New
Where an agency is conducting an SBIR procurement, it has
substantial discretion to determine whether it will fund a
proposal. Vehicle Data Sci., Inc., B-413205, B-413205.2, Aug.
15, 2016, 2016 CPD ¶ 224 at 4; Photonics Optics Tech, Inc.,
B-402967, July 28, 2010, 2010 CPD ¶ 173 at 2-3. Agency
discretion, though broad, is not unfettered, and continues to be
subject to the test of reasonableness. Pacific Blue Innovations,
B-406397, May 11, 2012, 2012 CPD ¶ 301 at 2-3.
As addressed above, NASA employed a multiple step approach to
evaluating, prioritizing, and ultimately selecting proposals.
First, peer reviewers evaluated proposals based on the
solicitation's technical and commercial factors, and then ranked
proposals at the subtopic and topic levels. Next, the applicable
NASA center reviewed the proposals and prioritized them based
both on the evaluation ratings, as well as other considerations
including, but not limited to, overall NASA priorities, program
balance and available funding. Third, the applicable mission
directorate conducted a further review and prioritization of
proposals across its cognizant centers. Finally, the mission
directorates briefed the SSO on its recommendations, and the SSO
selected the proposals for negotiations.
Global first challenges NASA's prioritization of proposals
utilizing evaluation factors other than the solicitation's
enumerated technical and commercial factors. Contrary to the
protester's arguments, however, the solicitation specifically
notified offerors that NASA would consider other factors,
including overall NASA priorities, program balance, and
available funding. Solicitation at 033. As discussed above, the
record reflects that both the Global and TRLU proposals were
evaluated as having high technical merit and offering
potentially significant benefits to NASA. Although both
proposals were recommended by the peer reviewers for funding,
NASA elected, as expressly contemplated by the solicitation, to
consider other factors when prioritizing which projects to fund.
In light of the solicitation's notice to offerors and the broad
discretion afforded to agencies with respect to which SBIR
proposals to fund, we find no basis to sustain the protest on
this basis. This is particularly true under an SBIR procurement,
which is not based on design or performance specifications for
existing equipment, but rather emphasizes scientific and
technical innovation and has as its objective the development of
new technology. It is precisely because of the experimental and
creative nature of this type of procurement that the contracting
agency is given substantial discretion in determining which
proposals it will fund. See, e.g., Science, Math & Eng'g, Inc.,
B-410509, Jan. 7, 2015, 2015 CPD ¶ 31 at 6.
Global also challenges the SMD's review and prioritization of
its proposal. Specifically, the protester alleges that the
minimal post-protest explanation for why its proposal was not
selected for funding is unreasonable as it does not appear to
address the merits of Global's proposal under the applicable
solicitation subtopic. For the reasons that follow, we agree
with Global that the record is inadequate to demonstrate that
the SMD's recommendation to the SSO was reasonable and
consistent with the solicitation.
We recognize that the SBIR program encourages agencies to use
simplified procedures. See Deborah Bass Assocs., B-257958, Nov.
9, 1994, 94-2 CPD ¶ 180 at 6. Notwithstanding the use of
simplified procedures, however, it is a fundamental principle of
government accountability that an agency be able to produce a
sufficient record to allow for a meaningful review where its
procurement actions are challenged. See e-LYNXX Corp., B-292761,
Dec. 3, 2003, 2003 CPD ¶ 219 at 8. Where an agency fails to
document or retain evaluation materials, it bears the risk that
there may not be an adequate supporting rationale in the record
for us to conclude that the agency had a reasonable basis for
the source selection decision. Systems Research & Apps. Corp.;
Booz Allen Hamilton, Inc., B-299818 et al., Sept. 6, 2007, 2008
CPD ¶ 28 at 12.
The contemporaneous record here is devoid of any analysis of
Global's proposal at the SMD recommendation phase. See AR, Tab
11, Global Summary Eval. Report, at 456 (including no comments
under the Mission Directorate "recommendation rationale" or
proposal ranking sections); Tab 14, SBIR Phase II Source
Selection Presentation (including no discussion or reference to
Global's proposal). In lieu of any contemporaneous
documentation, the agency in response to the protest submitted a
declaration from the SMD SBIR Representative explaining the
basis for the SMD's recommendation to the SSO regarding project
funding priorities. In discussing the perceived risks with
Global's proposed glider, the representative identified risks
with respect to Venus exploration. As the protester correctly
notes, however, its proposal responded to the subtopic area
involving exploration of Titan, which included different
requirements. Nowhere in the SMD SBIR Representative's
declaration does he acknowledge that Global's proposal was in
response to the Titan subtopic, let alone analyze the merits of
the proposal with respect to the solicitation's requirements for
the Titan subtopic or the relative merits of the proposal with
respect to Titan exploration.
NASA sought leave to respond to Global's comments on the agency
report. The agency, however, elected not to submit a clarifying
response from the SMD SBIR Representative. Rather, it submitted
a second declaration from the JPL SBIR Program Manager. The
declaration primarily explained that the peer reviewers and JPL
correctly analyzed the technical merit of Global's proposal
based on the requirements of the Titan subtopic. Decl. of JPL
SBIR Program Manager (May 16, 2017), ¶¶ 5-9. We agree with the
agency that the record reasonably demonstrates that both the
peer reviewers and JPL evaluated the merits of Global's proposal
based on the Titan subtopic, while also noting the potential for
the proposed Global glider to also be used in future Venus
exploration. Our concern, however, is with the adequacy and
reasonableness of the SMD's recommendation to the SSO.
In this regard, NASA's only rebuttal addressing whether the SMD
reasonably understood the Global proposal to be focused on Titan
exploration is the assertion in the JPL SBIR Program Manager's
post-comments declaration that:
The points already made in the Declaration from [the SMD SBIR
Representative] explaining the JPL Center and Science Mission
Directorate assessments of the [Global] proposal, specifically
about the level of technical maturity, risk, uncertainties in
a turbulent atmosphere, science priority differences in
addressing vertical versus horizontal structure, etc. all
apply to Titan, although it also referred to Venus.
Id. at ¶ 10.
This conclusory assertion, however, is not reasonably supported
by the record. For example, the SMD SBIR Representative stated
in his post-protest declaration that NASA did not select
Global's proposal for funding, in part, because the agency
"recognized that the immediate science needs for Venus
exploration address vertical atmospheric structure, but not
necessarily lateral structure, so the ability to glide offered a
capability that was valuable but was not required and had some
additional risk." See Decl. of SMD SBIR Program Rep., ¶ 6. The
solicitation confirms the SMD SBIR Representative's point that
the agency was concerned with a vehicle's vertical capabilities
under the Venus subtopic. Solicitation at 141 (establishing
floating vehicle altitude requirements). The statement, however,
is inconsistent with the solicitation's requirements for Titan
aerial vehicles. Indeed, the solicitation specifically
instructed offerors that NASA was "interested in Titan aerial
vehicles that can both change altitude and also execute
controlled motions in latitude and longitude to target surface
locations of interest." Id. (emphasis added). Thus, while the
ability for lateral movement proposed for a vehicle under the
Venus subtopic would exceed the minimum requirements and
therefore might present some additional development risks, it
was an explicit requirement for vehicles proposed under the
Titan subtopic.
Similarly, the SMD SBIR Representative noted that "there are
more mature Venus approaches" than the glider proposed by
Global. Decl. of SMD SBIR Program Rep., ¶ 6. Although it may
have been entirely reasonable for NASA to prioritize mature
technologies for Venus exploration over earlier stage Titan
exploration vehicles, the limited record appears to consider
Global's proposed technology as though it had been proposed for
Venus exploration. Global unquestionably proposed technology in
response to the solicitation's Titan exploration subtopic. In
the absence of any reasonable documentation demonstrating that
the SMD (and ultimately the SSO) understood that Global's
proposal was for the Titan exploration subtopic (as opposed to
the Venus exploration topic) or otherwise explaining the basis
for the SMD's recommendation to the SSO with respect to the
decision to not fund Global's proposal, we have no alternative
but to conclude that the record fails to demonstrate that the
award recommendation and decision were reasonable. Thus, we
sustain Global's protest on this basis. (Global
Aerospace Corporation B-414514: Jul 3, 2017)
In sum, an offeror, like Noble, is responsible for providing a
full discussion of its technical approach and methodology within
the four corners of its proposal and it is not unreasonable for
an agency to downgrade a proposal because the proposal lacks a
detailed discussion of an offeror's proposed approach. See ,
e.g. , Wyle Labs., Inc. , B260815.2, Sept. 11, 1995, 95-2 CPD
187 at 5. (Noble Solutions,
B-294393, September 10, 2004) (pdf)
Where an agency is conducting an SBIR procurement, it has the
discretion to determine which proposals it will fund. R&D
Dynamics Corp., B-285979.3, Dec. 11, 2000, 2000 CPD ¶ 201 at 4.
In light of this discretion, our review of an SBIR procurement
is limited to determining whether the agency violated any
applicable regulations or solicitation provisions, or acted in
bad faith. Bostan Research, Inc., B‑274331, Dec. 3, 1996, 96-2
CPD ¶ 209 at 2; see also Intellectual Properties, Inc.,
B‑280803.2, May 10, 1999, 99-1 CPD ¶ 83 at 5-6. The agency’s
award decision was unobjectionable. Contrary to the protester’s
assertions, there was nothing improper or unreasonable in the
agency’s focusing on deliverables as the key discriminator
between the otherwise equal proposals. In this regard, the
solicitation specifically provided that “Phase II is the
principal research or research and development effort and is
expected to produce a well-defined deliverable prototype.”
Solicitation, ¶ 1.2. Further, though not specified under the
evaluation criteria, delivery of a prototype was logically
encompassed by the first factor regarding technical merit and
progress toward topic solution. See Base Techs., Inc.,
B‑293061.2, B-293061.3, Jan. 28, 2004, 2004 CPD ¶ 31 at 8. In
this regard, we agree with the contracting officer that offering
to deliver a prototype is an indication of the soundness and
technical merit of the proposed approach and the “embodiment” of
the contractor’s solution to the topic problem. Contracting
Officer’s Statement at 6. Here, USPG does not dispute that its
proposal failed to include delivery of a prototype; it simply
asserts that the agency’s focus on deliverables as the deciding
factor was the antithesis of the firm’s approach. Comments at 1.
The agency recognized that both firms proposed the development
of software and hardware, but reasonably concluded that delivery
of a prototype represented a better value. USPG’s mere
disagreement with the agency’s judgment on the usefulness of
supplying a prototype does not provide a basis for finding the
agency’ source selection unreasonable. Global Assoc., Ltd.,
B‑275534, Mar. 3, 1997, 97-1 CPD ¶ 129 at 9. (U
S Positioning Group, LLC, B-294027, June 21, 2004) (pdf)
Our review of a protest involving an SBIR procurement is limited
to determining whether the agency violated any applicable
regulations or solicitation provisions, or acted in bad faith.
Intellectual Properties, Inc., B-280803.2, May 10, 1999, 99-1
CPD ¶ 83 at 5-6; Microexpert Sys., Inc., B-233892, Apr. 13,
1989, 89-1 CPD ¶ 378 at 2. (InkiTiki Corporation,
B-291823.4; B-291823.5, May 16, 2003) (pdf) |
