cannot legitimately be construed as a ban on participation in this or future procurements. The Court finds that defendant did not violate applicable law or regulations by its treatment of plaintiff's past contract performance.
C. Plaintiff has not proved that defendant failed to abide by the criteria established in the Requests for Proposals.
In a negotiated procurement such as the one at issue, the proposals must be evaluated "solely on the factors specified in the solicitation." 10 U.S.C. § 2305(b)(1). Plaintiff maintains that defendant failed to abide by the criteria stated in the R.F.P., but, again, plaintiff is mistaken.
As noted above, the Phase Two R.F.P. stated that each proposal would be evaluated in terms of "cost," "technical," "Logistics/MANPRINT," and "production capability" merit; of these factors, "cost [was] of primary importance and is worth significantly more than Technical, and somewhat more than Technical, Logistics/MANPRINT and Production Capability combined." Defendant's Exhibit 5, at M-2. Because of the greater worth of the "cost" criterion, plaintiff contends that its inadequacies in the other categories are irrelevant and that it should have been awarded the contract simply because its trucks carried the lowest initial price tag.
This amounts to a contention that no criterion but cost had significance in the procurement decision; taken to extremes, it suggests that, despite the time and expense devoted to testing prototype vehicles in Phase One of this procurement, defendant would have to award the contract to an offeror whose trucks did not function but cost only $ 1. This obviously makes no sense. Nor would it comply with the R.F.P.: the R.F.P. did not make all criteria save cost irrelevant. Rather, it promised a contract award to that offeror whose proposal "is most advantageous to the Government and offers the greatest value based on the evaluation and award criteria . . . ." Id. at M-1.
Defendant did not devote seven months to prototype testing merely to fritter away the federal fisc. As the S.S.A. was charged with identifying the proposal that offered the greatest "value" to the government, he had discretion to find that plaintiff's somewhat lower price tag did not offer a better value than a competing proposal for a significantly better vehicle at a slightly higher initial price. Id.; see also, e.g., Frequency Engineering Laboratories, 87-1 CPD para. 392, at 6 (1987). In light of the government's responsibility to protect the public interest by obtaining low cost, high quality items, and the R.F.P.'s failure to say that cost would be the sole factor on which the contract award would turn, the Court will not give the R.F.P. the constricted interpretation urged by the plaintiff.
Moreover, even if cost were the only factor on which the contract award turned, plaintiff would still not prevail. The R.F.P. stated that "cost, while evaluated in terms of the reasonableness of the proposal, may further be considered in terms of overall program costs and affordability." Defendant's Exhibit 5, at M-1. Thus, plaintiff, like its competitors, was on notice that defendant would examine not merely the initial price tag of the vehicles but their lifetime cost. As the Boards found that plaintiff's vehicles had a higher prospective lifetime cost than that of the vehicles produced by the winning bidder, see Defendant's Exhibit 2, at 2-3, the S.S.A. had discretion to find that plaintiff's proposal did not carry the lowest "cost" of the competing proposals for this contract.
Plaintiff's response to these facts is that, because the mean time between its vehicles' failures was superior to that of defendant-intervenors', the Army should have found plaintiff's lifetime cost lower and should have found plaintiff's proposal technically acceptable enough to merit the contract award. Once again, the Court cannot accept plaintiff's argument.
For one, the Boards and the S.S.A. both found that plaintiff's "mean time between failures" and mean time between unscheduled maintenance actions were not necessarily better than those of defendant-intervenors. Rather, the Board found that TRAK's higher failure rate was the direct result of TRAK's decision to continue testing on its vehicles during redesign of a broken steering knuckle. Defendant's Exhibit 3, at 5. Accordingly, the Board found,
. . . the reliability number based on raw data . . . [was] driven down, and the resultant [Mean Time Between Unscheduled Maintenance Actions] is not reflective of the reliability which could have been demonstrated during prototype testing if [TRAK] had been allowed to fix the problem before continuing testing.
Moreover, the Board studied whether vehicle reliability would increase after the offerors corrected the problems revealed by prototype testing. The Board projected that the ultimate mean time between unscheduled maintenance actions of TRAK's vehicles would be between 17.89 and 26.7 hours, while that of plaintiff's vehicle would be at most 11.89 hours. Id. at 7, 20. Accordingly, plaintiff errs by claiming that the Board found that the mean time between failures of its vehicles was superior to that of TRAK's vehicles.
Plaintiff alleges that defendant deviated from the stated criteria in another way as well. Specifically, plaintiff claims that it could have lost the contract award "only if the Army misapplied the stated evaluation criteria" for the technical evaluation of the proposals. Memorandum of Points and Authorities in Support of Plaintiff BMY's Motion for a Preliminary Injunction, at 27.
Although plaintiff's argument is unclear, it seems to center on a contention that defendant ignored technical information favorable to plaintiff. Plaintiff suggests that, because the only "factual objective technical deficiency" of which it was advised in a post-award debriefing was the projected rate for the mean time between failures plaintiff's production equipment, defendant found no other serious technical problems in plaintiff's proposal. Id. at 25-26. Plaintiff apparently believes that the R.F.P. does not permit denying it the contract on the basis of this shortcoming. Once again, plaintiff has misapprehended the S.S.A.'s analysis.
What the Boards and the S.S.A. found was that the technical problems with plaintiff's vehicles were serious enough to outweigh the advantages of the vehicles' apparently lower cost. Defendant's Exhibit 3, at 13-25; Defendant's Exhibit 1, at 3-5. This decision was not based solely on the failure rate of plaintiff's trucks. Rather, they extensively analyzed, and made findings concerning, the degree to which all offerors' vehicles met the standards established under all five technical sub-criteria. See Defendant's Exhibit 3, at Parts IV and X. This is precisely what the R.F.P. required. Defendant's Exhibit 5.
This analysis revealed far more risk in plaintiff's proposal than plaintiff admits. Quite in contrast to plaintiff's assertion that the only technical problem identified by the Board was the mean time between unscheduled maintenance actions, the Board detailed problems with and disadvantages of plaintiff's vehicles under every one of the sub-criteria. Id. at 13-25. As the Source Selection Board summarized:
The test results [on BMY's prototype production vehicle] indicated that the prototype vehicles would require extensive redesign to withstand the military usage and environment. Several structural failures occurred in the frame, along with numerous electrical failures and hydraulic leak problems. Additionally, failure to comply with gradeability and braking requirements necessitated a change in the engine and front axle. The proposed changes assessed by the technical team were significant enough and extensive enough to the point that test results achieved during the Government's prototype tests have been essentially invalidated by the extent of redesign, and would therefore present a technical risk similar to that which was present at the start of prototype testing.