Matter of: Watkins-Johnson Company File: B-252790 Date: July 7, 1993

B-252790: Jul 7, 1993

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Allegation that agency failed to hold meaningful discussions is considered abandoned where agency's report specifically addressed argument raised in initial protest and protester failed to rebut the agency's position in its comments on the report. Is dismissed as untimely. Where later-raised issue does not independently satisfy requirement of General Accounting Office's Bid Protest Regulations that a protest be filed within 10 working days after basis for protest is known or should have been known. Initial proposals were submitted by three offerors. The Technical Evaluation Review Panel (TERP) determined that WJC's proposal was technically unacceptable but susceptible of being made acceptable.[2] Accordingly.

Matter of: Watkins-Johnson Company File: B-252790 Date: July 7, 1993

PROCUREMENT Bid Protests Allegation Abandonment In procurement for countermeasures receiving sets, allegation that agency failed to hold meaningful discussions is considered abandoned where agency's report specifically addressed argument raised in initial protest and protester failed to rebut the agency's position in its comments on the report. PROCUREMENT Bid Protests GAO procedures Protest timeliness 10-day rule Protest that agency improperly evaluated protester's technical proposal-- a new and independent ground of protest first raised in protester's comments on agency's report--is dismissed as untimely, where later-raised issue does not independently satisfy requirement of General Accounting Office's Bid Protest Regulations that a protest be filed within 10 working days after basis for protest is known or should have been known.

Attorneys

DECISION Watkins-Johnson Company (WJC) protests the award of a contract to ARGOSystems, Inc. under request for proposals (RFP) No. N00024-92-R- 6411(Q), issued by the Department of the Navy for countermeasures receiving sets. WJC contends that the Navy improperly evaluated its proposal and failed to hold meaningful discussions.

We dismiss the protest.

The RFP, issued in July 1992, solicited proposals for a firm-fixed-price contract to produce AN/WLR-1H(V) countermeasures receiving sets, as well as all interface modification kits necessary for their integration with existing sets.[1] The solicitation required a non-developmental item (NDI) that met or exceeded all performance and environmental specifications listed in the statement of work (SOW), and provided that award would be made to the "technically acceptable offeror whose proposal represents the greatest value."

Initial proposals were submitted by three offerors, including WJC and ARGO. In November, the Technical Evaluation Review Panel (TERP) determined that WJC's proposal was technically unacceptable but susceptible of being made acceptable.[2] Accordingly, the Navy included the firm, along with ARGO, in the competitive range and sent WJC numerous discussion questions, including 19 technical questions covering deficiencies the TERP had identified in WJC's initial proposal. On December 8, in substantially identical letters, the Navy informed WJC and ARGO that discussions were closed and that best and final offers (BAFO) were due by December 15. The letter to WJC stated:

"Responses to discussion questions submitted by Watkins-Johnson Company on 25 November 1992 are considered material for purposes of proposal evaluation. Discussions have been completed and you are hereby requested to provide the Navy with your `best and final offer' (BAFO). If there are changes in price, terms or conditions they must be identified as such. . .

After evaluating WJC's BAFO, the TERP concluded that WJC had responded adequately only to 7 of the 19 technical questions. As a consequence, WJC's proposal, though lower in price ($3,887,201, compared to ARGO's $4,707,156), was determined to be technically unacceptable. Since ARGO's proposal was found technically acceptable, and its price was determined to be reasonable, the Navy concluded that award to ARGO represented the best value to the government and awarded a contract to that firm on March 18, 1993. On the same day, the Navy sent a detailed letter to WJC informing the firm that it was not selected for award because its "proposal did not meet several significant technical requirements of the solicitation," as enumerated in the letter.

WJC protested this award decision to our Office, arguing that the Navy failed to hold meaningful discussions since, according to WJC, "at no time during discussions did the Navy indicate that the equipment proposed by WJC would not satisfy the system requirements." In support of this position, WJC pointed out that after November 25, when it responded to the Navy's detailed discussion letter of November 18, the agency asked no further questions concerning perceived deficiencies. Instead, the Navy's December 8 letter (which advised the firm that discussions were closed and asked it to submit a BAFO), according to WJC, indicated that the Navy considered WJC proposal to be "technically acceptable and under consideration as an offeror." WJC concluded that, "by requesting a BAFO, the Navy implied that WJC was deemed to be technically acceptable."

In response, the Navy stated in its administrative report that each of the areas identified as unacceptable deficiencies in the December 8 notification letter had been pointed out as an initial proposal deficiency in its November 18 discussion letter to the firm. The agency maintained that it was not required to conduct successive rounds of discussions with WJC, and that WJC had no reasonable basis for concluding that the Navy's request for a BAFO, simply because there was no reiteration of the deficiencies already pointed out, meant that WJC's proposal was considered technically acceptable. The Navy also provided documentation from the evaluation record to support its contentions. In commenting on the Navy's report, WJC did not attempt to dispute or rebut the agency's response.

Where, as in this instance, an agency specifically addresses an allegation raised by the protester in its initial protest, and the protester fails to rebut the agency's response in its comments, we consider the allegation to have been abandoned by the protester. Reliable Sys. Servs. Corp., B-248126, July 28, 1992, 92-2 CPD Para. 57; RRRS Enters., Inc., B-241512; B-241512.2, Feb. 12, 1991, 91-1 CPD Para. 152 (allegation of inadequate discussions deemed abandoned and dismissed when protester, in comments, failed to dispute agency's response). Accordingly, we dismiss WJC's allegation that the Navy failed to provide meaningful discussions.

In its comments on the agency's report, WJC for the first time objected to the Navy's finding that its proposal was technically unacceptable due to the deficiencies enumerated in the agency's March 18 notification letter. This objection is untimely. Our Bid Protest Regulations require that a protest be filed within 10 working days after the basis of protest is known or should have been known. 4 C.F.R. Sec. 21.2(a)(2) (1993). Each new protest ground must independently satisfy the timeliness requirements of our Regulations, which do not contemplate the piecemeal presentation or development of protest issues. RRRS Enters., Inc., supra.

As discussed above, the Navy's letter of March 18 advised WJC that its proposal was unacceptable for several reasons, including eight enumerated in the letter:

"(1) The proposed omni antenna performance does not satisfy the solicitation requirements; (2) The proposed interface requirements to the AN/WLR-1H(V)3 and the modifications to the proposed antenna were not adequately discussed; (3) The proposed maintenance planning description was inadequate; (4) The proposal failed to provide substantiating documentation to support the OBRP [onboard replacement parts] and INCO [installation and checkout] spares lists; (5) The proposed technical data logistics approach to satisfy the requirement for drawings was inadequately addressed; (6) The proposal did not provide a detailed plan describing how PTD [provisioning technical documentation] delivery requirements will be satisfied; (7) The proposal provided inadequate documentation to ensure the antenna will comply with maintainability requirements; and (8) Maintenance Activity requirements were inadequately defined."

On its face, this letter provided WJC a detailed statement of the areas in which its proposal "did not meet several significant technical requirements of the solicitation." If WJC believed that the agency's conclusions were incorrect and that its proposal had been misevaluated, it was required to object to the agency's stated basis for finding the proposal technically unacceptable not later than 10 working days after receiving the letter. 4 C.F.R. Sec. 21.2(a)(2). For example, if WJC believed it had in fact adequately discussed the antenna interface and modification requirement, it was required to so argue within this 10-day period. WJC did not do so. While the firm's initial protest was filed within that period--specifically, on March 24--that protest, as noted above, concerned only the manner in which the agency had conducted discussions. WJC's objection to the technical evaluation of its proposal was not raised until May 7, when its comments on the agency report were submitted to our Office--that is, approximately 6 weeks after the firm learned of the basis for the objection. Indeed, even in these comments WJC only specifically rebutted the agency's conclusions as to one cited deficiency (antenna performance). See RRRS Enters., Inc., supra. Accordingly, this aspect of the protest is untimely and will not be considered.

The protest is dismissed.

1. The sets, intended to detect threats to ships in which they are installed, combine four different antennas into a single package antenna (SPA).

2. Price proposals were reviewed by a Price Evaluation Person (PEP).