Raytheon Company
Highlights
Raytheon Company, of El Segundo, California, protests the decision by the Department of the Navy, Naval Air Systems Command, to not award a contract to Raytheon under broad agency announcement (BAA) No. N00019-18-R-0008 for the low band, Next Generation Jammer (NGJ). Raytheon contends that the Navy exaggerated the risks posed by its proposed design, applied unstated evaluation criteria, and misread its proposal.
We deny the protest.
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.
Decision
Matter of: Raytheon Company
File: B-416578; B-416578.2
Date: October 22, 2018
Mark D. Colley, Esq., and Nathaniel E. Castellano, Esq., Arnold & Porter Kaye Scholer LLP; Rebecca B. Ransom, Esq., Raytheon Company, for the protester.
J. Alex Ward, Esq., James A. Tucker, Esq., and R. Locke Bell, Esq., Morrison & Foerster LLP; and Kenneth M. Reiss, Esq., Northrop Grumman Corporation, for Northrop Grumman Systems Corporation, the intervenor.
Ann M. Stewart, Esq., Cristina Costa de Almeida, Esq., and Patrick Coll, Esq., Department of the Navy, for the agency.
Paula J. Haurilesko, Esq., and Laura Eyester, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Protest that the agency unreasonably evaluated protester’s proposal is denied, where the record does not support the protester’s contentions.
2. Protest that the agency unreasonably faulted protester’s proposal for exceeding an anticipated weight limit lacks prejudice, where the agency’s error is unlikely to affect the award decision in light of other issues identified in protester’s proposal.
DECISION
Raytheon Company, of El Segundo, California, protests the decision by the Department of the Navy, Naval Air Systems Command, to not award a contract to Raytheon under broad agency announcement (BAA) No. N00019-18-R-0008 for the low band,[1] Next Generation Jammer (NGJ). Raytheon contends that the Navy exaggerated the risks posed by its proposed design, applied unstated evaluation criteria, and misread its proposal.
We deny the protest.
BACKGROUND
The EA-18G aircraft is a carrier-based aircraft that performs full-spectrum electronic surveillance and electronic attacks against enemy threat radar and communications networks. Contracting Officer Statement of Facts/Memorandum of Law (COS/MOL) at 4. The EA-18G currently utilizes the ALQ-99 tactical jamming system, which provides very low, low, medium, and high radio frequency band radar and communication jamming capability for the aircraft. Id. at 5. The ALQ-99 jamming system consists of pods that can be carried at various stations under the wing and under the centerline station of the aircraft, also known as weapon station 6. Id.
The Navy issued the BAA on November 16, 2017, for the award of one or more contracts to develop a prototype low band jammer to replace the aging ALQ-99 low band jammer currently used on the EA-18G aircraft and enhance the performance provided by the jamming system. Agency Report (AR), Tab R, Goals Document, at 6. The proposed low band jammer, like the current ALQ‑99 jammer, will be housed in a pod attached at weapon station 6 on the underbelly of the EA-18G aircraft. Id. As relevant here, Raytheon currently has a contract with the Navy to produce a mid band jammer that replaces the current ALQ-99 mid band jammer, and which will be housed in a pod under each wing of the EA-18G aircraft. Protest at 5.
The BAA explained that the agency was seeking to increase its knowledge and understanding of existing technologies supporting a low band jammer where ‟significant size, weight, power and cooling [] constraints exist.” AR, Tab B, BAA, at 1. The BAA further stated, as relevant here, that the objectives were to: (1) demonstrate a low band transmitter within the constraints of size, weight, power, and cooling of a pod concept that fits on station 6 of the EA-18G aircraft; and (2) assess performance in such areas as frequency coverage, effective isotropic radiated power (EIRP),[2] spatial coverage, spectral purity, and polarization. Id.
The BAA stated that contract award would be based on consideration of technical merit and ‟importance to the NGJ Low Band mission.”[3] Id. at 7. With respect to the latter evaluation factor, the BAA stated that proposals would be evaluated for the potential to contribute a mature low band technology solution to the Navy’s airborne electronic attack mission in accordance with stated performance goals. Id. at 8. As relevant here, offerors were required to propose a low band pod that did not exceed the maximum volume for station 6 of the EA-18G aircraft and would not create aircraft inlet distortion. AR, Tab R, Goals Document, at 64, 66. With respect to weight, the BAA stated that ‟[the low band jammer system] shall weigh less than or equal to TBD [to be determined].” AR, Tab R, Goals Document, at 64. In addition, the BAA required the proposed jammer system to meet EIRP requirements for specific frequencies throughout a range of speeds and altitudes. See id. at 58-59; AR, Tab G, Statement of Objectives, at 26-27. The BAA also required offerors to demonstrate that their proposed pod installed on an EA-18G aircraft would meet a mission radius threshold of at least 370 nautical miles (NM).[4] AR, Tab R, Goals Document, at 60, 62.
The Navy received multiple proposals, including one from Raytheon. Raytheon proposed to [DELETED]. See AR, Tab A, Raytheon Proposal, Executive Summary, 1, 4, 6. The Navy’s evaluation board assessed Raytheon’s proposal under the two non-cost evaluation factors and assigned ‟pros” and ‟cons” under both factors.[5] AR, Tab U, Evaluation Board Report, at 3. The evaluation board concluded that while Raytheon’s proposal had technical merit, the proposal demonstrated limited potential with respect to the importance to NGJ low band mission factor. Id. at 3, 4.
Under the importance to NGJ low band mission factor, the evaluators assigned seven ‟pros” and ten ‟cons” to Raytheon’s proposal. See AR, Tab W, Evaluation Summary Sheet: Importance to Low Band Mission, at 3-6. The evaluation board stated that its primary concerns were related to ‟cons” concerning size, drag, EIRP, and weight. AR, Tab U, Evaluation Board Report, at 4.
With respect to size, the evaluators assigned a ‟con” to Raytheon’s proposal because Raytheon’s proposed pod exceeded the size limitations [DELETED] for station 6 of the EA-18G. AR, Tab W, Evaluation Summary Sheet: Importance to Low Band Mission at 4. The evaluators concluded that the larger size increased the risk that the pod concept would not obtain a flight clearance and thus require redesign of the pod structure and power generation systems. Id. The evaluators further concluded that the redesign would reduce the low band jammer’s [DELETED], decrease power generation, and increase the time for the low band jammer to achieve operational capability. Id. The evaluators also assigned a ‟con” to Raytheon’s proposal because the size of the proposed pod would significantly increase drag during jamming operations as compared to the ALQ-99 jammer pod. Id. at 5. The evaluators concluded that the increased drag would further reduce EA-18G flight performance and decrease mission radius. Id.
The evaluators assigned five ‟cons” with respect to EIRP. As relevant here, the evaluators assigned one ‟con” related to the ability of Raytheon’s proposed jammer to meet the EIRP performance goals for multiple, simultaneous assignments. Id. More specifically, the evaluators concluded that the installed,[6] multiple assignment EIRP performance for Raytheon’s pod only meets EIRP goals [DELETED] of the primary and extended fields of regard at most frequencies. Id. The evaluators assigned another ‟con” because the uninstalled, multiple assignment EIRP performance for Raytheon’s pod does not meet the EIRP goal for [DELETED] of the operational frequency band. Id.
The evaluators assigned two ‟cons” related to the weight of Raytheon’s proposed pod. In this regard, Raytheon proposed to reduce the weight of its [DELETED] by reducing the weight of the [DELETED] by [DELETED] percent. Id. at 4. The agency assigned a ‟con” because the evaluators concluded that this proposed weight reduction plan could result in weight growth. Id. The evaluators concluded that the plan appeared optimistic based on the substantiation Raytheon provided with its proposal. Id. The evaluators expressed concern that failure to achieve this weight reduction would cause the pod’s overall weight to increase and reduce the aircraft’s flight performance and mission radius. Id.
The evaluators assigned another ‟con” for weight based on information from [DELETED].[7] Specifically, one of the evaluators had knowledge that Raytheon [DELETED]. AR, Tab Z, Decl. of Deputy Chief Engineer, at 1-2. The evaluator compared the weight [DELETED] to the weight Raytheon proposed for its low band jammer. Id. at 2. The agency found that Raytheon’s [DELETED] had already increased in weight and exceeded Raytheon’s proposed weight growth margin for the low band pod, which created a risk in Raytheon meeting its proposed weight goal for the low band jammer. AR, Tab W, Evaluation Summary Sheet: Importance to Low Band Mission, at 4.
The evaluation board concluded that the limited performance for EIRP, the risk of obtaining flight clearance because of the pod size, and adverse impacts from potential weight growth and drag outweighed any positive aspects of Raytheon’s proposal. AR, Tab U, Evaluation Board Report, at 5. Based on these concerns, the evaluation board recommended that the Navy not award a contract to Raytheon. Id. The source selection authority agreed with the evaluation board’s recommendation. AR, Tab V, Source Selection Decision Document (SSDD), at 3.
After Raytheon was notified of the Navy’s decision, Raytheon protested to our Office.
DISCUSSION
Raytheon challenges the Navy’s criticisms of its proposed low band jammer with respect to size, drag, EIRP, and weight. We have reviewed all of Raytheon’s arguments and find no basis to sustain the protest; however, we address only the primary arguments below.[8]
Size
Raytheon contends that the Navy’s concerns about the size of its proposed low band jammer pod were unwarranted and unreasonably exaggerated. Protest at 16. Raytheon admits that its low band jammer pod ‟slightly exceeds” the EA-18G station 6 outer mold line maximum store volume,[9] but contends that the agency’s concerns about the pod exceeding the designated size were arbitrary and excessive. Id. In this regard, Raytheon argues the evaluators unreasonably assigned risk for its pod size without considering the fact that a 480‑gallon fuel tank has already received flight clearance at station 6 despite the fact it exceeds the EA-18G outer mold line store volume. Comments & Supp. Protest at 44. Raytheon also argues that the Navy unreasonably overstated the risk of engine inlet distortion resulting from the [DELETED] exceeding the station 6 size limitation when the power pod [DELETED]. Protest at 18.
The Navy states that it reasonably assessed risk to Raytheon’s proposed pod because it exceeded the maximum volume on the [DELETED], contrary to the limitation identified in the BAA. COS/MOL at 52. In this regard, the Navy notes that the goals document stated that the pod ‟shall not exceed the EA-18G Station 6 maximum store volume.” Id. at 53 (citing AR, Tab R, Goals Document, at 66). The Navy explains that its identification of risks reflects those identified by the manufacturer of the EA-18G in defining the constraints imposed on the station 6 volume. Id. at 55-56. The Navy states that although Raytheon compares its pod to the fuel tank, the amount by which Raytheon’s pod exceeds the station 6 volume limit is greater than that of the fuel tank.[10] Id. at 56. The agency also states that the evaluators acknowledged that Raytheon’s pod exceeded the limit by a small amount but nonetheless concluded that the exceedance could result in pod damage or impact to the aircraft launch shuttle. Id. (citing AR, Tab W, Evaluation Summary Sheet: Importance to Low Band Mission, at 4). Finally, the Navy states that the flight clearance for the fuel tank does not guarantee a flight clearance for Raytheon’s pod. Id.
In reviewing a protest of an agency’s proposal evaluation, it is not our role to reevaluate proposals. Rather, we will consider only whether the evaluation was reasonable and consistent with the terms of the solicitation and applicable procurement statutes and regulations. University of Dayton Research Inst., B-412973, July 12, 2016, 2016 CPD ¶ 183 at 5. A protester’s disagreement with the agency’s judgment is not sufficient to establish that the agency acted unreasonably. HMX, Inc., B-291102, Nov. 4, 2002, 2003 CPD ¶ 52 at 7.
The BAA advised offerors that the low band pod ‟shall not exceed the EA-18G station 6 maximum store volume.” AR, Tab R, Goals Document, at 66. Moreover, in response to a question, the Navy told offerors that the proposed pod ‟must fit within the EA-18G volume constraints that have been provided.” AR, Tab AA, Post-Solicitation Questions, at 3. Raytheon admits that its pod exceeds the maximum store volume. Protest at 16. To the extent that Raytheon challenges the Navy’s size requirement, Raytheon’s protest is an untimely challenge to the terms of the solicitation. 4 C.F.R. § 21.2(a)(1) (protests based upon alleged improprieties in a solicitation, which are apparent prior to the time set for receipt of proposals, must be filed prior to that time). In sum, Raytheon provides no basis for our office to object to the agency’s judgment.
Drag
Raytheon contends that the Navy improperly assigned a ‟con” to its proposal based on the evaluators’ concerns about increased drag created by the larger cross-section of Raytheon’s pod [DELETED] during jamming operations. Protest at 24. Raytheon argues that because the BAA did not include a goal or requirement concerning drag and did not suggest that the agency was seeking to maintain or increase the amount of drag currently created by the ALQ-99 pod, the Navy applied an unstated evaluation criterion. Id.; Comments & Supp. Protest at 35. Raytheon states that the only specification that pertains to drag in the BAA is the threshold requirement that the aircraft be able to achieve a mission radius of at least 370 NM. Protest at 24-25; Comments & Supp. Protest at 35-36.
The Navy states that it reasonably assigned a ‟con” to Raytheon’s proposal because drag is reasonably related to the size of the low band pod and to mission radius. COS/MOL at 44. The drag of the pod when installed on the EA-18G aircraft will influence mission radius and maximum speed, and thus will impact overall aircraft performance. Id. at 45.
While procuring agencies are required to identify significant evaluation factors and subfactors in a solicitation, they are not required to identify every aspect of each factor that might be taken into account; rather, agencies reasonably may take into account considerations, even if unstated, that are reasonably related to or encompassed by the stated evaluation criteria. Millennium Space Sys., Inc., B-406771, Aug. 17, 2012, 2012 CPD ¶ 237 at 7.
Based on the record before us, we conclude that the agency’s consideration of the impact of drag was reasonably related to the evaluation criteria. The BAA warns offerors that the low band jammer system ‟shall not prevent the host platform from meeting aircraft performance requirements.” AR, Tab R, Goals Document, at 60. Raytheon and the Navy agree that drag has an impact on mission radius--a performance requirement of the BAA--that impacts overall aircraft performance. See Comments & Supp. Protest at 36; COS/MOL at 45. Thus the agency’s concerns about drag are not an unstated evaluation criterion. Moreover, although the BAA did not specifically state that the agency was seeking to maintain or increase the amount of drag currently created by the ALQ-99 pod, the BAA informed offerors that the Navy was seeking to enhance the performance currently provided by the ALQ-99. AR, Tab R, Goals Document, at 6. Accordingly, Raytheon’s argument that the Navy’s consideration of drag was an unstated evaluation criterion does not provide a basis to sustain the protest.
Raytheon also argues that the Navy erred in its conclusion that the aircraft would not meet the mission radius requirement because of increased drag resulting from Raytheon’s proposed pod.[11] Protest at 24-25; Comments & Supp. Protest at 38-40. Raytheon asserts that its proposal explained that, based on its computational fluid dynamic analysis, the mission radius requirement of a minimum of 370 NM will be met using Raytheon’s proposed pod. Protest at 24-25.[12]
The Navy states that the evaluation team reasonably raised concerns about the effect of drag from Raytheon’s proposed pod. COS/MOL at 48. The Navy explains that Raytheon’s proposed low band pod is approximately [DELETED] percent larger than the ALQ-99 in the cross-sectional area. Id. at 48; AR, Tab F, Decl. of NGJ Chief Engineer, at 1. As such, the pod would significantly increase drag. Id. at 49; AR, Tab W, Evaluation Summary Sheet: Importance to Low Band Mission, at 5-6; Tab F, Decl. of NGJ Chief Engineer, at 2.
The Navy also states that Raytheon did not support its claim that the larger pod would not affect aircraft performance. COS/MOL at 50; AR, Tab F, Decl. of NGJ Chief Engineer, at 2. The Navy explains that Raytheon’s proposal shows that mission radius decreases by [DELETED] NM from [DELETED] NM to [DELETED] NM when two ALQ‑99 pods under the aircraft wings are replaced with Raytheon’s mid band pods and the center pod (at station 6) is an ALQ-99. Id. This means that each mid band pod decreases mission radius by [DELETED] NM per pod. Id. The Navy questions Raytheon’s claims that replacing the center pod with Raytheon’s proposed low band pod would decrease mission radius by only [DELETED] NM. Id. The Navy explains that, in its experience, moving an external fuel tank--[DELETED]--from below the wing to station 6 would increase drag by about 5 percent, and decrease mission radius by roughly [DELETED] NM. AR, Tab F, Decl. of NGJ Chief Engineer, at 2-3. Therefore, the agency concluded that, under this analysis, mission radius would be reduced [DELETED] NM--from [DELETED] NM to [DELETED] NM--if the ALQ-99 was replaced by Raytheon’s proposed low band pod at station 6. Id. at 3. The Navy also explains that using Raytheon’s stated variance from validated information of up to 4 percent (or up to [DELETED] NM) to adjust for uncertainty also results in an estimate that mission radius could fall as low as [DELETED] NM, which is below the 370 NM goal. Id. at 2.
Based on the record before us, we find no basis to question the agency’s judgment. The evaluation team assigned a ‟con” to Raytheon’s proposal because the increased size of the pod increases the amount of drag on the aircraft, which decreases mission radius. AR, Tab W, Evaluation Summary Sheet: Importance to Low Band Mission, at 5. The protester does not dispute that a larger pod size increases drag and thus decreases mission radius. See Protester’s Supp. Comments at 14. The Navy provided a reasonable explanation for the basis of its concern about drag and its impact on mission radius.
The dispute between the parties rests on differences in expert opinion. We will not sustain a protest where the agency’s evaluation is reasonable, and the protester’s challenges amount to disagreement with the agency’s considered technical judgments regarding the specific elements of an offeror’s proposal. BNL, Inc., B‑409450, B‑409450.3, May 1, 2014, 2014 CPD ¶ 138 at 5. As such, the protester’s disagreement with the agency’s conclusions does not render the evaluation unreasonable. BAE Sys. Info. & Elec. Sys. Integration Inc., B‑408565 et al., Nov. 13, 2013, 2013 CPD ¶ 278 at 5 n.2.
EIRP
Raytheon contends that the agency misevaluated its proposal with respect to installed and uninstalled EIRP,[13] and applied an unstated evaluation criterion in considering uninstalled EIRP. With respect to the installed EIRP, Raytheon contends that the Navy misread its proposal to mean that it will not meet established goals [DELETED] percent of the time. Protest at 27-28. Raytheon states that its proposal plainly demonstrates that its projected [DELETED] EIRP ([DELETED] percentile) performance will exceed the Navy’s goals at all frequencies in the primary field of regard (front and aft areas), except for a slight deviation [DELETED]. Protest at 28. Raytheon also states that its proposal explained that its proposed EIRP exceeds the goals for at least [DELETED] percent of the jamming directions in the primary field of regard at frequencies above [DELETED], and for [DELETED] percent of the primary field of regard at [DELETED] low band frequencies. Protest at 29.
The Navy states that its evaluators reasonably determined that Raytheon’s pod did not meet the threshold EIRP across the full frequency range for varying amounts of the primary and extended (side) fields of regard, which would have a negative impact on the low band pod mission and therefore warranted a ‟con.” COS/MOL at 20. According to the agency, it conducted threat and mission analysis to determine the amount of EIRP needed to counter modern radar and communication systems threats. AR, Tab Z, Decl. of Deputy Chief Engineer, at 2. The analysis showed that the threats are not located at one point but are spread out geographically relative to the aircraft making EIRP over the full field of regard critical. Id. The analysis was used to formulate the EIRP, operating frequencies, primary field of regard and extended field of regard goals for the BAA. Id.
The Navy explains that Raytheon’s proposal states that EIRP performance ‟exceeds the [low band system goals] threshold for [DELETED] of the [primary field of regard] at all but [DELETED],” meaning that the proposed design meets or exceeds the EIRP threshold in [DELETED] percent of the primary field of regard, and at [DELETED] point the design does not achieve the EIRP threshold [DELETED] of the primary field of regard. COS/MOL at 22. The Navy further explains that, although parts of Raytheon’s graphs demonstrating performance showed areas where the pod exceeded EIRP requirements, the remainder showed significant variation and substantially worse performance. Id. at 23.
Based on the record before us, we find no basis to object to the agency’s interpretation of Raytheon’s proposal. The BAA required the proposed low band system to meet EIRP requirements throughout a range of speed and altitude points across a range of frequencies. See AR, Tab R, Goals Document, at 58-59. The evaluators assigned Raytheon’s proposal five ‟cons” concerning EIRP.[14] AR, Tab W, Evaluation Summary Sheet: Importance to Low Band Mission, at 5-6. As relevant here, the evaluators assigned a ‟con” because Raytheon proposed performance that meets EIRP goals over [DELETED] the primary and extended fields of regard at [DELETED] frequencies, thereby reducing tactical effectiveness. Id. at 5. The evaluators noted that the goal was for 100 percent of the field of regard for the full frequency range, while Raytheon’s proposal stated that its installed EIRP exceeded the EIRP goal for [DELETED] percent of the primary and extended fields of regard at all but [DELETED]. Id.; AR, Tab G, Statement of Objectives, at 27. The evaluators also noted that Raytheon primarily provided median values for EIRP as opposed to specific numbers. AR, Tab W, Evaluation Summary Sheet: Importance to Low Band Mission, at 5; Tab F, Decl. of NGJ Chief Engineer, at 4.
The evaluators concluded that because threat systems are typically geographically diverse, the large gaps in jamming coverage demonstrated by Raytheon’s proposal would reduce jamming effectiveness and overall tactical flexibility. AR, Tab W, Evaluation Summary Sheet: Importance to Low Band Mission, at 5. Raytheon’s own proposal states that at most frequencies, it exceeds the low band threshold for [DELETED] percent of the primary field of regard, but that performance is worse [DELETED] frequencies. Comments & Supp. Protest at 11, citing AR, Tab C1, Raytheon Proposal, Vol. I, at 90-91. Raytheon’s proposal nonetheless does not indicate that it meets the requirement throughout the field of regard. Accordingly, we conclude that Raytheon has not demonstrated that the agency erred in its evaluation of the offeror’s proposal and we deny this protest ground.[15]
Weight
Raytheon challenges both of the ‟cons” assessed to its proposal concerning the weight of its proposed pod.[16] With respect to the first ‟con,” Raytheon contends that the Navy failed to adequately consider its plan to reduce the weight of its proposed [DELETED], which are part of the proposed [DELETED], by up to [DELETED] percent, thus reducing the overall weight of the jammer pod. Protest at 20. Raytheon states that its plan to reduce the weight was based on standard engineering practice and is ‟much the same way” Raytheon was undertaking weight reduction for similar components for the mid band jammer pod. Comments & Supp. Protest at 32-33. Raytheon argues that the Navy should have looked at information from the mid band jammer program to confirm Raytheon’s ability to reduce the weight of the [DELETED] by up to [DELETED] percent.[17] Id. at 33.
The Navy states that it reasonably assigned a ‟con” for [DELETED] weight growth because Raytheon did not provide sufficient documentation for the evaluators to assess Raytheon’s large weight reduction claims. COS/MOL at 42. The Navy states that, instead of providing sufficient information, Raytheon simply referred to ‟similar processes.” Id. at 43. The Navy also states that the low band [DELETED] are a different design from the mid band [DELETED] and therefore, even if similar weight reduction processes were used, the process would not have the same impact on weight. Id.
Offerors are responsible for submitting a well-written proposal, with adequately detailed information that clearly demonstrates compliance with the solicitation and allows for meaningful review by the procuring agency. Intelligent Waves LLC, B-416169, B‑416169.2, June 12, 2018, 2018 CPD ¶ 211 at 8. Agencies are not required to infer information from an inadequately detailed proposal, or to supply information that the protester elected not to provide. Engility Corp., B-413120.3 et al., Feb. 14 2017, 2017 CPD ¶ 70 at 16. An offeror that does not affirmatively demonstrate the merits of its proposal risks rejection of its proposal or risks that its proposal will be evaluated unfavorably where it fails to do so. Jacobs Tech., Inc., B-411784, B-411784.2, Oct. 21, 2015, 2015 CPD ¶ 342 at 8.
Based on the record before us, the Navy reasonably assigned a ‟con” to Raytheon’s proposal based on its concern about the protester’s claims for weight reduction. Raytheon’s proposal did not provide any information supporting its claim of weight reduction, other than references to the mid band program. In this regard, Raytheon’s proposal stated that ‟[c]urrent internal efforts are underway to [DELETED] proven [DELETED], including [DELETED], reducing the weight for the [demonstration of existing technologies technology demonstration unit] module by up to [DELETED] %.” Comments & Supp. Protest at 33 (quoting AR, Tab C1, Raytheon Proposal, Vol. I, at 38). Although the protester provided additional explanation in pursuing this protest, this information does not compensate for the lack of information in Raytheon’s proposal.[18]
Raytheon also argues that the Navy erroneously assigned a ‟con” to its proposal on the basis that [DELETED] experienced weight growth that exceeded the proposed growth margin. Protest at 21. Raytheon contends that the agency mistakenly concluded that any increase in the weight of components proposed [DELETED] exceeds the proposed growth margin because the Navy double-counted the weight of the [DELETED] in its calculation. Id. at 22. Raytheon states that the correct weight should have been only 20 pounds greater--not the 44 pounds calculated by the agency--than the weight listed in Raytheon’s proposal, which is still within its proposed growth margin and therefore is not a valid basis to assume risk. Id.
The Navy states that the error in double-counting the weight of the [DELETED] did not have a material impact on the validity of the ‟con,” and asserts that Raytheon was not prejudiced by the error. COS/MOL at 37. The Navy states that the 20-pound weight growth that Raytheon acknowledges validates the Navy’s underlying concern about potential adverse impacts of weight growth, regardless of whether or not the weight growth exceeds Raytheon’s self-imposed not-to-exceed weight. Id. at 37-38; Supp. MOL at 6.
The evaluators assigned a ‟con” to Raytheon’s proposal because the increase in the weight of the components [DELETED] exceeded Raytheon’s proposed growth margin of [DELETED] pounds. AR, Tab W, Evaluation Summary Sheet: Importance to Low Band Mission, at 4-5. According to the evaluation, since the proposed weight based on [DELETED] had already increased, there was ‟risk” in Raytheon meeting its not-to-exceed weight goal for the low band pod. Id. at 4. However, in the absence of the Navy’s double-counting, Raytheon’s proposed pod was only 20 pounds heavier than stated in Raytheon’s proposal, which was within Raytheon’s proposed growth margin. Nonetheless, Raytheon has not demonstrated that it was prejudiced by the assignment of this ‟con.”
Prejudice is an essential element to every viable protest, and where an agency’s improper actions did not affect the protester’s chances of receiving award, there is no basis for sustaining the protest. STG, Inc., B-415580.3, Mar. 27, 2018, 2018 CPD ¶ 221 at 4 n.2. Here, because the Navy’s decision not to award Raytheon a contract was based on concerns about size, drag, EIRP, and weight, see AR, Tab V, SSDD, at 2, it is unlikely that the removal of this ‟con” would affect the agency’s award decision, and thus any agency error did not prejudice the protester. See Veteran Nat’l Transp., LLC, B-415696.2, B-415696.3, Apr. 16, 2018, 2018 CPD ¶ 141 at 5 n.7; STG, Inc., supra. Therefore, we find no basis to sustain the protest.
The protest is denied.
Thomas H. Armstrong
General Counsel
[1] A BAA is a general announcement of an agency’s research interest including criteria for selecting proposals and soliciting the participation of all offerors capable of satisfying the government’s needs. Federal Acquisition Regulation (FAR) § 2.101.
[2] EIRP is the measure of the efficiency of a transmitting antenna. See AR, Tab R, Goals Document, at 70.
[3] The BAA stated that cost would be evaluated only to determine whether the proposed cost was consistent with the government’s funding profile. AR, Tab B, BAA, at 7.
[4] Mission radius refers to the maximum distance an aircraft can travel away from its base along a given course with a normal load and return without refueling, allowing for safety and operating factors. COS/MOL at 7.
[5] A ‟pro” was defined as an aspect of the proposal that has merit or demonstrates an adequate approach and understanding of the goals. AR, Tab U, Evaluation Board Report, at 3. A ‟con” was defined as an aspect that fails to demonstrate an adequate approach and understanding of the goals or increases the risk of unsuccessful contract performance. Id.
[6] Installed EIRP refers to the EIRP for the pod when it is installed on station 6 of the EA‑18G aircraft in-flight; uninstalled EIRP refers to the EIRP when the pod is not installed on any aircraft or platform. COS/MOL at 26-27.
[7] The evaluators also assigned a ‟con” for Raytheon’s proposed pod weight under the technical merit factor. AR, Tab X, Evaluation Summary Sheet: Technical Merit, at 4. However, the Navy found that Raytheon’s proposed pod had technical merit. Id.
[8] In its initial protest, Raytheon argued that the Navy is using the BAA process so the agency can enter into follow-on production contracts without further competition under the Navy’s other transaction authority with a BAA contractor. Protest at 32; Response to Dismissal Request, July 20, 2018, at 1. We dismiss this protest ground as premature. Protests that merely anticipate improper agency action are speculative and premature. Dayton-Granger, Inc.--Recon., B-246226.2, Feb. 28, 1992, 92-1 CPD ¶ 240 at 2. Here, the Navy states that it has not yet decided on an acquisition strategy for any follow-on contracts. Request for Partial Dismissal, July 17, 2018, at 1. Moreover, the protester has identified no basis for its concern other than speculation about the agency’s proposed actions.
[9] The outer mold line refers to the exterior surface of the pod. The maximum store volume refers to size and shape limitations.
[10] Raytheon’s proposed pod exceeds the station 6 volume limit on the bottom by [DELETED] inches; the fuel tank exceeds the station 6 volume limit by 0.25 inches. COS/MOL at 56.
[11] Raytheon urges our Office to disregard the Navy’s explanation of its concerns as post hoc rationalizations. Comments & Supp. Protest at 38-39. In reviewing an agency’s evaluation, we do not limit our review to contemporaneous evidence, but consider all of the information provided, including the parties’ arguments and explanations. Remington Arms Co., Inc., B-297374, B-297374.2, Jan. 12, 2006, 2006 CPD ¶ 32 at 10. While we generally give little weight to reevaluations and judgments prepared in the heat of the adversarial process, post-protest explanations that provide a detailed rationale for contemporaneous conclusions and simply fill in previously unrecorded details will generally be considered in our review of the rationality of selection decisions, so long as those explanations are credible and consistent with the contemporaneous record. Science Applications Int’l Corp., Inc., B-408270, B-408270.2, Aug. 5, 2013, 2013 CPD ¶ 189 at 8 n.12. Here, we find the Navy’s explanations to be credible and explain the underlying rationale for its evaluation conclusions.
[12] Raytheon also challenges the agency’s analysis of its mission radius data, arguing that had the Navy used more recent information than Raytheon used in its proposal, the Navy would have confirmed Raytheon’s assertion that the mission radius requirement would be met. In this regard, Raytheon argues that because the evaluators looked to information [DELETED] when evaluating the weight of its proposed pod, the evaluators also were obligated to seek information [DELETED] concerning mission radius. Comments & Supp. Protest at 41-43. An agency is not bound by the ‟four corners” of an offeror’s proposal, and may properly use information known by its own evaluators, as with any other references, to aid in the evaluation of proposals. Interfor US, Inc., B‑410622, Dec. 30, 2014, 2015 CPD ¶ 19 at 7. With respect to the weight issue, the evaluator was aware that [DELETED] hardware was in the process of a major redesign, and that Raytheon submitted [DELETED] information on weight. AR, Tab Z, Decl. of Deputy Chief Engineer, at 1. The Navy also states that analysis of drag based on wind tunnel test results was not available to the evaluators during the source selection time frame. AR, Tab F, Decl. of NGJ Chief Engineer, at 2. The protester has not shown that the evaluators were aware of any updated information pertaining to drag and mission radius. Moreover, an offeror’s technical evaluation is dependent on the information furnished. See Beretta USA Corp., B‑406376.2, B‑406376.3, July 12, 2013, 2013 CPD ¶ 186 at 9. Thus, the evaluators were not obligated to inquire of [DELETED] about the availability of updated information.
[13] As noted above, in simplest terms, EIRP is the measure of the efficiency of a transmitting antenna. See AR, Tab R, Goals Document, at 70. More specifically, it is a quantitative measure of the strength of a radio frequency transmission at a given frequency. Protest at 25.
[14] Raytheon challenged two of the five ‟cons.” Protest at 25-31.
[15] Raytheon also argues that the Navy applied an unstated evaluation criterion in assigning a ‟con” to its proposal for its uninstalled EIRP. Protest at 30-31. We need not address this protest ground because, even if Raytheon were correct that the Navy applied an unstated evaluation criterion, the protester would not be prejudiced in light of our finding with respect to the installed EIRP. As noted above, the Navy assigned five ‟cons” to Raytheon’s proposal with respect to EIRP; Raytheon has not demonstrated that the absence of this ‟con” would have negated the remaining ‟cons” concerning EIRP or changed the selection decision. Competitive prejudice is an essential element of a viable protest; where the protester fails to demonstrate that, but for the agency’s actions, it would have had a substantial chance of receiving the award, there is no basis for finding prejudice, and our Office will not sustain the protest. LOGC2, Inc., B-416075, June 5, 2018, 2018 CPD ¶ 204 at 12 n.8.
[16] Raytheon also challenges the ‟con” assigned under the technical merit factor for weight concerns. Protest at 23 n.10. We need not address the protest ground in light of the fact that the protester was not prejudiced by the ‟con” under the technical merit factor because the agency found the proposed pod had technical merit. See LOGC2, Inc., supra.
[17] Raytheon also argues that because the Navy does not have comparable information for any of the other offerors’ designs, the agency’s use of weight information [DELETED] constitutes unequal treatment. Comments & Supp. Protest at 24-25. Where a protester alleges unequal treatment in a technical evaluation, it must show that the differences in ratings did not stem from differences in the proposals. Abacus Tech. Corp.; SMS Data Prods. Grp., Inc., B-413421 et al., Oct. 28, 2016, 2016 CPD ¶ 317 at 11. Because the protester acknowledges that the proposals are different, the protester cannot demonstrate unequal treatment in this regard. Accordingly, this protest ground is dismissed for failure to state a valid basis of protest. See 4 C.F.R. § 21.5(f).
[18] Raytheon also argues that the agency improperly looked to Raytheon’s work [DELETED] to check the weight status of one component. Protest at 21-22. Raytheon contends that we should sustain on this basis because an evaluator violated the instructions provided during evaluator training. Comments & Supp. Protest at 23‑25. We decline to sustain the protest on this basis. An agency’s internal guidance does not give rights to parties; it is the solicitation’s evaluation scheme, not internal agency documents, to which an agency is required to adhere in evaluating proposals and making the award decision. Noble Supply & Logistics, B-410788.4 et al., July 29, 2015, 2015 CPD ¶ 243 at 7.