FPR Should Have Incorporated Information Provided in Response to Discussions; GAO B-412998, Ultra Electronics – 3 Phoenix, Inc.

Protest challenging the agency’s evaluation of the protester’s past performance is denied, where the agency reasonably considered information submitted by the protester acknowledging technical issues and cost overruns on its reference projects, and found its past performance provided low confidence despite one excellent rating on a relevant contract; and protest challenging the agency’s technical evaluation is denied, where the protester’s final proposal revision failed to incorporate information provided in response to discussions, despite the agency’s reminder of this requirement, and this missing information resulted in the assignment of a minor weakness.

Ultra Electronics – 3 Phoenix, Inc. protested the Navy’s award of a contract for the production of tow cables to L-3 Chesapeake Sciences Corporation, challenging the agency’s past performance evaluation.

The protester challenged the agency’s assessment of its quality of performance under three contracts. For example, the protester asserted the agency improperly rated its performance as unsatisfactory for one contract, despite the firm receiving a mix of very good and exceptional ratings on a contractor performance assessment report for this contract. GAO found the agency acknowledged the very good and exceptional ratings for this contract, but also noted the CPAR did not cover the relevant work the protester cited in its proposal. Instead, the evaluators took into account a May 2015 letter submitted by the protester to the Navy, which advised that the program was experiencing supplier delivery delays, production delays, increased labor to complete test design and drawing updates, and unexpected design updates to schematic and drawing revisions, among other issues. Taking this into account, the agency reasonably considered the protester’s performance on this contract to be unsatisfactory.

For a second reference, the protester complained the agency failed to take into account gaps in the contract’s period of performance and intermittent technical instructions it received from the agency. As above, the agency relied on an internal cost projection provided by the protester which revealed cost overruns and technical issues, and assigned an unsatisfactory rating to this reference as well.

Lastly, the protester argued that the agency failed to give more weight to its very relevant/very good performance contract, but weighed each contract equally. The source selection authority acknowledged the protester performed well on one contract that was found to be very relevant, but noted that on the other three contracts, the protester had experienced cost overruns and technical issues. In considering the protester’s past performance as a whole, the SSA concluded there was low expectation the protester would successfully perform the contract. In total, GAO found the agency’s past performance evaluation reasonable and denied the protest on these grounds.

The protester also objected to the minor weaknesses assigned to its proposal, and the SSA’s consideration thereof, under the production test capabilities subfactor.  The agency assessed UE3P’s final proposal revision a minor weakness because the offeror failed to fully describe the voltage sensor calibration and hydrophone spacing testing. In response, UE3P explained that it provided the information in its response to discussion questions. However, GAO had no basis to question the assignment of a minor weakness, noting the agency advised the protester of a significant weakness in this regard during discussions. Further, the agency noted that written answers to discussion questions would become part of the proposal only if specifically referenced in the FPR. In response to discussions, UE3P submitted by letter the requested information relating to the two test capabilities, but firm neglected to include the same information in its FPR. As a result, the lack of description for the two critical capabilities garnered a minor weakness in the agency’s final evaluation. GAO considered this reasonable and denied the protest on these grounds.

Ultra Electronics – 3 Phoenix Inc. is represented by Keith L. Baker of Baker, Cronogue, Tolle & Werfel, LLP. L-3 Chesapeake Sciences Corporation is represented by Craig A. Holman, and Lauren J. Schlanger of Arnold & Porter LLP. The government is represented by Liza V. Craig, and Lea E. Delossantos, Department of the Navy. GAO attorneys Peter D. Verchinski, and Noah B. Bleicher participated in the preparation of the decision.