B-233492, Feb 21, 1989, 89-1 CPD 179

B-233492: Feb 21, 1989

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Allegation concerning awardee's proposal's conformance to solicitation's technical specifications is dismissed as untimely where not raised within 10 working days of when protester knew or should have know of protest basis. Agency's technical evaluation will not be questioned absent clear evidence that such evaluation was unreasonable or not in accordance with solicitation's stated evaluation criteria. Challenge to agency's affirmative determination of responsibility is dismissed where there is no allegation of possible fraud or bad faith on the part of procuring officials or failure to apply definitive responsibility criteria. The power conditioners are intended to protect equipment and data from surges or fluctuations in power.

B-233492, Feb 21, 1989, 89-1 CPD 179

PROCUREMENT - Bid Protests - GAO procedures - Protest timeliness - 10 day rule DIGEST: 1. Allegation concerning awardee's proposal's conformance to solicitation's technical specifications is dismissed as untimely where not raised within 10 working days of when protester knew or should have know of protest basis. PROCUREMENT - Competitive Negotiation - Offers - Evaluation - Technical acceptability 2. Agency's technical evaluation will not be questioned absent clear evidence that such evaluation was unreasonable or not in accordance with solicitation's stated evaluation criteria. PROCUREMENT - Contractor Qualification - Responsibility - Contracting officer findings - Affirmative determination - GAO review 3. Challenge to agency's affirmative determination of responsibility is dismissed where there is no allegation of possible fraud or bad faith on the part of procuring officials or failure to apply definitive responsibility criteria.

EPE Technologies, Inc.:

EPE Technologies, Inc., protests the award of a contract to United Power Corporation under request for proposals (RFP) No. DMA800-88-RA032 issued by the Defense Mapping Agency (DMA) for the acquisition of a quantity of power conditioning systems. The power conditioners are intended to protect equipment and data from surges or fluctuations in power. EPE argues that the United Power proposal failed to meet certain requirements of the specifications and failed to include sufficient reliability and maintenance data. EPE also argues that the firm does not have the financial and manufacturing capability to perform the contract.

We dismiss the protest in part and deny it in part.

The RFP contemplated the award of a firm, fixed-price contract for a total of 60 power conditioning systems. Award was to be made on a "greatest value" basis with technical acceptability being more important than price (technical acceptability was worth 60 percent of the total possible evaluation points and price 40 percent). The RFP provided for the evaluation of the following technical factors in descending order of importance: technical approach, reliability and maintainability, understanding of technical requirements, management plan and quality assurance plan. Twelve offers were received in response to the solicitation and, after initial evaluation of offers (including the issuance of a number of clarification questions to United Power), the agency concluded that only EPE and United Power were in the competitive range. The agency solicited best and final offers (BAFOs) from the two firms and after evaluation of BAFOs proposed award to United Power. The contracting officer found that while EPE was scored slightly higher technically than United Power, the proposals were essentially equal technically and United Power's price was 23 percent lower than EPE's offer. On or before October 11, 1988, the agency telephonically advised EPE of its award decision and by letter dated October 11, formally advised EPE of the award. By letter dated October 11, EPE protested the award to the DMA and by letter dated October 26, the agency denied EPE's protest. On November 7, EPE protested to our Office.

The protester first argues that the specifications called for a design which provides for the device's motor and generator rotors, flywheel and exciter to be mounted on a single shaft. According to EPE, the United Power product does not utilize a "single shaft" design but, rather, has a separate motor and generator, each mounted on its own shaft and joined by means of a coupling device.

The DMA, in its response, argues as a threshold matter that this challenge to the awardee's product is untimely and should be dismissed. According to the DMA, no allegation regarding the "multiple shaft" design of United Power was raised in EPE's agency-level protest and, consequently, any such allegation in our Office must be dismissed as untimely. In any event, DMA argues that the solicitation, as amended, permitted the design offered by United Power.

We agree with the agency that the protest allegation is untimely. Our Bid Protest Regulations, 4 C.F.R. Sec. 21.2(a)(2) (1988), require that a protest (other than one concerning a solicitation impropriety) be filed within 10 working days of the date the protester knew or should have known of the basis of protest. Here, EPE had actual knowledge of the award to United Power on or about October 11, as indicated by the firm's agency- level protest of that date, and yet did not raise this issue until its filing in or Office some 18 working days later. We note in this connection that the firm's agency-level protest is based on EPE's knowledge of United Power's product from various sources including United Power's descriptive literature. In its comments on the agency report, EPE did not rebut the agency's argument that the allegation in question was untimely or offer any evidence to show that it did not learn of United Power's product design later than when it filed its agency-level protest. Consequently, EPE's protest in this regard is dismissed as untimely. See P-B Engineering Co., B-229739, Jan. 25, 1988, 88-1 CPD Para. 71. /1/

EPE next argues that United Power's proposal was insufficient because it did not contain sufficient "actual" data on the reliability and maintainability of the offered equipment as required by the RFP. Specifically, EPE alleges that United Power has not been in business long enough and does not have enough of its units installed in the field to have the requisite data. Thus, the protester argues that United Power could have offered only projected calculations in satisfaction of this RFP requirement. EPE refers to section L.9(2) of the RFP which instructs offerors to include in their technical proposals in support of the reliability and maintainability technical evaluation factor:

"Data on actual performance of the proposed equipment: experience of the units in like application, experience of the units in similar application, experience of similar units in similar applications."

We view EPE's allegation in this respect as being a challenge to the agency's technical evaluation of United Power's proposal regarding maintainability and reliability. In this regard, we have consistently held that the evaluation of technical proposals is primarily the responsibility of the procuring agency which is responsible for defining its needs as well as the best method of accommodating them since it will necessarily bear the burden of any difficulties resulting from a defective evaluation. Consequently, our Office will not independently determine the relative merit of technical proposals but will only examine the agency's evaluation to ensure that it was reasonable and consistent with the stated evaluation criteria and applicable statutes and regulations. Moreover, a protester bears the burden of clearly showing that an agency's technical evaluation is unreasonable and the mere fact of disagreement with the agency evaluation is insufficient to meet this burden. See generally Aydin Vector Division of Aydin Corp., B-229569, Mar. 11, 1988, 88-1 CPD Para. 253. Here, we are satisfied that the record supports the agency's technical evaluation of United Power's proposal and that EPE has failed to carry its burden of showing that the evaluation was clearly unreasonable.

The record contains a statement from the chairman of the technical evaluation team in which he notes that the entire technical evaluation team was unanimous in its rating of the United Power proposal for reliability and maintainability. United Power's proposal established its reliability and maintainability record based on the extensive experience of the firm's ownership in the design, manufacture, service and sale of power conditioning equipment which includes installation of several thousand systems, the experience of its component manufacturers and a detailed explanation of why its system is highly reliable and maintainable. The evaluation team specifically found that the offered components of the United Power units are manufactured by an industry leader with extensive reliability and maintainability field data and that the design configuration of United Power's product provides for reduced maintenance demands and, thus, increased reliability. The evaluation team also relied on a 19 point comparison of the performance capabilities of the United Power product with other competitor products which the evaluation team found to be "very persuasive." Finally, the technical evaluation concluded that United Power's projected reliability analysis was reasonably arrived at. In contrast, the protester has only generally alleged that, because of the relatively recent incorporation of United Power, the firm necessarily could not proffer "actual" performance data for its product and that the projected reliability and maintainability data offered by United Power is inaccurate. We think that the record supports the agency's evaluation and consequently deny this basis of protest.

EPE's last argument is that United Power does not possess sufficient financial and manufacturing capability to perform the contract. dismiss this aspect of its protest since it raises a question as to the contracting officer's affirmative determination of United Power's responsibility which our Office will not consider absent a showing of possible fraud or bad faith on the part of procurement officials or a misapplication of definitive responsibility criteria. EPE does not allege fraud or bad faith on the part of the contracting officer in his affirmative determination of United Power's responsibility, nor does the protester allege that the DMA failed to apply definitive responsibility criteria. 4 C.F.R. Sec. 21.3(m)(5); Skyline Products-- Request for Reconsideration, B-231775.2, Aug. 11, 1988, 88-2 CPD Para. 138.

The protest is dismissed in part and denied in part.

/1/ The protester also initially argues that United Power's offer did not conform to the specifications because its product is not Underwriters Laboratory (UL) listed. However, in its comments on the agency report, EPE states that it now agrees with the agency that United Power need only have its product U.L. listed at the time of delivery, if at all. We thus view this protest allegation as a matter of contract administration, not for our review. 4 C.F.R. Sec. 21.3(m)(1).