Link: GAO Opinion
Agency: Department of the Army
Disposition: Protest denied.
Protest challenging exclusion of protester’s proposal from revised competitive range is denied where proposal was both lower rated under technical factor and significantly higher priced than the two proposals included in competitive range; agency reasonably found it had no reasonable chance of being selected for award.
General Counsel P.C. Highlight:
Telephonics first asserts that a number of the evaluated strengths for NGCI’s proposal were unrelated to the stated evaluation criteria. GAO states that in evaluating proposals, an agency properly may take into account specific, albeit not expressly identified, matters that are logically encompassed by, or related to, the stated evaluation criteria.
Here, the solicitation required offerors to describe in their proposals how their proposed VIS-X system design will comply with the Performance Specification, which required that the systems “be modular to give economical flexibility in equipping a large variety of vehicles with varying requirements,” recognized that partial VIS upgrades were likely by organizing the requirements into broad “collections of functions that are likely to be required in vehicle configurations with the separation made in order to provide a more economical implementation when the full functionality is not required,” and stated that “[i]t shall be preferable, but not required, that VIS-X components use existing [legacy VIS] mounting locations and fastener provisions whenever possible.” Furthermore, the solicitation both specifically required offerors to discuss in detail their approach to installation, supportability, and production readiness, and listed these factors as technical evaluation subfactors. In addition, the RFP advised that proposals “will be evaluated to determine the extent to which successful performance is contingent upon unproven devices and techniques that require excessive development.” Offerors clearly were on notice from these provisions that the evaluation would include consideration of the extent to which the proposed VIS-X system would be a modular system that facilitates partial and/or more rapid upgrades, and enhances supportability, through reuse of and/or interoperability and backwards compatibility with the legacy system. These are precisely the aspects of NGCI’s proposal that resulted in the identified evaluated strengths. Accordingly, GAO finds nothing improper in the evaluation’s recognizing NGCI’s advantages in these areas.
Telephonics next challenges the price evaluation on the basis that it did not encompass the total price associated with NGCI’s approach to meeting the Performance Specification requirements.
Although offerors were required to propose unit prices for “all system components required to meet all threshold requirements and any objective requirements offered,” that is, for their overall VIS-X solution, the solicitation specifically provided, with respect to the above four specified vehicle configuration types, that the required detailed listing of the electronic boxes, headsets, and installation kits necessary for equipping each vehicle type with a VIS-X “shall also be used as a basis for the Offerors pricing proposal.” Telephonics acknowledges that, under the solicitation, “the Total Evaluated Price was to be calculated based on the VIS-X components necessary to satisfy the four sample vehicle configurations identified in the RFP,” but complains that this permitted NGCI, with its modular technical solution, to “game the price evaluation by offering [REDACTED] different core components, [REDACTED] of which fortuitously were not required to meet those specific configurations.” In other words, according to the protester, [REDACTED] core components necessary to meet the requirements in the VIS-X Performance Specification were not included in the Total Evaluated Price. However, any objection to the evaluation approach set forth in the solicitation was required to be raised prior to the time set for receipt of proposals.
Finally, nearly three months prior to the source selection decision, AMC was advised in writing by Northrop Grumman Electronic Systems, one of the NGCI joint venture members, that its employees had received Telephonics proprietary technical data, pricing data, and hardware from Northrop Grumman Aerospace Systems, which had been furnished the information and hardware by Telephonics in connection with a program that was unrelated to the VIS-X procurement. AMC then conducted a review of NGCI’s VIS-X proposal, which indicated that NGCI’s initial technical design was based on Northrop Grumman Corporation’s current legacy system; Northrop Grumman Electronic Systems received Telephonics’s proprietary information from Northrop Grumman Aerospace Systems in September 2008, after submission of NGCI’s initial proposal in April 2008; the subsequent changes to NGCI’s proposal appeared to be related directly or indirectly to government discussion items or RFP amendments, and did not incorporate any Telephonics proprietary information; and NGCI’s unit pricing for components remained the same from the initial to final proposal. AMC concluded that there was no evidence that the disclosed Telephonics information was reflected in NGCI’s proposal. Telephonics asserts that AMC’s investigation was unreasonably limited in scope.
However, GAO states that Telephonics’s argument provides no basis to challenge the procurement. The procurement integrity provisions of the Office of Federal Procurement Policy Act contain two restrictions related to disclosing or obtaining bid or proposal information. First, the act prohibits a government official from “knowingly disclos[ing] contractor bid or proposal information . . . before the award of a Federal agency procurement contract to which the information relates.” Second, the Act provides that “a person shall not, other than as provided by law, knowingly obtain contractor bid or proposal information . . . before the award of a Federal agency procurement contract to which the information relates.” However, under the heading “Savings provisions,” the Act further provides that “This section does not . . . restrict a contractor from disclosing its own bid or proposal information or the recipient from receiving that information.”
Here, the protester has not asserted that any government official disclosed Telephonics’s proprietary information, or that Northrop Grumman Aerospace Systems wrongfully obtained it; on the contrary, the record clearly indicates that Telephonics voluntarily provided the information to Northrop Grumman Aerospace Systems. Instead, the essence of the matter is that Northrop Grumman Aerospace Systems allegedly did not properly safeguard the information, with the result that it was furnished to Northrop Grumman Electronic Systems personnel. Although the agency views the facts here as falling within the Act’s “Savings provision,” quoted above, it nevertheless conducted an investigation, which led it to conclude that there was no evidence that the disclosed information was incorporated in NGCI’s proposal. Likewise, Telephonics has not shown that features of NGCI’s proposal appear to be derived from the disclosed information. Finally, to the extent that Northrop Grumman Aerospace Systems failed to properly safeguard Telephonics’s proprietary information, the matter constitutes a private dispute, outside of the bid protest jurisdiction. The protest is denied.