Altavian, Inc.

Decision

Matter of:  Altavian, Inc.

File:  B-417701; B-417701.2

Date:  September 17, 2019

DIGEST

1.  Protest that the agency did not provide meaningful discussions is denied where the agency reasonably communicated its concerns about the protester’s initial proposal.

2.  Protest that the agency unreasonably evaluated proposals is denied where the evaluations were consistent with the solicitation’s evaluation criteria.

3.  Protest that the agency made an unreasonable source selection decision is denied where the record shows that the agency considered the technical merit of the proposals and reasonably determined that protester’s proposal was not worth a price premium.

Altavian, Inc., of Gainesville, Florida, protests the award of a delivery order to AeroVironment, Inc., of Simi Valley, California, under Delivery Order Request (DOR) No. W911QY‑18-R‑PROD‑FCS‑01, issued by the Department of the Army, Army Contracting Command, for flight control system kits and ground radio kits.  The protester argues that the agency unreasonably evaluated proposals and improperly made its source selection decision.

We deny the protest.

BACKGROUND

On September 14, 2018, the agency issued the DOR for flight control system (FCS) and ground radio kits to allow the RQ-11B Raven[1] unmanned aircraft (UA) to operate in updated spectrum bands (i.e., 1625-1725 Megahertz (MHz), 1780-1850 MHz, and 2025-2110 MHz).  Agency Report (AR), Tab 4, DOR at 1; AR, Tab 5, Performance Work Statement (PWS) at 1.  The FCS kits were to consist of an avionics card, a direct data link radio, and any other components needed to allow the UA to meet performance requirements.  AR, Tab 5, PWS at 1.  The Ground Radio Kits were to include the radio, antenna, and cables necessary to connect the Army’s ground control station to the UA.  Id. 

The DOR contemplated the award of a fixed-price contract for 45 FCS kits and 25 ground radio kits within four months of award followed by seven options for additional quantities.  AR, Tab 4, DOR at 2-3.  Award would be made on a best-value tradeoff basis considering technical, past performance, and price factors.  Id. at 8-12.  The  non-price factors were significantly more important than the price factor.  Id. at 8.  The technical factor consisted of three subfactors (technical demonstration, technical approach, and data rights).  Id. at 9-11.  For the technical demonstration subfactor, offerors were required to demonstrate ground and flight functionality.  Id. at 9‑10.  The flight demonstration required offerors to show proficiency in six areas, including target accuracy.  Id. at 9.

The agency received three proposals by the October 12, 2018, closing date.  Combined Contracting Officer’s Statement and Memorandum of Law (COS/MOL) at 2.  Offerors completed their technical demonstrations during late November and early December.  Id.  The agency then conducted an initial evaluation of the proposals.  Id.  With regard to Altavian’s proposal, the agency identified problems with its proposed pricing.  Id. at 2-3.  As for AeroVironment’s proposal, the agency assigned it a deficiency for its target accuracy demonstration.  Id. at 3.  After the agency conducted discussions, both offerors submitted revised proposals.  Id.  The agency’s final evaluation produced the following relevant results:

	Altavaian	AeroVironment
Technical	Good	Acceptable
--Technical Demonstration	Acceptable	Acceptable
--Technical Approach	Good	Good
--Data Rights	Outstanding	Acceptable
Past Performance	Substantial	Substantial
Price	$66,800,808	$54,625,849

AR, Tab 64, Source Selection Decision Document (SSDD) at 12-13.  When comparing Altavian’s and AeroVironment’s proposals, the source selection authority (SSA) concluded that AeroVironment’s proposal offered the better value.  Id. at 14.  In making his tradeoff comparison, the SSA noted that Altavian offered a better technical approach because its proposal offered unlimited data rights; nevertheless, the SSA concluded that the unlimited data rights did not warrant the price premium because government purpose rights were all that were required to meet the agency’s needs.  Id. at 13-14.  Furthermore, the SSA noted that AeroVironment’s per unit price was two to three times lower than Altavian’s per unit price.  Id.  After Altavian learned that its proposal was unsuccessful, it filed the instant protest with our Office.[2] 

DISCUSSION

Altavian raises multiple allegations regarding the agency’s conduct of the acquisition.  We have reviewed all of Altavian’s allegations, and find no basis to sustain the protest.  We discuss the principal allegations below but note at the outset that, in reviewing protests challenging an agency’s evaluation of proposals, our Office does not reevaluate proposals or substitute our judgment for that of the agency; rather, we review the record to determine whether the agency’s evaluation was reasonable and consistent with the solicitation’s evaluation criteria, as well as applicable statutes and regulations.  AT&T Corp., B‑414886 et al., Oct. 5, 2017, 2017 CPD ¶ 330 at 6.

Misleading Discussions

Altavian argues that the Army conducted misleading and meaningless discussions because it did not identify its actual concerns with Altavian’s price proposal.  Protest at 14.  In response, the agency argues that its discussions were sufficient and not misleading.  COS/MOL at 14.

As a delivery order procurement, this competition was conducted pursuant to the “fair opportunity” procedures of Federal Acquisition Regulation (FAR) subpart 16.5.  Section 16.505 of the FAR does not establish specific requirements for conducting discussions; nevertheless, when discussions are conducted, they must be fair and reasonable.  DynCorp Int’l LLC, B‑411465, B‑411465.2, Aug. 4, 2015, 2015 CPD ¶ 228 at 6.  Pursuant to this section of the FAR, our Office’s decisions explain that where, as here, an agency conducts a fair opportunity competition utilizing the negotiated procurement procedures of FAR part 15, our analysis regarding fairness will, in large part, reflect the standards applicable to negotiated procurements.  See, e.g., Companion Data Servs., LLC, B‑410022, B‑410022.2, Oct. 9, 2014, 2014 CPD ¶ 300 at 12.

To that end, our decisions have explained that an agency may not mislead an offeror into responding in a manner that does not address the agency’s concerns, or misinform the offeror concerning a problem with its proposal or about the government’s requirements.  See, e.g., M.A. Mortenson Co., B‑413174, Dec. 9, 2016, 2016 CPD ¶ 361 at 8-9.  However, agencies are not required to “spoon‑feed” an offeror during discussions by identifying every possible area where a proposal might be improved or suggesting alternative approaches.  Id.  Where an agency elects to conduct discussions with an offeror concerning price, it is not required to advise the offeror of the specific areas where its price is too high or to provide a specific price that the offeror must meet; rather, simply advising the offeror that its price is too high is sufficient.  See MicroTechnologies, LLC, B‑413091, B‑410391.2, Aug. 11, 2016, 2016 CPD ¶ 219 at 14‑15; see also Total Home Health, B‑417283, B‑417283.2. Apr. 26, 2019, 2019 CPD ¶ 166 at 4.

We do not find that the agency conducted misleading or meaningless discussions with Altavian.  The record shows that the agency raised two areas of concern.  The agency informed Altavian that its overall price (i.e., total evaluated price) was too high and that it should lower its overall price.  AR, Tab 35, Agency Discussion Notice; AR, Tab 37, Agency Response to Altavian’s Discussion Questions.  While the agency also advised Altavian that its proposed unit pricing for the ground radio kits was inconsistent with the rates in the underlying IDIQ contract, the discussion notice was clear that its concern with Altavian’s overall pricing went beyond the proposed unit price for the ground radio kits because it identified them as separate “discussion items.”  AR, Tab 35, Agency Discussion Notice.  Furthermore, when providing clarification to Altavian’s discussion questions, the agency response addressed both its view that Altavian’s ground radio kits unit pricing should match or be less than a particular contract line item number (CLIN) from the IDIQ contract, and advised that it was also giving “Altavian the opportunity to lower their overall price.”  AR, Tab 37, Agency Response to Altavian’s Discussion Questions. 

Thus, we think the agency’s discussions were not misleading because the agency communicated its concerns as separate items, and did not indicate that Altavian could address both concerns simply by making its proposed pricing for its ground radio kits consistent with the rates from the underlying IDIQ.  Cf. Total Home Health, supra at 5 (agency’s discussions were misleading because the agency led protester to believe that its concern with the overall price was the result of pricing for three specific CLINs, and that revision of the three identified CLINs would be sufficient to enhance the protester’s chance for award).  Moreover, the discussions were meaningful because the agency identified Altavian’s overall price as too high and therefore imparted sufficient information to afford Altavian a fair and reasonable opportunity to increase its prospect of receiving award.  See Northstate Heavy Equip. Rental, B‑416821, Dec. 19, 2018, 2018 CPD ¶ 430 at 4-5 (discussions were meaningful when the agency advised the protester that its prices were too high and therefore provided sufficient information for the protester to improve its competitive position).  Accordingly, we deny the protest allegation.[3]

Evaluation of Altavian’s Technical Proposal

Altavian argues that the agency misevaluated its proposal under the technical demonstration and technical approach subfactors.  Altavian asserts that it should have received a higher adjectival rating under the technical evaluation subfactor because it received three significant strengths, one strength, and one weakness during its demonstration based on objective criteria set forth in the solicitation.  Protester’s Comments at 14.  As for the technical approach subfactor, Altavian points to the fact that it received eight strengths and no weaknesses as evidence that it should have likewise received a higher adjectival rating.  Id. at 15.

The technical demonstration subfactor encompassed both a ground test and a flight demonstration.  During the ground test, offerors were required to verify the functionality of the flight control system by performing start-up tasks.  AR, Tab 11, DOR, attach. 7, Ground Test Procedures at 2-3.  For the flight demonstration, offerors were required to show landing accuracy, functional demonstration, target accuracy, maximum endurance, as well as demonstrate their endurance with a fixed payload, and with a gimbal payload.  AR, Tab 4, DOR at 9-10.  The solicitation contained objective scoring criteria for each flight demonstration category; for instance, an offeror that was able to land the UA within two meters of the landing waypoint would receive a significant strength for the landing accuracy category.  Id.

Based on the record, we find that the agency reasonably evaluated Altavian under the technical demonstration subfactor because its demonstration received a mixture of positive and negative criticism.  Indeed, although Altavian received significant strengths under three of the flight demonstration categories, the record also shows that Altavian was assigned one weakness under the landing accuracy category.  AR, Tab 46, Altavian Technical Evaluation, Subfactor One at 2-5.  Furthermore, the record shows that, notwithstanding the assignment of one strength for the target accuracy category, the agency’s technical evaluators concluded that there was some risk with Altavian’s technical demonstration because Altavian’s captured images did not show the target as the center of the field of view (i.e., the targets were not in the middle of the photographs).[4]  Supp. COS/MOL at 12; AR, Tab 45, Altavian Flight Demonstration Results at 27-28.  Nevertheless, the agency concluded that the risk was not more than moderate because the error could be corrected through a software update.[5]  Supp. COS/MOL at 12.  Thus, given that the evaluation showed a mixture of ratings and a risk of unsuccessful performance that was no worse than moderate, we find that the agency reasonably assigned an “acceptable” rating in accordance with the adjectival rating definitions as set forth in the DOR.  AR, Tab 4, DOR at 13.  To the extent Altavian asserts that the positive criticism outweighs the negative criticism, we note that such assertions constitute disagreement with the agency’s judgment, which by themselves, do not provide a valid basis of protest. See Merrill Aviation & Defense, B‑416837, B‑416837.2, Dec. 11, 2018, 2018 CPD ¶ 421 at 4.  Accordingly, we deny this protest allegation.

As for the technical approach subfactor, the solicitation instructed offerors to describe their proposed flight control system and ground radio kits and their integration into the Army’s system.  AR, Tab 4, DOR at 6.  Each offeror was also required to describe its design approach, management plan, and delivery schedule.  Id.  When evaluating each offeror’s technical approach, the agency was to examine the proposed integration plan, management plan, and delivery schedule for quality and level of risk.  Id. at 10.

In our view, the agency reasonably assigned a “good” rating to Altavian’s proposal for this subfactor.  The record shows that the agency assigned eight strengths and noted that Altavian’s technical approach demonstrated low risk of unsuccessful performance.  AR, Tab 47, Altavian Technical Evaluation, Subfactor Two, at 1-2.  Thus, the agency’s evaluation was consistent with the solicitation because the solicitation defined a “good” rating as having strengths that outweigh any weaknesses and a low risk of unsuccessful performance.  AR, Tab 4, DOR at 13.  While Altavian argues that it should have received a higher rating because its strengths “far outweigh” any weaknesses (i.e., because it was not assigned any weaknesses), that argument critically fails to challenge the fact that the agency assigned it a low risk of unsuccessful performance, as opposed to a very low risk which was required for an “outstanding” rating.  See Protest at 13; Protester’s Comments at 15.  In any event, Altavian’s assertion that its strengths should have been evaluated as far outweighing any weaknesses merely constitutes disagreement with the agency’s judgment because it does nothing more than argue that the agency should have valued its assigned strengths more favorably.  See Merrill Aviation & Defense, supra.  Accordingly, we deny this protest allegation.

Evaluation of AeroVironment’s Technical Proposal

Altavian alleges that the agency unreasonably evaluated AeroVironment’s technical proposal under the target accuracy subfactor.  Protester’s Supp. Comments at 2-4.  First, Altavian argues that the agency unreasonably permitted AeroVironment to recalculate its target accuracy results because it used values not captured during the demonstration.  Id. at 2.  Second, Altavian argues that the agency unreasonably recalculated the data using a methodology inconsistent with the solicitation.  Id. at 2-4.  In response, the agency argues that AeroVironment recalculated its target accuracy results consistent with the solicitation, and that it reasonably verified AeroVironment’s recalculations.  Agency Supp. COS/MOL at 2-5.

By way of background, offerors were required to command the UA to orbit around a target and take a series of 20 pictures in order to determine the UA’s target accuracy (i.e., the distance from the UA to the target).  AR, Tab 19, DOR, attach. 15, Target Accuracy Procedures at 2.  The data collected would then be used to determine an average center field of view (CFOV) location (i.e., the UA’s location).  Id.  The target accuracy would then be computed as the distance between the target location and the average CFOV location.  Id.  The solicitation provided two different equations for computing distance based on whether the UA captured the CFOV location using the military grid reference system (MGRS) or using latitude and longitude.  Id. at 3-6.

When reviewing AeroVironment’s target accuracy data, the agency initially calculated its target accuracy as 294 meters, which resulted in a deficiency.[6]  AR, Tab 58, AeroVironment Post-Discussion Response Evaluation at 2.  The agency computed this value using the average CFOV location as provided for in the captured pictures; however, the agency noted that the target appeared much closer than the CFOV locations indicated.  Id.  As a result, the agency requested that AeroVironment address the discrepancy.  AR, Tab 40, AeroVironment Discussion Notice.

In its response, AeroVironment explained that the pictures contained inaccurate CFOV location information because the operator programmed the UA with incorrect digital terrain elevation data (i.e., the operator did not adjust the elevation input and the UA recorded data as if it were operating at sea level).  AR, Tab 41, First AeroVironment Discussion Response at 2.  After accounting for the incorrect elevation information, AeroVironment was able to recalculate its target accuracy as 61 meters.  AR, Tab 43, Second AeroVironment Discussion Response at 2.  The agency then verified AeroVironment’s calculations and assigned AeroVironment’s proposal a weakness based on that score.  AR, Tab 58, AeroVironment Target Accuracy Evaluation Post‑Discussion at 8.

We do not find that the record supports the protester’s allegation that the agency unreasonably permitted AeroVironment to recalculate its results.  Indeed, the solicitation expressly instructed offerors to “retain the recorded flight video for post‑analysis (if needed).”  AR, Tab 9, DOR, attach. 5, Target Accuracy Flight Demonstration Procedures at 3.  Here, the record shows that AeroVironment did nothing more than provide post‑analysis of data captured in the recorded flight video of its demonstration.  See AR, Tab 43, Second AeroVironment Discussion Response at 1‑4.  Furthermore, the protester’s allegation that AeroVironment used data not collected during the demonstration is inaccurate; rather, the record shows that AeroVironment used data captured in its recorded flight video to provide correct CFOV locations because its operator entered the wrong elevation value when programming the UA.  Id. at 2-4.  Accordingly, we do not find that the agency unreasonably permitted AeroVironment to recalculate its target accuracy because the solicitation specifically allowed an offeror to provide post-test analysis of its recorded flight video.

Additionally, we do not find that the record supports the protester’s allegation that the agency used a methodology inconsistent with the solicitation when recalculating AeroVironment’s target accuracy.  As an initial matter, we note that the agency did not recalculate AeroVironment’s target accuracy, but rather sought to verify AeroVironment’s recalculations for two of the photographs.  See AR, Tab 58, AeroVironment Target Accuracy Post-Discussion Evaluation at 2-8.  While the protester points out that the agency’s verification yielded closer target accuracy values, we do not find that the agency was unable to rely on AeroVironment’s recalculations when making its evaluation simply because its target accuracy values were not identical to AeroVironment’s recalculations.  Indeed, the agency explains that it had a reasonable degree of confidence in AeroVironment’s recalculations because its target accuracy values were closer and since a full 20 photograph recalculation was not expected to yield a worse target accuracy than AeroVironment’s recalculations.  Supp. COS/MOL at 4.  The agency further explained that its target accuracy values were closer because it used a higher altitude figure since it was aware of the UA origin altitude whereas the origin altitude was not available to AeroVironment through the recorded flight video.  Supp. COS/MOL at 4‑5, n.4.  As a result, we find that the agency reasonably relied on AeroVironment’s recalculated target accuracy when evaluating its performance.  Accordingly, we deny this protest allegation.

Source Selection Decision

As a final matter, AeroVironment alleges that the SSA unreasonably made his best‑value tradeoff analysis.  Protester’s Supp. Comments at 4-7.  Specifically, AeroVironment argues that the SSA failed to meaningfully consider the technical differences between the offers, and that the SSA weighed AeroVironment’s price advantage too heavily.  Id.

In reviewing an agency’s source selection decision, we examine the supporting record to determine if it was reasonable and consistent with the solicitation’s evaluation criteria and applicable procurement statutes and regulations.  Skyline Ultd., Inc., B‑416028, B‑416028.2, May 22, 2018, 2018 CPD ¶ 192 at 8.  In this regard, ratings, whether numerical, color, or adjectival are merely guides to intelligent decision-making.  Interactive Government Holdings, Inc., B‑417133, Jan. 24, 2019, 2019 CPD ¶ 68 at 7.  The evaluation of proposals and consideration of their relative merits should be based upon a qualitative assessment of the proposals consistent with the solicitation’s evaluation scheme.  Id. 

Where a solicitation provides for a tradeoff between price and non-price factors, even where price is the least important evaluation factor, an agency may properly select a lower-priced, lower-rated proposal if the agency reasonably concludes that the price premium involved in selecting a higher-rated, higher-priced proposal is not justified in light of the acceptable level of technical competence at a lower price.  Interactive Government Holdings, Inc., supra at 7-8. 

Here, we find the agency’s source selection decision to be reasonable.  As the agency points out, the SSA meaningfully considered the technical merit of both proposals because the record shows that the SSA reviewed both proposals’ technical strengths and weaknesses.  Supp. COS/MOL at 5-8.  While Altavian may view the SSA’s assessment of the proposals’ relative technical merit as lacking critical details, the record does not support that assessment; to the contrary, the record shows that the SSA carefully observed both offerors’ technical demonstration results and technical approaches.  AR, Tab 64, SSDD at 7-12.  Indeed, the record includes charts showing that the SSA considered each technical strength and weakness assigned to the proposals, and then the analysis under each factor and subfactor.  Id. at 7-11.  The record further shows that the SSA considered the fact that AeroVironment’s technical approach had two identified weaknesses, but also that these weaknesses only resulted in a low risk of unsuccessful performance--that is, the same level of risk as Altavian’s proposal.[7]  Id. at 8, 12.  Finally, the record also shows that the SSA considered Altavian’s technical proposal to offer an advantage because it offered unlimited data rights.  Id. at 13.  Thus, we do not find that the SSA failed to meaningfully consider the proposals’ technical advantages and disadvantages because the record shows that the SSA considered both proposals’ technical features prior to making his comparison. 

Although Altavian may view the SSA’s judgment as erroneous given the fact that it received more strengths, that allegation, at bottom, only disagrees with the SSA’s view of the relative worth of Altavian’s technical strengths versus the SSA’s qualitative assessment of AeroVironment’s proposal; and, as explained in our decisions, such disagreement, without more, does not provide us with a basis to sustain the protest.  See, e.g., Advanced C4 Solutions, Inc., B‑416250 et al., Oct. 2, 2018, 2018 CPD ¶ 344 at 8‑9 (“a protester’s disagreement with an agency’s determinations as to the relative merits of competing proposals or disagreement with its judgment as to which proposal offers the best value to the agency does not establish that the evaluation or source selection was unreasonable”).  Accordingly, we deny this protest allegation.

Similarly, we agree with the agency that the SSA did not weigh AeroVironment’s price advantage too heavily when making his tradeoff decision.  Although the SSA concluded that Altavian’s proposal was technically more advantageous because Altavian offered unlimited data rights, the record shows that the SSA did not consider the data rights to be worth an additional $12 million because the agency’s requirement would nonetheless be satisfied by AeroVironment’s proposed grant of limited data rights.  AR, Tab 64, SSDD at 13-14.  Further, the SSA explained that the data rights were not such a significant part of the acquisition so as to justify paying an 18.23 percent price premium.[8]  Id. at 13.  To the extent Altavian argues that the SSA should have considered the data rights as more valuable to the agency, we note that Altavian has not identified any part of the evaluation criteria which required the SSA to do so.[9]  See Protester’s Comments at 11.

Additionally, we do not find that the agency failed to consider the price of replacing the UA’s tailboom as required by AeroVironment’s proposed technical solution.  As the agency points out, the record shows that the SSA considered that aspect when conducting his tradeoff analysis.  Supp. COS/MOL at 9.  Indeed, the SSA listed AeroVironment’s proposed unit price for the tailboom when comparing the offerors’ per unit component prices.  AR, Tab 64, SSDD at 14.  Furthermore, we note that the solicitation’s evaluation criteria does not contemplate adjusting proposed prices in order to account for any cost incurred by the agency when installing delivered parts.  See AR, Tab 4, DOR at 11.  Accordingly, we deny the protester’s allegation that the SSA unreasonably selected AeroVironment for award based on its lower proposed price.

The protest is denied.

Thomas H. Armstrong
General Counsel

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