation criteria in performing the
entry gate evaluation is without merit.
The protest is denied.[24]
Gary L. Kepplinger
General Counsel
------------------------
[1] In December 2005, the Department of the Army and Department of the Air
Force were directed to form a Joint Program Office for the JCA program.
Thereafter, a Memorandum of Agreement between the Army and the Air Force
was created, stating: "The Army is initially the lead Service for the JCA
program." Protest, Aug. 14, 2006, attach. A, at 1, 4.
[2] The agency report responding to Lockheed's protest was divided into
lettered tabs, with each tab separately paginated using a system commonly
referred to as "Bates stamping." Our citations to particular pages within
the agency report refer to the "Bates stamped" page numbers.
[3] The solicitation provided for three phases in the evaluation/source
selection process: phase I--"Entry Gate Evaluation"; phase II--"Proposal
Evaluation"; and phase III--"EUS [Early User Survey]." AR, Tab C, RFP at
72.
[4] Consistent with these provisions, the solicitation also stated that
"[t]he candidate aircraft shall meet all Minimum Performance Standards in
order to receive a rating of other than Unsatisfactory during the source
selection evaluation." AR, Tab D, Purchase Description at 1.
[5] In addition to the aircraft capability requirements, the solicitation
established entry gate criteria related to Federal Aviation Administration
(FAA) certification and production capability. AR, Tab C, at 72-73.
[6] GPS is described as "a space-based radio-positioning system consisting
of a satellite constellation that provides navigation and timing
information to military and civilian users worldwide." Protester's
Comments on Agency Report, Sept. 25, 2006, at 25.
[7] A SAASM module allows military GPS receivers to receive and decrypt
GPS coordinates with a high degree of precision, while also guarding
against false GPS signals--that is, deliberate attempts to mimic
legitimate signals and introduce erroneous time and position information.
[8] Regarding the requirement that aircraft must be equipped with GPS with
SAASM, the agency has provided the following explanation:
The Chairman of the Joint Chiefs of Staff Instructions . . . mandate
that any new program or major modification must include having GPS with
SAASM as part of the end product after 1 October 2006. . . . Since the
[JCA] is primarily a tactical asset designed to operate in remote and
austere conditions, robust navigation instruments are critical to the
safe operation and mission completion of the aircraft. To procure
aircraft without SAASM equipped GPS receivers would not only be
violating DoD policy, it would also be a grave disservice to the
aircrews and service members who will depend on the sensitive, time
critical re-supply capabilities of the [JCA].
AR, Contracting Officer's Statement, at 13-14 n.4.
[9] Raytheon submitted two proposals, one of which was subsequently
eliminated from consideration.
[10] Lockheed states that its proposal "identified" the 382J (a
predecessor aircraft, which the record indicates is FAA certified, from
which the C-130J was derived) as its "baseline" aircraft, and that it
proposed the C-130J, with modifications, as the aircraft to be delivered
under the contract. Id. at 18-19.
[11] The block upgrade program is part of Air Force contract No.
FA8625-04-D-6425, which allows the Air Force to issue delivery orders for
upgrades to the C-130J aircraft, including upgrades for CNS/ATM
capabilities. Protest at 39. This program is also referenced in the record
as the "block mod" or "block mod upgrade" program.
[12] Section L of the RFP provided the following estimates regarding the
"base quantity" and "additional quantity" of aircraft that are projected
to be ordered during each fiscal year under the contract: 2007--3 aircraft
(base quantity); 2008--4 aircraft (base quantity); 2009--7 aircraft (base
quantity); 2010--8 aircraft (base quantity) 7 aircraft (additional
quantity); 2011--11 aircraft (base quantity) 15 aircraft (additional
quantity). AR, Tab C, at 25. In total, the solicitation estimated orders
for production of 33 "base quantity" aircraft and 22 "additional quantity"
aircraft from 2007 through 2011. Id.
[13] The agency similarly sent EOC notices to the other offerors
concerning various aspects of their proposals.
[14] To the extent Lockheed asserts that the solicitation's use of
"contractually satisfy" with regard to mandatory requirements permitted
offerors to propose to deliver aircraft in which the minimum performance
standards are not "embodied"--that is, physically incorporated--in the
aircraft, such an interpretation would clearly constitute a patent
ambiguity that Lockheed was obligated to protest prior to submitting its
proposal. See, e.g., Poly-Pacific Techs., Inc., B-293925.3, May 16, 2005,
2005 CPD para. 100 at 3; U.S. Facilities, Inc., B-293029, B-293029.2, Jan.
16, 2004, 2004 CPD para. 17 at 10.
[15] As noted above, the solicitation advised offerors that a total "base
quantity" of 33 aircraft and a total "additional quantity" of 22 aircraft
were projected to be ordered between the time of contract award in 2007,
and 2012 when Lockheed will begin "fielding" its block 8.0 upgrades, and
that aircraft deliveries are to begin within 12 months after contract
award. AR, Tab C, at 25.
[16] As noted above, PD para. 6.2.1.1 identified GPS with SAASM as a
"minimum performance standard," and the solicitation unambiguously defined
"minimum performance standards" as "[m]andatory capabilities that shall be
embodied in the candidate aircraft." AR, Tab D, PD, at 1, 15.
[17] In addition to the agency's conclusion that Lockheed would not
deliver aircraft equipped with GPS with SAASM before 2012, the agency
concluded that Lockheed's proposal failed to comply with the
solicitation's mandatory entry gate requirements regarding FAA
certification, as well as another CNS/ATM requirement that the GPS system
"provide a means to perform non-precision and lateral navigation/vertical
navigation (LNAV/VNAV) instrument approaches." AR, Tab K-4, Lockheed
Evaluation, at 8. Because the agency reasonably determined that Lockheed's
proposal failed to meet the entry gate requirement regarding GPS with
SAASM, our decision here does not discuss the agency's additional bases
for excluding Lockheed's proposal from the competition.
[18] Lockheed asserts that pending legislation "will direct that
management of the JCA program be shifted from the Army to the Air Force."
Protester's Comments on Agency Report, Sept. 25, 2006, at 1.
[19] We note that, although Lockheed asserts that the current solicitation
does not reflect the government's "actual needs," it is not clear from
Lockheed's various protest submissions what particular "actual need" the
solicitation fails to meet.
[20] Throughout its pursuit of this protest, Lockheed has not disputed the
agency's conclusion that Lockheed's proposal does not contemplate physical
incorporation of GPS with SAASM into delivered aircraft until 2012.
[21] Alternatively, and inconsistently, Lockheed argues that the
solicitation's reference to evaluation of an offeror's "current
capability" to meet the mandatory performance standards required the
agency to evaluate each offeror's actual incorporation of the required
capability into its proposed aircraft at the time the evaluations were
performed and that, therefore, none of the offerors met this requirement.
For the reasons discussed above, Lockheed's assertions in this regard are
not reasonable and, as discussed above, based on our reading the
solicitation as a whole, we find no basis to question the agency's
determination that the solicitation contemplated assessment of an
offeror's capability, and commitment, to deliver aircraft "embodied" with
the required capabilities, beginning at the time of first aircraft
delivery.
[22] We note that, while the agency characterizes its EOC notices as
"clarifications," Lockheed maintains that they constituted "discussions."
Contracting Officer's Statement, Aug. 21, 2006, at 19; Protester's
Comments on Supplemental Agency Report, Oct. 16, 2006, at 33-35. We need
not resolve this matter since, even assuming, as we do for purposes of
considering this issue, that the agency's EOC notices constituted
discussions, we reject Lockheed's assertion that the discussions with
Lockheed were not meaningful.
[23] The Army agrees that, during the subsequent evaluation process, it
will be necessary to further assess the availability of the offerors'
existing production capability.
[24] In pursuing this protest, Lockheed has raised various other issues
including, for example, the assertion that elimination of Lockheed's
proposal was inappropriate because it failed to reflect consideration of
all the solicitation's stated evaluation factors. We have considered all
of Lockheed's assertions and find no basis for sustaining its protest.