Free Motion for Judgment on the Administrative Record - District Court of Federal Claims - federal

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In the United States Court of Federal Claims
) PRECISION IMAGES, LLC, ) ) Plaintiff, ) ) BID PROTEST v. ) No. 07-712C ) Judge Margaret M. Sweeney THE UNITED STATES, ) ) Defendant, ) ) and ) ) GE INSPECTION TECHNOLOGIES, LP, ) ) Intervenor. ) ) STATEMENT OF FACTS Plaintiff Precision Images, LLC, 10741-B Endeavour Way, Largo, Florida 337771624 (Precision Images), in compliance with RCFC 52.1(b), sets out the following Statement of Facts necessary to resolve the issues presented in this Post-Award Procurement Protest. Agreed-Upon Redacted Copy May Be Made Public

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PARTIES 1. Precision Images is a Florida corporation, a small business, and a distributor of commercial off-the-shelf lightweight, hand-held ultrasonic flaw detectors manufactured by STARMANS electronics, s.r.o. ("Spolecnost S Rucenim Omezenim," or Czech Limited Liability Company) in the Czech Republic. Administrative Record, at 419, 424, 434, 439, and 752. 2. Defendant is the Department of the Air Force, Air Force Materiel Command, Warner Robins Air Logistics Center, Warner Robins, Georgia 31908-1611. Administrative Record, at 46, 909. The Department of the Air Force is a Military Department within the Department of Defense, 10 U.S.C. § 101(a)(8); the Department of Defense is an Executive Department of the United States, 5 U.S.C. § 101; and the Department of the Air Force and its Air Force Materiel Command are instrumentalities of the United States. 3. GE Inspection Technologies, LP, 50 Industrial Park Road, Lewistown, Pennsylvania 17044-9312 (GE Inspection Technologies) is a large business partnership, AdProtected Information Has Been Redacted -2-

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ministrative Record, at pages 891 through 893, whose common parent is the General Electric Company, Administrative Record, at 356, 359. THE ACQUISITION 4. Solicitation Number FA8533-07-R-11523 is a Solicitation for Competitive Proposals which promises an Award, an Indefinite-Delivery Requirements-type Contract for a base period of one year from date of Contract Award with four one-year option periods. The Solicitation is issued to satisfy Department of Defense inventory requirements for commercial off-the-shelf lightweight, handheld microprocessorbased ultrasonic flaw detectors. Up to seven-hundred commercial off-the-shelf lightweight, handheld ultrasonic flaw detectors may be ordered over the Contract term at firm fixed-prices. Testing and approval of a Pre-Production unit is required. Administrative Record, at 103 through 154. MARKET RESEARCH 5. The Market Research required by Federal Acquisition Regulation 10.001(a) was completed by April 4th, 2007. In a "Market Research Report" of that date the Protected Information Has Been Redacted -3-

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Air Force Program Engineer explains that these commercial off-the-shelf lightweight, handheld ultrasonic flaw detectors are expected to be used as Department of Defense (DoD) Joint Services test equipment, including use by the Department of the Navy, other military services, and other DoD organizations. The Air Force Program Engineer says that these are the critical performance requirements: Ultrasonic Flaw Detector available in the commercial market with design features that maximize reliability, maintainability, and ease of use with the smallest footprint available is highly desired. It is imperative that the unit shall have a selectable spike/excitation and square wave pulser with adjustable voltage from 150 V to 300 V, (minimum range) into a 100 ohm load. It is expected to be deployed and operated frequently at stateside and overseas military locations of uncontrolled and rough environment. It will mostly be used in hangars and flight lines inspecting various types of military aircraft and weapon systems. Performance requirements of this tester specified can be acquired in the commercial market sector. Administrative Record, at 41-42. 6. This is the Air Force Program Engineer's account of development of the performance requirements and salient characteristics for these commercial off-the-shelf lightweight, handheld ultrasonic flaw detectors:

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[Air Force Engineers] attend, participate, and expend an all year round effort to track not just existing ultrasonic flaw detector technology but all nondestructive testing equipment already available in the commercial market and also those still under research and development. Part of this effort is by attending nondestructive Quality Testing Shows and Nondestructive Testing Working Groups which are held most often in conjunction with major nondestructive testing conferences and exhibits. The most recently attended were the American Society for Nondestructive Inspection (ASNT) at Houston, TX, DoD Defense Working Group on NDT at Albuquerque, NM, NAVAIR NDI Conference at Norfolk, VA, and the AF NDI Conference at San Antonio, TX. However, the total market research undertaking is an all year round effort that includes countless hours monitoring and watching manufacturers and vendors display how their equipment and products work and even those that are still under development. This is done through attendance and participation in hundreds of NDI equipment and products' actual demonstrations, validations, verifications, and all year round testing, all over the country and sometimes overseas. Aerospace nondestructive testing market in the US is a small market in which the US Air Force is the biggest customer. This Market Research was developed using the effort described in the paragraph above and with acquired data and information obtained from the knowledge and experience of engineers not just in the AF, but also in the DoD, civilian aerospace industry, and from scientists and engineers of actual manufacturers and vendors of almost all types of nondestructive testing product and equipment-- not just in some specific nondestructive testing but in all types of existing applications. The Ultrasonic Flaw Detector PD that will be used in this Market Research has AF wide stringent nondestructive testing requirement applications and equipment commercially available presently in the NDI market that could satisfy these requirements is most limited. Protected Information Has Been Redacted -5-

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In addition to the above, the following market research techniques were utilized: on line and Thomas Register searches were accomplished looking for prospective sources, internet searches and numerous phone calls and personal contacts were made to numerous vendors and manufacturers, scientists and engineers throughout the US and overseas and numerous NDI equipment and products informational interchange meetings were held. Administrative Record, at 42-43. 7. The Air Force Program Engineer's Market Research reveals that commercial off-the-shelf lightweight, hand-held ultrasonic flaw detectors are not in short supply: Several brands of ultrasonic flaw detectors are widely available in the commercial nondestructive testing inspection market and have been available in the past several years. The ultrasonic flaw detector is [a] non developmental item. Administrative Record, at 45. This same Market Research likewise shows that it is likely that there will be further development and deployment of commercial off-theshelf lightweight, hand-held ultrasonic flaw detectors: Ultrasonic flaw detector technology is aggressively employed and has been widely used in the past several years not only in the aerospace but also in other industries. This technology could be targeted for specific applications therefore availability if vendors could be increased. Protected Information Has Been Redacted -6-

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Technology is anticipated to continuously utilize and acceptance is expected to grow further in the next few years and advancement of the applicable technology is expected. Id. 8. The Air Force Program Engineer explains in his Market Research Report that this will not be a follow-on Contract even though there have been previous Awards for commercial off-the-shelf lightweight, hand-held ultrasonic flaw detectors. Administrative Record, at 41. Because there are "no widely used common documented reliable testing plans available to users of ultrasonic flaw detectors," the Air Force Program Engineer concludes that testing and approval of a Pre-Production unit is needed. Administrative Record, at 44. PROCUREMENT HISTORY 9. The Air Force has no procurement history (and thus no past performance records) of requirements for hundreds of commercial off-the-shelf lightweight, handheld ultrasonic flaw detectors. The performance history available to the Air Force shows 2 prior Awards in 2004 and 2005 for a total of 17 commercial off-the-shelf Protected Information Has Been Redacted -7-

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lightweight, hand-held ultrasonic flaw detectors. Administrative Record, at 16 through 17. An Award in 1992 for a single commercial off-the-shelf lightweight, hand-held ultrasonic flaw detector. Administrative Record, at 18. And an Award in 1989 for 5 commercial off-the-shelf lightweight, hand-held ultrasonic flaw detectors. Administrative Record, at 19 through 20. 10. On May 24th, 2007 a previous Air Force supplier of commercial off-the-shelf lightweight, hand-held ultrasonic flaw detectors wrote: we can not meet or even rationalize the requirement of 160 units per year in a similar or like kind contract. We have been manufacturing Ultrasonic Flaw detectors for almost 20 years and have sold to the military in the 90s as well but, our orders are typically 1-5 at a time therefore we can't get to the 160/yr or per contract. Administrative Record, at 202. THE ACQUISITION 11. Solicitation Number FA8533-07-R-11523 was issued on April 20th, 2007. Administrative Record, at 103. Issued with the Solicitation is a 7-page Product Description developed by the Air Force's Program Engineer. Administrative Record, at 123, Protected Information Has Been Redacted -8-

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51 through 57. This Product Description sets out the requirements for, and the salient characteristics of, the required commercial off-the-shelf lightweight, hand-held ultrasonic flaw detectors. Administrative Record, at 51. 12. In response to a request from a prospective Offeror of the required commercial off-the-shelf lightweight, hand-held ultrasonic flaw detectors for deviations from the requirements stated in the Product Description and a subsequent question from the Air Force Contracting Officer as to whether or not the requested deviations were valid, the Air Force Program Engineer declined on May 1st, 2007 to allow any changes: I am pretty sure that from his point of view as a small business distributor of a large business equipment manufacturer, his issues are valid. However, we put together ultrasonic nondestructive inspection requirements from a big number of engineers and technicians not just in the AF but also in the Navy (who are users and will be users of this ultrasonic flaw detector) in our PD, and if you are asking me, our requirements are a lot more valid than his arguments. Administrative Record, at 157.

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13. The Purchase Description issued with the Solicitation on April 20th, 2007 included a requirement for a pulse width range from 30 nanoseconds minimum to 1,000 nanoseconds maximum. Administrative Record, at 54. On May 3rd, 2007 GE Inspection Technologies asked the Air Force "[h]ow important is or what is the application for the lower end requirement of 30ns?" Administrative Record, at 171. The Air Force Program Engineer responded on May 8th, 2007 that "[t]he pulse width/shape of 30ns delivers the frequency suitable for AF ultrasonic nondestructive inspection requirements." Administrative Record, at 175. This question, and the Air Force response, was included in the second set of Questions and Answers made available to all Offerors on May 8th, 2007. Administrative Record, at 182. THE EVALUATION PLAN 14. The Solicitation announces an Award to be made utilizing a Performance/Price Tradeoff source selection procedure with Performance being considered significantly more important than Price. The Solicitation says that Performance review will assess "the confidence in the offeror's ability to successfully accomplish Protected Information Has Been Redacted - 10 -

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the proposed effort based on the offeror's demonstrated present and past work record," and that Performance review will be generic, i.e., the Performance review will "evaluate the offeror's demonstrated record of contract compliance in supplying products and services that meet users' needs, including cost and schedule." Administrative Record, at 129. 15. But the Solicitation also sets out very specific criteria for determining the relevance of Performance. Specifically, the only Performance deemed "Relevant" by the Solicitation is the manufacture of microprocessor-based inspection equipment and this Performance can be "Very Relevant" if it involves commercial off-the-shelf lightweight, hand-held ultrasonic flaw detectors with color displays, or "Relevant" if it involves ultrasonic inspection equipment, or "Somewhat Relevant" if it involves microprocessor-based inspection equipment with a display, or "Not Relevant" if Performance does not involve "any significant aspects of the above definitions." Administrative Record, at 129 through 130. The Solicitation goes on to explain that these relevancy ratings include, among other things, reviews of the total quantity Protected Information Has Been Redacted - 11 -

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produced, of the quantity produced per month, and of the program dollar value. Administrative Record, at 130. 16. Finally, the Solicitation provides for an overall confidence assessment rating. Overall confidence in Performance can be rated as "High Confidence" or as "Significant Confidence" or as "Satisfactory Confidence" or as "Unknown Confidence" or as "Little Confidence" or as "No Confidence." Save for the "Unknown Confidence" overall confidence assessment rating the other overall confidence assessment ratings for Performance are self-explanatory. Administrative Record, at 130 through 131. 17. The Solicitation explicitly provides for the "Unknown Confidence" rating on an overall confidence assessment for Performance when an Offeror has no identifiable "relevant" Performance. The "Unknown Confidence" rating provided by the Solicitation is there described as implementing the requirement of Federal Acquisition Regulation 15.305(a)(2)(iv). This is what the Solicitation promises: If an offeror, or the proposed key employees of the offeror, do not have a past performance history deemed relevant to this solicitation, the offeror will receive an unknown confidence rating. The unknown confidence rating will be considered in the overall assessment for a best value decision. Protected Information Has Been Redacted - 12 -

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Administrative Record, at 130. PRECISION IMAGES' COMPETITIVE PROPOSAL 18. On May 21st, 2007 Precision Images provided to the Air Force by an electronic message its offer on the Solicitation. Precision Images there proposed a STARMANS electronics, s.r.o. commercial off-the-shelf lightweight, hand-held ultrasonic flaw detector. Precision Images set out some few details of the STARMANS electronics, s.r.o. commercial off-the-shelf lightweight, hand-held ultrasonic flaw detector that Precision Images is proposing, and Precision Images provided as an attachment a markedup version of the 7-page Product Description. Administrative Record, at 191 through 192. This marked-up version of the 7-page Product Description presents to the Air Force Contracting Officer specific affirmations by Precision Images that the STARMANS electronics, s.r.o. commercial off-the-shelf lightweight, hand-held ultrasonic flaw detector meets each requirement and salient characteristic set out in the 7-page Product Description for the required commercial off-the-shelf lightweight, hand-held ultrasonic flaw detector. Administrative Record, at 445 through 451. Later that same Protected Information Has Been Redacted - 13 -

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day the Air Force Contracting Officer requested that Precision Images instead submit a Competitive Proposal in the format required by the Solicitation. Administrative Record, at 191. 19. Precision Images submitted its Competitive Proposal on May 23rd, 2007. The Solicitation requires that each Competitive Proposal is submitted with a Cover Letter "delineating any exceptions taken to the RFP terms and conditions." Administrative Record, at 126. While Precision Images' Cover Letter takes no exceptions to the Solicitation or to the 7-page Product Description, Precision Images there explains: I would also like to bring to your attention that the relevancy of the Present/Past Performance has historically been for other products. The color UT unit offered in FA8533-07-R-11523 is a new product for us. Administrative Record, at 386. GE INSPECTION TECHNOLOGIES' COMPETITIVE PROPOSAL 20. On May 16th, 2007 GE Inspection Technologies took an exception to the requirement in the 7-page Product Description for a pulse width range from 30 Protected Information Has Been Redacted - 14 -

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nanoseconds minimum to 1,000 nanoseconds maximum. GE Inspection Technologies is offering a commercial off-the-shelf lightweight, hand-held ultrasonic flaw detector with a narrower pulse width range, this one from 50 nanoseconds minimum to 1,000 nanoseconds maximum. Administrative Record, at 317. The Air Force Program Engineer had previously affirmed that the pulse width range set out in the 7-page Product Description was the pulse width range most suitable for Air Force ultrasonic nondestructive inspection requirements. Administrative Record, at 175. Now GE Inspection Technologies asserted that the pulse width range available with GE Inspection Technologies' offered commercial off-the-shelf lightweight, hand-held ultrasonic flaw detector was the "range of pulser width adjustment [which] allows for optimum performance for the transducers in this specification." Administrative Record, at 317. 21. On May 30th, 2007 the Air Force Program Engineer recommended that GE Inspection Technologies' exception to the pulse width requirement be granted. Administrative Record, at 59. On July 13th, 2007 the Air Force Contracting Officer isProtected Information Has Been Redacted - 15 -

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sued Amendment Number 0003 to the Solicitation announcing that the required pulse width adjustment range is narrowed from a requirement for a pulse width range from 30 nanoseconds minimum to 1,000 nanoseconds maximum to a requirement for a pulse width range from 50 nanoseconds minimum to 1,000 nanoseconds maximum. Administrative Record, at 153 through 154. THE AWARD TO GE INSPECTION TECHNOLOGIES INITIAL COMPETITIVE PROPOSALS AND DISCUSSIONS 22. Three initial Competitive Proposals were received on May 24th, 2007. Administrative Record, at 779. Upon review of these initial Competitive Proposals the Air Force Program Engineer told the Contracting Officer that the hand-held ultrasonic flaw detectors proposed "satisfy the requirements of our PD." Administrative Record, at 81, 690. 23. Responses by DoD activities for comment on Precision Images' past Performance were all favorable. Administrative Record, at 720 through 731. But these past Performances by Precision Images were for the supply of film. Protected Information Has Been Redacted - 16 -

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24. The relevancy of Precision Images' Performance is rated by the Air Force Performance Confidence Assessment Group as "Not Relevant." Administrative Record, at 735. The Air Force Performance Confidence Assessment Group's overall confidence assessment in Precision Images' Performance was then "Unknown Confidence." Per the Air Force Performance Confidence Assessment Group this is the result only of Precision Images' status as a small business distributor of commercial offthe-shelf lightweight, hand-held ultrasonic flaw detectors:

Administrative Record, at 737. 25. The Air Force received no responses regarding the Performance of the unnamed third Offeror. Administrative Record, at 738 through 739. The Air Force Performance Confidence Assessment Group's overall confidence assessment in the Performance of this un-named third Offeror is "Satisfactory Confidence." This results because the Air Force Performance Confidence Assessment Group has concluded that

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the past Performances of this un-named third Offeror are neither "Very Relevant" nor "Relevant." Administrative Record, at 740 through 741. 26. The Air Force Performance Confidence Assessment Group's overall confidence assessment in the Performance of GE Inspection Technologies is "Satisfactory Confidence." This results because the Air Force Performance Confidence Assessment Group has concluded that the past Performances of GE Inspection Technologies are only "Somewhat Relevant." Administrative Record, at 741 through 744. 27. During Discussions on July 13, 2007 the Air Force Contracting Officer told Precision Images that the Air Force's overall confidence assessment of the Performance of Precision Images was as follows: The PCAG [Performance Confidence Assessment Group] has assessed an unknown confidence level that the offeror will successfully perform the Ultrasonic Flaw Detector program because the efforts involved little or none of the magnitude of work and complexities that this solicitation requires pursuant to the definitions of relevancy provided in the RFP. Administrative Record, at 582, 596.

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28. The Air Force's Performance Confidence Assessment Group made its final confidence assessment of the Performance of Precision Images on August 30th, 2007. The Air Force's Performance Confidence Assessment Group there considered Precision Images' responses to Discussions and the Performance Confidence Assessment Group concluded that Precision Images has properly responded to all Discussion questions concerning Precision Images' Performance. Administrative Record, at 751 through 752. 29. But even after Precision Images' responses to Discussions there is still no Performance by Precision Images deemed "relevant" by the Solicitation. Precision Images is a distributor, not a manufacturer:

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30. Nonetheless, on August 30th, 2007 the Air Force Performance Confidence Assessment Group changed its overall confidence assessment of the Performance of Precision Images from "Unknown Confidence" to "Little Confidence." Administrative Record, at 752. For this change in the overall confidence assessment of the Performance of Precision Images from "Unknown Confidence" to "Little Confidence" there must, as required by the Solicitation, have been identifiable "relevant" Performance by Precision Images. But there is no such identifiable "relevant" Performance by Precision Images, either as submitted by Precision Images with its initial Competitive Proposal, or as submitted by Precision Images in responses to Discussions:

Administrative Record, at 752.

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PRICE EVALUATION 31. After receipt of Final Proposal Revisions on September 12th, 2007 this is the total proposed Price for each of the three Offerors, and this over the proposed Contract term of five years: Un-named Offeror GE Inspection Technologies Precision Images Administrative Record, at 788. THE AWARD DECISION 32. The Air Force Contracting Officer made her best value source selection on September 26th, 2007. Administrative Record, at 779 through 786. 33. The Air Force Contracting Officer's Source Selection Decision Document recognizes the change from "Unknown Confidence" to "Little Confidence" made by the Air Force Performance Confidence Assessment Group in its overall confidence assessment of the Performance of Precision Images. But the Air Force Contracting OfProtected Information Has Been Redacted - 21 $3,867,120

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ficer's Source Selection Decision Document does not itself offer any justification for such a change in the overall confidence assessment of the Performance of Precision Images and the Air Force Contracting Officer's Source Selection Decision Document itself sets out no identifiable "relevant" Performance by Precision Images on which this change in the overall confidence assessment of the Performance of Precision Images may be based. Administrative Record, at 781. 34. This is the Air Force Contracting Officer's rationale for her best value Award to GE Inspection Technologies:

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Administrative Record, at 786. 35. The Air Force Program Engineer has determined that the all of the offered commercial off-the-shelf lightweight, hand-held ultrasonic flaw detectors meet the requirements for, and the salient characteristics of, the commercial off-the-shelf lightweight, hand-held ultrasonic flaw detectors set out in the Air Force's 7-page Product Description, this as modified to suit GE Inspection Technologies. But nowhere in the Air Force Contracting Officer's Source Selection Decision Document is there recognition of the price premium that is paid with the best value

Award to GE Inspection Technologies.

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36. In the Air Force Contracting Officer's Source Selection Decision Document there is no consideration of an overall confidence assessment of the Performance of Precision Images as one of "Unknown Confidence." Respectfully submitted, /s/ Cyrus E. Phillips, IV Cyrus E. Phillips, IV District of Columbia Bar Number 456500, Virginia State Bar Number 03135 October 19th, 2007 1828 L Street, N.W., Suite 660 Washington, D.C. 20036-5112 Telephone: Facsimile: Electronic Mail: (202) 466-7008 (202) 466-7009 [email protected]

Attorney of record for Plaintiff, Precision Images, LLC.

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CERTIFICATE OF SERVICE I hereby certify, under penalty of perjury, that on Friday, October 19th, 2007 a true and complete copy of this Statement of Facts was filed electronically via the Court's Electronic Case Filing System, through which notice of this filing will be sent to: Joseph E. Ashman, Esq. Electronic Mail: [email protected]

Attorney of record for Defendant, Department of the Air Force, Air Force Materiel Command. I also certify, under penalty of perjury, that on Friday, October 19th, 2007 a true and complete copy of this Statement of Facts was filed electronically via the Court's Electronic Case Filing System, through which notice of this filing will be sent to: David A. Churchill, Esq. Electronic Mail: [email protected]

Attorney of record for Intervenor, GE Inspection Technologies, LP.

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