Link: GAO Opinion
Agency: Department of the Air Force
Disposition: Protest denied.
General Counsel P.C. Highlight:
GAO denied the protest of Celtech Corporation, based on the Department of the Air Force’s award of a contract to Atec, Inc., under a request for proposals (RFP), a competitive small business set-aside for repair support of engine test stands.
The RFP sought proposals to provide worldwide field and depot level repair support, phone-based technical support, and commissioning support of relocated engine test stands (ETS). ETSs are used for organizational level testing of uninstalled aircraft engines, and are comprised of four major parts: thrust (T-20 series) or turboprop (T-21 series) trailer; fuel trailer; control cab; and instrumentation, data acquisition and control (ID&C) system. All versions, with the exception of the T-20C and T-21D, include mechanical gauges for readouts (analog). The T-20C and T-21D type ETSs incorporate a digital computer-based ID&C system known as the engine data acquisition system (ENDAS). The ENDAS uses software proprietary to Celtech.
The solicitation contemplated award of a requirements contract, with a base year and four one-year options, comprised of time-and-materials, fixed-price, and cost-reimbursable contract line items. Award was to be made to the technically acceptable offeror whose proposal represented the “best value” considering past performance and price/cost. Offerors were required to detail a technical approach to repairing the various ETSs. In this regard, offerors were to address five representative sample tasks, providing the supporting rationales and assumptions for their approaches and identifying any omitted or incomplete information necessary for meeting the task requirements. The RFP specifically cautioned that the government’s technical data packages (drawings and technical orders) were incomplete and/or outdated, and that some tasks might involve “a significant amount of reverse engineering to provide repair solutions.
Celtech asserted that the agency’s evaluation failed to adequately consider and account for Atec’s ability to perform the contract. In this regard, Celtech asserted that, given Atec’s lack of access to Celtech’s complete, proprietary technical data and drawings, the awardee would face “a significant amount of reverse engineering.” Noting that work such as that included under Sample Tasks 1, 2, and 3 involved the protester’s proprietary ENDAS computer instrumentation, Celtech argued that the evaluators should have considered Celtech’s technical advantages as compared with Atec’s asserted inability to reverse engineer a software solution to these ENDAS-related problems and the risk of delayed performance, increased costs, or non-performance due to Atec’s lack of access to Celtech’s proprietary information.
GAO found that the agency’s technical evaluation was unobjectionable. While Celtech asserted that the agency should have considered its asserted superior capabilities (given its access to its own proprietary software), the RFP did not provide for the evaluation of offerors’ relative access to technical information. Instead, it provided for an assessment of technical acceptability. Thus, in accordance with the RFP, the evaluators reviewed Atec’s proposal to determine whether it had provided a sound, compliant approach that met the requirements of the five sample tasks and demonstrated a thorough knowledge and understanding of the requirements and their associated risks. GAO also found that Celtech failed to show that the agency failed to reasonably account for the likely need for reverse engineering by Atec. On the contrary, the record supported the agency position that Celtech had overemphasized Atec’s relative need for reverse engineering, GAO noted. According to the agency, both Atec and Celtech on occasion would need to resort to reverse engineering in order to complete a satisfactory repair. (Indeed, the agency reports that Celtech itself has previously undertaken reverse engineering as part of its ETS work for the government.) The agency further noted that while it is conceivable that a repair might be needed that only the original manufacturer, with access to its proprietary information, would be able to perform, in fact actual ETS repairs have involved very little access to anything proprietary to Celtech. Finally, the agency noted that since the Air Force has Celtech’s software available in its computer program identification number libraries, Air Force field operating personnel could reload ENDAS software if required.
The record further reflected that the agency fully considered in its evaluation any potential risk associated with Atec’s lack of access to Celtech proprietary information. In this regard, Atec’s proposal specifically addressed risk, including opportunities for reverse engineering and any inability to diagnose and repair a particular issue, mitigating these issues in part through its access to a large pool of qualified resources through its subcontractor. GAO also stated that it found nothing in the solicitation, which required evaluators to use an offeror-specific estimate of labor hours, based on an offeror’s access to proprietary information and potential for reverse engineering, rather than applying a single government estimate to each offeror’s unique labor rates.