15 U.S.C. 308 (e) (4):  Small Business Innovation Research Program

Comptroller General - Key Excerpts

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)

Comptroller General - Listing of Decisions

For the Government For the Protester
RDAS Corporation, B-294848, December 23, 2004 (pdf) New Global Aerospace Corporation B-414514: Jul 3, 2017
Noble Solutions, B-294393, September 10, 2004 (pdf)  
U S Positioning Group, LLC, B-294027, June 21, 2004 (pdf)  
InkiTiki Corporation, B-291823.4; B-291823.5, May 16, 2003  (pdf)  
Kolaka No eau, Inc., B-291818, April 2, 2003  (txt version)  

U. S. Court of Federal Claims - Key Excerpts

U. S. Court of Federal Claims - Listing of Decisions
For the Government For the Protester


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