TITLE: B-311453; B-311453.2, L-3 Communications EOTech, Inc., July 14, 2008
BNUMBER: B-311453; B-311453.2
DATE: July 14, 2008
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B-311453; B-311453.2, L-3 Communications EOTech, Inc., July 14, 2008
Decision
Matter of: L-3 Communications EOTech, Inc.
File: B-311453; B-311453.2
Date: July 14, 2008
W. Jay DeVecchio, Esq., Kevin C. Dwyer, Esq., Daniel E. Chudd, Esq., and
Damien C. Specht, Esq., Jenner & Block LLP, for the protester.
Brian E. Toland, Esq., and Frank V. DiNicola, Esq., Department of the
Army, for the agency.
Sharon L. Larkin, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protester's challenge to the exclusion of its proposal from the
competitive range based on the failure of its bid sample during testing to
satisfy an "essential criteria" is denied, where the solicitation advised
offerors that the failure to satisfy an "essential criteria" would result
in elimination of the proposal from the competition, the agency's testing
method was reasonable and consistent with the solicitation instructions,
and the protester's complaint about the test failure was related to its
inadequately written proposal.
DECISION
L-3 Communications EOTech, Inc. protests the exclusion of its proposal
from the competitive range under request for proposals (RFP) No.
W15QKN-07-R-0428, issued by the U.S. Army Materiel Command for "Close
Combat Optics" to be used with M16A2 rifles. L-3 asserts that the agency
performed flawed testing on its proposed sight and mount and improperly
rejected its proposal.
We deny the protest.
The RFP sought "Close Combat Optics," that is, optical sights with mounts,
to be used as fire control devices on M16A2 rifles, M16A4 rifles, and M4
carbines. RFP sect. C.2. These systems were to be procured through award
of a fixed-price indefinite-delivery/indefinite-quantity (ID/IQ) contract
for a 5-year base period with two 1-year option periods. Id. sect. B. The
RFP instructed each offeror to submit a written proposal, as well as a bid
sample that would be tested against numerous criteria described in the
solicitation.
The solicitation provided for award on a "best value" basis, considering
the evaluation factors of bid sample, quality system,
equipment/production, price, performance risk, and small disadvantaged
business participation. With regard to the bid sample factor, which was
the most important factor, offerors were advised that the bid samples
first would be tested against 15 "essential criteria," each of which would
be rated on a "pass/fail" basis, and only samples that passed all of the
"essential criteria" would be tested against 7 additional "rated
criteria." Id. sect. M para. B. In this regard, section M of the RFP
stated in three places language essentially identical to the following:
A failure in any one or more of the essential criteria as stated shall
be cause for elimination from further consideration for award and [the]
offeror[']s submission will not be further evaluated.
Id. sect. M paras. A, C.1.0, C.1.1.
At issue in this protest is the evaluation of optical sights for the M16A2
rifles. In response to the solicitation, seven proposals and bid samples
from four offerors were submitted for the M16A2 rifles. With the bid
samples, offerors were required to submit commercial off-the-shelf
manuals, each of which included mounting instructions. RFP sect. L;
Mounting Instructions. Six of the samples, including L-3's, failed the
"endurance-live fire" test, which was one of the "essential criteria."[1]
This test required that bid samples be mounted on the M16A2 rifle,
withstand a 6,000 round endurance firing with no physical damage, and
maintain a "zero within 1 Gunner's mil upon completion of [the] endurance
test." Id. sect. M para. C.1.1.10. Based on this failure, the agency
determined that L-3's sample was unacceptable and eliminated L-3's
proposal from the competition. This protest followed.
L-3 contends that the agency's endurance-live fire test was flawed. In
this regard, the protester asserts that the only reason its optical sight
sample failed the endurance-live fire test was because the agency failed
to properly secure the locking nut that tightens the mount to the weapon.
L-3 contends that the agency improperly hand-tightened the nut when it
should have used a tool, such as a hex key, to secure the locking nut
before conducting the test. L-3 asserts that it should have been "obvious"
to the agency that a tool was required from the locking nut's design and
that it is "common knowledge" in the industry that a tool is required for
these types of locking nuts. Protest at 7-8.
Our Office will review an allegedly improper technical evaluation of
product samples to determine whether the evaluation was fair, reasonable
and consistent with the evaluation criteria. We will not make an
independent determination of the merits of an offeror's proposal; rather,
we will review the evaluation record to ensure that the agency's technical
judgment has a rational basis and is consistent with the stated evaluation
criteria. Optical Sys. Tech., Inc., B-296516.2, B-296516.3, Mar. 17, 2006,
2006 CPD para. 63 at 5; Sun Chem. Corp., B-288466 et al., Oct. 17, 2001,
2001 CPD para.185 at 7.
Here, the agency explains that the design of the locking nut (with
"knurled" ridges) on the submitted bid sample suggested to it that
hand-tightening was the appropriate tightening method,[2] and the agency
further explains that its own experience has shown that over-tightening
the locking nut with a tool can damage the optic or optic mount.[3] The
agency also notes that each of the other offerors submitted mounting
instructions that identified when hand-tightening was appropriate, when
tools were required, what tool was to be used, and how to use the tool to
tighten the particular nut, screw, or bolt. For example, when tools were
required, offerors included specific instructions for what component the
tool should be used with and, where appropriate, described the number of
turns or amount of force to be applied.[4] Agency Report at 9, 11-12;
Mounting Instructions. However, with respect to the optical sight for the
M16A2 rifle, L-3's proposal failed to include any instruction that a tool
was required; the proposal merely stated, "Secure the locking nut." Id.
at 7-8; Mounting Instructions at 25. Without such an instruction, the
agency or user could reasonably conclude that hand-tightening L-3's
knurled ridge locking nut was the appropriate method to secure the sight
mount.[5]
As we have often stated, an offeror must submit an adequately written
proposal or it runs the risk of having its proposal rejected as
unacceptable. Dynamic Mktg. Servs., Inc., B-279697, July 13, 1998, 98-2
CPD para. 84 at 6. Here, the complaint raised by L-3 concerning the
endurance-live fire test was the result of its failure to identify how its
locking nut was to be tightened, and not because of agency error. Under
these circumstances, we cannot find the agency's testing approach
unreasonable. [6]
L-3 nevertheless asserts that its test failure was not design related, but
was the result only of a "minor informational deficiency" that could have
been corrected easily by asking L-3 whether a tool was required to
properly tighten the nut. L-3 contends that given this minor issue and the
fact that this was the only one of the "essential criteria" that its
sample failed to satisfy, the agency should allow L-3 to correct the
informational deficiency and repeat the pass/fail test, especially because
the failure to do so resulted in the establishment of a competitive range
of one. Supp. Protest and Comments at 9.
Federal Acquisition Regulation (FAR) permits an agency to limit the
competitive range to only the "most highly rated proposals" and does not
require that discussions be held with offerors that are not included in
the competitive range.[7] FAR sections 15.306(c)(1), (d)(1). We have held
that there is nothing inherently improper in a competitive range of one
where the agency has a reasonable basis for its competitive range
determination. M&M Investigations, Inc., B-299369.2, B-299369.3, Oct. 24,
2007, 2007 CPD para. 200 at 3. As indicated above, this RFP clearly
established the ground rules for testing the samples as well as the
consequences--"elimination from further consideration for award"--for
offerors whose proposed bid sample failed any one of the 15 "essential
criteria." Given these ground rules, we cannot find unreasonable the
agency's decision to exclude L-3's proposal and bid sample from the
competitive range where, as here, the proposal failed an "essential
criteria" test and the only complaint about this failure is related to
L-3's inadequately drafted proposal, and not because of agency error or
flawed testing.[8] See California Microwave, Inc., B-229489, Feb. 24,
1988, 88-1 CPD para. 189 at 6.
L-3 also asks us to consider that the optical sight of the only offeror in
the competitive range (Aimpoint) experienced test failures, which require
design changes that L-3 asserts are more significant than the
informational deficiency that caused L-3's test failure. However, the test
failures experienced by the Aimpoint bid sample occurred with the "rated
criteria," which, as defined by the RFP, were only evaluated after the bid
sample passed all of the "essential criteria"; Aimpont's bid sample passed
all of the "essential criteria." In contrast, L-3's failure occurred under
the "essential criteria" and required no further evaluation. The agency
has persuasively explained why the Aimpoint test failures were easily
correctible without a need to retest the optical sight under these
"essential criteria," and, since the RFP allowed for discussions to occur
on "rated criteria" failures, we find no error in the agency's actions
here.
In sum, we find that L-3's proposal was properly eliminated from the
competitive range in accordance with the unambiguous ground rules of the
RFP.
The protest is denied.
Gary L. Kepplinger
General Counsel
------------------------
[1] Four of the six samples that failed the endurance-live fire test also
failed multiple other "essential criteria." Agency Report, Tab 6.1., Final
Technical Evaluation, at 1-2.
[2] We recognize, as L-3 points out, that five of the seven bid sample
mounting instructions make some reference to using a tool, but none of
these optical sights contained knurled ridge locking nuts of the type on
L-3's optical sight. Thus, the fact that some offerors may have instructed
that tools be used does not evidence that the agency should have inferred
that a tool should have been used to mount L-3's optical sight to the
M16A2 rifle here.
[3] L-3 disputes the agency's contention that over-tightening damages the
optics system, but has provided no evidence to support its argument.
[4] The offerors' mounting instructions also illustrate that each bid
sample was uniquely designed and contained different parts and tightening
requirements. In other words, no common approach or industry standard is
apparent.
[5] To the extent that L-3 challenges the agency's ability to consistently
and rationally apply a hand-tightening method, the agency has explained
the steps that it took to ensure consistency, and we find this approach to
be reasonable. See Declaration of Optical Engineer, at 1-2.
[6] L-3 asserts that flaws in the testing should have been evident because
six of seven bid samples failed the endurance-live fire test, and because
L-3's optical sight of the M4 carbine passed the test. Supp. Protest and
Comments at 10. However, as stated above, the record shows that with
regard to the M16A2 rifle, each offeror proposed unique and different
sights and mounts, and each offeror provided different mounting
instructions. With regard to M4 carbine testing, L-3 provided different
mounting instructions to the agency than it provided for the M16A2 rifle,
and the M4 carbine also is of a different design. Mounting Instructions
at 24-25. L-3 has not shown that the test was flawed.
[7] Although L-3 asserts that any confusion about its mounting
instructions could have been resolved through "clarifications," Supp.
Protest and Comments at 15, the agency was under no obligation to conduct
clarifications with L-3 here, particularly considering that they were the
result of an inadequately written proposal. FAR sect. 15.306(b)(2);
Government Telecomms., Inc., B-299542.2, June 21, 2007, 2007 CPD para. 136
at 8 (agency has discretion to not seek clarifications).
[8] L-3 cites to our line of "benchmark" cases where we have emphasized
the need for flexibility in the conduct of "benchmark" and other
demonstration tests, and where we have stated that deficiencies should be
pointed out and corrected during the negotiation process to ensure maximum
competition. See, e.g., CRX Telecom, B-249610, B-249610.5, Apr. 9, 1993,
93-1 CPD para. 308 at 11. However, in CRX Telecom and similar cases, the
"benchmark" tests were deemed to be "an inherent part of the negotiation
process" where discussions were required, id. at 11, unlike here where the
RFP specifically stated that bid samples that failed "essential criteria"
would be rejected and not included in the competitive range. Thus, the
facts here are more similar to our line of cases that require only that
product testing be conducted fairly and consistent with the RFP, as we
found was done here. See, e.g., Optical Sys. Tech., Inc., supra, at 5;
Pride Mobility Prods. Corp., B-291878, Apr. 8, 2003, 2003 CPD para. 80 at
3.