B-237254, Feb 13, 1990, 90-1 CPD ***

B-237254: Feb 13, 1990

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PROCUREMENT - Competitive Negotiation - Offers - Competitive ranges - Exclusion - Administrative discretion DIGEST: General Accounting Office will not disturb an agency's decision to exclude a protester from the competitive range on grounds that it had no reasonable chance for award when. This determination was reasonable. Cajar principally alleges that the evaluation of its proposal and its exclusion from the competitive range were improper. The solicitation specified that the competitive range would be determined on the basis of these three factors and would include all proposals determined to have a reasonable chance of being selected for award. Its proposal was technically unacceptable and had no chance of being selected for award.

B-237254, Feb 13, 1990, 90-1 CPD ***

PROCUREMENT - Competitive Negotiation - Offers - Competitive ranges - Exclusion - Administrative discretion DIGEST: General Accounting Office will not disturb an agency's decision to exclude a protester from the competitive range on grounds that it had no reasonable chance for award when, considering the relative superiority of the other proposals, this determination was reasonable.

Attorneys

Cajar Defense Support Company:

Cajar Defense Support Company protests the award of a contract to Lockheed Electronics Company under request for proposals (RFP) No. DAAA21- 89-R-0532, issued by the Department of the Army for testing and corrective maintenance of one part of the security system for nuclear weapons. Cajar principally alleges that the evaluation of its proposal and its exclusion from the competitive range were improper. We deny the protest.

The RFP provided that proposals would be evaluated on the basis of technical, management and price factors, with technical considerations being more important than management approach and technical and management factors combined being significantly more important than price. The solicitation specified that the competitive range would be determined on the basis of these three factors and would include all proposals determined to have a reasonable chance of being selected for award.

Three firms responded to the RFP, Cajar, Lockheed, and R.E. Timm Associates. A technical evaluation panel evaluated and scored initial proposals for technical merit and management approach. Cajar received an average score of 36 of a possible 100 points for these two factors. contrast, the other two offerors, Lockheed and Timm, both received perfect scores of 100. Based on these scores, the contracting officer included only Lockheed and Timm in the competitive range, excluding Cajar based on the finding that, although Cajar had submitted the lowest initial price, its proposal was technically unacceptable and had no chance of being selected for award.

Specifically, the Army found that Cajar's proposal did not adequately address many of the solicitation's requirements as reflected in Cajar's low rating under each of the five technical subfactors (understanding the requirements, technical approach and proposed method for accomplishing the requirements, test design and performance, postmortem investigations, and analysis of test data) and the three management subfactors (personnel qualifications, past performance and schedule). The Army found that Cajar's proposal contained little more than a reiteration of the statement of work and thus did not demonstrate that the requirements were understood or could be performed; did not provide a detailed methodology for performing the requirements, including a failure to mention environmental monitoring and maintenance concerns; and finally, did not address requirements for a demonstration of test design and performance capabilities, test data analysis capabilities, or postmortem investigation capabilities. The Army also found Cajar's proposed personnel lacking actual experience in test performance and data analysis as well as hands- on experience with the hardware necessary to perform the required tests.

Cajar does not take specific exception to any of these discrepancies found in its proposal, but argues at length that its exclusion from this and other competitions together with Timm's inclusion in the competitive range evidence a pattern of bad faith conduct on the part of contracting officials to deny it contract awards. Cajar alludes to two factors to support this position. First, Cajar states that it had submitted a technically acceptable response to a similar RFP previously issued and canceled by the same contracting activity-- in fact, the record shows that Cajar's proposal under this former solicitation had been found technically unacceptable-- and second, that it is a far more experienced and qualified contractor than Timm.

A showing of bad faith requires proof that contracting officials had a specific and malicious intent to injure the protester. Golden Triagle Management Group, Inc., B-234790, July 10, 1989, 89-2 CPD Para. 26. Cajar has not made this showing; Cajar's allegations of bad faith are based purely on supposition, conjecture, and inaccurate statements of the record. In fact, our review of the record shows that the Army's evaluation of Cajar's proposal was reasonable and provided ample justification for excluding Cajar from the competition.

For instance, Cajar stated in its proposal that the solicitation was very clear and not at all complex and questioned how the agency could have doubts regarding an offeror's understanding of the work requirements. Yet, at the same time, Cajar repeatedly expressed concern that the exact parameters of the required effort were not defined with precision and were subject to different, widely variant interpretations. Apparently to demonstrate this, Cajar included in its initial proposal two sample concept plans that it believed were reasonable, albeit subject to negotiation. Under one plan, Cajar proposed to dedicate a small team of experts to accomplish this requirement with a level of effort of 500 hours over a 2-3 month period; under the second plan, Cajar proposed a maximum level of effort that easily could exceed 5,000 hours. Cajar believed a proposed effort anywhere within this considerable range was possible (although it recognized that proposals at either extreme most likely would be considered unacceptable for either technical or cost reasons). However, Cajar's proposal did not specify how the firm would perform the work under either alternative. Rather, Cajar largely recited the specific requirements, asserted that it intended to perform each task, and referred to its response to the previously canceled solicitation to demonstrate its understanding, capabilities and justifications. For example, in this regard, Cajar stated that it would present a test design, conduct postmortem investigations and perform test data analysis, but did not identify or describe its approach to the actual performance of any of these three tasks. Cajar's responses to the various other solicitation requirements were similar.

The evaluation of technical proposals is a matter within the discretion of the contracting agency; we will review the agency's evaluation only to determine whether it had a reasonable basis. See Del-Jen, Inc., B-216589, Aug. 1, 1985, 85-2 CPD Para. 111. Offeror's bear the responsibility of demonstrating these capabilities in their proposals, and if they fail to do so, it is appropriate to downgrade their proposals. Id. Given the record here, we find no basis for disturbing the agency's finding that Cajar did not furnish sufficient information in its proposal to demonstrate its understanding of the work requirements, its intended methodology of performance, or its capabilities to perform many of its required tasks. Specifically, we think the agency reasonably determined that Cajar's submission of two widely divergent alternate approaches, coupled with its failure to explain its intended method of performance, cast considerable doubt on its understanding of the work requirements and its ability to perform this effort. We therefore conclude that the Army's evaluation was reasonable, as was the Army's determination that Cajar had no reasonable chance at being selected for award. See DAVSAM Int'l, Inc., B-228429.5, Mar. 11, 1988, 88-1 CPD Para. 252.

Cajar further argues that Lockheed, a large development and production contractor, should not have been permitted to compete for this requirement concerning the testing of existing equipment because that firm may gain a competitive advantage for purposes of competing for future contracts. This, however, is not a basis for disqualifying Lockheed from this procurement, see Federal Acquisition Regulation, subpart 9.5; any questions as to Lockheed's eligibility to compete for future production contracts because of its involvement here are for consideration if and when they arise. See Pancor Corp., B-234168, Mar. 29, 1989, 89-1 CPD Para. 328 (General Accounting Office's jurisdiction is limited to considering protests involving solicitations already issued by federal agencies).

The protest is denied.