DRS C3 Systems, LLC
Highlights
DRS C3 Systems, LLC protests the award of a contract to General Dynamics Advanced Information Systems (GD) under request for proposals (RFP) No. N00024-06-R-5103, issued by the Naval Sea Systems Command (NAVSEA), Department of the Navy, for common enterprise display system (CEDS) display consoles. DRS argues that the agency's evaluation of offerors' proposals and subsequent source selection decision were improper. DRS also contends that the agency's discussions with the protester regarding its proposal were not meaningful, and that GD had an impermissible organizational conflict of interest.
B-310825; B-310825.2, DRS C3 Systems, LLC, February 26, 2008
DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective Order. This redacted version has been approved for public release.
Decision
Matter of:
David Z. Bodenheimer, Esq., Puja Satiani, Esq., and James G. Peyster, Esq., Crowell & Moring, LLP, for the protester.
W. Jay DeVecchio, Esq., Edward Jackson, Esq., Damien C. Specht, Esq., and Kevin C. Dwyer, Esq., Jenner & Block LLP, for General Dynamics Advanced Information Systems, an intervenor.
Andrew C. Saunders, Esq., and Alex F. Marin, Esq., Naval Sea Systems Command, for the agency.
Louis A. Chiarella, Esq., and Christine S. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Protest alleging that firm had developed governmentwide standard applicable to the item being procured, thereby having an unfair informational advantage over other competitors, is denied where record establishes that firm did not have a role in developing the relevant governmentwide standard.
2. A competitive advantage that derives from an offeror's previous performance under a government contract is not an unfair competitive advantage that agency is required to neutralize.
3. Contracting agency engaged in meaningful discussions where agency advised protester of specific weaknesses regarding lack of a selected software architecture approach; agency was not required to also afford the protester an opportunity to cure proposal defects first introduced either in response to discussions or in a post-discussion proposal revision.
4. Protest challenging the evaluation of technical proposals is denied where the record establishes that the agency's evaluation was reasonable and consistent with the evaluation criteria.
5. Protest that past performance evaluation was unreasonable is sustained where record shows that: the findings in the agency evaluation report were not consistent with the information upon which the findings were based; the agency evaluators could not remember whether they evaluated and gave proper consideration to adverse past performance information regarding the awardee; and the agency did not properly assess the relevance of the offeror's prior contracts.
DECISION
We sustain the protest in part regarding the agency's evaluation of GD's past performance and deny the remainder of the protester's allegations.
BACKGROUND
On
The RFP also informed offerors that the CEDS display console procurement would occur in two phases. In Phase I, the Navy intended to award multiple fixed-price contracts for the preliminary design of the display consoles. In Phase II, in which Phase I awardees were to submit detailed business and technical proposals for the actual execution of the CEDS display console project, the Navy intended to select the offeror proposing the best value to the agency.[2]
The Phase II RFP contemplated the award of an indefinite-delivery/indefinite- quantity (ID/IQ) contract including both fixed-price and cost-reimbursement-type contract line item numbers (CLIN) for a CEDS display console first article unit, up to 601 production units, as well as associated spares, logistics, and various program, technical, engineering, and training services over a 4-year performance period. RFP sect. B; amend. 3, at 2. In addition to price, the RFP identified (in descending order of importance) technical approach, management approach and capabilities, and past performance as the nonprice evaluation factors, along with numerous subfactors, of equal importance within each factor.
Both GD and
After completing its initial evaluation, the agency decided that discussions with offerors were necessary, and established a competitive range consisting of the GD and
| GD | |
Technical Approach | Outstanding[4] | Very Good |
Management Approach and Capabilities | Outstanding[5] | Very Good |
Past Performance | Outstanding | Outstanding |
Evaluated Cost/Price | $64,809,680 | $80,884,381 |
AR, Tab 20, Final SSEB Report, at 1-51; Tab 21, Final Cost Evaluation Report, at 1-40.
Importantly, the Navy's evaluation was as much about determining the number of strengths and weaknesses within the offerors' proposals as it was the assigned adjectival ratings. The SSEB found that GD's proposal had 42 strengths (31 major, 11 minor) and no weaknesses under the technical approach factor, 35 strengths (17 major, 18 minor) and no weaknesses under the management approach and capabilities factor, and 16 strengths (13 major, 3 minor) and no weaknesses under the past performance factor. By contrast, the SSEB determined that
On September 7, the SSEB and cost evaluation teams briefed the agency source selection advisory council (SSAC) as to their respective ratings and findings of the offerors' proposals. The SSAC adopted the evaluation findings and ratings without exception and subsequently recommended that contract award be made to GD.
DISCUSSION
Organizational Conflict of Interest
The RFP included both the SOW, which established the contract requirements, and SRD, which established the performance, design, development, and test requirements for the CEDS display console itself. The SRD was developed entirely by the Navy, with no support from GD or any other contractor. AR,
The U.S. Government Protection Profile for Separation Kernels in Environments Requiring High Robustness, also referred to as the separation kernel protection profile (SKPP), is the governmentwide standard for separation kernel operating environments. The record reflects that, beginning in December 2002, the SKPP standard was developed by NSA in support of the F-22 Raptor and Joint Strike Fighter military aircraft programs. AR, Tab 27, NSA Declarations, at 1. The NSA working group that created the SKPP standard consisted of government employees with assistance from MITRE (a federally-funded research and development center) and the
In July 2006, prior to the Navy's award of Phase I preliminary design contracts for the CEDS program, GD was awarded a separate contract by NSA for the HAP program. GD Comments,
The record shows that while both CEDS and the HAP program involve processing information from multiple security levels simultaneously, the two programs apply different separation technologies and approaches; the requirements in the two programs here are also qualitatively different. CEDS requires, at a minimum, the ability to simultaneously and separately process information from six different security classifications under the same operating system, while the HAP program involves separating information in two adjacent levels of security classification. CEDS involves a real-time operating system (i.e., the results of one process are available in time for the next computing process which requires the previous result) and the HAP program does not. Further, while CEDS utilizes separation kernel technology that is to be certified by NSA against the most rigorous security assurance requirements, the HAP program does not involve the use or adaptation of a separation kernel, or mandate compliance with the same security assurance requirements. RFP amend. 1, SRD sect. 3.6.2.3; GD Comments,
Contracting officers are required to identify and evaluate potential OCIs as early in the acquisition process as possible. Federal Acquisition Regulation (FAR) sect. 9.504(a)(1). The FAR provides that an OCI exists when, because of other activities or relationships with other persons or organizations, a person or organization is unable or potentially unable to render impartial assistance or advice to the government, or the person's objectivity in performing the contract work is or might be otherwise impaired, or the person has an unfair competitive advantage. See FAR sect. 2.101. Situations in which OCIs arise, as addressed in FAR subpart 9.5 and the decisions of our Office, are generally associated with a firm's performance of a government contract and can be broadly categorized into three groups: (1) unequal access to information cases, where the primary concern is that a government contractor has access to nonpublic information that would give it an unfair competitive advantage in a competition for another contract; (2) biased ground rules cases, where the primary concern is that a government contractor could have an opportunity to skew a competition for a government contract in favor of itself; and (3) impaired objectivity cases, where the primary concern is that a government contractor would be in the position of evaluating itself or a related entity (either through an assessment of performance under a contract or an evaluation of proposals in a competition), which would cast doubt on the contractor's ability to render impartial advice to the government. Mechanical Equip. Co., Inc. et al., B-292789.2 et al., Dec. 15, 2003, 2004 CPD para. 192 at 18; Aetna Gov't Health Plans, Inc.; Foundation Health Fed. Servs., Inc., B-254397.15 et al.,
We find
[Deleted]
* * * * *
[Deleted]
AR, Tab 6, GD Proposal, vol. II, Technical Proposal, at II-4.12.
As a preliminary matter, we note that the protester selectively quotes from GD's proposal here and does not set forth the full, page-length discussion. Further,
GD's proposal, as part of its separation kernel trade studies analysis, included a statement that [deleted].[9] AR, Tab 6, GD Proposal, vol. II, Technical Proposal, at II-1.358. By contrast, during the CEDS solicitation process, NSA denied a
The record does thus indicate that NSA denied
Lack of Meaningful Discussions
The SRD stated, with regard to the CEDS
The Display Console hardware shall be capable of loading and supporting any conventional POSIX compliant operating system, which complies with the operating system requirements called out in the [Open Architecture Computing Environment] Technologies and Standards, Sections 4.5 and 5.5. [. . . , and]
* * * * *
The [operating environment] OE shall be POSIX compliant. The OE shall be designed to maintain compatibility and interoperability between previous and current configurations of equipment.
RFP amend. 1, SRD sections 3.6.2.1(b)(2)(a), (b)(3)(c).
After making its competitive range determination, the Navy conducted discussions with each offeror, including
The lack of a selected Separation Kernel approach will impact the schedule thereby adding risk to the program to meet schedule milestone (i.e., Critical Design Review, Test Readiness Review, and Production Readiness Review. This was determined to be a weakness. [. . . , and]
* * * * *
Without the selection of a Separation Kernel vendor, the architecture approach may not be achievable within the schedule requirements and was determined to be a weakness.
In its response to the Navy's discussion questions,
Based on our detailed analysis to date, we now have a more specific viewpoint of the [deleted] products. As a result, we firmly believe that it is in our best interest to advance a specific [separation kernel] solution. The specific [deleted] product that we are selecting is the [deleted] solution.
The SSEB considered
Although discussions must address deficiencies and significant weaknesses identified in proposals, the precise content of discussions is largely a matter of the contracting officer's judgment. See FAR sect. 15.306(d)(3); American States Utils. Servs., Inc., B-291307.3,
We conclude that the Navy's discussions with
As a preliminary matter, we see no basis to conclude that discussions closed on any date other than the date on which offerors' responses were due (August 6); the fact that, a week later, the agency confirmed the due date for FPRs has no bearing on this issue. Further, we recognize that there may be certain situations where, given the manner in which the discussions are held, the agency may not remain silent when an offeror introduces a matter during discussions which the agency regards as a proposal defect. E.g., Voith Hydro, Inc., B-277051, Aug. 22, 1997, 97-2 CPD para. 68 at 3 (where, in written response to an area of weakness identified by agency, protester introduced a new weakness, and agency and protester thereafter engaged in oral discussions, agency was required to advise offeror that it regarded the new matter as a weakness). This case does not involve such a situation. The record here reflects that the Navy's discussions with offerors were conducted in writing, and did not at any point involve back-and-forth exchanges of information. Further, the SSEB did not complete its evaluation of
Evaluation of GD's Technical Proposal
In reviewing an agency's evaluation, we will not reevaluate technical proposals; instead, we will examine the agency's evaluation to ensure that it was reasonable and consistent with the solicitation's stated evaluation criteria and procurement statutes and regulations. Urban-Meridian Joint Venture, B-287168, B-287168.2,
The solicitation informed offerors that proposals were to be sufficiently detailed so as to enable the agency to make a thorough evaluation and to arrive at a sound determination as to whether or not the prospective offeror would be able to perform in accordance with the stated requirements. RFP amend. 1, Instructions to Offerors, at 42. The RFP also stated that [i]f one (1) or more of the evaluation Factors or Subfactors are determined to be Unsatisfactory, the entire proposal may be rendered technically unacceptable and ineligible for award.[16]
The SRD contained hundreds, if not thousands, of requirements for the CEDS system. SRD section 3 established the actual CEDS system requirements while SRD section 4 established the test standards by which the Navy would verify the successful offeror's compliance with the section 3 requirements. Tr. at 176, 183-84. Relevant to the protest here, the SRD included the following requirements regarding the CEDS display screens:
Acoustic Data. The screens shall be suitable for displaying acoustic waterfall data.
1.The screen shall be capable of displaying dense high-contrast shifting images (such as a sonogram waterfall output) without causing eyestrain to an operator as defined by MIL-STD-1472 and ASTM F1166. [. . . , and]
* * * * *
ECDIS-N. The display console shall be Electronic Chart Display and Information System -- Navy (ECDIS-N) certifiable. Graphics capabilities shall be compatible with and meet the requirements to display navigation applications [in accordance with Operational Navy Instruction] 9420.2 (ECDIS-N performance requirements).
RFP amend. 1, SRD sections3.6.1.1(d)(1), 3.6.2.1(e)(7). The SRD's display screen requirements were not new or developmental in nature; the Navy had used similar standards for its predecessor display console system, the Q70, which the contractor there had been able to successfully achieve. Tr. at 173.
GD's technical approach proposal, consisting of more than 500 pages, included sections which addressed both the waterfall data display and color resolution requirements. Specifically, the proposal described GD's [deleted], as well as the various functional and performance properties of its display consoles in relation to the SRD requirements. AR, Tab 6, GD's Proposal, vol. II, Technical Proposal, at II.1.106 thru 112, 296 thru 302. GD's proposal also expressly represented that its display screens would be suitable for displaying acoustic waterfall data in accordance with SRD sect. 3.6.1.1(d), and provided information as to how GD would achieve the requirement.[17]
The record shows that, when evaluating offerors' proposals, the SSEB clearly considered certain SRD requirements to be more challenging than others. The evaluators believed the separation kernel requirements to be very demanding insofar as the work here was almost developmental in nature and had not been achieved before. Tr. at 32-33. By contrast, the SSEB did not consider the CEDS display screen requirements to be as difficult to meet. Tr. at 179-80. The evaluators were aware that the display screen requirements here were similar to those successfully achieved on the Navy's prior Q70 display system, that GD had previously produced display systems which displayed acoustic waterfall data for Navy attack submarines, and that several other commercial companies produced display systems that met SRD requirements. Tr. at 173-75. In light of this information, as well as the market surveys that the Navy had performed prior to release of the RFP here, the evaluators were not significantly concerned about the ability of offerors to meet the SRD display screen requirements. See Tr. at 179-81, 189.
The SSEB determined that GD's proposal met or exceeded all solicitation requirements. AR, Tab 20, Final SSEB Report, at 11-25. Relevant to the protest here, the evaluators found that GD's proposal met (but did not exceed) the SRD display screen requirements regarding both acoustic waterfall display and color resolution. Tr. at 171. The SSEB concluded that, given the perceived degree of difficulty of the display screen requirements here as well as the information provided by GD in its proposal, the offeror both understood and expressly agreed to comply with the SRD requirements. Tr. at 233-34.
We conclude that the agency's evaluation of GD's technical proposal was reasonable and consistent with the stated evaluation criteria. As a preliminary matter,
DRS argues that GD's proposal should have been found to be technically unacceptable because it did little more than recite, or parrot back, the SRD requirements in these two specific areas. The protester maintains that an offeror's ability to quote a specification verbatim does not establish technical compliance. DRS Comments,
A proposal with significant informational deficiencies may be found technically unacceptable, and an offeror's extensive parroting of an RFP's requirements may be considered as evidence of the offeror's failure to demonstrate a clear understanding of those requirements. See Government Telecomms., Inc., B-299542.2,
Evaluation of DRS's Technical Proposal
It is a fundamental principle of federal procurement law that a contracting agency must treat all offerors equally and evaluate their proposals evenhandedly against the solicitation's requirements and evaluation criteria. Rockwell Elec. Commerce Corp., B-286201 et al., Dec. 14, 2000, 2001 CPD para. 65 at 5; CRAssociates, Inc., B-282075.2, B-282075.3, Mar. 15, 2000, 2000 CPD para. 63 at 5. Our review of the record confirms that the Navy evaluated offerors' proposals equally under the technical and management factors, and that the difference in evaluation ratings here was not the result of unequal treatment by the agency but instead stemmed from the agency's recognition of differences in the offerors' proposals.
For example, DRS argues that because the Navy found GD's proposal to have several major strengths for its separation kernel solution [deleted], the agency should have likewise found similar strengths in DRS's proposal. Protest,
In our view, the agency's evaluation of DRS's proposal here was reasonable and consistent with the stated evaluation criteria. First, the SSEB reasonably judged GD's [deleted] to be of value to the agency, thereby warranting strengths in this regard. Further, the SSEB reasonably determined that DRS's proposal did not evidence the same [deleted] as existed in GD's proposal. The agency reasonably determined that the proposals of GD and
Cost/Price Evaluation
The reasonableness of an agency's cost or price evaluation is directly related to the financial risk that the government bears because of the contract type it has chosen. When an agency evaluates proposals for the award of a cost-reimbursement contract (or cost-reimbursement portion of a contract), an offeror's proposed costs of contract performance are not considered controlling because, regardless of the costs proposed by an offeror, the government is bound to pay the contractor its actual and allowable costs. FAR sect. 16.301-1; Metro Mach. Corp., B-295744, B-295744.2,
As set forth above, the RFP contemplated the award of an ID/IQ contract including both fixed-price and cost-reimbursement CLINs, as follows:[24]
CLIN | Supply or Service | Contract Type |
0003 | First Article Unit | Cost Plus Award Fee |
0005 | Production Units - Year 1 | Fixed Price Incentive[25] |
0006 | Production Units -- Years 2 thru 4 | Firm Fixed Price |
0007 | Spares & Installation Checkout Hardware | Firm Fixed Price |
0008 | Performance Based Logistics | Firm Fixed Price |
0010 | Program Services | Cost Plus Award Fee |
0011 | Technical & Engineering Services | Cost Plus Award Fee |
0013 | Training Services | Time and Materials |
RFP sect. B, at 1-7. The RFP also informed offerors how the agency would perform its cost/price evaluation and specified the unit quantities to be considered for each CLIN (e.g., CLINs 0005 and 0006 involved a total of 601 CEDS display consoles and 127 CEMS). RFP amend. 3, at 3.
The Navy's cost/price evaluation of the GD and DRS FPRs, as corrected, was as follows:[26]
CLIN | GD Proposed | GD Evaluated | DRS Proposed | DRS Evaluated |
0003 | [deleted] | [deleted] | [deleted] | [deleted] |
0005/0006 | [deleted] | [deleted] | [deleted] | [deleted] |
0007/0008 | [deleted] | [deleted] | [deleted] | [deleted] |
0010 | [deleted] | [deleted] | [deleted] | [deleted] |
0011 | [deleted] | [deleted] | [deleted] | [deleted] |
0013 | [deleted] | [deleted] | [deleted] | [deleted] |
Total | $67,960,422 | $67,958,161 | $84,335,367 | $84,313,512 |
AR,
As shown above, the offerors' evaluated costs/prices were essentially the same as those the offerors proposed. In fact, the only instance where the agency took exception to the costs and prices as proposed and made certain minor adjustments was with regard to cost-reimbursement CLIN 0003, the first article unit. AR, Tab 21, Final Cost Evaluation Report, at 8-11.
As a preliminary matter, we note that most of the CLINs here either did not involve display glass or were fixed-price in nature. Specifically, CLINs 0010, 0011, and 0013 do not involve display glass. Further, the majority of CLINs which involve display glass (0005 thru 0008) are fixed-price, thereby establishing contractual limits on the Navy's cost liability. In fact, the only CLIN that both involves display glass and is cost-reimbursement in nature is CLIN 003, the First Article Unit. By contrast, DRS's assertion that approximately [deleted] of the cost difference between the offerors' proposal is attributable to GD's noncompliant display glass is based on consideration of the fixed-price production units. Quite simply, the cost-reimbursement portion of the CEDS procurement involving display glass, for which DRS alleges the Navy failed in its duty to perform a proper cost realism analysis, was limited to the first article unit. Moreover, as DRS's assertion that the Navy failed to perform a proper cost realism analysis of GD's proposal is factually premised on the claim that the awardee's technical proposal was noncompliant, as we have determined that the Navy's technical evaluation of GD's proposal was reasonable, we also find no merit in the protester's indirect challenge here to the agency's technical evaluation of proposals.
Past Performance Evaluation
As a general matter, the evaluation of an offeror's past performance is a matter within the discretion of the contracting agency, and we will not substitute our judgment for reasonably based past performance ratings. However, we will question an agency's evaluation conclusions where they are unreasonable or undocumented. Clean Harbors Envtl. Servs., Inc., B-296176.2,
The RFP instructed offerors, with regard to past performance, to demonstrate how the proposed team's past experience and quality performance on programs of similar complexity make it qualified to execute the CEDS program (describe relevant and pertinent past performance for prime and major subcontractors). RFP amend. 1, Instructions to Offerors, at 58. Offerors were also required to submit relevant experience--that is, contracts on-going or completed in the previous 5 years that involved work similar to the CEDS procurement in terms of technology, type of effort (development, production, and maintenance), contract scope, schedule and risk--for evaluation.[27]
The NAVSEA contracting officer gathered and provided to the SSEB the offerors' past performance information. The past performance information regarding GD consisted of both contractor performance assessment reports (CPAR) and past performance questionnaires for the offeror itself and its proposed subcontractors.[28] AR, Tab 6, GD Past Performance Information. Relevant to the protest here, the GD past performance information also included a CPAR for General Dynamics [deleted] regarding its performance of the Navy's multifunctional cryptographic systems (MCS) contract.[29]
The
The SSEB rated GD's past performance as outstanding overall and determined that the awardee's proposal had 16 strengths (13 major, 3 minor) and no weaknesses under this evaluation factor. Among the various strengths the SSEB found relating to GD's past performance were:
Majority (three out of four) CPARs reviewed for the Contractor, rated [deleted] as exceptional or very good in technical, product performance, systems engineering, logistics support/ sustainment, schedule, cost control and management (Major).
Contractor provided 8 non-[contract data requirements list] deliverables which provided advanced insights into the Contractor's management plans and processes (i.e., QA Plan, Program Management Plan and Risk Plan) (Major).
GD[] met schedule for Phase I deliverables, and provided drafts of 8 deliverables not required yet for Phase I (e.g., [quality assurance] plan, SEMP, T&E Plan), thus reducing risk of on-time delivery of awarded contractor for Phase II (Major).
AR, Tab 20, Final SSEB Report, at 30. Importantly, the SSEB's report did not mention the adverse CPAR ratings regarding the
In its protest,
In its report to our Office, the Navy originally argued that the SSEB had reasonably disregarded the MCS CPAR as part of its evaluation of GD's past performance. The agency contended that only two specific divisions of General Dynamics--[deleted]--would be involved in performing the CEDS work here, while the MCS CPAR involved another GD division--[deleted]. Because the past performance information involved a General Dynamics division that would not be performing work on the CEDS project, the agency argued, it was reasonable not to consider this information as relevant in the evaluation of the awardee's past performance.[30] AR,
In its comments to the agency report, DRS provided information to demonstrate that GD [deleted] was in fact [deleted]. Specifically, GD [deleted] had been merged by the parent company into [deleted] with the integrated unit continuing to operate as [deleted]. DRS Comments,
At the hearing conducted by our Office, the SSEB chairman originally testified that the agency evaluators did not see and did not consider the MCS CPAR as part of their evaluation of GD's past performance. Tr. at 203-05. The Navy, however, subsequently introduced evidence that the MCS CPAR had in fact been considered by the SSEB in its evaluation of GD's past performance insofar as the evaluation report included specific findings that could only be attributable to the MCS CPAR.[31]
Q: [C]orrect me if I'm wrong. You stated you don't remember considering the GD CPARs on MCS, correct?
A: I believe I stated I don't recall seeing it.
Q: Do you recall evaluating it?
A: If I didn't see it, how can I actually evaluate it?
Q: You mentioned that you had a conversation with the deputy on the SSEB, is that correct?
A: Yes.
* * * * *
Q: And your recollection of that discussion with the deputy was that he also did not remember this CPARs?
A: That's what he told me.
Q: If you don't remember seeing it and the deputy doesn't remember seeing it, how do you know that you gave it proper consideration in the agency's past performance evaluation of GD?
A: I don't know.
At the hearing conducted by our Office, the SSEB chairman also discussed how the evaluators considered the relevance of offerors' past performance information. At one point the lead evaluator indicated that the determination of whether an offeror's past performance was similar to the work to be performed was based on whether it involved the delivery of equipment: We would look at the CPARs. We looked at the work. If it was similar in terms of they were producing a piece of equipment, we would count that as being similar.
Q: Did you give some references or some CPARs more weight than others because they were -- they were the same or similar, they were more relevant to the work here?
A: I believe we evaluated and gave credit for every CPARs we received.
* * * * *
Q: I've looked at the SSEB report. . . . I did not see in here the agency's --the agency saying that some of the references were more relevant than others. Am I missing anything?
A: No. We treat[ed] them all equally.
Q: Regardless of relevance? And what if it was really good past performance, but it has nothing to do with the technology of CEDS. How much weight do you give that? Do you think that that should be weighed equally to something that is highly relevant and high quality?
A: No.
The SSEB chairman also indicated that at least one of the strengths identified in the agency's report regarding GD's past performance was inaccurate. As set forth above, the SSEB report considered as a major strength the fact that a majority (i.e., three out of four) of the CPARs for proposed subcontractor [deleted] rated its performance as either exceptional or very good. The SSEB chairman acknowledged that this finding was inaccurate, and that instead two of the four CPARs for [deleted] had rated its performance as either outstanding or very good.
We conclude that the agency's evaluation of GD's past performance was not reasonable or consistent with the stated evaluation criteria. Of foremost concern, the record indicates that the Navy failed to give meaningful consideration to all the relevant past performance information that it possessed regarding GD. The evaluation report reflects that the SSEB was aware of, and apparently considered to some degree, the CPAR regarding the
The record also reflects that the Navy failed to adequately consider the relevance of GD's past performance information as part of the evaluation. An agency is required to consider the similarity or relevance of an offeror's past performance information as part of its evaluation of past performance. See FAR sect. 15.305(a)(2) (the relevance of past performance information shall be considered); United Paradyne Corp., B-297758,
The RFP here instructed offerors to provide past performance information that was relevant and pertinent, and later defined relevant as similar to the CEDS procurement in terms of technology, type of effort, contract scope, schedule, and risk. RFP amend. 1, Instructions to Offerors, at 60, 62. The record does not reflect that the agency adequately considered whether GD's past performance information was in fact similar to the CEDS procurement in accordance with the RFP.
The CPARs and questionnaires upon which the SSEB based their evaluation of GD's past performance furnished adjectival ratings and narratives regarding the quality of an offeror's performance in various areas. The contemporaneous evaluation report does not indicate that the agency went beyond considerations of quality and also considered the relevance of the offerors' past performance references. The SSEB's evaluation findings regarding GD concern the quality of the offeror's prior performance and indicate equal consideration of the offeror's past performance references without regard to relevance. Further, at the hearing conducted by our Office, the SSEB chairman's statements were, at best, ambiguous as to the agency's consideration of relevance. Specifically, the lead evaluator indicated that the SSEB gave equal consideration to all the offeror's past performance references, irrespective of relevance, and that the determination of what past performance was deemed similar was based simply on whether the prior work involved producing a piece of equipment. As the RFP required the agency to determine whether an offeror's past performance was similar to the CEDS procurement in terms of technology, type of effort, contract scope, schedule, and risk, we conclude that the agency did not properly consider the relevance of GD's past performance in its evaluation.
The record also reflects various inaccuracies in the SSEB report regarding GD's past performance. As detailed above, the SSEB chairman admits that one of the strengths given to GD--that a majority of the CPARs for [deleted] rated it as exceptional or very good--was factually inaccurate. Moreover, the two strengths given to GD related to its MCS CPAR are redundant, as well as based entirely on assertions by the contractor with which the Navy reviewing official there did not agree. In addition, GD received a major strength for certain CEDS document deliverables that provided insight into the contractor's management plans and processes--a fact that has nothing to do with past performance. In sum, several of the SSEB's specific findings regarding GD's past performance are without factual justification.
The Navy argues that notwithstanding any deficiencies in its evaluation of GD's past performance, the protest here should not be sustained because
Competitive prejudice is an essential element of a viable protest; where the protester fails to demonstrate that, but for the agency's actions, it would have had a substantial chance of receiving the award, there is no basis for finding prejudice, and our Office will not sustain the protest. Joint Mgmt. & Tech. Servs., B-294229, B-294229.2,
We recognize that GD's proposal was found to have technical strengths that DRS's did not, and that the RFP established that the technical approach factor was more important than the management approach and capabilities factor, which in turn was more important than the past performance factor. However, as detailed above, the record shows that the Navy's evaluation of GD's past performance was fundamentally flawed: it failed to adequately consider all relevant information; it failed to adequately consider the relevance of the offeror's past performance information; and several of the identified strengths are factually inaccurate and/or redundant. In light of these significant deficiencies in the agency's evaluation of GD's past performance, we simply cannot reasonably determine what GD's rating--or its strengths and weaknesses--should have properly been here. By contrast, in light of the errors which the Navy concedes occurred in other aspects of its evaluation of GD's proposal, it appears that the GD and DRS proposals have equivalent overall ratings of very good under both the technical approach and management approach and capabilities factors, and DRS received an outstanding rating for its past performance. Consequently, as we cannot determine that GD's proposal would remain technically superior overall, we conclude that the agency's actions here were prejudicial to the protester.
RECOMMENDATION
We recommend that the agency reevaluate offerors' past performance, giving due consideration to all relevant information as well as the relevance of the offerors' prior and current contracts and, based on that reevaluation, make a new source selection determination. If, upon reevaluation of proposals, DRS is determined to offer the best value to the government, the Navy should terminate GD's contract for the convenience of the government and make award to DRS. We also recommend that DRS be reimbursed the costs of filing and pursuing the protest, including reasonable attorneys' fees, limited to the costs relating to the ground on which we sustain the protest. 4 C.F.R. sect. 21.8(d)(1) (2007). DRS should submit its certified claim for costs, detailing the time expended and costs incurred, directly to the contracting agency within 60 days after receipt of this decision. 4 C.F.R. sect. 21.8(f)(1).
The protest is sustained in part and denied in part.
Gary L. Kepplinger
General Counsel
[1] The RFP established two categories of CEDS display systems--display consoles and remote displays--for which the Navy made separate award determinations. DRS's protest here concerns only the Navy's CEDS display consoles procurement.
[2] The awarded Phase I contracts also served as the solicitation for Phase II proposals: they each included a SOW, a CEDS system requirements document (SRD), instructions to offerors regarding the submission of proposals, and evaluation factors for award. AR,
[3] We note that another section of the RFP stated that overall technical merit was more important (as opposed to significantly more important) than total evaluated price.
[4] As explained in detail below in footnote 20, during the course of the protest the Navy conceded certain evaluation errors. In light thereof, GD's proposal under the technical approach factor appears to merit a very good rather than an outstanding rating.
[5] As with GD's rating under the technical approach factor, given the errors which the Navy concedes occurred, GD's proposal under the management approach and capabilities factor also appears to merit a very good rather than an outstanding rating.
[6] In its original protest
[7] During the course of the protest, GD provided statements demonstrating that its expertise in separation kernel technology was the result of its long-time involvement in the design of information assurance systems such as encryption equipment. In 1999, as a result of an independent research and development (IR&D) project, GD employees filed a patent application for a mathematically analyzed separation kernel. [Deleted] GD Comments,
[8] We acknowledge that our findings here are based largely on statements provided by the government and GD employees. However, we see no basis (nor does
[9] This briefing appears to have occurred in the context of GD being the current HAP program contractor.
[10] POSIX, or portable operating system interface for Unix, refers here to the Navy's open software architecture initiative of ensuring that the CEDS system does not adversely affect any host application software with which it would interface. Tr. at 48-49.
[11] DRS's initial proposal also did not identify the specific [deleted] separation kernel product in which it was most interested; instead,
[12] The record indicates that the Navy's use here of the term major weakness was synonymous with significant weakness, that is, a flaw in an offeror's proposal that appreciably increases the risk of unsuccessful contract performance. See FAR sect. 15.001.
[13] The record reflects that the Navy conducted discussions in writing by sending each offeror a letter containing discussion questions on July 20; the agency also requested that offerors submit their discussion responses in writing by August 6. AR, Tab 14, Navy Discussions with
[14] Acoustic waterfall display refers to the graphical representation of noise data (i.e., sonar) with respect to time. As time progresses, data is added to the top of the display screen and the existing data moves down. An improper display screen can flicker or flash over time, thereby causing eyestrain and/or headaches to the operator who is monitoring the acoustic waterfall display. Tr. at 170-73.
[15]
[16] The RFP defined unsatisfactory as follows: the proposed approach indicates a lack of understanding of the program goals and the methods, resources, schedules and other aspects essential to performance of the program; numerous weaknesses and deficiencies exist; and the risk of unsuccessful contract performance is high.
[17] Additionally, the requirements verification test matrix portion of GD's proposal also represented that its display screens would comply with the SRD requirements regarding acoustic waterfall data.
[18]
[19] The record also reflects that the Navy's evaluation of proposals was even-handed in this regard: in those instances where DRS's proposal also agreed to comply with the SRD requirements without providing details as to how, the SSEB likewise did not find this to be a deficiency or weakness. Tr. at 143.
[20] DRS's protest also raised other issues regarding the evaluation of its technical proposal, many of which were resolved by the agency's acknowledgment of error. In its report to our Office, the Navy conceded that because GD [deleted], the awardee's proposal should have received similar major weaknesses under the technical and management factors for failing to comply with the SRD requirement for a POSIX-compliant operating system. AR,
[21]
[22] DRS also originally asserted that the Navy's cost evaluation was flawed because GD had offered cheap versions of major cost drivers (e.g., trackball, keyboard, joystick) and that GD's labor rates for program services appeared understated. DRS Protest,
[23] Likewise, a realism analysis is not ordinarily part of an agency's price evaluation because of the allocation of risk associated with a fixed-price contract. AST Envtl., Inc., B-291567, Dec. 31, 2002, 2002 CPD para. 225 at 2. To the extent an agency elects to perform a realism analysis in the competition for a fixed-price or fixed-price incentive contract, its purpose is not to evaluate an offeror's price but to assess risk or to measure an offeror's understanding of the solicitation's requirements; the offered prices may not be adjusted as a result of the analysis. FAR sect. 15.404-1(d)(3); Puglia Eng'g of California, Inc., B-297413 et al.,
[24] The RFP's other CLINs were either not separately priced, or expressly not part of the agency's cost and price evaluation. RFP sect. B at 1-7.
[25] As contemplated here, a fixed-price incentive (firm target) contract specifies a target cost, a target profit, a price ceiling (but not a profit ceiling or floor), and a profit adjustment formula. See FAR sect. 16.403-1.
[26] In its report to our Office, the Navy acknowledged certain computational errors in its final cost evaluation report. AR,
[27] The RFP also established that, with regard to the past performance evaluation factor, the agency would assign a rating of neutral where the offeror was found not to have relevant past performance.
[28] The GD past performance information consisted of: one CPAR for GD business unit [deleted]; three CPARs for proposed subcontractor [deleted]; two CPARs for proposed subcontractor [deleted]; one CPAR for proposed subcontractor [deleted]; and two past performance questionnaires each for GD, [deleted]. AR, Tab 6, GD Past Performance Information.
[29] The MCS contract involved the design, development, fabrication, testing and fielding of a programmable, multi-channel, multiple independent levels of security (MILS) cryptographic device for the Navy's Virginia- and Seawolf-class submarines.
[30] The agency also furnished a declaration from the SSEB chairman stating that the evaluators had considered only past performance information for the divisions of General Dynamics that would actually perform work under the CEDS contract, namely [deleted], as well as proposed subcontractors. AR, Tab 31, Declaration of SSEB Chairman, at 1.
[31] In response to questioning from the agency, the SSEB chairman concluded that two of the strengths identified in the evaluation report regarding GD's past performance (i.e., [t]he Contractor developed, produced and certified a MILS system on a submarine without benefit of required [government-furnished equipment/government-furnished information] GFE/GFI (Major), and [t]he contractor managed to certify a MILS system installed on a submarine without benefit of the required GFE/GFI which is perceived as a risk reducer to meeting the separation kernel requirement (Major)) derived from the contractor's rebuttal in the MCS CPAR. Tr. at 366-69; AR, Tab 20, Final SSEB Report, at 30.
[32] Further, the record reflects that this is more than just the faulty memory of a single individual: the SSEB chairman stated that his deputy also had no recollection of having seen or considered the MCS CPAR as part of the Navy's evaluation.
[33] The Navy also contends that, with regard to the management approach factor, the offerors' proposals are substantially equal, although GD maintains a comparative advantage based on one additional minor weakness in DRS's proposal. AR,