FR Countermeasures, Inc., B-295375, February 10, 2005

B-295375 Feb 10, 2005 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights FR Countermeasures, Inc. (FRC) protests the awards to Esterline Armtec Countermeasures Co. (Armtec) and Kilgore Flares Co., Inc. under request for proposals (RFP) W52P1J-04-R-0078, issued by the Department of the Army, for M206 aircraft countermeasure flares and MJU7 infrared countermeasure flares. In challenging the awards, the protester argues that the agency improperly evaluated proposals. We deny the protest in part and dismiss it in part. View Decision B-295375, FR Countermeasures, Inc., February 10, 2005 Decision Matter of: FR Countermeasures, Inc. File: B-295375 Date: February 10, 2005 Ronald Henry, Esq., and Julie Klusas Gasper, Esq., Kaye Scholer LLP, for the protester. Lee P. Curtis, Esq., Eric A. Aaserud, Esq., and Richard W. Oehler, Esq., Perkins Coie LLP, for Esterline Armtec Countermeasures Co., and Michael B. Hubbard, Esq., Joseph J. Dyer, Esq., Z. Taylor Shultz, Esq., and Kevin P. Connelly, Esq., Seyfarth Shaw LLP, for Kilgore Flares Co., Inc., intervenors. Capt. Victor G. Vogel and Bradley J. Crosson, Esq., Department of the Army, for the agency. Edward Goldstein, Esq., and Christine S. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest that agency unreasonably assigned protester a neutral past performance rating of "unknown" under evaluation subfactor relating to on-time delivery because the agency failed to consider protester's delivery record between the closing date for receipt of proposals and the time of award is denied since, while the solicitation reserved to the government the right to consider an offeror's past performance information after the proposal closing date through the time of award, there was no requirement that the agency consider that information. DECISION FR Countermeasures, Inc. (FRC) protests the awards to Esterline Armtec Countermeasures Co. (Armtec) and Kilgore Flares Co., Inc. under request for proposals (RFP) W52P1J-04-R-0078, issued by the Department of the Army, for M206 aircraft countermeasure flares and MJU7 infrared countermeasure flares. In challenging the awards, the protester argues that the agency improperly evaluated proposals. We deny the protest in part and dismiss it in part. The agency issued the solicitation on June 17, 2004 to procure 1,084,000 M206 aircraft countermeasure flares and 557,760 MJU7 infrared countermeasure flares. Both the M206 and MJU7 flares are deployed as defense countermeasures against enemy heat-seeking missile attacks on aircraft. The M206 is used for protection of helicopters and other low-altitude Army aircraft and can also be used on several types of low- and high-altitude Air Force aircraft, while the MJU7 is used exclusively for protection of Air Force aircraft. The RFP contemplated the award of a fixed-price contract for 100 percent of the requirement or a split award to two firms--one receiving 55 percent of the requirement and the other receiving 45percent. [1] The RFP provided that award would be made to the offeror or offerors, in the event of a split award, whose proposals represented the best value to the government based on an evaluation of four factors: (1) technical (including four subfactors, manufacturing plan, quality plan, safety plan, management plan); (2) past performance (including two subfactors, quality and/or quality program problems and on-time delivery); (3) price; and (4) small business utilization. [2] As it relates to the protest, section L of the RFP identified the information offerors were required to include in their proposals; specifically regarding the manufacturing plan subfactor, the RFP warned offerors that "[t]he Government will not assume the duty to search for data or information to cure problems it finds in proposals." RFP L, amend. 3, at 1. The RFP also instructed that the agency's past performance evaluation would be based on "recent and relevant" past performance. The RFP defined recent as having occurred within the 3 years prior to the solicitation's initial closing date; however, the government expressly reserved the right to consider information about an offeror's past performance up to the date of award. [3] RFP L, amend. 3, at 3. By the RFP's August 3, 2004 closing date, the agency had received proposals from Armtec, Kilgore, and the protester.