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Pre and Post Award Bid Protest

Avionic Instruments Protests Award Issued by the Navy

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Avionic Instruments, LLC protested a contract award to Physical Optics Corporation (POC) by the Department of the Navy, Naval Air Systems Command. The award was for the replacement of analog inverters on the Navy UH-1Y helicopter fleet with digital signal processor (DSP) inverters. Avionic asserted the agency’s evaluation of technical proposals was unreasonable.

Background

The procurement was for the development and production of a replacement inverter for the UH-1Y helicopter. The Navy intended to replace all existing UH-1Y analog power inverters with a digital design. The agency procured a new DSP inverter on a full and open competitive basis under the Federal Acquisition Regulation (FAR). The award is for a fixed-price contract with a base award and options. The options were for the manufacture and delivery of additional DSP inverters that meet the configuration approved during the contract.

The contract was to be awarded to the offeror whose proposal gave the best value to the government. This was based on technical and price factors. Under the technical factor, the offeror’s “understanding of, approach to and ability to meet the solicitation” were evaluated under the technical approach. Each proposal would be assigned a technical rating and technical risk rating. The technical rating would assess the proposal’s compliance with the solicitation requirements. The technical risk rating would consider “the risk associated with the technical approach in meeting the requirement.” This was based on “the potential for disruption of schedule, increase in costs, degradation of performance, need for increased government oversight, and likelihood of unsuccessful contract performance.”

The RFP required offerors to provide a description of their team’s experience for DSP Inverter designs/applications or similar devices. Offerors were required to substantiate their experience by providing a statement of work (SOW) or performance work statement.

The Navy evaluated Avionic’s proposal as having three risk reducers, and no strengths, weaknesses, significant weaknesses, deficiencies, or uncertainties. It rated POCs proposal as having four risk reducers, and no strengths, weaknesses, significant weaknesses, deficiencies, or uncertainties. The agency noted POC showed it was experienced and knowledgeable in avionic system qualification testing. Avionic’s total evaluated price was more than POC’s total evaluated price, but the agency rated both prices as reasonable. The Source Selection Evaluation Board (SSEB) found POC’s proposal had the best value to the government and recommended it be granted the award. The Navy submitted a report stating it concluded from other parts of POC’s proposal that Physical Optics Corporation had the review experience required by the solicitation.

Analysis

Avionic argued the agency failed to assess risk in POC’s proposal for lack of experience with performance work statement (PWS) requirements, failed to assess the risk it would not properly manage its subcontractor, unreasonably awarded risk reducers to proposals, and overlooked strengths in Avionic’s proposal.

Failure to Consider Awardees’ Lack of Experience

Avionic asserted the Navy failed to consider POC and its subcontractor lacked critical experience. It noted POC and its subcontractor did not identify prior experience under several PWS requirements. The lack of prior experience led Avionic to argue it was unreasonable of the Navy not to assign risk to POC’s proposal. The agency claimed the SOWs submitted by POC demonstrated the required experience. The Navy argued “it would be unreasonable for the Agency to conclude POC had no experience with SRR, CDR, and PRR solely because POC’s cross-reference matrix did not indicate that experience.”

The GAO responded by stating it would not reevaluate proposals. Its policy is to review the record to determine whether the agency’s evaluation was reasonable, consistent with evaluation criteria, adequately documented, and consistent with applicable procurement statutes and regulations. It would not substitute its judgment for the agency but would sustain a protest where the agency’s conclusions.

The GAO stated the record contained no agency evaluation of whether Avionic or POC’s proposals met SOW requirements. POC responded by submitting a proposal that claimed its subcontractor held experience in preliminary design review (PDR). The Navy submitted a supplemental report asserting POC had the review experience required by the solicitation though its proposal did not claim it had this experience. An affidavit from the team leader in charge of the evaluation supported this conclusion. The team leader explained, “it was his judgment that the SOWs demonstrated the experience not claimed in the chart.”

The GAO stated it would not limit its review of an agency’s evaluation to “contemporaneously documented evidence,” but instead all of the information provided. It noted that the record contained “no contemporaneous agency evaluation of whether proposals” satisfied the experience requirements in the PWS. The team leader’s affidavit provided support to the agency’s evaluation, but the GAO attributed little weight to it because it was “the sole explanation of why the agency credited POC. The GAO concluded there was an insufficient basis to conclude the Navy reasonably considered the risk of POC’s lack of experience and sustained the argument.

Risk Reducer for Multiple Manufacturing Certificates 

Avionic argued the Navy unreasonably failed to award its proposal a risk reducer for showing it could timely deliver a product manufactured in its own facilities. The Navy claimed the awardee had multiple manufacturing certifications, while Avionic did not. The RFP did not require manufacturing certificates and the risk reducer was not assigned based on those certifications. According to the Navy, the risk reducer was awarded because POC’s multiple manufacturing certifications lessened the risk of schedule delays. The GAO concluded the Navy failed to rebut Avionic’s assertion it should have been awarded a risk reducer for its manufacturing experience and timeliness for making deliveries. They also found the record did not provide reasonableness for the agency’s evaluation. The GAO sustained the protest on this basis.

Conclusion

Avionic Instruments’ protest was sustained. The GAO concluded the record did not support a finding that the evaluation was reasonable and in accordance with the law and terms of the solicitation. It recommended the Navy reevaluate proposals and make a new best-value tradeoff decision. For more information on filing a protest to a government contract award, contact Whitcomb Selinsky PC.

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Whitcomb, Selinsky, PC is a full service law firm serving clients’ diverse legal needs. Our focus is in helping people in their interactions with federal, state and local governments.

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