Matter of: Universal Technologies Inc.; Spacecraft, Inc. File: B-248808.2; B-248808.4; B-248808.5 Date: September 28, 1992

Matter of: Universal Technologies Inc.; Spacecraft, Inc. File: B-248808.2; B-248808.4; B-248808.5 Date: September 28, 1992

PROCUREMENT Competitive Negotiation Offers Evaluation errors Best-buy analysis In a negotiated, best value procurement, in which technical considerations were stated to be more important than price, protests against the award to the higher priced, higher rated awardee were not legally insufficient where the protesters not only challenged the awardee's much higher priced proposal, but represented their technical capability to perform the contract work and challenged the agency's evaluation of their respective past performance histories. PROCUREMENT Bid Protests GAO procedures Protest timeliness 10-day rule Adverse agency actions Protests of an agency's cost/technical tradeoff determination were not required to be filed within 10 working days of the protesters' receipt of the agency's proposed small business set-aside award, where the small business pre-award notice provided no information concerning the intended awardee's price or the basis for selection; protests filed, respectively, within 10 working days of receipt of the award notification that disclosed award price and after the agency's denial of an agency-level protest are timely. PROCUREMENT Bid Protests GAO procedures Protest timeliness 10-day rule Protest allegations challenging an agency's technical evaluation, that were not filed within 10 working days of the agency's debriefing at which the protester learned the basis of these protest allegations, are untimely under the Bid Protest Regulations and will not be considered. PROCUREMENT Competitive Negotiation Contract awards Administrative discretion Cost/technical tradeoffs Technical superiority Award was properly made to a higher rated, higher priced offeror where the source selection decision was consistent with the solicitation's evaluation factors and the source selection authority reasonably determined that the awardee's evaluated technical superiority and much lower proposal and past performance risk justified its higher price. PROCUREMENT Contractor Qualification Integrity certification Misrepresentation The awardee's certification that failed to identify, as required, criminal convictions did not make the awardee ineligible to receive award where the miscertification did not appear to be made in bad faith and did not materially influence the agency's affirmative determination of the awardee's responsibility; the agency had previously entered into an administrative agreement in lieu of debarment with the awardee that considered the awardee's convictions and corrective action, and that determined that the awardee had the integrity required of a government contractor.

Attorneys

DECISION

Universal Technologies, Inc. and Spacecraft, Inc. protest the award of a contract to Marvin Engineering, Inc., under request for proposals (RFP) No. F08626-92-R-0011, issued by the Department of the Air Force for training missiles. Universal and Spacecraft contend that their respective proposals, which are lower priced that Marvin's, should have been selected for award. Universal also contends that Marvin is ineligible for award because Marvin falsely certified that it had not been convicted within the past 3 years of making false statements or falsifying documents to the government.

We deny the protests in part and dismiss them in part. [1]

The RFP, issued as a total small business set-aside, contemplated the award of a fixed-price contract for captive air training missiles (CATM) for the Air Force and the Department of the Navy. The CATM is an inert device with the same physical characteristics as the AIM-120 tactical missile. This "dummy" missile is used by the Air Force and Navy to provide load training for ground handling crews and flight training for pilots. [2]

Offerors were informed that award would be made to the offeror with the most advantageous proposal, price and other factors considered. Technical evaluation factors were stated to be more important than price, although price was stated to be a substantial consideration. The RFP identified the following technical evaluation factors, in descending order of importance: (1) Manufacturing; (2) Quality Assurance; (3) Systems Engineering; and (4) Program/ Configuration/Data Management.

The RFP provided that technical factors, which would be assessed for compliance with the solicitation requirements and soundness of approach, would be evaluated under a color/adjectival and proposal risk evaluation scheme. Offerors were also informed that past performance risk would be evaluated; the RFP requested specific past performance information and stated that "data obtained from other sources [would also be used] in the development of performance risk assessments." [3] Performance risk was said to be co-equal in relative importance to the color/adjectival technical rating and proposal risk assessment. Offerors were also informed that the government intended to make award without conducting discussions. See 10 U.S.C. Sec. 2305(b)(4)(A)(ii) (Supp. III 1991).

The RFP provided detailed design specifications for the manufacture of the missile and required the contract work to be in compliance with the high quality assurance requirements of military standard MIL-Q-9858A. [4] The RFP also provided detailed instructions for the preparation of technical and cost proposals that informed offerors of the information required for proposal evaluation.

For example, for the past performance risk assessment, offerors were asked to submit past contract performance information that demonstrated their ability to perform the proposed contract work; specifically, the RFP requested contract numbers, agency and contracting officer names, descriptions of contract effort (i.e., whether for development and/or production), types of contracts, periods of performance, contract values, and completion dates. In addition, offerors were asked to explain how listed contracts were deemed relevant and were permitted to explain past performance problems.

The Air Force received 21 proposals, including offers from Universal, Spacecraft, and Marvin. The proposals ranged in price from $24.6 million to $77.3 million and were evaluated by the source selection evaluation team (SSET) in accordance with the color/adjectival rating and proposal risk assessment scheme stated in Air Force Regulation 70-30. [5] A separate team evaluated performance risk. The awardee's and protesters' proposals were evaluated as follows:

Rating/Risk [6] Marvin Universal Spacecraft

TECHNICAL FACTORS E/L M/M M/M Manufacturing E/L M/M M/M Quality Assurance A/L A/M M/M System EngineeringA/L A/M A/L Program/Configuration/ Data ManagementE/L A/M A/L PERFORMANCE RISK L M-H H PRICE (Millions) $35.6 $31.2 $29.6

Marvin's overall excellent technical rating and low risk assessment reflected the Air Force evaluators' determination that Marvin's proposal contained no deficiencies or weaknesses. Under the most important technical evaluation factor--manufacturing--the agency found that Marvin's proposal contained a number of exceptional strong points, such as a detailed equipment list (including contingency equipment and back-up facility), an extensive analysis of production processes and flows, a detailed breakout of major assemblies, a detailed discussion of production resources and the firm's contingency plans, and a detailed discussion of required and current manufacturing capacity. Under the second most important evaluation factor--quality assurance--Marvin had an existing MIL-Q-9858A system in place and established statistical process controls (SPC) procedures as used on prior government contracts. Marvin's past performance was assessed as being of low risk [7] based upon the agency's evaluation of information provided by Marvin and of information the agency received from the Defense Contract Management Command (DCMC) that reported that Marvin had a long-term, excellent government contract performance history, including contracts of similar complexity and value.

Universal's overall marginal technical rating and moderate risk reflected the agency's determination that Universal's proposal contained a number of weaknesses and deficiencies. For example, under the manufacturing factor, Universal's proposal was downgraded and rated marginal with moderate proposal risk because no strengths were found and Universal failed to provide sufficient details to show that the firm had an adequate manufacturing system; that is, the proposal did not demonstrate sufficient available equipment and manpower, or provide other clearly defined information (e.g., current capacity), that would be needed to perform critical manufacturing operations. Under the quality assurance factor, Universal's offer was downgraded and rated acceptable, with moderate proposal risk, because it did not indicate the availability of quality assurance engineering support for the CATM and did not show plans, capability or experience necessary to successfully implement SPC. Universal's past performance was assessed as being of moderate to high risk [8] because the agency found, based upon information received from DCMC, that Universal had a history of low production rates, rework problems, and delinquent contracts.

Spacecraft's overall marginal technical rating and moderate risk assessment was based upon the agency's determination that Spacecraft's proposal contained a variety of deficiencies and weaknesses. Under the manufacturing factor, the proposal was downgraded because Spacecraft failed to provide: (1) sufficient information concerning the firm's required and available manpower and equipment capacities; (2) an organizational chart for the firm's production and manufacturing organization; (3) sufficient details for scheduling material and parts through manufacturing; and (4) details of its method of establishing need dates, tracking, and status of work orders. Under the quality assurance factor, Spacecraft's proposal was downgraded because it failed to provide quality assurance engineering support and its use of statistical methods appeared limited to inspection sampling plans. The agency assessed Spacecraft's past performance risk as high because the agency found that Spacecraft (1) had not had contracts of similar technical complexity and dollar value, (2) needed frequent government inspections to ensure that its product satisfied contract requirements, (3) had overall poor production performance, and (4) historically underbid contracts.

The SSET also evaluated the price reasonableness and realism of the offerors' proposed pricing. Price reasonableness was evaluated to assess whether the prices were fair and reasonable by comparing an offeror's price with the independent government cost estimate (IGCE) and with other offerors' proposed prices. Price realism was evaluated to assess the extent the proposed price was commensurate with the proposed contract effort and was evaluated by reviewing the cost data provided by the offerors. Based upon this review, the SSET found that Marvin's proposed pricing, which was the seventh lowest of the 21 offers received and which was lower than the IGCE, was both reasonable and realistic. Universal's and Spacecraft's lower proposed prices were also found reasonable. Universal's proposed price was also found realistic while Spacecraft failed to provide sufficient information to demonstrate the realism of its proposed price.

The SSET recommended award to Marvin as the offeror submitting the most advantageous proposal, price and other factors considered. The source selection authority (SSA) requested that the SSET consider why Marvin's proposed price was nearly 39 percent less than that of the incumbent contractor, who also had competed for award and had been evaluated as excellent and low risk. The SSET determined that Marvin could perform at its proposed price, and that the price differences between Marvin and the incumbent contractor reflected Marvin's plans to perform much of the contract work in-house, as compared to the incumbent contractor, which intended to extensively use subcontractors.

The SSA selected Marvin for award as the offeror offering the best overall value in satisfying the agency's needs based upon an integrated assessment of the proposals in accordance with the stated evaluation factors. Specifically, the SSA found:

"While other proposals were adequate when measured against the technical criteria, Marvin . . . offered the greatest value when both [t]echnical and [c]ost criteria were applied. [Marvin]'s proposal was superior in manufacturing planning by addressing each requirement in detail. [Marvin] not only possesses excellent production resources, such as facilities, equipment, skilled manpower but also included contingency plans in its proposal for all required resources. Marvin . . . has a MIL-Q-9858A program in place and also employs a [SPC] system. Marvin . . . has demon strated an excellent past performance record. Of note, is its emphasis on the cost of quality which, in turn, reduces scrap, rework, and expense. Its demonstrated excellent overall management control will ensure that the required schedule will be met. [Marvin]'s proposal was completely responsive to all requirements of the RFP and required no discussions to qualify it for award.

"Although the proposed cost of Marvin . . . is not the lowest, it is considered fair and reasonable. It is my view that the additional cost is warranted by the technical superiority, and low performance risk."

Award was made to Marvin on May 15, 1992, on the basis of initial proposals, and these protests followed.

As an initial matter, the Air Force and Marvin contend that the Universal's initial protest (B-248808.2) and Spacecraft's protest (B-248808.5) fail to provide legally sufficient grounds of protests and should be dismissed. See 4 C.F.R. Secs. 21.1(c)(4), 21.1(e) (1992). Specifically, the Air Force and Marvin contend that Universal's and Spacecraft's initial protest filings only challenge award to Marvin on the basis of its higher price and the basis for award was not price alone.

It is true that our Bid Protest Regulations require that a protest include a detailed statement of the legal and factual grounds of a protest, 4 C.F.R. Sec. 21.1(c)(4), and that the grounds stated be legally sufficient. 4 C.F.R. Sec. 21.1(e). These requirements contemplate that protesters will provide, at a minimum, either allegations or evidence sufficient, if uncontradicted, to establish the likelihood that the protester will prevail in its claim of improper agency actions. Robert Wall Edge-- Recon., 68 Comp.Gen. 352 (1989), 89-1 CPD Para. 335.

Applying this standard here, we find that Universal's and Spacecraft's protests, while sparse, [9] provided a legally sufficient basis for protest. [10] Both protesters challenged the agency's award to Marvin at a substantially higher price. Also, Universal contended that it has a successful performance history and proven capability of performing the contract work, and Spacecraft contended that the agency's assessment of its past performance risk was based upon erroneous information received from the DCMC. Thus, the crux of these protests is their challenge to the agency's cost/technical tradeoff determination. While there is no requirement that award be made on the basis of lowest cost or price, unless the RFP so specifies, see Sabreliner Corp., B-242023; B-242023.2, Mar. 25, 1991, 91-1 CPD Para. 326, cost/price must nevertheless be considered in all selection decisions, even where it is the least important evaluation criteria. See System Dev. Corp, B-213726, June 6, 1984, 84-1 CPD Para. 605. If Universal's and Spacecraft's allegations were unchallenged--that is, that the agency failed to consider that the firms could successfully perform the contract work at a substantially lower price--this would establish a likelihood that the protesters would prevail. See id. Therefore, we decline to dismiss the protests for any failure to provide legally sufficient grounds.

The Air Force and Marvin also argue that Spacecraft's protest and Universal's second protest (B-248808.4) are untimely because they were not filed within 10 working days of the date that the firms learned of the agency's apparent selection of Marvin for award. That is, Universal's June 2 protest and Spacecraft's June 5 protest were not filed within 10 working days of the agency's May 7 notice of proposed award to Marvin as the apparent successful, small business offeror. We disagree. The May 7 pre-award notice, which is required by Federal Acquisition Regulation (FAR) Sec. 15.1000(b)(2) to provide offerors with an opportunity to file an appropriate small business size challenge, only states that the agency intends to make award to Marvin and provides no information concerning Marvin's price or the basis for Marvin's selection. In our view, the protesters had no basis to question the selection of Marvin until the firms received the agency's award notification that disclosed the award price. The record shows that Universal's June 2 protest was timely filed within 10 working days of its May 18 receipt of the agency's award notice. Spacecraft initially filed an agency-level protest on May 20, which the Air Force denied on June 2. Spacecraft's June 5 protest was timely filed within 10 working days of the denial of its agency-level protest.

Spacecraft's June 5 protest only objected to the agency's cost/technical tradeoff determination in the context of the agency's allegedly improper assessment of Spacecraft's past performance risk. On July 14, Spacecraft contested for the first time the agency's technical evaluation of Spacecraft's proposal. Spacecraft learned the basis of these allegations in a May 27 debriefing it received from the Air Force. Since its protest of this agency evaluation was not filed within 10 working days of the May 27 debriefing, these protest allegations are untimely and will not be considered. 4 C.F.R. Sec. 21.2(a)(2).

As noted above, the crux of the Universal and Spacecraft protests is a challenge to the Air Force's cost/technical tradeoff analysis that concluded that Marvin's higher priced offer was most advantageous to the government. In this regard, both protesters challenge the agency's negative assessment of their respective past performance risk and Universal timely protested its lower rating under the manufacturing factor. However, neither protester challenges the agency's evaluation of Marvin's proposal as technically excellent and low risk, nor the agency's assessment of Marvin's past performance as low risk.

The determination of the relative merits of proposals is primarily a matter of agency discretion, which our Office will not disturb unless it is shown to be unreasonable. Computer Based Sys., Inc., 70 Comp.Gen. 172 (1991), 91-1 CPD Para. 14. Agency officials have broad discretion in determining the manner and extent to which they will make use of technical and cost evaluation results. Cost/technical tradeoffs may be made; the extent to which one may be sacrificed for the other is governed only by the tests of rationality and consistency with the established evaluation factors. Grey Advertising, Inc., 55 Comp.Gen. 1111 (1976), 76-1 CPD Para. 325. Award may be made to a higher rated, higher priced offeror where the decision is consistent with the evaluation factors and the agency reasonably determines that the technical superiority of the higher priced offer out-weighs the cost difference. See Sabreliner Corp., supra.

Universal chiefly complains that the Air Force's assessment of its past performance risk as moderate to high is in error because the agency based its risk assessment upon erroneous information the Air Force obtained from DCMC. Specifically, Universal contests the information provided to the Air Force that Universal was delinquent on three current contracts and two completed contracts when, Universal alleges, the delinquencies were government caused, not contractor caused. In this regard, Universal submitted a letter from DCMC that states that two of the five contract delinquencies were government caused and that another performance delay (of 5 days) was not considered by DCMC to be significant. [11] Universal also disagrees with the Air Force's assessment that Universal did not have experience in producing the quantity or rate of production required by the RFP, arguing that its technical proposal demonstrated experience.

The Air Force disputes Universal's claims that the contract delays were government caused and states that the record shows that Universal paid consideration in order to receive contract extensions, which indicates to the Air Force that the contract delays were contractor caused. The Air Force also disputes Universal's contention that Universal demonstrated in its proposal that it had performed contracts with rates of production equivalent to the RFP work and of similar value, and contends that Universal's proposal shows contracts of much lower value and much lower production rates than will be required under this contract.

The record is inconclusive regarding which party was at fault for the contract delays and delinquencies on the contracts cited by agency in making its negative assessment of Universal's past performance. The record shows, however, that Universal's moderate to high performance risk assessment was substantially based upon a number of factors beyond the firm's record of delinquent contracts. These factors include Universal's low production rates and contract values, failures to follow production plans, rework problems, and weak compliance with contract terms and conditions. From our review of Universal's proposal, we agree with the Air Force that Universal's past contracts were of much lower dollar amounts and with much lower production rates and cannot find unreasonable the Air Force's other observations regarding Universal's past performance. Under the circumstances, we find reasonable the agency's assessment of Universal's past performance risk as being moderate to high.

Universal also contends that the Air Force unreasonably concluded that Universal did not have the manufacturing and personnel capacity to adequately perform the contract work. In support of this allegation, Universal provided a list of equipment it states it has available to perform the RFP work and states that its manufacturing program is in full compliance with the stringent requirements of MIL-STD-1528A, "Manufacturing Management Program."

The record shows that the equipment identified in Universal's comments as available for this contract was not identified in Universal's proposal. Also, its proposal only states that Universal's management system for the CATM work would use MIL-STD-1528A and that Universal follows MIL-STD-1528A as a "guideline." It is an offeror's responsibility to affirmatively demonstrate the merits of its proposal. Vista Videocassette Servs., Inc., B-230699, July 15, 1988, 88-2 CPD Para. 55. Since Universal did not satisfy this standard, we conclude that the agency reasonably questioned Universal's manufacturing and personnel capacity to perform the contract work.

Spacecraft also challenges the Air Force's assessment of its past performance as being high risk, and contends that the agency's negative past performance risk assessment is based upon erroneous information that the Air Force obtained from DCMC. [12]

Spacecraft's high risk past performance assessment was based upon the agency's concerns regarding the low technical complexity and dollar value of Spacecraft's past contracts vis-a-vis the RFP work, the need for frequent government inspections to ensure that Spacecraft's product satisfied contract requirements, Spacecraft's overall poor production performance, and Spacecraft's history of underbidding contracts. The prior contracts identified in Spacecraft's proposal also appear to be of low technical complexity and dollar value in comparison to the RFP work since they were for parts of missiles rather than a missile itself and were of much lower dollar values than the prices offered under the RFP. Also, Spacecraft has provided no evidence to rebut the information provided by DCMC that Spacecraft requires frequent government inspection, has had overall poor production, and has historically underbid contracts. The protester's mere disagreement with the agency's evaluation determination does not demonstrate that the agency's evaluation was unreasonable. DBA Sys., Inc., B-241048, Jan. 15, 1991, 91-1 CPD Para. 36. From our review of the record, we find no basis to question the agency's negative performance risk assessment of Spacecraft's proposal.

Here, as noted above, Marvin's proposal was evaluated as excellent with low proposal risk and its past performance risk was assessed as low; Universal's and Spacecraft's proposals were evaluated as marginal with moderate risk, and the firms' past performance risks were assessed as moderate to high and as high, respectively. Since we find that the agency reasonably downgraded Universal's and Spacecraft's proposals in the areas timely challenged by the protesters, and given that the protesters do not challenge the exemplary evaluation of Marvin's proposal, we find that the agency reasonably concluded that Marvin's superior technical rating reflected actual and significant technical superiority. The SSA recognized that Marvin had not proposed the lowest price but found that Marvin's evaluated technical superiority and low proposal and performance risk justified its higher price. In this regard, Marvin's proposed price, which was found reasonable and realistic, was lower than the IGCE and the incumbent's offered price and was seventh low of the 21 offers received. Under the circumstances, we find the agency's cost/technical tradeoff was reasonable and consistent with the stated evaluation scheme that stressed the importance of the technical evaluation factors and past performance risk assessment over price.

Universal finally protests that Marvin is ineligible for award because Marvin materially misrepresented that it had not been convicted within the past 3 years of making false statements or falsifying documents to the government. Where an offeror has made an intentional misrepresentation that materially influenced the agency's consideration of its proposal, we have found that the proposal should be disqualified and a contract award based upon the proposal canceled. Informatics, Inc., 57 Comp.Gen. 217 (1978), 78-1 CPD Para. 53; Moorman's Travel Servs., Inc.--Recon., B-219728.2, Dec. 10, 1985, 85-2 CPD Para. 643.

Universal's contention is based upon Marvin's response to the RFP "Certification Regarding Debarment, Suspension, Proposed Debarment, and other Responsibility Matters," FAR Sec. 52.209-5, that requires offerors to certify whether they or any of their principals have been debarred, suspended, or proposed for debarment or suspension, or indicted, civilly charged, convicted or found civilly liable for any of a number of enumerated offenses. In pertinent part, this certificate provides:

"(a)(1) The Offeror certifies, to the best of its knowledge and belief, that--

(i) The Offeror and/or its Principals--

(B) Have [ ] have not [ ], within a [3]-year period preceding this offer, been convicted of or had a civil judgment rendered against them for: commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, state, or local) contract or subcontract; violation of Federal or state antitrust statutes relating to the submission of offers; or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property . . ." (Emphasis added.)

The purpose of this certificate is to assist the contracting officer in determining an offeror's responsibility. FAR Sec. 9.408; Intermountain Elec., Inc., B-236953.2, Jan. 31, 1990, 90-1 CPD Para. 143. The failure to properly complete the certification does not require the rejection of a proposal. Id.

In completing this certificate, Marvin checked the "have not" box. Marvin, however, admits that it and one of its principals pled guilty to a violation of 26 U.S.C. Sec. 7201 (1988), "Attempt to Evade or Defeat Tax," and that its principal also pled guilty to a violation of 26 U.S.C. Sec. 7206(1), "Fraud and False Statements." Marvin contends that it did not intentionally miscertify that it and a principal had not been convicted but that it mistakenly believed that the RFP certificate only encompassed offenses that were related to or involved wrongdoing in connection with federal, state or local contracts.

The Air Force contends that Marvin's interpretation of the certificate language is not unreasonable and that, in any event, Marvin's failure to properly disclose and certify its tax convictions does not affect the contracting officer's affirmative determination of responsibility since the issue of Marvin's responsibility in relation to the tax convictions had already been considered by the Air Force in the context of whether the agency would debar or suspend Marvin from contracting. Specifically, the Air Force and Marvin entered into an administrative agreement in 1991, by which Marvin agreed to take certain actions to protect the government and the Air Force, on behalf of the government, agreed that debarment of Marvin was not necessary to protect the government's interests. [13]

We do not agree with the Air Force or Marvin that the certificate can be reasonably read as seeking information concerning criminal convictions and civil judgments relating only to public contracts. The pertinent paragraph of the certificate requests that the offeror certify whether it, or any of its principals, have been criminally convicted or subject to a civil liability for violations listed in three separate clauses, each separated by a semicolon. The first two of these dependent clauses limit the listed violations to those relating to acquiring or performing public contracts or the submitting of offers; the last clause does not condition the listed violations to those relating to public contracts. In our view, the only reasonable interpretation of the last dependent clause is that the listed violations are not restricted to those relating to public contracts.

Here, the record is clear that Marvin's certificate was erroneous; that is, Marvin and its principal were convicted of offenses within the 3-year period that were required to be disclosed, and Marvin failed to disclose them. Despite our conclusion regarding Marvin's miscertification, we do not find that Marvin is ineligible for award because Marvin's false certification does not appear to have been made in bad faith, nor did it materially influence the agency's affirmative determination of Marvin's responsibility.

The record shows that even prior to this RFP the Air Force had already considered the effect of these convictions on Marvin's responsibility and eligibility for award, and entered an administrative agreement with Marvin in lieu of debarment. In this agreement, the Air Force represented that it had "reviewed [Marvin's] submissions . . . concerning the events underlying the convictions and the corrective actions Marvin . . . has taken to ensure that it possesses the high degree of integrity required of a government contractor." The Air Force concluded that debarment of Marvin from government contracting was not necessary to protect the government's interest. Given the agency's prior consideration of Marvin's convictions and corrective action, and given the contracting officer's statements that his affirmative determination of Marvin's responsibility would not have been different, even if Marvin had properly disclosed the tax code violations, we find that Marvin's miscertification did not materially influence the agency's responsibility determination. In this regard, an offeror's previous indictment, conviction, debarment and/or suspension, as disclosed in response to the certificate, does not automatically prevent award to the offeror. See Carolina Parachute Corp., B-236153, Nov. 16, 1989, 89-2 CPD Para. 466.

Moreover, Marvin's failure to disclose its and its principal's convictions does not appear to have been in bad faith. Both Marvin and the Air Force express confusion as to whether these offenses should have been disclosed. It also seems unlikely that Marvin was attempting, in bad faith, to mislead the Air Force on a matter that it and the Air Force had recently agreed upon in lieu of debarment. Accordingly, Marvin's miscertification did not render it ineligible for award. [14]

To the extent that Universal contends that the Air Force's affirmative determination of Marvin's responsibility was unreasonable, given Marvin's miscertification, its protest is dismissed. We will not review an agency's affirmative determination of responsibility, absent a possible showing of fraud or bad faith on the part of procurement officials or that definitive responsibility criteria in the solicitation have been misapplied. See 4 C.F.R. Sec. 21.3(m); King-Fisher Co., B-2366887.2, Feb. 12, 1990, 90-1 CPD Para. 177. Universal does not contend that the Air Force has acted in bad faith or that the certificate relates to a definitive responsibility criterion.

The protests are denied in part and dismissed in part.

Senator Lloyd Bentsen United States Senator 961 Federal Building Austin, TX 78701

Dear Senator Bentsen:

This refers to your letter of July 1, 1992, concerning the protest filed by your constituent Mr. Esad Sipilovic, President of Spacecraft Inc., under solicitation number F08626-92-R-0011, issued by the Department of the Air Force.

By decision of today's date, copy enclosed, we denied Spacecraft's protest. We hope this of assistance to you in responding to your constituent.

1. Portions of the protest record are subject to a General Accounting Office protective order, to which counsel for Universal and Marvin have been admitted. Our decision, which is based in part upon protected, confidential information is necessarily general.

2. The CATM is used with F-14, F-15, and F/A-18 jet aircraft.

3. Proposal risk assesses the risks associated with an offeror's proposed approach as it relates to accomplishing the requirements of this solicitation. Past performance risk, on the other hand, assesses an offeror's probability of successfully accomplishing the proposed contract work.

4. MIL-Q-9858A requires a comprehensive quality assurance program, that must be tailored by the contractor to a particular procurement and requires that all work affecting quality (i.e., purchasing, receiving, handling, machining, assembling, fabricating, processing, inspecting, and shipping) be prescribed in written instructions, which provide criteria for performing the work. See generally COSTAR, B-240980, Dec. 20, 1990, 90-2 CPD Para. 509.

5. Proposals were qualitatively evaluated as either blue/exceptional; green/acceptable; yellow/marginal; or red/unacceptable. Proposal risk was assessed as either high, moderate, or low.

6. The letters under the technical rating represent the following: "E" for exceptional; "A" for acceptable; and "M" for marginal. Under the risk assessment, the letters represent the following: "H" for high; "M" for moderate; and "L" for low.

7. Under the agency's performance risk assessment methodology, low risk indicated that little doubt exists, based upon the offeror's performance record, that the offeror could perform the proposed contract work.

8. A moderate performance risk assessment indicates that some doubt exists, based on the offeror's performance record, that the offeror can perform the proposed contract work, while a high performance risk assessment indicates that there is significant doubt that the offeror can perform the proposed effort.

9. The sparsity of Universal's protest is understandable since it had not yet been given a debriefing. While it is true that a protester can generally await a debriefing before protesting, see Vine, McKinnon & Hall, B-245164, Dec. 18, 1991, 91-2 CPD Para. 561, a protester has no obligation to do so when it becomes aware of sufficient facts to give rise to its protest allegations.

10. Spacecraft is proceeding pro se, and Universal filed its protests prior to retaining legal counsel.

11. Universal also complains that the Air Force did not contact the contracting officers or DCMC personnel that Universal identified in its proposal for the contracts the offeror identified. These contracts, however, are different from the contracts that DCMC identified as ones on which Universal had performance problems.

12. Spacecraft also alleges that DCMC personnel were biased against Spacecraft and that this motivated DCMC to knowingly provide erroneous information to the Air Force. We will not attribute unfair or prejudicial motives to government officials on the basis of unsupported allegations, inference, or supposition. Admiral Towing and Barge Co., Inc., B-245600; B-245602, Jan. 16, 1992, 92-1 CPD Para. 83. Since Spacecraft has provided no information or evidence to support its allegation of bias, and the record otherwise contains no information that evidences bias on the part of DCMC personnel, we will not consider this allegation.

13. Department of Defense FAR Supplement Sec. 209.406-1 allows an agency to enter into administrative agreements in lieu of debarment where the agency, in its discretion, determines that debarment is not necessary to protect the government's interest.

14. While, as noted above, we find no basis to question the agency's affirmative determination of Marvin's responsibility, this does not mean that the contracting officer could not reasonably have questioned Marvin's responsibility based upon that firm's miscertification if it found that this negatively reflected on that firm's integrity. See generally General Sales Agency, B-247133.2, June 29, 1992, 92-1 CPD Para. 544.