Link: GAO Opinion
Agency: Department of the Army
Disposition: Protest dismissed.
Protest challenging agency’s body armor testing, which is based on findings contained in a Department of Defense Inspector General Report, is dismissed where the findings contained in the report do not reasonably support a conclusion that the protester suffered any prejudice in the testing of its body armor, which ultimately failed testing.
General Counsel P.C. Highlight:
The protester challenges the testing methodology and procedures used by the agency in its pre-award body armor testing, and also alleges that post-award changes to body armor testing requirements reflect unequal treatment of offerors. GAO states that, as a general matter, an agency may not make an award, then immediately modify or waive material requirements included in the solicitation which formed the basis of the competition; rather, awards must be based on the requirements and criteria disclosed in the solicitation. Offerors are prejudiced where they might have been able to meet the agency’s needs if afforded an opportunity to compete based on the relaxed requirements. Here, there is nothing to reasonably suggest that the Army has relaxed the first article testing requirements.
First, the statements by the Army and the Director of DOT&E, on which Armorworks relies, must be read in their proper context. They were made in response to the particular concerns articulated in the IG Report to the effect that the body armor testing procedures and results were not sufficiently reliable because certain body armor that passed testing in fact should be regarded as having failed the testing. GAO sees no basis to conclude that Armorworks, whose body armor failed the PDM testing, could have been prejudiced in connection with the findings in the IG Report since they address the improper passing of tested body armor.
Moreover, the agency’s response regarding efforts to change testing were directed toward taking measures to ensure a higher level of confidence in the protective capability of the body armor that passes testing. By way of example, regarding the new standards, the Director for DOT&E explains that it is “DOT&E’s goal to develop a [first article test]-like protocol that requires a 90% lower confidence limit on a reliability of 90% that the material under test passes the requirement (a ’90/90′).” This responds to concerns in the IG Report indicating that the first article testing methodology at issue reflected “a 20% chance that at least 36% of the plates will not be detected as failures.” Thus, the responses to the report clearly evidence the fact that the intended changes are designed to more effectively identify body armor which does not meet agency requirements–not to relax testing requirements.
In sum, given the context of the IG Report, the responses thereto, and the information otherwise presented by Armorworks, there is no reasonable basis to conclude that any changes to the first article testing requirements could have caused Armorworks any competitive prejudice since Armorworks’s body armor failed testing that, by all indications, the agency now intends to make even more stringent. The protest is dismissed.