Link: GAO Opinion
Agency: Department of the Army
Disposition: Protests denied.
Keywords: Terms of the Solicitation
General Counsel P.C. Highlight: Where an RFP requirement relates to national defense or human safety, an agency has the discretion to define solicitation requirements to achieve not just reasonable results, but the highest possible reliability and/or effectiveness.
RSL Electronics Ltd. protests the terms of a request for proposals (RFP), issued by the Department of the Army, for muzzle velocity sensor systems (MVSS), and the award of a contract under the RFP.
The solicitation provided for the award of an indefinite?delivery, indefinite?quantity (ID/IQ) contract, with fixed-price delivery orders, for MVSS kits and component parts. The RFP stated that award would be made to the offeror submitting the lowest-priced, technically acceptable proposal. The solicitation provided that the offerors’ technical submissions were to consist of two “bid samples” that would be tested in accordance with the solicitation’s bid sample test plan. The RFP added that the bid sample tests would be comprised of eight “test events” derived from the RFP’s specifications, which all must be passed in order to be considered technically acceptable.
The bid sample of RSL passed seven of the bid sample test events, but failed the muzzle velocity measurement accuracy event. The agency selected another proposal, which was evaluated as technically acceptable, for award, and rejected RSL’s proposal because of the failure of its MVSS unit to pass the muzzle velocity measurement accuracy test event. RSL filed a protest arguing that the Army’s conduct of the bid sample test, and its conclusion that RSL’s MVSS failed the test, were inconsistent with the terms of the solicitation and unreasonable. The agency agreed to take corrective action to issue an amendment to the solicitation “clarifying the solicitation requirements,” and “then re?evaluate proposals and issue a new award decision.”
The amendment, issued as part of the agency’s corrective action, provided for the “retesting of participating Offeror’s proposed MVSS units” solely with regard to the muzzle velocity measurement accuracy bid sample test event on the one particular gun platform, which RSL and the other offeror had previously been found to have failed. The amendment specified that the MVSS must meet the performance specification’s requirements for accuracy on each shot/round fired during the retest, and that “a failure to meet the specified accuracy requirement on any of the test shots/rounds fired will result in the failure of this bid sample test event.” Finally, as described further below, the amendment clarified the use and applicability of a “troubleshooting phase” to the bid sample test event. RSL filed another protest arguing that numerous terms of the RFP, as amended, “makes the test unreasonable, irrational and arbitrary.”
RSL participated in the bid sample testing. RSL’s MVSS passed the first day of the muzzle velocity measurement accuracy bid sample test. However, according to RSL, during the second day of testing, “RSL’s MVSS reported muzzle velocity that significantly deviated from the expected velocity” for the first two rounds fired, and “[b]ecause it was clear to both the Army and RSL that something was wrong, RSL requested that it be permitted to troubleshoot before continuing the test.” RSL was allowed to troubleshoot its MVSS, and after having “successfully troubleshot its MVSS,” was informed by the agency personnel that the “two rounds that were at variance with expected velocity . . . would count towards RSL’s score.” RSL successfully completed the remainder of the test.
RSL filed a supplemental protest, arguing that the agency’s conduct of the muzzle velocity measurement accuracy bid sample test was “unreasonable, irrational and arbitrary” for many of the same reasons it had argued in its previous protest challenging the terms of the RFP as they related to the conduct of the test. RSL also argues that the Army’s decision to count the two rounds, which were not recorded accurately by RSL’s MVSS, and which necessitated troubleshooting by RSL, was unreasonable. After being informed by the agency that its proposal had been found unacceptable, given RSL’s MVSS’s failure of the muzzle velocity measurement accuracy bid sample test, and that award had been made to another offeror, RSL filed another protest with GAO. This protest again repeated the arguments raised in RSL’s two pending protests, and asserted for the first time that “[t]he history of this procurement, and in particular, the Army’s repeated failure to conduct its bid sample testing in a reasonable manner, reflect a strong bias against RSL.”
RSL contends that the RFP’s requirement that the MVSS units must achieve 100% accuracy during the muzzle velocity measurement bid sample test is in excess of the agency’s needs. GAO states that it will review testing requirements using the same standard applicable to any other challenge of a solicitation’s evaluation procedures; the establishment of testing or qualifications procedures or standards is a matter within the technical expertise of the procuring activity, and GAO will not object to the imposition of certain terms, such as the requirement here for 100-percent accuracy rate during testing or the restriction of the troubleshooting phase to certain circumstances, unless they are shown to be without a reasonable basis. Where, as here, a requirement relates to national defense or human safety, an agency has the discretion to define solicitation requirements to achieve not just reasonable results, but the highest possible reliability and/or effectiveness. A protester’s mere disagreement with the agency’s judgment concerning its needs and how to accommodate them does not show that the agency’s judgment is unreasonable.
The agency explains that the “measurement data taken from MVSS units will be used directly by the guns’ fire control systems which the gun crews rely upon to assess the precision, accuracy and effectiveness of their gun system,” and that, “[i]n effect, gun crews will use the muzzle velocity measurement readings from their MVSS units to ultimately ensure that they are hitting intended targets or whether they need to adjust their fire to do so.” The agency adds that “the MVSS data gets used by the guns’ fire control systems to set up the ballistics information for subsequently fired rounds,” and that “if there is an inaccurate MVSS measurement, that errant velocity measurement data is carried forward and used by the fire control system in plotting ballistics for the round after it.” This inaccurate data “potentially [has] a cumulative effect of increasing the likelihood of a fired round either falling short of or over-shooting its intended target,” which in either case “significantly increas[es] the chances of fratricide and/or striking civilian?populated areas.” As simply put by the agency, “[t]he projectiles fired by these gun systems are extremely lethal, and . . . go where they are aimed and inflict damage no matter who or what happens to be in the way at ground zero once they arrive at their designated target area,” and it is “therefore crucial that a gun crew have the most exact and accurate MVSS readings possible.” The agency concludes the 100-percent standard for the muzzle velocity measurement accuracy bid sample test was established “to meet the Government’s need to provide the Warfighter with a reliable and highly effective MVSS system that will allow for proper aiming and functioning of the . . . howitzer gun systems during field use.”
GAO finds that the agency report reasonably explains the need for MVSS units that can achieve the highest level of accuracy possible and the potential dangers should the solicitation allow for the supply of less accurate units. Therefore, GAO finds reasonable both the RFP’s requirement that the MVSS units accurately measure the muzzle velocity of the projectiles fired 100% of the time, and the applicability of the troubleshooting phase to only those circumstances set forth in the solicitation.
GAO also finds reasonable the agency’s conduct of the MVSS bid sample test, and determination that RSL’s MVSS, which as set forth above failed to accurately record projectiles’ velocity on two occasions, was technically unacceptable. GAO states that the evaluation of proposals is primarily a matter within the contracting agency’s discretion, since the agency is responsible for defining its needs and the best method of accommodating them. In reviewing an agency’s evaluation, GAO will not reevaluate proposals, but will examine the record of the evaluation to ensure that it was reasonable and consistent with the stated evaluation criteria as well as with procurement law and regulation.
The record establishes, and RSL concedes, that its MVSS failed to accurately record the projectiles’ velocity on two occasions during the second day of the muzzle velocity measurement accuracy bid sample test. With regard to the applicability of the troubleshooting phase to the test of RSL’s MVSS, the record also establishes, and RSL concedes, that its MVSS did in fact record muzzle velocity measurements for the two occasions at issue. GAO agrees with the agency that it was inconsistent with the terms of the RFP to allow RSL to troubleshoot its system, and that it would have been inconsistent with the terms of the solicitation to exclude the two inaccurate muzzle velocity measurements from the test results. In sum, the record reflects that the agency’s conclusions that the inaccurate readings provided by RSL’s MVSS on two occasions during the muzzle velocity bid sample test were required by the terms of the solicitation to be considered by the agency, and ultimately rendered RSL’s proposal technically unacceptable, were consistent with the terms of the RFP. The protests are denied.