TITLE: B-311391, Eomax Corporation, June 23, 2008
BNUMBER: B-311391
DATE: June 23, 2008
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B-311391, Eomax Corporation, June 23, 2008

   Decision

   Matter of: Eomax Corporation

   File: B-311391

   Date: June 23, 2008

   Ken Smart for the protester.
   James H. Roberts, III, Esq., Van Scoyoc Kelly PLLC, for Maxa Beam
   Searchlights, an intervenor.
   Capt. R inah R. Shah, Department of the Army, for the agency.
   Paul E. Jordan, Esq., and David A. Ashen, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Evaluation of protester's technical proposal and award decision were
   unobjectionable where agency reasonably found weaknesses associated with
   firm's proposed search cameras based on inability to easily switch between
   sensor modes, size of the camera, proposed warranty, and higher price,
   that rendered its proposal other than the best value.

   DECISION

   Eomax Corporation protests the Department of the Army's award of a
   contract to Maxa Beam Searchlights, Inc. d/b/a MaxaVision Technologies,
   under request for proposals (RFP) No. W9124Q-08-D-0808, for search cameras
   to be included in the Commercial Equipment Direct Assistance Program
   (CEDAP). Eomax challenges the agency's technical evaluation and resulting
   source selection.

   We deny the protest.

   The CEDAP program helps meet the equipment and training needs of smaller
   jurisdictions and communities by providing equipment to assist emergency
   responders in improving their capabilities in the areas of prevention and
   detection, regional response and mutual aid, and interoperable
   communications. The RFP sought ruggedized, handheld, search camera kits.
   Each ultra-light camera was to have a telescoping pole and remotely
   articulated arm to determine the extent of fire and smoke "from difficult
   or impossible to reach areas (such as ceiling voids) without the initial
   need for ladders." RFP at 2. The RFP, issued as a total small business
   set-aside, contemplated the award of a requirements contract for a base
   year with 1 option year for up to a maximum of 75 units per year.

   Proposals were to be evaluated on a "best value" basis in two phases.
   Phase I was evaluated on a "go or no-go" basis using the following
   criteria: whether (1) the proposal addressed the RFP equipment; (2) the
   vendor/equipment were rated successful or higher by references; (3) the
   vendor provided verifiable, publicly available reports from an independent
   laboratory verifying performance characteristics; (4) the proposed pricing
   was within the competitive range; (5) the vendor's production capability
   was adequate; and (6) the vendor proposed training. If a proposal was
   rated as "go," it was evaluated under Phase II based on a demonstration of
   the offerors' proposed systems before a panel of subject matter experts
   (SME). The Phase II evaluation included the following criteria of equal
   importance: (1) overall technical description and capabilities;
   (2) potential contribution and relevance to CEDAP; (3) estimated yearly
   operating costs to be expected by the user; (4) equipment warranty,
   technical support, equipment manual/CD/DVD, and installation/setup
   support; (5) type and quality of training provided; and (6) production
   capability/quantity and proposed delivery schedule. These criteria were
   evaluated on a color-coded basis--blue (exceptional), green (acceptable),
   yellow (marginal), and red (unacceptable). The agency also evaluated
   overall pricing of the equipment, with the technical factors combined
   considered approximately equal to price.

   Five offerors (including Eomax and MaxaVision) submitted proposals.[1]
   Both Eomax's and MaxaVision's proposed equipment having been evaluated as
   "go" under Phase I, each offeror then demonstrated its equipment. The SMEs
   reached the following consensus ratings for Eomax's and MaxaVision's
   proposals:

   +------------------------------------------------------------------------+
   |                                     |     Eomax      |   MaxaVision    |
   |-------------------------------------+----------------+-----------------|
   |1. Overall Technical Value           |  Exceptional   |   Exceptional   |
   |-------------------------------------+----------------+-----------------|
   |2. Potential Contribution to CEDAP   |   Acceptable   |   Exceptional   |
   |-------------------------------------+----------------+-----------------|
   |3. Estimated Operating Cost          |  Exceptional   |   Exceptional   |
   |-------------------------------------+----------------+-----------------|
   |4. Equipment Warranty                |    Marginal    |    Marginal     |
   |-------------------------------------+----------------+-----------------|
   |5. Training                          |   Acceptable   |   Acceptable    |
   |-------------------------------------+----------------+-----------------|
   |6. Production Capability             |  Exceptional   |   Exceptional   |
   |-------------------------------------+----------------+-----------------|
   |Overall Rating                       |   Acceptable   |   Exceptional   |
   +------------------------------------------------------------------------+

   Not only was MaxaVision's proposal rated exceptional, versus the
   acceptable rating for Eomax's, but in addition, the total price of
   MaxaVision's proposal was approximately one-half that of Eomax's. The
   source selection authority accordingly determined that MaxaVision's
   proposal represented the best value and on that basis made award to
   MaxaVision. After receiving a written debriefing, Eomax filed this
   protest.

   Eomax asserts that the SMEs improperly evaluated its proposal, failing to
   recognize the superiority of its proposed equipment over that of the
   awardee. In Eomax's view, a proper evaluation would have resulted in an
   exceptional rating for its proposal under each evaluation factor.

   In considering a protest of an agency's proposal evaluation, our review is
   confined to determining whether the evaluation was reasonable and
   consistent with the terms of the solicitation and applicable statutes and
   regulations. United Def. LP, B-286925.3 et al., Apr. 9, 2001, 2001 CPD
   para. 75 at 10-11. Based on our review of the record, we find that Eomax's
   protest furnishes no basis for questioning the award to MaxaVision. We
   discuss Eomax's most significant arguments below.

   Eomax asserts that the SMEs improperly noted, under the technical
   description and capabilities factor, the inability of its equipment to
   switch from using a thermal sensor to the infrared (IR) camera without
   changing the camera head. According to the protester, the evaluation in
   this regard was unreasonable because the RFP did not require the proposal
   of a single thermal sensor/IR camera head. In response, the agency
   acknowledges that the RFP did not require a single sensor-head, switchable
   design, but maintains that the single-head design represented a beneficial
   feature since it allowed a change in imaging without the need to retract
   the telescoping arm in order to swap sensors. Contracting Officer's
   Statement at 1.

   We find the agency evaluation reasonable. Agencies are required to
   identify the evaluation factors and significant subfactors, but they are
   not required to identify all areas of each which might be taken into
   account provided that any unidentified areas are reasonably related to or
   encompassed by the stated criteria. MCA Research Corp., B-278268.2, Apr.
   10, 1998, 98-1 CPD para. 129 at 8. Here, the record indicates that a
   single-head design enhances the ease and flexibility of use of the search
   camera by facilitating switching between modes in the difficult search and
   rescue environments in which the search camera will be used. We agree with
   the agency that while the RFP did not require a single-head design,
   nevertheless, the fact of whether the proposed search camera included such
   a design capability was reasonably encompassed by the stated technical
   description and capabilities evaluation factor.

   Neither do we find persuasive Eomax's assertion that MaxaVision's proposal
   should only have been rated acceptable under the technical description and
   capabilities factor because its equipment is inferior to Eomax's. Protest
   at 2; Initial Comments at 1. While Eomax maintains that its equipment
   offers certain superior thermal features and pixel resolution, in rating
   Eomax's proposal as exceptional, the agency specifically acknowledged the
   pixel resolution and thermal range strengths of Eomax's equipment.
   However, in rating MaxaVision's proposal as exceptional, the agency also
   noted a number of strengths associated with its equipment. Our review of
   the record furnishes no basis to question the SMEs' determination that
   MaxaVision's proposal, as well as Eomax's, was exceptional in this area.

   Eomax also challenges the evaluation of its proposal under the equipment
   warranty/technical support factor. The SMEs rated Eomax's proposal as
   marginal, observing that due to the equipment's cost, Eomax's offered
   1-year parts and labor warranty did not satisfy CEDAP's expectations.
   Agency Report, Tab 19, at 4. Eomax asserts that this rating was
   unreasonable because the evaluation sheets indicate that providing a
   warranty was to be scored on a "go/no-go" basis with no consideration of
   the warranty's length. Initial Comments at 2.

   Eomax's assertions are without merit. While the length of the warranty was
   not identified as a specific evaluation factor, in our view, it was
   reasonably encompassed by the warranty/technical support evaluation
   factor. MCA Research Corp., supra. Further, given the price of each Eomax
   unit (in excess of $20,000), we find that the SME reasonably concluded
   that the limited extent of the offered warranty did not justify a rating
   higher than marginal. Furthermore, the evaluation definitions on which
   Eomax relies were found only in the SMEs' evaluation worksheets and were
   not included in the RFP. An agency's failure to follow an internal
   evaluation plan is not a valid basis for protest. See Apache Enters.,
   Inc., B-278855.2, July 30, 1998, 98-2 CPD para. 53 at 2, n.2. Here the
   agency simply made a reasonable business judgment that Eomax's limited
   warranty for high-cost equipment was a weakness.

   In any event, our Office will not sustain a protest unless the protester
   demonstrates a reasonable possibility that it was prejudiced by the
   agency's actions. McDonald-Bradley, B-270126, Feb. 8, 1996, 96-1 CPD para.
   54 at 3; see Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed.
   Cir. 1996). Eomax was not prejudiced by the evaluation under the
   warranty/technical support evaluation factor since MaxaVision also
   received a marginal rating for its warranty based on the same rationale
   for Eomax's rating. Contracting Officer's Statement at 2. Where, as here,
   the agency evaluates both offerors' proposals on the same allegedly flawed
   basis, there is no prejudice. Sociometrics, Inc., B-261367.2, B-261367.3,
   Nov. 1, 1995, 95-2 CPD para. 201 at 4.

   Eomax asserts that the SMEs improperly rated its proposal as only
   acceptable under the potential contribution and relevance to CEDAP factor.
   Specifically, it challenges the evaluators' comments that the equipment's
   contribution to CEDAP may be limited due to its price and limited
   functionality (due to its size). In the protester's view, neither of these
   comments is warranted given its equipment's technical superiority, value
   for its price, and the lack of any size specifications.

   We find that the agency's evaluation under the potential contribution and
   relevance to CEDAP factor was reasonable. With regard to functionality,
   the SME lead evaluator explains that the SMEs found that Eomax's thermal
   sensor/camera would not be able to fit through a "2-inch" diameter hole.
   In the SMEs' experience, a 2-inch hole is typically used in search
   operations, thus making a camera that fits into that size hole more
   beneficial to first responders. SME Lead Declaration para. 6. While the
   agency acknowledges that the RFP did not set a maximum size for the
   thermal sensor, the RFP did call for use of the equipment in determining
   the extent of fire and smoke from difficult or impossible to reach areas.
   RFP at 2. In our view, since Eomax's sensor is larger than would fit
   through a 2-inch hole, the SMEs reasonably considered its size to be a
   limitation on the operation of the search camera by the users such as to
   reduce the potential contribution the camera could make to achieving the
   CEDAP program goals. See SME Lead Declaration para. 5, 6.

   With regard to price, the SMEs considered Eomax's higher unit price as
   limiting the number of cameras that CEDAP could purchase and have
   available for first responders. SME Lead Declaration para. 7. Eomax
   asserts that it was improper to consider its price under the potential
   contribution and relevance to CEDAP factor because the RFP already
   provided for the evaluation of price under a separate, specific factor.
   Cf. GlassLock, Inc., B-299931, B-299931.2, Oct. 10, 2007, 2007 CPD
   para. 216 at 6 (agency improperly assigned strengths related to offeror's
   experience and past performance under both the solicitation's specific
   experience/past performance factor and the project plan/schedule factor
   which did not encompass experience or past performance). Eomax's position,
   however, fails to account for the fact that while there was a separate
   price factor, the contribution factor was sufficiently broad and
   comprehensive enough to reasonably include any aspect of the proposed
   equipment which impacts the CEDAP program, and thus was broad enough to
   include the impact price would have on the number of search cameras that
   could be purchased by first responders. Accordingly, in our view, the
   agency reasonably evaluated Eomax's higher price under both the price
   factor and the potential contribution and relevance factor. NWT, Inc.;
   PharmChem Labs., Inc., B-280988, B-280988.2, 98-2 CPD para. 158 at 11,
   n.12 (an agency properly may penalize an offeror more than once for a
   single deficiency so long as the deficiency reasonably relates to more
   than one evaluation criterion).

   The protest is denied.

   Gary L. Kepplinger
   General Counsel

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

   [1] Eomax submitted two proposals, including the one that is the subject
   of this protest and a second proposal which was rated "no go."