TITLE: B-299366.3, B-299366.4, Benchmade Knife Co., Inc., July 16, 2007
BNUMBER: B-299366.3, B-299366.4
DATE: July 16, 2007
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B-299366.3, B-299366.4, Benchmade Knife Co., Inc., July 16, 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: Benchmade Knife Co., Inc.

   File: B-299366.3, B-299366.4

   Date: July 16, 2007

   Terrence M. O'Connor, Esq., and Seth C. Berenzweig, Esq., Albo & Oblon,
   LLP, for the protester.

   David T. Ralston, Jr., Esq., Philip A. Nacke, Esq., and Frank S. Murray,
   Esq., Foley & Lardner, LLP, for Gerber Legendary Blades, an intervenor.

   Gail L. Booth, Esq., Defense Logistics Agency, for the agency.

   Kenneth Kilgour, Esq., and Christine S. Melody, Esq., Office of the
   General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest that agency, in the course of reevaluating proposals, used an
   improper time period to recalculate an offeror's Automated Best Value
   System (ABVS) score is denied where the record supports the agency's
   contention that it used the same ABVS scores in the initial evaluation and
   the reevaluation.

   DECISION

   Benchmade Knife Co., Inc. protests the award of a contract to Gerber
   Legendary Blades under request for proposals (RFP) No. SPM7LX-07-R-0001,
   issued by the Department of Defense (DOD), Defense Logistics Agency (DLA),
   Defense Supply Center-Columbus (DSCC) for two combat knives. The protester
   argues that the agency considered ABVS scores[1] for the awardee that
   included information on past delivery performance that was current as of
   the date of the reevaluation and not the initial evaluation, contrary to
   the RFP terms.[2]

   We deny the protest.

   The RFP, issued by DSCC on November 2, 2006, with an eventual closing date
   of November 17, identified two required combat knives by national stock
   numbers (NSN) 1095-01-456-4457 (4457) and 1095-01-466-8569 (8569); the
   former is the subject of this protest. The RFP stated that the agency
   would select for award the proposal that represented the best value to the
   government, based upon--in descending order of importance--a comparative
   assessment of the offerors' prices, past performance, proposed delivery,
   socioeconomic support, Mentoring Business Agreement Program, and
   Javits-Wagner-O'Day Act support. Under past performance evaluation
   factors, the RFP stated that the agency would consider the offerors' ABVS
   scores as well as any other available and relevant past performance data.
   With respect to ABVS scores, section L2 of the RFP provided that for
   purposes of calculating delivery delinquencies, the rating period would
   exclude the most recent 60 days; for assessing quality complaints, the
   rating period would exclude the most recent 30 days. All non-price factors
   combined were considered approximately equal in importance to price. The
   RFP stated that "[a]ward will be made on this Form [33], or on Standard
   Form [(SF)] 26, or by other authorized official written notice," RFP at 1,
   and that the government could make either a single award or "split"
   awards, i.e., a separate award for each of the two knives. Id. at 32.

   Gerber and Benchmade submitted the only timely offers that were in the
   competitive range and subsequently evaluated for award. The two proposals
   differed in price by less than one percent. The agency evaluated both
   proposals for past performance, and, the agency states, it used the ABVS
   scores from December 7.

   The contracting officer determined that Gerber's offer for NSN 4457
   represented the best value to the government and proceeded with award to
   Gerber on December 21, using SF 26.[3] Benchmade protested that award to
   our Office. The agency, pointing to errors in the original evaluation of
   Gerber's past performance, stated that it would take corrective action and
   reevaluate "the offers received." Letter from Agency to GAO, Feb. 5, 2007
   at 1. We then dismissed the protest as academic.

   On April 5, 2007, the contracting officer completed the reevaluation and
   again determined that Gerber's proposal offered the best value to the
   agency. The debriefing letter provided to the protester stated that the
   "[e]valuation was based on the most current information available at the
   time of award." Agency Report, Tab 7, Letter from Agency to Protester,
   Apr. 11, 2007, at 4.

   Benchmade again protested, alleging that if, in conducting the
   reevaluation, the agency used ABVS scores for the awardee that were
   current as of the reevaluation, then that new calculation could have
   included quality complaints from the most recent 30 days and delivery
   delinquencies for the most recent 60 days, contrary to the terms of the
   RFP.[4] The agency maintains that the ABVS scores used in the reevaluation
   are the same scores that were printed on December 7 and used in the
   initial evaluation. Agency Report, Report of Contracting Officer, at 4.
   The record, including the printouts from December 7 and documents from the
   reevaluation of past performance that use the December 7 scores, supports
   the agency's claim. Moreover, the protester offers no persuasive support
   for its allegation that the awardee's ABVS score changed after the initial
   evaluation. Accordingly, we find no merit to the protester's assertion
   that the agency used the wrong timeframe to recalculate the ABVS scores
   used in the reevaluation.

   Benchmade also challenged the agency's use of SF 26 to make a split award.
   The protester argues that because the agency did not obtain the awardee's
   consent to use SF 26 and its signature on it, there was no legally binding
   agreement between those two parties. The language of the RFP, noted above,
   put prospective offerors on notice that the agency considered it proper to
   make a split award using the SF 26; in fact, Benchmade's own contract for
   the other knife under the RFP was issued using SF 26 as well. Benchmade
   raised this challenge to the terms of the RFP in a supplemental protest
   filed May 29, 2007, well past the solicitation closing date of November
   17, 2006; this protest ground is therefore untimely. See 4 C.F.R. sect.
   21(a)(1) (2007). Benchmade's argument that the language of the RFP was too
   speculative to form the basis of a protest is unpersuasive, given the
   agency's clearly stated position in the RFP that it reserved the option to
   make a split award using SF 26.

   Benchmade contends that, even if its protest was not timely filed, it
   should be considered under the "significant issue" exception to our
   timeliness requirements, 4 C.F.R. sect. 21.2(c). The significant issue
   exception is limited to protests that raise issues of widespread interest
   to the procurement community, and which have not been considered on the
   merits in a prior decision. Schleicher Cmty. Corrs. Ctr., Inc., B-270499.3
   et al., Apr. 18, 1996, 96-1 CPD para. 192 at 7. The record here simply
   does not suggest that the issue Benchmade raises--which concerns the
   propriety of the procedure used to execute the contracts under the RFP,
   not the propriety of the underlying award to Gerber--is of such widespread
   interest to the procurement community so as to warrant its resolution in
   the context of an untimely protest.

   The protest is denied.

   Gary L. Kepplinger

   General Counsel

   ------------------------

   [1] The ABVS is a computerized system used by DLA that collects a vendor's
   past performance data for a specific period and translates it into a
   numeric score. See Midwest Metals, B-296303, June 3, 2005, 2005 CPD para.
   117 at 1.

   [2] Benchmade also initially alleged that: the agency's best value
   determination was inadequately documented; the agency held improper
   discussions with the awardee to obtain additional past performance
   information; the agency used dissimilar rating systems in evaluating the
   offerors' past performance; and the agency accepted a late proposal from
   the awardee. Benchmade abandoned these arguments by failing to comment on
   these issues in response to the agency reports, which fully addressed
   them. Knowledge Connections, Inc., B-297986, May 18, 2006, 2006 CPD para.
   85 at 2 n.2.

   [3] At the same time, Benchmade was awarded a contract for the other
   knife, NSN 8569.

   [4] It is not entirely clear whether the protester's allegation is that
   the agency violated the terms of the RFP or of the corrective action
   letter. If the allegation is that the agency violated a provision in the
   corrective action notice, such an allegation is not a valid basis of
   protest. Our bid protest jurisdiction is limited to deciding protests
   "concerning an alleged violation of a procurement statute or regulation."
   31 U.S.C. sect. 3552 (2000). Thus, we will not consider an argument
   concerning compliance with a corrective action letter except to the extent
   the protester asserts that an agency's alleged deviation from its intended
   corrective action resulted in a prejudicial violation of procurement laws
   or regulations. See American Mktg. Assocs., Inc--Recon., B-274454.4, May
   14, 1997, 97-1 CPD para. 183 at 2-3. There has been no such allegation
   here.