B-401352, NW Systems, July 13, 2009
Decision
Dr.
Carol Niznik for the protester.
Vera
Meza, Esq., Department of the Army, for the agency.
Mary G. Curcio, Esq., and John M. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest challenging agency’s decision not to fund proposal under phase I of Department of Defense Small Business Innovation Research Program is denied where there is no evidence that agency acted in bad faith or violated regulations, and evaluation was consistent with solicitation.
DECISION
NW Systems (NWS), of
Rochester, New York, protests the Army’s failure to award it phase I research
funds under Department of Defense (DOD) Small Business Innovation Research (SBIR)
program solicitation No. FY 09.1.
The solicitation here
sought proposals on 12 topics, including Army Topic A091-012 (Tactical
Ballistic Missile (TCB) Composite Tracking and Discrimination Capability for
Army Systems of Systems (ASoS) Integrated Air and Missile Defense (IAMD)), for
which NWS submitted a phase I proposal. The
solicitation provided that proposals would be evaluated against the following three
factors, in descending order of importance: technical merit and innovation of the proposed
approach and its incremental progress toward topic or subtopic solution;
qualifications of the proposed principal/key investigators, supporting staff,
and consultants; and, the potential for commercial application and the benefits
expected to accrue from this commercialization.
Solicitation at 18. The
solicitation noted that the agency could make none, one, or multiple
awards. Id.
The Army received 295 phase I proposals and evaluated them
using a two-tier process. The tier I evaluation
consisted of a technical assessment by the technical evaluation team (TET),
which was comprised of personnel representing the participating organizations. The TET forwarded what it determined were the
best proposals for the tier II evaluation, consisting of a review by the
technical area chief, who recommended proposals for funding consideration. Agency Report (AR) at 2.
In evaluating NWS’s proposal, the TET identified both strengths and weaknesses, and did not recommend the proposal for tier 2 review. AR at 2. Under the first factor, the TET noted as a weakness that the proposal did not provide a detailed schedule showing tasks to be accomplished and the time period for each. Evaluation at 1. The TET also noted as a weakness that NWS’s proposal did not provide for formal documentation of a final written or interim report to be generated as the effort progressed to its final conclusion. Id. at 2. The TET noted as a weakness under the second factor that NWS proposed a theoretical programmer to perform a substantial number of the contract hours, but did not list any qualifications for the programmer, Id., and, under the third factor, that NWS did not provide a commercialization strategy or sufficient evidence that it was committed to additional investment in technology during phase II or that it had phase III funding commitments. Id. at 1.
NWS asserts that it could not provide the schedule the
evaluator was looking for because development was not predictable; that it did
not believe the theoretical programmer’s qualifications needed to be included
in the proposal; and that the type of effort contemplated does not allow for
commercialization statements.
Agencies have substantial discretion to determine which proposals they will fund under an SBIR procurement. Higher Power Eng’g, B-278900, Mar. 18. 1998, 98-1 CPD para. 253 at 2. In light of this discretion, our review of an SBIR procurement is limited to determining whether the agency acted in bad faith or violated any applicable regulations or solicitation provisions. Id. Based on our review of the record, we find no basis to conclude that the agency acted improperly in deciding not to select NWS’s proposal for funding.
First, there is no evidence or allegation that the agency
acted in bad faith or violated applicable regulations. As for the solicitation provisions, it is
clear that the agency adhered to the evaluation standards set forth in the
solicitation in assigning the identified weaknesses in NWS’s proposal. In this regard, the solicitation provided for
the evaluation of incremental progress, the qualifications of key investigators
and consultants, and commercialization potential, including investment in
technology during phase II and funding commitments for phase III. Solicitation at 19. Thus, while NWS may have had reasons for
omitting the information in these areas, the fact is that it was required and
that the agency’s downgrading the proposal on this basis was consistent with
the terms of the solicitation. Similarly,
with respect to report requirements, evaluation of incremental progress was
specifically provided for under the first evaluation factor. NWS asserts that it was clear that it would
meet this requirement, since it would be required to provide a monthly status
report in support of partial payments during performance, which it requested in
its cost proposal. However, rather than assume
that the agency would infer this information from its cost proposal, NWS should
have explained in its technical proposal that it planned to provide status
reports and the timing of those reports.
It is an offeror’s responsibility to submit an adequately written proposal. See Herndon Sci. and Software, Inc.,
B-245505, Jan. 9, 1992, 92-1 CPD para. 46.
The protest is denied.
Daniel I. Gordon
Acting General Counsel