W&~hn& D,C. 2064 Decision - Government Accountability … ·  · 2011-09-30ability" of the proposed solution to satisfy the specifi- ... On June 4, 1993, ... 69 Comp. Gen, 117 (1990),

Comptrolier Generulof the United Stat1

W&~hn&U; D,C. 2064

Decision

Matter of: Cincinnati Electronics Corporation

rile: B-253814

Date; September 30, 1993

Michael A. Gordon, Esq., Holmes, Schwartz & Gordon, for theprotester.John D. Titus, Esq,# Lowe & Berman, for Motorola Inc,, andElliot J, Clark, Jr., Esq., for Magnavox Electronic SystemsCompany, interested parties.Vera Meza, Esq., and Walter Harbort, Jr., Esq., Departmentof the Army, for the agency.Daniel I. Gordon, Esq., and Paul Lieberman, Esq., Office ofthe General Counsel, GAO, participated in the preparation ofthe decision.

DIGEST

Protester's proposal was properly rejected as technicallyunacceptable and outside the competitive range where agencyreasonably determined that the proposal as submitted failedto demonstrate understanding of the solicitationrequirements arid did not present a feasible technicalsolution.

DKCISION

Cincinnati Electronics Corporation (CE) protests theexclusion of its proposal from the competitive range underrequest for proposals (RFP) No. DAAB07-93-R-A019, issued bythe Department of the Army for the acquisition of enhancedmanpack ultrahigh frequency terminals (EMUT). The Armyexcluded CE's proposal from the competitive range on thebasis of the evaluators' finding that the proposal wastechnically unacceptable and that a major revision would beneeded in order to correct its deficiencies. CE contendsthat its proposal should have been included in the competi-tive range because it was, if not already acceptable, thenat least susceptible of being made acceptable throughdiscussions.

We deny the protest.

The Army's Communications-Electronics Command (CECOM) issuedthe RFP on October 26, 1992, to obtain proposals for a firm,fixed-price requirements contract for EMUTs, which areessentially portable radio terminals capable of

communicating via satellite, Two of the most significantfeatures required for the terminals are capabilities forcommunications security (COMSEC) and Demand AssignmentMultiple Access (DAMA), which allows more than one user tocommunicate essentially simultaneously over the samesatellite channel,

Section L-19 of the RFP included instructions for proposalformat and content, Offerors were required to submit samplehardware capable of demonstrating certain technical fea-tures, While setting page limits for various parts of thewritten proposals, such as a 400-page limit for the proposedtechnical approach, Section L-19 provided that "the offerorshall confine the proposal presentation to essential mat-ters, sufficient to define the offer and to provide anadequate basis for evaluation."

Section M set forth the evaluation factors and subfactors,and stated that "(aJ proposal must be acceptable in each(flactor and [sjubfactor to be considered eligible foraward." The factors were: technical approach, integratedlogistics support, performance risk, cost, and management.Section M advised offerors that technical approach was themost important factor. Logistics, performance risk, andcost were of equal importance in the evaluation; each ofthose three factors, while less important than technicalapproach, was twice as important as management. Among thesix subfactors of the technical approach, the .most importantwas the engineering approach, the second most important wasDAMA, and the third most important was sample hardwareperformance, which the RFP stated would be evaluated inde-pendently "to determine the degree of reliance that the(gjovernment will place on the offerors['] writtenproposal "

In addition to the factors and subfactors, Section M setforth the evaluation criteria which would be applied "in thedetermination of the acceptability of the offeror's pro-posal." The three evaluation criteria were understanding ofrequirements; comprehension, clarity, and adequacy of pre-sentation; and feasibility of approach. Regarding thesecond of those criteria, Section M stated as follows:

"(tihe proposal must fully and clearly present,explain, and just fy the recommended approach anddemonstrate compliance with all the requirementsof the request for proposals. The omission ofinformation considered significant to achievementof requirements may be cause for considering theproposal technically unacceptable. Although anofferor may be technically dominant in a specifictechnological field, the evaluation team will notassume that the offeror's performance will include

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areas of effort not specified in his writtenproposal, ''

Section H stated that award would be made on the basis ofthe "best overall proposal," which was defined as the one"which offers the most favorable trade-off among the(evaluation) factors,"

The Army evaluated the proposals submitted and tested thesample hardware provided by the offerors, We summarize herethe agency's extensive written review of CE's proposal, Theevaluation documentation includes detailed analysis of eachaspect of the proposals, and that analysis closely tracksthe RFP evaluation criteria,

concerning the first evaluation criterion, the offeror'sunderstanding of requirements, the agency noted that CE'stechnical proposal provides "general statements of theability" of the proposed solution to satisfy the specifi-cation requirements instead of providing 1'proof of under-standing through discussion of how the requirements will befulfilled." In addition, the agency found that CE "fails toaddress a significant number of technical requirements,specifically the requirements related to COMSEC, DAMA imple-mentation, software development, quality assurance, config-uration management, human factors, and [test and evalu-ation]." The agency's overall determination was that CE'sproposal's "lack of depth leads to the conclusion that (CEJdoes not understand the [specification] requirements."

Regarding tihe second evaluation criterion, feasibility ofapproach, the Army had concern that CE's proposed solutionwas not feasible, for reasons set forth in detail in theevaluation documentation. In particular, specific aspectsof CE's proposed design were evaluated as not feasible, andthe agency concluded that major redesign of the proposedsolution would be needed,

Under the third evaluation criterion, comprehension,clarity, and adequacy of presentation, the Army concludedthat CE's proposal:

"does not exhibit a complete or clear approach toaddressing the . . ..specification requirements.The technical approach is not addressed in acoherent and verifiable manner. Informationrelated to the engineering approach, DAMA,software, producibility, reliability, qualityassurance, and (test and evaluation] are scattered

'The underscoring appears in the original.

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throughout the proposal and discussion ofimportant requirements omitted,"

Overall, the agency concluded that CE's proposal was unac-ceptable under both the technical approach and the logisticsfactors. In addition, the Army found that CE's proposalentailed a high degree of risk under both these factors,The agency also determined that there was "a low degree ofprobability that (CE] can meet all technical requirements ofthe ,I . (specification within the planned productionschedule," Under the technical approach factor alone, theagency found that CE's proposal contained 17 significantdeficiencies and disadvantages, 13 significant omissions,and 13 significant risks.

On June 4, 1993, before conducting any discussions,-theagency informed CE that its proposal was unacceptable underthe technical approach and logistics factors, that discus-sions could not be expected to cure the proposal's signifi-cant deficiencies and omissions without a major revision ofthe proposal, and that CE's proposal was therefore beingexcluded from the competitive range. At a debriefing heldon June 7, the agency detailed the basis for its evaluationof CE's proposal. This protest followed on June 18.

The determination of which proposals to include in thecompetitive range is a decision largely committed to theprocuring agency's discretion. National Sys. Mgmt. Corp.,70 Comp. Gen. 443 (1991), 91-1 CPD ¶ 408. The FederalAcquisition Regulation (FAR) directs contracting officers toinclude within the competitive range "all proposals thathave a reasonable chance of being selected for award" andprovides that, "([when there is doubt as to whether a pro-posal is in the competitive range, the proposal should beincluded." FAR § 15,609(a).

CE relies on this latter provision as a basis for its posi-tion that the Army could not properly exclude CE's proposalfrom the competitive range, particularly since (in CE'sview) any errors were easily correctable without majorrevision, CE's proposal was not the highest-priced one, andthe evaluation records make clear that the other proposalssubmitted also contained deficiencies, weaknesses, andomissions.' CE alleges that, "beneath the surface ofeasily correctable errors, CE's initial proposal contains

'Although the protester's counsel was permitted access toevaluation documents concerning all proposals under theterms of a protective order, our Office found that otherofferors' proposals themselves were not relevant to theprotest and therefore were not required to be produced. See4 C.F.R. § 21.3(c) (1993)

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the substance of a viable initial proposal which shows anin-depth understanding of the Army's , , requirements.'3The above-quoted guidance to contracting officers containedin FAR S 15,609(a) does not by itself alter our standard ofreview of a proposal's exclusion from the competitive range,and for which we apply the standard used in reviewing allaspects of an agency's technical evaluation of proposals:we review the record to determine whether the agency'sjudgment was reasonable, supported by the record, and con-sistent with the applicable evaluation criteria, §Sl sayjTankers. Inc., 69 Comp, Gen, 403 (1990), 90-1 CPD ¶ 389;Mononole, S.A., B-252745, July 23, 1993, 93-2 CPD ¶ 51,

3The underscoring appears in the original.

4We will scrutinize more closely a determination that onlyone proposal is in the competitive range, since such adetermination constitutes a decision to consider only oneproposal for award, without the competition which is centralto our procurement system. See Coopers & Lybrand, 66 Comp.Gen. 216 (1987), 87-1 CPD ¶ 100. That circumstance does notarise here, however, where the Army determined that morethan one proposal was in the competitive range. Accord-ingly, this decision does not address the protests decidedunder that closer scrutiny. See, e.g., National Sys. Mgmt.Corp., supra.

CE points to our decision in Intertec Aviation, 69 Comp.Gen, 117 (1990), 90-2 CPD T1 232, as support for its sugges-tion that a strict standard of review applies to all com-petitive range determinations and, in particular, for itscontontion that, regardless of the number of proposalsremaining in the competitive range, a protest must besus-tained where a proposal was excluded from the competitiverange solely on the basis of deficiencies in the proposalwhich could be easily corrected. CE's reliance on IntertecAviation is misplaced, since, as explained below, the Armyhere reasonably concluded that the deficiencyes in CE'sproposal wero not easily correctable through discussions.In any event, we note that, while our decision in IntertecAviation does state that the deficiencies at issue appearedminor, it points to the overall unreasonableness of theagency's evaluation process by highlighting that the discus-sions conducted by the agency were legally inadequate andthat some of the deficiencies for which the protester'sproposal was downgraded had, in fact, already been correctedbefore the competitive range determination was made. Wetherefore found that both the evaluation and the competitiverange determination based on that evaluation were improper.

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CE contends that its proposal's rating of unacceptable wasbased on evaluator errors in reading-the proposal and onminor informational deficiencies which would have beenreadily corrected during discussions without requiring asignificant modification of the proposal, CE also allegesthat the Army treated the various offerors' proposalsunequally, and deviated from the RFP criteria in proposalevaluation.

Our discussion of che technical issues in this decision isconfined to a general presentation of a limited number ofinstances, CE disputes an enormous number of specific andfrequently minute points in the technical evaluation, and nouseful purpose would be served by addressing every such'allegation. As noted above, the agee~cy's evaluation of CE'sproposal identified a large number of what were character-ized as "significant" deficiencies, disadvantages, omis-sions, and risks under the technical approach factor alone;in addition to challenging those ratings, CE has raised,sometimes in a cursory fashion, a host of further issues.Notwithstanding the relative brevity of the following dis-cussion and our refraining in the discussion from disclosingproprietary or source selection information, we note that wehave carefully reviewed each of CE's allegations in light ofthe record, and our conclusion as to each is consistent withthe analysis set forth here.

Two examples demonstrate the reasonableness of the Army'sevaluation of CE's proposal. In the first instance, theagency advised.CE at the June 7 debriefing that the com-pany's proposal failed to provide a particular requiredfeature related to the EMUT's remote control and that theagency viewed this matter as a significant disadvantage, CEprovided a written response, dated June 11, in which itclaimed that its proposed solution did have the particularremote control feature.' CE's June 11 response cited par-ticular pages in CE's proposal and argued that the company'ssolution actually offered the required feature through oneremote arrangement as well as an additional, alternativeremote control arrangement but that "we did inadvertentlyomit a discussion of (the primary) remote control (arrange-ment)." The agency replied to CE's response with a June 18rebuttal. In its rebuttal, the agency notes:

"(njowhere in the proposal (including the refer-enced paragraphs (cited in CE's June 11 response])is it mentioned that the proposed (solution] hastwo remote control options. Nowhere in theproposal is it mentioned that remote control

5CE did not (and does not) dispute that a significant RFPrequirement was at issue.

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capability is provided (as required by the RFP),No new information provided by CE will be used inaddressing this issue, The evaluation of theremote control (REFP) requirement, based on theinformation given in the proposal, remainsunchanged."

CE prepared a surrebuttal, which was submitted to our Officeon August 9, together with the protester's comments on theagency report, In that surrebuttal, CE argues;

"(t)he (fact that the remote control feature atissue was provided) was inadvertently left out ofthe proposal, The existing (primary remote con-trol arrangement] does have [the required) .apa-bility and no redesign of the radio is required.The (inadequate capability) referenced by CECOMapplies when (CE's additional, alternative methodis used]. This additional remote capability wasrot a specification requirement and thus had no(feature) requirement. The (alternative remotearrangement) as an enhancement to the [RFP)requirements is identified in [particularparagraphs of the proposal].

"Our June 11 response was not correct io that thepages of the proposal referenced did not containreference to the remote capability [required bythe RFP "I .

The surrebuttal went on to point out that the primary remotearrangement was described in the operator's manual, whichwas part of the technical proposal, However, even theoperator's manual does not indicate (nor does CE claim thatit does) that the required feature was offered--merely thatCE was planning to provide the primary remote controlarrangement, under which the feature might or might not beprovided. As to the issue raised in the debriefing (and inthe evaluation) concerning the remote control feature, CEconcedes that the feature was required and does not disputethat its proposal gives no indication that the feature wouldbe provided. Accordingly, it is clear that the agency'sevaluation in this regard was reasonable and consistent withthe RFP evaluation criteria.

A second example concerns the RFP requirement that proposalsuse a capacitor to maintain classified encryption key datawhen the primary power source is interrupted (referred to as"key fill retention"), and that the capacitor not maintainthe data for more than 5 minutes. The agency advises that

'Underscoring in the original.

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the purpose of the two parts of this requirement is, on theone hand, to ensure that a backup power source is availableto protect the encryption key data in case of power outage,but, on the other hand, to have the backup power ceasefunctioning after a short time in order to avoid the datafalling into the hands of unauthorized (particularly enemy)personnel,

The agency found that CE's proposal did not provide for therequired capacitor. Instead, 'E proposed use of a differentmeans of key fill retention, The Army determined that thisalternative means was unsatisfactory, because it wouldretain the classified data for More than 5 minutes after theprimary power source was removed, thus exposing the data tothe risk of capture by enemy personnel. After the agencyadvised CE of this aspect of the evaluation at the June 7debriefing, the company addressed the issue in its June 11response, citing particular pages ot the proposal andproviding the following explanation:

"The (proposed solution] actually does provide forthe use of a capacitor for fill retention as wellas [the additional means criticized by the agencyas disadvantageous]. This [latter means] is anadded feature of (CE's solution] and exceeds therequirement. "'

The agency's June 18 rebuttal stated as follows:

"Nowhere in the proposal (including the referenced(pages)) is it mentioned that the proposed(solution] provides for the use of a capacitor forkey fill retention, In addition, (CE's proposedadditional means) is not an advantage (forparticular technical reasons set forth here]. Nonew information provided by CE will be used inaddressing this issue, The evaluation of thecrypto key retention requirement, based on theinformation given in the proposal, remainsunchanged."

CE's surrebuttal on this issue, provided with its commentson the agency report, was as follows, in relevant part:

"'(CE] was very much aware of the requirement touse a capacitor for fill retention. . . . Thefill capacitor-was always planned for (CE's

7Underscoring in the original.

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solution), However(,] the discussion on thesubject was inadvertently left out of theproposal. No redesign of the radio is necessary."

In this example, as well, the protester does not disputethat the agency is concerned about an RFP requirement, nordoes it contend that the requirement is not significant. Itdoes not respond to the agency's argument that a proposalrelying solely on the means described in CE's proposal wouldbe disadvantageous to the agency, Further, the protesternow concedes that, notwithstanding its June 11 reference toparticular pages of its proposal, there was no indication inthe proposal (whether in the body of the technical proposal,the operator's manual, or elsewhere) that CE intended toprovide a capacitor for key fill retention. Accordingly,the agency had a reasonable basis' for its finding that CE'sproposal was relying on an alternative, disadvantageousmeans for key fill retention, and that the proposal failedto satisfy the RFP specification requirement that acapacitor be provided for this purpose.

CE's rejoinder is that these and other matters which led theagency to conclude that the protester's proposal was techni-cally unacceptable were simple informational deficiencies,easily remediable through discussions, without the need fora major rewriting of the proposal.6 Our Leview of therecord confirms that, at least as to a significant number ofdeficiencies identified by the Army, the agency had a rea-sonable basis to conclude that CE's technical approach(rather than merely the brevity of the discussion of thatapproach) was unacceptable and presented a substantialperformance risk,

In this regard, we note that, while it is sometimes self-evident that a mere informational gap underlies a problem,cf. American Dev. Ccrp,# B-251876.4, July 12, 1993, 93-1 CPD5 , this is not the case where a proposal fails toprovide required features and instead describes lesser,unsatisfactory alternatives, The failure of a reference to

'In this regard, CE points to the language in Section L-19advising offerors that proposals were to be confined toessential matters. CE contends that this section justifiesthe lack of detail in the company's proposal. This argumentcannot be used as a reasonable explanation for CE's failureto mention required features in its proposal, particularlyin light of the Section L provision permitting the technicalproposals to contain up to 400 pages and the Section Mevaluation criterion advising offerors that proposals "mustfully and clearly present, explain, and justify the recon;-mended approach and demonstrate compliance with all therequirements of the (RFP] .

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the required capacitor for key fill retention llustratesthe distinction: the Army did not identify this problem inthe list of omissions, but rather as one of the disadvan-tages. The agency reasonably understood the proposal tomean that CE was relying on the alternative means of keyfill retention, which the agency viewed as unsatisfactory,rather than on the required means, which ';as not detail d preven mentioned in the proposal. The agency had no wayknowing that the offeror had inadvertently neglected tmention the capacitor in its proposal, and the agency cuu...dreasonably infer that adding the capacitor would involvesignificant redesign.

As the two examples set forth above illustrate, CE does notdispute that the problems which the Army identified in CE'sproposal were legitimate in that their identification wasconsistent with the RFP evaluation criteria. CE also doesnot deny that, if the deficiencies identified in its pro-posal had been caused by the absence of the required fea-tures in CE's solution rather than simply the inadvertentfailure to address the requirements in the proposal, thedeficiencies would indeed be technically significant.

CE's "fallback" position is that other, offerors' proposalswere also identified as having weaknesses and deficiencies.The agency does not deny that this is so, and it is con-firmed by the evaluation documentation. The question,however, is not whether other proposals contained any flaws;rather, it is whether the other proposals' problems were sograve that the agency was required to find those proposalstechnically unacceptable, or indistinguishable in terms oftechnical merit from CE's, The judgment regarding therelative importance of proposals' strengths and weaknessesis an integral part of proposal evaluation, and, as notedabove, we review that judgment solely to ensure that it wasreasonable and consistent with the RFP criteria. Withinthose limits, the Army was free to conclude that problems inCE's proposal rendered it technically unacceptable, whilethe competing proposals were acceptable (or susceptible ofbeing made so through discussions) Although CE's counselwas provided a copy of evaluation documentation regardingall proposals, the protester has failed to show eitherunreasonableness or any other impropriety in thme agency'sconclusion that CE's proposal's weaknesses were more seriousthan those of competing proposals

We note in this regard 'hat CE's protest initially suggestedthat deficiencies in its proposal must be shared by otherproposals, thus rendering unfair the agency's conclusion

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that the deficiencies caused only CE's proposal to betechnically unacceptable, The initial protest argued that,

"based upon CE's understanding of the stage ofdevelopment of the . . . technology required, CEbelieves that a number of the alleged deficienciesrelating to (specific technical requirements) arefound in its competitors' proposals."

This statement could be read as an allegation that. theofferors were not treated equally, Accordingly, our Officeadvised the protester, du'ing a conference call in which theagency also participated, that this general allegationneeded to be presented in terms of one or more specifictechnical requirements, if, in fact, CE was arguing that thestate of technology meant that deficiencies found in CE'sproposal must have been found in other offerors' proposalsas well. CE failed to offer any specific in~stance to sup-port its initial general allegation, which itself was notmentioned in the protester's comments on the agencyreport .

Finally, CE argues that the Army ignored the results of thesample hardware tests. CE contends that "[nbo offeror'sradio performed appreciably better than the other." In CE'sview, the less than perfect performance of the otherofferors' hardware should have led the Army to discountthose offerors' claims concerning the capabilities of theirhardware.

'Instead, CE's response was that it needed access to thecompetitors' proposals in order to support its position ofunequal treatment. (As noted above, our Office found thatthose other proposals were not relevant to the protest.)CE's response is both unreasonable and inconsistent with itsallegation. If CE believes that, due to the state oftechnology, no offeror could avoid certain deficiencies forwhich it was criticized, it is required to identify thosedeficiencies--which CE declined to do. If CE had done so,it could have submitted evidence (in tfe form of, forexample, excerpts from professional literature or anaffidavit from a person knowledgeable in the field)supporting the claim that no company could avoid thedeficiencies for which CE's proposal was criticized. If CEhad identified the specific technical areas at issue and ifit had submitted such evidence to support its position, ourOffice could have consideriw4 introducing the competingproposals into the record to determine whether, in fact,they shared CE's proposal's deficiencies in those specificareas.

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CE's allegation that no offeror's radio performed appreci-ably better than the others' is contradicted by the record,which carefully details the difference in performance andmakes clear that CE's sample hardware's performance wasweaker than any of the' other offerors'. While it is truethat no offeror's hardware was capable of providing all ofthe desired results, the agency notes (and CE does notdispute) that the sample tests were not a pass/fail require-ment. Our review of. the record confirms that the agehcy.used the sample hardware tests, as provided for in the RFP,"to determine the degree of reliance that the governmentwill place on the (offerors'] written proposal." Specifi-cally, where hardware tests indicated a lack of capabilityto perform certain functions, the evaluation took that intoaccount in determining the extent to which claims made inthe written proposals could be seen as realizable withoutrisk. Accordingly, CE's allegations concerning the use ofthe sample test results are unsupported by the record, whichindicates that the Army evaluated the proposals reasonably.

In sum, the record does not indicate that the Army treatedofferors unequally in the evaluation of proposals, misrieadCE's proposal, found CE's proposal technically unacceptableon the basis of minor informational gaps which were self-evidently remediable through discussions, or deviated fromthe RFP evaluation criteria. The agency had-a reasonablebasis for finding CE's proposal technically unacceptable,and the subsequent determination to exclude CE's proposalfrom the competitive range was reasonable and consistentwith the RFP evaluation criteria. While CE plainly dis-agrees with the agency's technical judgment, that disagree-ment alone does not demonstrate that the agency's exclusionof CE's proposal from the competitive range was unreasonableor otherwise improper. ESCO, Inc., 66 Comp. Gen. 404(1987), 87-1 CPD ¶ 450.

The protest is denied.

A James F. HinchmanGeneral Counsel

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