Matter of: Sturm, Ruger & Company File: B-250555 Date: February 2, 1993

B-250555: Feb 2, 1993

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PROCUREMENT Bid Protests GAO procedures Protest timeliness 10-day rule Protest challenging the evaluation of protester's bid samples is dismissed as untimely because it was not filed within 10 working days after the protester learned the bases for its objection to the evaluation. PROCUREMENT Specifications Minimum needs standards Competitive restrictions GAO review Protest challenging the agency's acceptance of the awardee's bid samples for automatic weapons is denied where agency reasonably interpreted the specification in a nonrestrictive manner as a functional description which did not limit the design of bolt operation and locking systems to two particular types and where the protester does not argue that the awardee's weapon is not capable of meeting the needs of the agency.

Matter of: Sturm, Ruger & Company File: B-250555 Date: February 2, 1993

PROCUREMENT Bid Protests GAO procedures Protest timeliness 10-day rule Protest challenging the evaluation of protester's bid samples is dismissed as untimely because it was not filed within 10 working days after the protester learned the bases for its objection to the evaluation. PROCUREMENT Specifications Minimum needs standards Competitive restrictions GAO review Protest challenging the agency's acceptance of the awardee's bid samples for automatic weapons is denied where agency reasonably interpreted the specification in a nonrestrictive manner as a functional description which did not limit the design of bolt operation and locking systems to two particular types and where the protester does not argue that the awardee's weapon is not capable of meeting the needs of the agency.

Attorneys

DECISION Sturm, Ruger & Company protests the award of a contract to Heckler & Koch, Inc. (H&K) under invitation for bids (IFB) No. DEA-92-R- 0021, issued by the Drug Enforcement Administration (DEA) for 5.56mm carbines--a type of automatic weapon used by special agents of DEA. The protester alleges that its bid was improperly rejected and that the awardee's bid was nonresponsive.

We dismiss the protest in part and deny it in part.

The IFB was issued on April 30, 1992, and sought a requirements type contract for the weapons for a base period from October 1, 1992 through September 30, 1993, and for 4 option years. Section C of the solicitation set forth specifications relating to the carbines. Bidders were required to submit representative samples of the carbines they proposed to furnish. These samples were first to be physically tested for, among other things, conformity to the section C specifications and bidders were advised that failure of their samples to conform to the specifications would cause their bids to be rejected as nonresponsive without an opportunity for further live-fire testing.

The following four bids were received by the July 14 opening date:

Ruger $ 556,152.80 Colt $ 769,070.80 H&K $1,215,640.00 FN Mfg. $1,936,250.00

On August 4, Ruger was advised that its bid was determined to be nonresponsive because its samples failed to pass the physical testing requirements. The bid of Colt was found to be nonresponsive under the same set of physical tests. FN's bid was rejected because it failed to submit the required number of samples. H&K's samples passed the physical test requirements and further live-fire testing and the firm was awarded a contract on September 17. On September 21, Ruger was debriefed concerning the five areas in which its samples were determined to be noncompliant with the specifications and this protest was filed on September 28.

Ruger argues that DEA misevaluated its samples and that H&K's bid was nonresponsive because the carbine offered by the awardee does not comply with the specifications relating to the operation of the bolt mechanism. For the reasons set forth below, we dismiss the protest concerning the evaluation of Ruger's samples and deny the portion of the protest concerning the nonresponsiveness of H&K's bid.

RUGER'S SAMPLES

DEA rejected Ruger's bid samples for the following five reasons:

(1) The low light sight system did not permit alignment of the weapon's front sight post with the rear sight in low ambient light conditions as required by paragraph C.10;

(2) the dimensions of the firing chamber on one of the samples were outside specified tolerances as set forth in paragraph C.3.1;

(3) the rear sight of one of the samples could not be adjusted to allow the weapon to be aimed with the accuracy specified in paragraph C.22;

(4) the samples were not finished with a nonreflective coating as required by paragraph C.13; and

(5) the samples were not constructed in a manner so that they could be fired only in a semi-automatic mode as required by paragraph C.4.

Ruger received a debriefing concerning all of these deficiencies on September 21; however, in its protest filed on September 28, Ruger only challenged DEA's conclusions with respect to the inability of its samples to fire only in a semi-automatic mode. Ruger did not present its challenges to DEA's conclusions with respect to the other four deficiencies until it filed its comments on the agency report on November 19.

With the exception of protests involving apparent solicitation defects, our Bid Protest Regulations require that protests be filed within 10 working days after the basis of the protest is known or should have been known. 4 C.F.R. Sec. 21.2(a)(2) (1992). Where a protester initially files a timely protest and later supplements it with new and independent grounds of protest, the new allegations must independently satisfy the timeliness requirements since our Regulations do not contemplate the unwarranted piecemeal presentation of protest issues. Mennen Med., Inc., B-246764 et al., Apr. 2, 1992, 92-1 CPD Para. 341. Thus, Ruger's allegations with respect to four of the DEA's reasons for rejecting its bid are dismissed as untimely since they were not filed within 10 working days of the September 21 debriefing--the date on which the protester learned of them.

Since, under the terms of the IFB, failure of the samples to conform to any of the specification requirements in section C provided a sufficient basis for rejecting the bid and since we have no basis to object to the agency's conclusions with respect to the first four listed deficiencies which resulted in Ruger's rejection, resolution of the protester's allegation relating to the ability of its carbines to fire only in a semi- automatic mode has no practical consequence to the propriety of the rejection of Ruger's bid and, therefore, we will not consider the issue further. See Southgate Servs., B-246758, Mar. 20, 1992, 92-1 CPD Para. 300.

H&K'S BID

H&K offered its model 53 carbine under the IFB. This carbine is described by the agency and the awardee as having a bolt which is operated by use of a "delayed-blowback" system; also, according to the agency and the awardee, the bolt of the H&K 53 does not rotate.

Ruger contends that the use of a "delayed-blowback" system of bolt operation renders the H&K 53 noncompliant with paragraph C.3.4 of the specification, which provides in pertinent part:

"The carbine shall function with a gas/recoil operated, rotating and/or locking bolt to securely lock the cartridge in the chamber prior to firing."

More specifically, Ruger asserts that the "blowback" system of the type employed by H&K to operate its bolt is separate and distinct from the "gas operated" or "recoil operated" bolt systems called for in the specification, as those terms are used in the firearms trade. In addition, Ruger asserts that the H&K 53 does not have a bolt which mechanically locks. In the protester's view, either of these characteristics means that the H&K 53 is noncompliant and that the awardee's bid is nonresponsive.

DEA states that paragraph C.3.4 was written as a functional specification to promote full and open competition and was not intended to limit bidders to any specific system of bolt operation. According to the agency, its only requirement was that the weapon function by virtue of the gas produced by the and/or recoil of the cartridge firing. DEA states that the "delayed-blowback" system of bolt operation is a form of "gas-operated" weapon. It also states that the H&K 53 has the required locking bolt. In this regard, the agency points out that the H&K 53 cannot fire if the bolt is not locked and says that it fired the awardee's carbine approximately 24,000 times without incident.

Both parties have submitted statements from experts as well as technical literature in support of their respective positions.

Drafting specifications to meet the government's minimum needs and determining whether an offered product meets those needs are primarily the responsibilities of the contracting agency. Digital Equip. Corp., B-219435.2, Nov. 26, 1985, 85-2 CPD Para. 600. Our role in reviewing an agency's interpretation of its specifications and its determination that an offered product meets those specifications is to determine whether they had a reasonable basis. Id.

Where a dispute exists as to the actual meaning of a solicitation requirement, we will resolve the matter by reading the solicitation as a whole and in a manner which gives effect to all of its provisions; we will not read a provision restrictively where it is not clear from the solicitation that such a restrictive interpretation was intended by the agency. Aztek, Inc., B-245626, Jan. 17, 1992, 92-1 CPD Para. 91.

Applying those standards here, we have no basis for disturbing DEA's conclusion that H&K's carbine was compliant with paragraph C.3.4.

We have considered the materials presented by the parties and find that common to all of them is the premise that, in order to sustain automatic fire, a weapon requires energy to power a sequence of functions including: loading the firing chamber; igniting the propellant in the cartridge to fire the projectile (bullet); extracting the spent cartridge; and reloading to begin the sequence again. The source of energy is either the high-pressure gas created by the rapid combustion of the propellant charge, or the recoil which is caused by the reaction to the momentum of the bullet as it accelerates up the barrel.

The harnessing of these basic energy forces to perform the functions necessary to sustain automatic fire is accomplished through a number of differently designed systems. According to industry practice, the differently designed systems fall into three rather broad categories: "gas," "recoil" and "blowback." The categories also have subcategories, e.g., "simple-blowback" and "delayed-blowback."

In a "gas" type weapon, the pressurized gas is tapped off through a port to act upon a piston which supplies the energy needed to operate the bolt, whereas in a "blowback" type weapon the energy is supplied directly by the gas pressure on the bolt to move it backwards. Thus, as we understand it, weapons such as the H&K 53, which use a "delayed blowback" system, in fact use the energy of the gases produced to operate. Despite the fact that gas is the source of the operating energy in both systems, it appears that, as the protester argues, the industry does generally classify each as a separate type of weapon. Even though paragraph C.3.4 of the IFB does not specify the "blowback" type of weapon for the reasons set forth below, we find that DEA acted reasonably in concluding that the H&K model 53 was acceptable.

The specification, which was entitled "OPERATION," states that the weapon "shall function with a gas/recoil operated bolt." We think that the wording of the specification supports DEA's position that it was intended to set forth the method of operation of the weapon's bolt from a purely functional standpoint, rather than from the prospective of a particular design or industry classification.

When viewed from this purely functional prospective H&K's "blowback" system is in fact "gas-operated." We recognize, as the protester argues, that in the trade, a gas-operated weapon may use a differently designed mechanism than does a "blowback" operated weapon. Nevertheless, we think that DEA intended by the use of the term "function" in its specification to describe the generic source of the energy to operate the system rather than to limit its requirements to one of at least two systems designed to operate by gas energy. Since the broader reading is a reasonable one considering the wording of the specification and is consistent with the agency's needs, we do not agree with the more restrictive interpretation championed by the protester. In this connection, it is significant that the protester has not argued that any of the characteristics of the H&K "delayed blowback" design make the weapon unsuitable for DEA's proposed use. Therefore, we have no legal basis upon which to interfere with DEA's technical judgment that H&K's weapon was compliant with the portion of paragraph C.3.4 concerning the "gas/recoil operated" bolt.

Likewise, with respect to whether H&K's bolt "locks" the cartridge securely in the chamber, as required by paragraph C.3.4, we find no basis for adopting the protester's restrictive interpretation that only a mechanically locking bolt (of the type used in "gas" and "recoil" systems) meets this requirement. The term "mechanically locking" is not used in the specification; rather, the specification requires that the carbine shall "function" with a bolt capable of securely locking the cartridge in the chamber prior to firing. The record shows that H&K's "delayed-blowback" system employs rollers which expand to fit into recesses in the barrel when a cartridge is chambered for firing. The rollers do not retract from those recesses until after the weapon is fired; thereafter, the bolt is free to move backwards by gas pressure and accomplish the rest of the functions necessary to sustain automatic fire. Both parties have submitted technical literature which describes the roller system employed by H&K as a "locking system," and the agency has presented information indicating that the "weapon cannot fire if the bolt is not fully locked." The record shows the H&K weapon was successfully fired approximately 24,000 times by DEA without incident.

We think that it was reasonable for the agency to conclude that the roller system employed by H&K does in fact perform the "function," as described in the specification, of "securely lock[ing] the cartridge in the chamber prior to firing," even though it may not mechanically lock the bolt in the same manner as other systems of bolt operation. Again, since the less restrictive interpretation including roller systems as "locking systems" is reasonable and since the protester does not argue that the H&K roller system is unsuitable for DEA's purposes, we have no basis to disturb the agency's technical judgment that H&K's weapon met the locking requirements as they were set forth in paragraph C.3.4.

The protest is dismissed in part and denied in part.