TITLE: B-299546.2, Control Systems Research, Inc., August 31, 2007
BNUMBER: B-299546.2
DATE: August 31, 2007
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B-299546.2, Control Systems Research, Inc., August 31, 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: Control Systems Research, Inc.

   File: B-299546.2

   Date: August 31, 2007

   Hoke Smith, III, Esq., Richard H. Powell & Associates, PA, for the
   protester.

   Joel H. McNatt, Esq., Cheek & Falcone, PLLC, for Atmospheric Technology
   Services Company, an intervenor.

   Raymond M. Saunders, Esq., and Maj. Carla T. Peters, Department of the
   Army, for the agency.

   Katherine I. Riback, Esq., and James A. Spangenberg, Esq., Office of the
   General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest challenging agency's technical and past performance evaluation is
   denied, where the agency evaluated the protester's proposal in accordance
   with the terms of the solicitation.

   DECISION

   Control Systems Research, Inc., (CSR) protests the award of a contract by
   the Department of the Army to Atmospheric Technology Services Company
   (ATSC) under request for proposals (RFP) No. W9113M-06-R-0001, for
   meteorological support services (MSS) at the U.S. Army Kwajalein
   Atoll/Reagan Test Site (USAKA/RTS).

   We deny the protest.

   The USAKA/RTS is located on Kwajalein, a remote atoll in the Republic of
   the Marshall Islands, 2,100 miles from Hawaii and 2,000 miles from Guam.
   The USAKA/RTS is located in an intertropical convergence zone (ITCZ).[1]
   The USAKA/RTS is a Major Range and Test Facility Base (MRTFB) of the
   Department of Defense and a major subordinate element of the U.S. Army
   Space and Missile Defense command. The USAKA/RTS offers space tracking and
   launch operations and strategic and tactical missile testing with the
   world's most sophisticated suite of radar systems, optics, telemetry, and
   scoring sensors. RFP, Statement of Work (SOW) sect. 1.2. These critical
   and expensive tests rely on accurate and timely meteorological/weather
   information to ensure success. Approximately 40 major tests are scheduled
   during the contract period, and a lack of expert meteorological/weather
   information would result in unacceptable delays, mission failures and cost
   overruns in the range of $5 million per mission. Contracting Officer's
   (CO) Statement at 3.

   The solicitation was issued on June 14, 2006 as a section 8(a) set-aside,
   and provided for the award of a cost-plus-fixed-fee contract for a period
   of 3 years with two 2-year options. The RFP stated that the Army intended
   to award the contract without discussions on a "best value" basis,
   considering the evaluation factors of technical, management, past
   performance, and cost. RFP at 68. The management area was said to be
   slightly more important than the technical area; the past performance area
   was approximately equal to the technical area and slightly less important
   than the management area; and cost, although, a substantial evaluation
   factor, was less important than the technical, management, and past
   performance areas. RFP at 71. Each of the non-cost evaluation areas had
   evaluation factors; for example, the evaluation factors in the technical
   area were (1) technical approach and understanding of the statement work
   and (2) personnel experience.[2]

   A site visit was held for the prospective offerors on July 17 to 19.[3] On
   July 20, the RFP package was updated to address questions generated by the
   site visit. CO Statement at 2; RFP amend. 2. Proposals were due on July
   31.

   Three proposals were received in response to the RFP. CSR's proposal was
   evaluated as "acceptable" in the technical and management areas with an
   "unknown risk" past performance rating and a total evaluated probable cost
   of $13,183,734.[4] ATSC's proposal was evaluated as "exceptional" for the
   technical and management areas with a "low risk" past performance rating
   and a total evaluated probable cost of $17,295,557.[5] Based upon a
   cost/technical tradeoff, the agency concluded that ATSC's proposal
   represented the best value to the government and decided to make award to
   that firm.[6] AR, Tab 12a, Source Selection Decision (Feb. 14, 2007).

   CSR filed a pre-award protest with our Office on March 12, 2007,
   challenging the evaluation and award selection. Thereafter, on April 5,
   the agency advised that it intended to take the corrective action of
   setting aside the prospective award to ATSC and making a new best value
   determination. AR, Tab 3B, Agency Corrective Action Letter. We thus
   dismissed the protest.

   The agency then reevaluated the source selection documents and issued a
   new source selection decision wherein ATSC was again selected for contract
   award. AR, Tab 12B, Amended Source Selection Decision (Apr. 24, 2007). The
   amended source selection decision found that "[n]one of CSR's previous
   efforts have included preparing for or supporting ballistic missile
   defense and satellite launch customers" and none of CSR's past performance
   references cited corporate experience in "operating and maintaining
   electronic instrumentation in a corrosive marine environment."[7] Id. at
   1-2. In addition, the source selection decision found that none of CSR's
   key personnel have experience in providing MSS support for ballistic
   missile defense and satellite launch customers, none have degrees in
   meteorology, only one has experience in forecasting near the ITCZ, and
   only one has experience in operating and maintaining equipment in a
   corrosive marine environment. Id. The source selection document concluded:

     It is true that CSR is the lowest cost but that is where the benefit
     that CSR brings to the table ends. In a best value determination I am to
     perform a comparative cost/technical trade off and determine whether the
     non cost strengths of the higher priced offerors warrant the price
     premium. In this case ATSC is Technically and Managerially superior to
     CSR. Of the 11 personnel they provided resumes for, 10 have degrees in
     their field and 8 have experience either in forecasting in an ITCZ or
     maintaining equipment in a corrosive marine environment. The functional
     mix of employees ATSC proposed are qualified to perform the functions
     assigned to them and ATSC has expertise and past performance data
     directly relating to customers typically found at USAKA/RTS.

   Id. at 2-3. The agency made award to ATSC on May 4.[8]

   After a debriefing, this protest to our Office followed.[9]

   CSR first challenges its "unknown risk" past performance rating. As
   indicated above, CSR's "unknown risk" past performance rating was assigned
   because the agency determined that it had no relevant performance history.
   CSR argues that the agency in evaluating past performance improperly
   restricted relevant past performance to meteorological support experience
   with MRTFB ranges conducting missile defense and space launch operations.
   CSR asserts that its proposal showed substantial relevant past performance
   in meteorological support for aviation operations, which, according to
   CSR, are similar to the mission support requirements required under this
   solicitation. Therefore, the protester contends that a rating of "unknown
   risk" for its past performance was inappropriate because CSR's proposal
   reflected that the firm had a relevant past performance record.

   We review agency determinations regarding whether past performance
   references are relevant for reasonableness and consistency with the RFP
   evaluation criteria. Bevilacqua Research Corp., B-293051, Jan. 12, 2004,
   2004 CPD para. 14 at 6; MCS of Tampa, Inc. B-288271.5, Feb. 8, 2002, 2002
   CPD para. 52 at 4-6.

   The RFP provided with respect to the past performance area that the
   currency and relevance of the offerors' past performance would be
   evaluated and called for offerors to provide a list of contracts during
   the last 3 years "for efforts similar to this MSS requirement." RFP at 55,
   70. The RFP explained that technical past performance would specifically
   include consideration of "corporate experience" in:

     Providing meteorological mission support services; Providing
     meteorological data reduction and analysis services; and Operating and
     maintaining electronic instrumentation in a corrosive marine
     environment.

   Id.

   The MSS statement of work was to support comprehensive missile testing and
   space operations on remote islands in a corrosive marine environment.
   According to the agency, meteorological support for ordinary aviation
   operations, such as CSR's, is significantly different in a number of
   respects from providing meteorological support for the missile and space
   operations, particularly in remote areas. First, according to the agency,
   aircraft run to 40,000 feet and require a wind profile at that height,
   while missile and space missions typically require wind profiles to 90,000
   feet. The second difference noted by the Army is that aviation weather
   forecasting typically relies on an entire network of sensors "up-range"
   for predictions, as airports typically are not remote to populations,
   while MRTFBs are usually located in remote areas, where "up range" sensors
   are located too far away to help in mission forecasting.[10] Third, the
   agency states that sensor packages differ greatly between meteorological
   support for aviation and for missile and space missions. Specifically,
   aviation weather suites have a relatively standard set of instruments, and
   can be automated and networked to provide data to a number of airports for
   weather prediction. Mission forecasting requires the use of these
   instruments, but requires other, more specialized, instruments as well,
   such as balloon and rocket launched instruments, unique radar operation,
   lightning prediction instrumentation, and a variety of customer provided
   cloud, rain and solar instruments that need to be maintained and
   understood. CO Statement at 25-27.

   The record supports the agency's conclusion that the type of
   meteorological support needed for USAKA/RTS is different in a significant
   way than the meteorological support for ordinary CONUS aviation
   operations.[11] While CSR has expressed disagreement with the materiality
   of some of the agency's stated differences between these meteorological
   services, it has not, in our view, shown that these differences are not
   legitimate or immaterial; indeed, CSR did not rebut that the agency's
   point that additional sensor packages are necessary for the meteorological
   support services. CSR's Comments at 12-14. Additionally, none of CSR's
   past performance references cite corporate experience in operating and
   maintaining electronic instrumentation in a corrosive marine environment.
   We thus find the agency reasonably rated CSR's past performance as
   "unknown risk." MCS of Tampa, Inc., supra.

   CSR's also challenges the agency's evaluation of its proposal under the
   management and technical areas. The evaluation of a technical proposal is
   primarily the responsibility of the contracting agency, since the agency
   is responsible for defining its needs and the best methods of
   accommodating them, and it must bear the burden of any difficulties
   resulting from a defective evaluation. Federal Envtl. Servs., Inc.,
   B-260289, B-260490, May 24, 1995, 95-1 CPD para. 261 at 3. In reviewing
   protests challenging an agency's evaluation of proposals, we will not
   substitute our judgment for that of the agency regarding the merits of
   proposals; rather, we will examine the agency's evaluation only to ensure
   that it was reasonable and consistent with the solicitation's evaluation
   criteria, and with procurement statutes and regulations. Valenzuela Eng'g,
   Inc., B-283889, Jan. 13, 2000, 2000 CPD para. 1 at 4. A protester's mere
   disagreement with the agency's evaluation does not render it unreasonable.
   CORVAC, Inc., B-244766, Nov. 13, 1991, 91-2 CPD para. 454 at 5.

   CSR argues that the considerable meteorological experience of its key
   personnel was not reasonably evaluated. The RFP stated the following with
   regard to the personnel experience factor of the technical area:

     The Government will evaluate the educational and work experience of each
     offeror's key personnel to determine the extent to which they are
     relevant or related to:

     a.      Providing meteorological mission support services;

     b.      Performing meteorological measurements near the Inter-tropical
     Convergence Zone (ITCZ)

     c.      Performing meteorological data reduction and analysis

     d.      Operating and maintaining range weather instrumentation
     electronic instrumentation in a corrosive marine environment.

   RFP at 68.[12]

   As stated above, the agency deemed meteorological experience with missile
   mission support to be relevant to the meteorological work to be performed
   under this contract at USAKA/RTS, and the protester's proposal was
   downgraded because none of CSR's key personnel had such experience. AR,
   Tab 12B, Amended Source Selection Decision (Apr. 24, 2007), at 2.
   Moreover, CSR only offered one proposed key personnel with experience in
   forecasting near the ITCZ, which the evaluation factor expressly stated
   would be considered. While another proposed key personnel was a tropical
   meteorological expert with extensive experience on a naval base in
   Florida, this individual's resume did not state that he had ITCZ
   experience. The agency also noted that only one of CSR's proposed key
   employees had experience in operating and maintaining range weather
   electronics instrumentation in a corrosive marine environment. Finally,
   the agency noted that none of CSR's key personnel are meteorologists with
   degrees. Id. at 2. While the protester is correct that the RFP did not
   specify any educational requirement for the key personnel positions, CSR's
   Comments at 15, the RFP did provide that the agency would evaluate the
   "education and work experience of each offeror's key personnel." RFP at
   68. We find the agency's rating of "acceptable" for CSR's personnel
   experience was reasonable.

   With regard to the remainder of the technical area as well as the
   management area, CSR essentially contends that the RFP work is simply for
   meteorological services and the agency's evaluation gave unreasonable
   weight to the alleged differences with respect to the solicited
   meteorological services. As stated above, we find the agency could find
   these differences significant. Thus, it could reasonably downgrade CSR's
   proposal for failing to recognize or address these differences in its
   proposal.[13]

   Finally, CSR objects to the award selection decision. Where, as here, the
   RFP allows for a price/technical tradeoff, the selection official has
   discretion to select a higher-priced, but technically higher rated
   proposal, if doing so is reasonably found to be justified. BTC Contract
   Servs., Inc., B-295877, May 11, 2005, 2005 CPD para. 96 at 6. While the
   agency noted that CSR is the lowest-cost proposal, as detailed above, it
   found and documented why ATSC's proposal is technically and managerially
   superior to CSR's. In so doing, the agency reasonably accounted for CSR's
   lack of relevant past performance in finding it "unknown risk" and did not
   rate it either favorably or unfavorably,[14] but determined that ATSC's
   proposal strengths, including its "low risk" past performance, warranted
   award to that firm. See Blue Rock Structures, Inc., B-287960.2,
   B-287960.3, Oct. 10, 2001, 2001 CPD para. 184 at 5. We have no basis to
   question the reasonableness of the source selection authority's decision
   to award to ATSC.[15]

   The protest is denied.

   Gary L. Kepplinger
   General Counsel

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

   [1] The ITCZ is the region that circles the earth, near the equator, where
   the trade winds of the Northern and Southern Hemisphere come together,
   which causes unique and varying weather patterns. See
   http://earthobservatory.nasa.gov.

   [2] The first of the technical factors was significantly more important
   than the second factor.

   [3] The protester argues that contrary to the terms of the RFP, when its
   representative arrived in Kwajalein for the site visit, he was informed by
   the contracting officer that discussions with the incumbent employees were
   not allowed. This argument is essentially a challenge to the terms of the
   solicitation that, according to the protester, the contracting officer
   assertedly modified prior to receipt of proposals. See AST Envtl., Inc.,
   B-291567, Dec. 31, 2002, 2002 CPD para. 225 at 3. Protests based on
   alleged improprieties in a solicitation must be filed prior to the closing
   date for receipt of proposals in order to be timely under our Bid Protest
   Regulations. 4 C.F.R. sect. 21.2(a)(1) (2007). CSR raised this issue for
   the first time in its protest of the evaluation and award decision filed
   with our Office on March 12, 2007. While the protester asserts that it did
   not realize the ramifications of the agency's actions here until it was
   apprised of the award decision, this provides no excuse for the
   protester's failure to protest prior to the closing date for receipt of
   proposals. Interceptor Group Ltd., Inc., B-239490.3, Dec. 4, 1990, 90-2
   CPD para. 451, recon. denied, B-239490.4, B-239490.5, Apr. 19, 1991, 91-1
   CPD para. 386. Therefore, we will not consider this protest issue as it
   was untimely raised.

   [4] The solicitation advised offerors that adjectival ratings of
   "exceptional," "good," "acceptable," and "unacceptable" would be assigned
   for each evaluation area and factor. AR, Tab 9, Source Selection
   Evaluation Plan, at 7-8. The past performance area would receive an
   adjectival rating of either "low risk," "moderate risk," "high risk," and
   "unknown risk." Id. at 8. An "unknown risk" rating for past performance is
   "neither a negative or positive assessment," and is to be used when "[n]o
   relevant performance record is identifiable upon which to base a
   meaningful performance risk prediction." Id.

   [5] The high ratings for ATSC's proposal were in part based on the fact
   that the proposed key ATSC employees had performed all aspects of
   meteorological support services for USAKA/RTS while they were employed by
   a predecessor firm on this contract. Agency Report (AR), Tab 8, ATSC's
   Proposal, vol. V, at 10. While CSR questions ATSC's low risk past
   performance rating because that firm had limited meteorological
   experience, an agency can consider key personnel in evaluating past
   performance. Federal Acquisition Regulation (FAR) sect. 15.305(a)(2)(iii);
   Trailboss Enters., Inc., B-297742, Mar. 20, 2006, 2006 CPD para. 64 at 4.

   [6] The third offeror's proposal had a significantly higher total
   evaluated probable cost of [REDACTED]. This proposal was evaluated as
   "exceptional" for the technical area, and "good" for the management area,
   and received a "low risk" past performance rating.

   [7] The agency acknowledged that CSR had a "wealth" of past performance
   with regard to meteorological forecasting and observation. AR, Tab 12B,
   Amended Source Selection Decision (Apr. 24, 2007). In this regard, CSR's
   proposal cited numerous contracts for providing meteorological support
   services for various military facilities and airports in the continental
   United States. AR, Tab 7, CSR's Proposal, vol. V, at 1-16.

   [8] CSR argues that the reevaluation was simply a "smokescreen" by the
   contracting officer to "complete negotiations and award this contract to
   ATSC unencumbered by the GAO." CSR's Comments at 23. CSR also makes a
   number of other allegations of bias and bad faith by agency officials in
   favor of ATSC. Government officials are presumed to act in good faith and
   any argument that contracting officials are motivated by bias or bad faith
   must be supported by convincing proof; we will not attribute unfair or
   prejudicial motives to procurement officials on the basis of inference or
   suppositions. ACC Constr. Co., Inc., B-289167, Jan. 15, 2002, 2002 CPD
   para. 21 at 4. Based on our review of the record, which as discussed below
   supports the reasonableness of the agency's evaluation of CSR's proposal,
   we conclude that CSR has failed to establish bad faith. See Innovative
   Commc'ns Techs., Inc., B-291728; B-291728.2, Mar. 5, 2003, 2003 CPD para.
   58 at 10.

   [9] CSR complains about the content and scheduling of the debriefing. We
   will not consider these issues because the scheduling and conduct of a
   debriefing is a procedural matter that does not involve the validity of an
   award. The Ideal Solution, LLC, B-298300, July 10, 2006, 2006 CPD para.
   101 at 3 n.2.

   [10] According to agency, there is no network of sensors outside of the
   Kwajalein Atoll, and the nearest sources of additional weather data are
   Wake Island, Midway Island, Guam and Hawaii. CO Statement at 26.

   [11] CSR contends that requiring experience in providing meteorological
   support of missile testing and space operations is unnecessarily
   restrictive because such experience can only be acquired at the USAKA/RTS.
   CSR's Comments at 11. However, the agency maintains that similar
   experience could have been acquired at another MRTFB, such as Vandenberg
   Air Force Base, White Sands Missile Range or any MRTFB that supports
   missile defense and satellite launch customers. CO Statement at 28.

   [12] These four subfactors were equally weighted. RFP at 71.

   [13] For example, one of the reasons CSR's proposal was downgraded, which
   has not been contested by CSR, is that it appears that CSR has no
   familiarity with the Universal Documentation System used for all customers
   of USAKA /RTS. AR, Tab 12B, Amended Source Selection Decision, at 2.

   [14] FAR sect. 15.305(a)(2)(iv) provides, "In the case of an offeror
   without a record of relevant past performance or for whom information on
   past performance is not available, the offeror may not be evaluated
   favorably or unfavorably on past performance."

   [15] CSR made a number of other nonmeritorious contentions which we did
   consider but did not expressly discuss in this decision.