B-296194.4,B-296194.5, Aug 31, 2005
Foster-Miller, Inc. (FMI) protests the exclusion of its proposal from the competitive range under request for proposals (RFP) No. W15P7T-05-S502, issued by the U.S. Army Communications-Electronics Life Cycle Management Command, Fort Monmouth, New Jersey, for a Counter Remote Control Improvised Explosive Device (RCIED) Electronic Warfare (CREW) System.
We deny the protest.
B-296194.4; B-296194.5, Foster-Miller, Inc., August 31, 2005
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.
1. Under procurement calling for two stages of testing of equipment (chamber testing and field testing), contracting agency properly barred protester from using a programming load for its equipment during the field test different from the programming load that the protester had used during the chamber test; agency's decision was based on a reasonable interpretation of language in the chamber and field test plans as prohibiting changes to the programming load after the chamber test.
2. Protest is denied where protester fails to demonstrate that agency's evaluation of proposal as unacceptable under critical evaluation subfactor and agency's exclusion of proposal from competitive range on that basis were unreasonable.
Foster-Miller, Inc. (FMI) protests the exclusion of its proposal from the competitive range under request for proposals (RFP) No. W15P7T-05-S502, issued by the U.S. Army Communications-Electronics Life Cycle Management Command,
The solicitation seeks to acquire a next-generation CREW system, to be used to prevent and defeat improvised explosive device ambushes [deleted]. That is, the solicitation seeks improved technology for jamming radio-controlled roadside bombs. The goal is to improve on the capabilities of the currently-fielded CREW system by providing for simultaneous coverage against all RCIED threats at increased ranges, broader frequency coverage extendable to higher frequencies, ease of programmability, reduced size, weight, and power, and built-in capacity for future growth.
The RFP, which was issued on
The RFP's Statement of Objectives identified Band A (required) and Band B (desired) capabilities of the systems to be procured. One of the Band A requirements pertained to frequency spectrum; another pertained to effective range. The RFP advised that the government would evaluate the offeror's ability to meet the Band A requirements, as well as any offered capabilities from Band B. The RFP further advised that failure to meet any Band A requirement would render a proposal unacceptable. Offerors were cautioned that [u]nsupported promises to comply with contractual requirements will not be sufficient, and that [p]roposals must contain supporting rationale for any statements relating to proposed performance. RFP sect. M-3(C)(1). Similarly, offerors were advised that one of the criteria that would be considered in evaluating their proposals under the technical performance factor and its subfactors was completeness/adequacy of response and that [m]ere statements of compliance or repetition of the technical requirements without a complete discussion and analysis [are] unsatisfactory.
The solicitation required the submission of at least two hardware system samples for testing in a laboratory anechoic chamber at
The RFP included both a Chamber Test Plan and a Field Test Plan. RFP Attachs. 5 and 6. Of relevance to this protest, the Chamber Test Plan instructed offerors as follows:
The offeror may bring any test equipment, to be used for installation, verification, operation, and diagnostics of TEST ARTICLE(s), into Building 600. This equipment will need to be included in the shipment of TEST ARTICLE(s). Equipment that is not shipped with the TEST ARTICLE(s) will be prohibited from entering the 12WD facility.
RFP Attach. 5, at 5. The Field Test Plan, in contrast, did not place restrictions on the test equipment that offerors were permitted to bring to the test site.
The Chamber Test Plan also advised offerors that as part of the testing, they would be provided with a list of test threats and their tuning ranges to be used to set up, or program their TEST ARTICLES.
Eight proposals were received by the March 21 closing date. FMI furnished hardware samples with its proposal, but failed to include with the proposal a laptop computer, which it needed to run the interface software which it planned to use to input the programming load into its test article. When the FMI team arrived at
On April 8, FMI protested its disqualification to our Office, arguing that it had elected not to proceed with testing of its samples because the test facility director had incorrectly advised it that it would not be permitted to use its laptop prior to field testing at
FMI completed the chamber testing, and on May 5, received notice from the contracting officer that its proposal had been included in the competitive range. The contracting officer's letter further informed the protester that items for negotiations (IFN) would be furnished to it the following day, and that failure to resolve the deficiencies identified in the IFNs to the government's satisfaction would preclude it from receiving an award. A second letter dated May 5 notified the protester that its field test dates would be May 23-25.
At the completion of the chamber test, the agency had loaded the programming load from FMI's test article onto a government laptop, which it then shipped to
FMI protested the agency's actions to our Office on May 31, asserting that the Field Test Plan expressly authorized it to enter a programming load into its test article prior to commencement of the field testing. (The offeror will be allowed to input the TEST ARTICLE programming load once prior to the Field Testing. RFP Attach. 6, at 6.) The protester argued that the agency's refusal to allow it to proceed in the manner authorized by the test plan had placed it at a significant disadvantage because its inability to enter the programming load had prevented it from demonstrating its system's full capabilities. As a consequence, the protester argued, its system was significantly handicapped and could not react to as many threats or react as effectively as it would have had FMI been permitted to input the programming load as permitted by the Test Plan. Protest,
On June 17, the agency notified FMI that its proposal had been excluded from the competitive range and thereby eliminated from the competition. The letter directed the protester's attention to sect. M-3 of the RFP, which placed offerors on notice that to receive consideration for award, a proposal had to be rated no less than acceptable under the technical performance factor and each of its three subfactors. The letter also cited the solicitation language providing that offerors who failed to meet any Band A requirements would be rated unacceptable. The letter informed the protester that after extensive evaluation, its proposal had been rated as follows:
TECHNICAL PERFORMANCE UNACCEPTABLE
Technical approach Unacceptable
Schedule/Production Capacity Acceptable
PERFORMANCE RISK Low
SMALL BUSINESS PARTICIPATION Good
The letter explained that the rating of unacceptable under the technical approach subfactor was attributable to the protester's failure to demonstrate that its system complied with the RFP's frequency bandwidth and effective range requirements.
Upon receipt of the contracting officer's letter, the protester sought and obtained an agency debriefing. On June 28, FMI filed a supplemental protest with our Office objecting to its exclusion from the competitive range. On the same day, the agency notified our Office that it was proceeding with award of a contract notwithstanding FMI's protest.
The determination of whether a proposal is in the competitive range is principally a matter within the reasonable exercise of discretion of the procuring agency, and in reviewing an agency's evaluation of proposals and subsequent competitive range determination, we will not evaluate the proposals anew in order to make our own determination as to their acceptability or relative merits; rather, we will examine the record to determine whether the documented evaluation was fair and reasonable and consistent with the evaluation criteria, as well as procurement statutes and regulations. Safety-Kleen (Pecatonica), Inc., B-290838,
para. 176 at 5-6. An agency is not required to retain in the competitive range a proposal that is not among the most highly rated ones or that the agency otherwise reasonably concludes has no realistic prospect of award. Federal Acquisition Regulation sect. 13.306(c)(1); SDS Petroleum Prods., Inc., B-280430,
FMI argues that the exclusion of its proposal from the competitive range was based on a substantially flawed and unreasonable evaluation of its written proposal and IFN responses and on the agency's refusal to adhere to the requirements of the Field Test Plan, which prevented FMI from demonstrating the full capabilities of its system. According to the protester, the agency's deviation from the Field Test Plan prevented it from demonstrating that its system could meet the requirements of the RFP.
As discussed in detail below, the agency argues in response that it properly did not permit the protester to load a different programming load into its test article before the field test. The agency further argues that FMI's performance on the field test was not the basis for its elimination from the competitive range in any event; rather, the agency asserts, the proposal was eliminated because it contained an unresolved deficiency pertaining to FMI's approach to satisfying the Band A requirements pertaining to frequency bandwidth and effective range.
With regard to the conduct of the field testing, FMI argues that the agency improperly barred it from entering a programming load different from the one used during the chamber testing. The agency disagrees, arguing that it acted properly given that the test plans made clear that there would be no change allowable to any software or programming load from the time the chamber test ended through the initiation of and the full conduct of the Yuma Field Test. Source Selection Evaluation Board (SSEB) Chairman's Statement,
FMI argues that the language in the Chamber Test Plan on which the agency relies--no software changes to the TEST ARTICLES will be permitted between the chamber tests and the field tests--does not impose a limitation on changing the programming load. According to FMI, the term software refers to computer programs, which are sequences of instructions that are executed by hardware and define the basic characteristics and capabilities of a computer or computer-based equipment. Comments,
We think that the agency's position regarding the restriction on changing the programming load reflects a reasonable interpretation of the test plans. Accordingly, we see no basis to object to the agency's decision to bar FMI from changing the programming load for purposes of the field testing.
First, even accepting the protester's definition of the term software, we find reasonable the agency's position that the language in the Chamber Test Plan barring software changes extends to changes to the programming load. As the SSEB Chairman explains:
FMI has further stated [that] the programming load . . . consists of data (selective, targeted frequencies with start and stop frequencies and other variables such as step size in kilohertz, step time and dwell time) . . . . In actuality, the [programming] load provides these values, which are identified by the operational software and incorporated into the instructions being given to the hardware. Changing these numeric values changes the instruction. The FMI system observed in the Chamber Test was in a Default Factory Setting that had default values assigned to all of these parameters. Inputting the Threat Program Load would have introduced new values for these settings and would have changed the instructions to be executed by the hardware as a result. It would be similar to giving a person the verbal instruction wait here for 10 seconds. This instruction is significantly different from the verbal instruction wait here for 30 minutes. Only the number value has changed, but the instruction to the person and the overall result of following the instruction is much different. . . . Changing any of the parameters listed above would have had a direct effect on the system's characteristics and capability.
SSEB Chairman's Statement,
Further, aside from the language prohibiting software changes, we think that, read as a whole, the overall scheme set out in the test plans contemplated that offerors would formulate a programming load that would be used for both the chamber and field tests, and that no changes to the programming load were contemplated once it had been used in the chamber test. In this regard, as explained above, after being given a list of threats and their frequency ranges, an offeror was to enter an initial programming load for chamber testing. After this initial test, or dry run, the offeror was allowed to reprogram the TEST ARTICLE with a new programming load, if it so elected. RFP Attach. 5, at 5. The test article then would be retested against the same list of threats using the new programming load.
It is clear that the term reprogramming is used throughout the test plans to refer to the act of making changes to the programming load. Thus, to the extent that the Field Test Plan states that no reprogramming will be permitted at any time during the field test, it clearly is reasonable to interpret it to mean that no changes can be made to the programming load. According to FMI, this language merely prohibits changes to the programming load once it is loaded for use in the field test; it does not prohibit changes to the programming load used in the chamber testing, before it is loaded into the system for use during the field test. The agency explains in response that no changes were intended to be made to the programming load used during the chamber test, since it wanted offerors to use the same programming load to allow a valid comparison of a test article's performance in both settings, chamber and field. While the protester disagrees with the agency's premise, and argues that there are valid technical reasons for allowing different programming loads in the two settings, Comments, July 8, 2005, Declaration of Foster-Miller Technical Advisor, its assertions essentially constitute disagreement with the agency's technical judgment, and thus are not a sufficient basis to conclude that the agency's position is unreasonable. R&B Equip. Co., B-271194,
In sum, we see no basis to find unreasonable either the agency's interpretation of the test plan language or its decision to bar FMI from changing its programming load before field testing began.
Turning then to the protester's argument that the agency's evaluation of its written proposal and IFN responses was unreasonable, we think that the record shows that the agency had a reasonable basis for concluding that FMI had not demonstrated that its system would be capable of complying with the Band A requirements pertaining to frequency spectrum and effective range concurrently, and on that basis rating it as unacceptable under the technical approach subfactor.
In this regard, the agency found--and the protester does not dispute--that its written proposal did not contain adequate analysis or test data demonstrating compliance with these requirements, and while the protester's IFN responses did contain analysis, the evaluators concluded that this analysis in fact demonstrated that FMI's system would not meet the solicitation's minimum requirements. Specifically, in summarizing this key deficiency in FMI's technical proposal, the SSEB Chairman states that FMI failed to address the full requirement of simultaneously meeting the Band A threat frequency bandwidth coverage and the required effective range, and that FMI's analysis and calculations focused only on the ability to cover the frequency bandwidth. This finding is consistent with the conclusions in the technical evaluation report, where the evaluators observed as follows with regard to FMI's technical proposal:
Technical Evaluation Report at 6.
We recognize that the protester, in a statement submitted by its business development manager, disputes the agency's conclusion that FMI's system's ECM spectral density will be too low to jam the threats to meet necessary Band A effective range requirements when programmed to the entire bandwidth of the system. Comments,
In sum, the protester has not persuaded us that the agency's evaluation of its proposal as unacceptable under the technical approach subfactor and the agency's exclusion of its proposal from the competitive range on that basis were unreasonable.
The protest is denied.
Anthony H. Gamboa
 The term programming load is used to describe the data input into a test article by an offeror during the testing. Specifically, FMI describes programming load as
data (selective, targeted frequencies with start and stop frequencies and other variables such as step size in kilohertz, step time and dwell time) entered into [an offeror's] system via the [graphic user interface] software, much like data is entered by a user on a computer spreadsheet via Excel applications software. The system's software then uses the data to tell the system where to direct power and energy levels to jam likely threats.
 FMI did furnish a copy of the interface software with its hardware samples but, without a laptop computer, it could not use the software to enter a programming load.
 We recognize that the contracting officer's letter to the protester notifying it of its exclusion from the competitive range cited additional bases for the determination of unacceptability under the technical approach subfactor, but we understand the protester's failure to demonstrate that its system would be capable of complying with the frequency spectrum and effective range requirements concurrently to have formed the underlying basis for the determination. In this regard, the Chairman of the SSEB observed in his technical statement that:
despite two rounds of IFN requests and a detailed discussion of this issue during the one-on-one telephonic negotiation session, FMI failed to address the full requirement of simultaneously meeting the Band A threat frequency bandwidth coverage as set forth in Appendix A and the Band A effective range as specified in the Performance Based Specification. This was a minimum requirement of the RFP and therefore the failure to meet this requirement resulted in FMI being assigned a deficiency under the Technical Approach Subfactor.
SSEB Chairman's Statement,