Aerospace Design & Fabrication, Inc., B-278896.2; B-278896.3;

Aerospace Design & Fabrication, Inc., B-278896.2; B-278896.3; BNUMBER: B-278896.2; B-278896.3; B-278896.4; B-278896.5 DATE: May 4, 1998 TITLE: Aerospace Design & Fabrication, Inc., B-278896.2; B-278896.3; B-278896.4; B-278896.5, May 4, 1998 ********************************************************************** DOCUMENT FOR PUBLIC RELEASE The decision issued on the date below was subject to a GAO Protective Order. This redacted version has been approved for public release. Matter of:Aerospace Design & Fabrication, Inc. File: B-278896.2; B-278896.3; B-278896.4; B-278896.5 Date:May 4, 1998 Paralee White, Esq., Michael A. Hordell, Esq., and Lisa K. Miller, Esq., Gadsby & Hannah, for the protester. James S. Ganther, Esq., Ganther & Fee, for Dynacs Engineering Co., Inc., an intervenor. Vincent A. Salgado, Esq., and Jerald J. Kennemuth, Esq., National Aeronautics and Space Administration, for the agency. Ralph O. White, Esq., and Christine S. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST 1. Protester's contention that the awardee misrepresented the availability of its key personnel is sustained where the record shows that the awardee had not obtained a commitment from the proposed individuals as it claimed, and where the misrepresentation, together with an evaluation error by the agency, resulted in a material misevaluation of the key personnel section of the awardee's proposal. 2. Agency contention that award fee negotiations on a prior contract were sufficient opportunity for the protester to comment on adverse information received from a past performance reference, as required by Federal Acquisition Regulation sec. 15.610(c)(6) (June 1997), is rejected, and the protest sustained, where the protester was a subcontractor on the prior contract, not the prime contractor, and where the record shows that the subcontractor had no meaningful role, or opportunity to respond, during the award fee negotiations with the prime contractor. 3. Solicitation terms are latently ambiguous and result in unequal competition where the record shows that the offerors reasonably understood requirements and submitted proposals based on different assumptions that potentially skewed the agency's assessment under the relevant experience and past performance evaluation factor. 4. Protester's argument that a cost realism adjustment made to its proposed costs was improper is denied where the record shows that the agency had a reasonable basis for the conclusion. 5. General Accounting Office recommends reimbursement of proposal preparation costs as well as protest costs because unique circumstances create a situation where reevaluation and reconsideration of the selection decision cannot return the parties to their respective positions prior to the agency error. DECISION Aerospace Design & Fabrication, Inc. (ADF) protests the decision by the National Aeronautics and Space Administration (NASA) to make award to Dynacs Engineering Co., Inc., pursuant to request for proposals (RFP) No. 3-085970, seeking offers to provide scientific, engineering, technical, and administrative services for NASA's Lewis Research Center. ADF argues that award to Dynacs is improper because the Dynacs proposal included material misrepresentations about its key personnel; the agency misevaluated proposals; and the agency failed to disclose during discussions certain weaknesses regarding ADF's past performance. We sustain the protest. BACKGROUND The contract here is a follow-on to an earlier scientific, engineering, technical and administrative services contract awarded by NASA's Lewis Research Center to NYMA, Inc., under the Small Business Administration's (SBA) section 8(a) set-aside program.[1] The RFP was issued on September 30, 1997, after NYMA, Inc. was acquired by a large business earlier in the year, and lost its status as a small disadvantaged business under SBA regulations. The RFP anticipated a competitive procurement limited to 8(a) businesses leading to the award of a hybrid contract containing approximately 10-percent fixed-price and 90-percent cost-plus-award-fee task orders. RFP Cover letter, Sept. 30, 1997, Attach. 1 at 1; RFP sec. B.2, L.14; RFP, Attach. 1, Industry Briefing Questions, Oct. 8, 1997 at question 53. The estimated maximum value of the effort was $45 million for the 27-month performance period. Initial Contracting Officer's Statement, Jan. 26, 1998, at 1. Section M.3 of the RFP set forth three evaluation factors of equal importance: mission suitability; cost; and relevant experience and past performance. Of these three factors, cost and relevant experience and past performance were not scored, but were evaluated by the source evaluation committee (SEC) for review by the source selection official (SSO). RFP sec. M.2.