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Smith Enterprise, Inc., B-407529, -.2, -.3, December 28, 2012

  • By GCPC GovCon Legal Team
  • April 3, 2013
  • Competitive RangePrejudice

Link:         GAO Opinion

Agency:    Department of the Navy

Disposition:  Protest denied.

Keywords:   Competitive Range; Prejudice

General Counsel P.C. Highlight:

GAO denied the protest of Smith Enterprise, Inc. regarding the exclusion of its proposal from the competitive range under a request for proposals (RFP), issued by the Department of the Navy for research and development services relating to gun muzzle suppressor technology.

The RFP provided for the award of fixed-price, indefinite-delivery/indefinite-quantity contracts for research and development of a flash and sound suppressor for the MK48 Mod1 lightweight machine gun. The procurement is the first step in a research and development effort known as the Small Arms Signature Reduction program, under which the agency intended to procure suppression technology for more than 26 types of weapons used by special operations forces. The suppressor (colloquially known as a silencer) suppresses the weapon’s “signature,” that is muzzle flash and noise. The MK48 machine gun was chosen as the first weapon for development of a suppressor, because it was considered the most technically difficult to suppress. A detailed performance specification was provided that described the design and performance requirements of the suppressor for the MK48 machine gun. Offerors were also informed that development of the suppressor was structured in five phases. The RFP provided for the first three development phases, and requested that offerors submit proposals providing their proposed schedule and costs for performing the procurement through the third phase. The RFP informed offerors that the delivery date for the product samples under CLIN 2 was 90 days after contract award. Finally, the RFP provided that award would be made on a best value basis, considering the following evaluation factors: technical evaluation, past performance, and price.

Here, the basis for the agency’s exclusion of Smith’s proposal from the competitive range was the proposal’s significantly higher price. The record showed that Smith was the only offeror that proposed to satisfy the RFP’s delivery schedule for the phase two product samples. After exclusion of Smith’s proposal from the competitive range, the agency amended the RFP to relax the delivery schedule. Smith argued that the agency improperly relaxed the delivery requirement without giving it an opportunity to compete for the agency’s actual requirements. Smith contended that its price would have been significantly lower if it had not had to provide the phase two product samples within 90 days. Specifically, Smith argued that its proposed price would have been less than FN’s awarded price.

GAO found that it should have been reasonably apparent to the Navy that the relaxation of the delivery schedule could affect the firms’ proposed prices and that the Navy should have allowed Smith an opportunity to provide a revised proposal that met the relaxed delivery schedule. However, GAO ultimately found that Smith was not competitively prejudiced by the agency’s actions. Smith’s original claim was that its proposed price was high because it was based on a misunderstanding of the amount of available government funding. After it was revealed its understanding was not mistaken, Smith withdrew that claim and asserted its high price was due to the delivery schedule. Due to Smith’s earlier assertion, coupled with the lack of any documentary support for its second assertion, GAO was not persuaded.

The protester also challenged the “major weakness” evaluated in its proposal for “limited innovation” under the innovative technology subfactor, arguing that its proposed solution demonstrated numerous ways in which its suppressors “significantly improved the current state of suppression technology.” Smith identified seven technological aspects/design features of its suppressors that, according to the protester, demonstrate its innovative design. The record though, including the agency’s detailed explanation, supported the agency’s judgment that Smith’s proposal reflected a lack of technical innovation. Although the protester disagreed with the Navy, GAO found that the protester has failed to show that the agency’s determination was unreasonable.

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