BNUMBER:  B-278319; B-278319.2 
DATE:  January 15, 1998
TITLE: Electro-Voice, Inc., B-278319; B-278319.2, January 15, 1998
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Matter of:Electro-Voice, Inc.

File:     B-278319; B-278319.2

Date:January 15, 1998

Larry King for the protester.
James J. McCullough, Esq., Anne B. Perry, Esq., Nancy R. Wagner, Esq., 
and Joel R. Feidelman, Esq., Fried, Frank, Harris, Shriver & Jacobson, 
for Specialty Plastic Products of PA, Inc., the intervenor.
Vera Meza, Esq., and Richard R. Mobley, Esq., Department of the Army, 
for the agency.
Henry J. Gorczycki, Esq., and James A. Spangenberg, Esq., Office of 
the General Counsel, GAO, participated in the preparation of this 
decision.

DIGEST

1.  Restriction on protests of orders placed under delivery order 
contracts contained in 10 U.S.C.  sec.  2304c(d) (1994) does not apply to 
protests of downselections implemented by the placement of a delivery 
order under a multiple award delivery order contract, resulting in the 
elimination of one of the contractors from consideration for future 
delivery orders.

2.  Agency's testing and evaluation of helmet communications headsets 
for hearing protection is reasonable and consistent with the terms of 
the solicitation where the agency conducted its tests in accordance 
with the testing standards prescribed in the solicitation.

3.  Agency's failure to reasonably evaluate one performance 
characteristic in downselecting among two contractors to supply 
helmets is not prejudicial to the protester, which proposed a 
significantly higher price, where the record shows that the selected 
contractor's helmet was, in fact, superior with regard to this 
performance characteristic, such that the protester's overall marginal 
technical advantage was not affected by this unreasonable element of 
the evaluation.  

4.  Agency's selection of a similar rated, but significantly lower 
priced, contractor is reasonable where the best value selection plan 
considered technical considerations and price of equal importance.

DECISION

Electro-Voice, Inc. protests the selection of Specialty Plastic 
Products of PA, Inc. by the U.S. Army Soldier Systems Command, Natick, 
Massachusetts, to proceed with the production of Advanced Combat 
Vehicle Crewman (ACVC) helmets with communications systems under a 
delivery order contract awarded pursuant to request for proposals 
(RFP) No. DAAK60-97-R-9617.

We deny the protests.

These protests concern the downselection (i.e., the selection of one 
of multiple contractors for continued performance) of Specialty 
Plastic instead of Electro-Voice, both of which firms had received 
awards of indefinite delivery/indefinite quantity contracts for the 
helmets.  The initial line item that was ordered under the contracts 
was the production and delivery of four product demonstration models 
(PDM) for testing in the downselection process.  The RFP indicated 
that the downselection would be on a best value basis considering 
certain specified factors, including cost and technical performance of 
the PDM helmets and communications headsets.

The technical requirements for the helmets and headsets were stated in 
Purchase Description A3261199 dated March 14, 1997, which was 
incorporated into the RFP.[1]  Of particular relevance to this protest 
is the requirement for hearing protection, i.e., physical ear 
attenuation, at section 3.5.2 of the purchase description, which 
states:

     The headset shall attenuate vehicle noise to a maximum of 85 
     dBA[2] from 63 to 8000 Hz when tested [in accordance with (IAW) 
     section] 4.6.5.2.

Section 4.6.5.2 stated the following testing methodology:

     The physical ear attenuation shall be tested IAW ANSI/ASA 
     S12.42-1995 for 1/3 octave bands from 63 Hz to [8000 Hz]. . . .  
     The production test sound field shall be the M1 Abrams at 110 
     dBA.  Test to show compliance with [section] 3.5.2.

The referenced ANSI/ASA standard is published by the Acoustical 
Society of America and prescribes testing methodologies for 
determining hearing protection.

Under the PDM delivery orders, Electro-Voice and Specialty Plastic 
were also to provide verification test data demonstrating the 
performance characteristics of their PDMs.  Section M-4.1(d) of the 
RFP stated that the agency would test and evaluate PDMs using 
contractor supplied information and data.

The data submitted by both contractors evidenced that their respective 
PDMs satisfied the 85 dBA requirement for physical ear attenuation.  
The agency conducted its own tests to verify the reliability of the 
data submitted by the contractors.  The agency first tested the PDMs 
in accordance with ANSI/ASA S12.42-1995, and then converted the 
resulting attenuation measurements for each frequency to a graph 
depicting dBA values for the PDMs on a noise level continuum using a 
formula for estimated exposure level (EEL).[3]  The agency determined 
that its dBA measurements for both contractors' PDMs sufficiently 
approximated the measurement which each contractor stated that its 
PDMs met, so that the contractors' data could be relied upon to 
determine whether each contractor's PDM was technically acceptable.

The source selection evaluation board (SSEB) considered the evaluation 
results that led to the selection of the contractors under the RFP and 
its own test results of the PDMs in making its recommendation as to 
which contractor should be downselected.  In addition to the sound 
attenuation testing, the agency also conducted field tests to evaluate 
the PDMs for other technical criteria.  Using an adjectival scale with 
four ratings--excellent, good, acceptable, and unacceptable--the 
agency rated each contractor's PDMs as follows:

Criterion                   Electro-Voice   Specialty Plastic

Comfort & Fit               Excellent       Good

Durability/Reliability      Acceptable      Acceptable

Operational Effectiveness   Good            Good

Logistics/Maintainability   Excellent       Acceptable

Weight                      Acceptable      Acceptable

Sound Attenuation           Good            Excellent

System Safety               Good            GoodOverallGoodGood

Unit Price                  $661.72         $443.98
The rating for sound attenuation was assigned based on the sum of the 
differences between each contractor's attenuation measurements at 
three selected frequency levels and the respective Physical Ear 
Attenuation Test (PEAT) requirement values for those levels.[4]  
Ratings for this criterion were assigned based on the sum of the 
differences:  the higher the sum, the higher the rating.

Overall, the contractors were assigned the same technical rating for 
the PDMs because, although the SSEB determined that the results at the 
criterion level showed that Electro-Voice's PDMs offered some marginal 
advantage in technical performance, it determined that the qualitative 
differences between the PDMs was not significant.  The SSEB determined 
that any marginal technical advantage of Electro-Voice's helmet and 
headset was not worth the additional 33-percent price premium, and 
recommended selecting Specialty Plastic as the production 
contractor.[5]

The source selection authority reviewed and accepted the SSEB's 
recommendation.  On September 29, the Army issued a delivery order for 
10,015 helmets to Specialty Plastic.  Electro-Voice received a 
debriefing on October 6.  These protests followed.

As a preliminary matter, Specialty Plastic contends that our 
consideration of the protests of the downselection decision is 
precluded by 10 U.S.C.  sec.  2304c(d) (1994), which provides that "[a] 
protest is not authorized in connection with the issuance or proposed 
issuance of a task or delivery order except for a protest on the 
ground that the order increases the scope, period, or maximum value of 
the contract under which the order is issued."

We do not find this position persuasive, because there is no evidence 
that the provision is intended to preclude protests of downselection 
decisions implemented by the issuance of an order under a task or 
delivery order contract.  The above restriction on protests was 
included in the Federal Acquisition Streamlining Act of 1994 (FASA),  sec.  
1004, Pub. L. No. 103-355, 108 Stat. 3243, 3252-53 (1994), as part of 
FASA's treatment of task and delivery order contracts.  The 
legislative history concerning the provisions of FASA treating task 
and delivery order contracts indicates that they were intended to 
encourage the use of multiple award order contracts, rather than 
single award order contracts, in order to promote an ongoing 
competitive environment in which each awardee was fairly considered 
for each order issued.  H.R. Conf. Rep. No. 103-712, at 178 (1994), 
reprinted in 1994 U.S.C.C.A.N. 2607, 2608; S. Rep. No. 103-258, at 
15-16 (1994), reprinted in 1994 U.S.C.C.A.N. 2561, 2575-76.  We have 
held that the protest restriction does not apply where the nature of 
the protested order contract is not that which could have been 
contemplated.  See Severn Co., Inc., B-275717.2, Apr. 28, 1997, 97-1 
CPD  para.  181 at 2-3 n.1 (protests of orders placed under Federal Supply 
Schedule contracts are not precluded by 10 U.S.C.  sec.  2304c(d)).  

Here, the delivery order contracts issued to Electro-Voice and 
Specialty Plastic contemplated orders to both contractors only for the 
initial delivery of the PDMs for the downselection process; once the 
downselection decision was made, only the selected contractor would 
receive orders for the agency's production requirements.  That is, 
once the downselection of a contractor is made, there will be no 
ongoing competition for orders among the multiple award contractors as 
envisioned by FASA.  The placement of the delivery order for the 
initial production quantity of helmets was merely the vehicle that 
implemented the downselection decision.  Therefore, the restriction on 
protests of the placement of orders contained in 10 U.S.C.  sec.  2304c(d) 
does not bar Electro-Voice's protest of the downselection decision.  

In cases where the terms of existing contracts are used to conduct a 
competition resulting in the elimination of contractors as sources for 
the agency's requirements for the duration of the contracts in 
question, as is the case here, we will consider protests concerning 
that competition and selection decision.  Mine Safety Appliances Co., 
69 Comp. Gen. 562, 564 (1990), 90-2 CPD  para.  11 at 4 (downselection 
implemented by the exercise of a contract option).

Electro-Voice alleges that the method which the agency used to 
evaluate sound attenuation was not consistent with the purchase 
description and was unreasonable.  Electro-Voice also alleges that the 
agency unreasonably evaluated the experience of Specialty Plastic's 
headset subcontractor, and placed too much significance on price in 
the downselection decision.

In considering protests against an agency's evaluation, we will not 
evaluate competing technical solutions anew in order to make our own 
determinations as to their acceptability or relative merits.  Id. at 
6.  However, we will examine the record to determine whether the 
evaluation was fair, reasonable, and consistent with the stated 
evaluation factors.  Id.   

Here, the agency evaluated sound attenuation according to the 
requirements stated in the purchase description (except for its 
evaluation using the PEAT values discussed below).  As indicated, the 
RFP stated that the agency would test and evaluate PDMs using the data 
provided by the contractors.  At the time of the evaluation, the test 
data provided by the contractors was limited and the agency conducted 
its own tests using methodology prescribed under ANSI/ASA S12.42-1995.  
This was the same methodology which the terms of the purchase 
description required contractors to use in compiling the verification 
test data to be provided to the agency.  The results of this test 
methodology was a sound attenuation measurement stated in dB units for 
each frequency prescribed by the ANSI/ASA standard.  Since the 
attenuation requirement stated in the purchase description was 85 dBA, 
the ANSI/ASA test results had to be converted to dBA values.  The RFP 
did not prescribe a methodology for this conversion and, in such 
cases, the amended terms of the RFP (at amendment 0002, item 11) 
stated that standard commercial practices, test methodologies, and 
standards should apply.  The agency used the EEL methodology, which 
produced a graph providing the dBA measurement for a contractor's PDM 
across a range of noise levels, including the 110 dBA noise level--the 
required noise environment under which the PDMs had to attenuate noise 
to 85 dBA.  

During the course of this protest, Electro-Voice acknowledged that the 
agency's tests conducted under the stated ANSI/ASA standard appear 
reasonable and consistent with the prescribed methodology; however, it 
alleges that the way the agency used this data in the qualitative 
evaluation of proposals was unreasonable.  In this regard, 
Electro-Voice alleges that the EEL methodology is not a reasonable 
basis for computing an overall dBA measurement.  In its efforts to 
prove this allegation, Electro-Voice applied its own preferred 
methodology using the agency's ANSI/ASA test data of its PDMs.  
However, at the critical 110 dBA noise level, the resulting dBA 
measurement for Electro-Voice's PDMs was nearly identical to the 
agency's EEL-based measurement for these PDMs.  Thus, the protester 
has not shown, and the record does not otherwise establish, that the 
ANSI/ASA and EEL testing and evaluation methodology was unreasonable 
or inconsistent with the terms of the RFP.

Although the protester did not have access to similar data for 
Specialty Plastic's PDMs, the agency states that it consistently 
applied the same test and evaluation methodologies to the PDMs of both 
contractors.  Our Office has reviewed the record in this regard and 
finds no basis to doubt the agency's representations.  The record 
evidences that Specialty Plastic's PDMs performed somewhat better than 
Electro-Voice's in attenuating noise at the 110 dBA level.  Thus, we 
do not find persuasive Electro-Voice's unsupported allegation that its 
PDMs are superior under the sound attenuation criterion.

However, we do find persuasive the protester's allegation that the 
agency unreasonably and arbitrarily used the sum of dB measurements in 
excess of the PEAT requirements for three frequency bands for each 
contractor's PDMs as the basis for the adjectival rating for the sound 
attenuation criterion.  The protester has demonstrated that simple 
addition of dB values does not produce a meaningful measure of 
relative sound attenuation performance, because the analysis of such 
dB measurements requires a logarithmic function--a proposition with 
which the agency does not disagree.  Moreover, since the agency has 
not stated a consistent basis for selecting the three frequency bands 
that it used for this purpose, we cannot find that the selection of 
these bands had a reasonable basis.  Thus, the actual methodology used 
to assign the sound attenuation ratings was unreasonable.   

Nevertheless, as discussed above, the ANSI/ASA testing and EEL 
methodology--which is based on a logarithmic formula--evidence that 
Specialty Plastic's PDMs performed better than Electro-Voice's PDMs.  
Thus, even apart from the PEAT-based ratings, the evaluation record 
does provide a sufficient basis to give Specialty Plastic's PDMs a 
higher adjectival rating than Electro-Voice's PDMs.  Therefore, there 
is no basis to find that Electro-Voice's PDMs' overall marginal 
technical advantage, based on its higher ratings under two other 
criteria, would be more than marginal, had the sound attenuation 
criterion been reasonably evaluated.  Given Specialty Plastic's 
significant price advantage, we find that Electro-Voice was not 
prejudiced by the agency's PEAT-based ratings.  Such non-prejudicial 
defects in an evaluation/selection process do not provide a basis for 
disturbing the agency's selection decision.  McDonald-Bradley, 
B-270126, Feb. 8, 1996, 96-1 CPD  para.  54 at 3; see Statistica, Inc. v. 
Christopher, 102 F.3d 1577 (Fed. Cir. 1996).

The protester next alleges that the agency's evaluation of the 
experience for design and production of communication headsets for 
Specialty Plastic's subcontractor was unreasonable.  We disagree.  

As indicated, the record shows that in making the downselection 
decision, the agency considered the evaluation ratings of proposals 
under the management and past performance factors that were used for 
the initial awards of these contracts.  These factors included the 
evaluation of an offeror's similar design, testing and production 
experience, and historical record of performance under similar 
contracts.   The record shows that Specialty Plastic's subcontractor 
was rated excellent in this regard based on a long list of contracts 
and subcontracts involving design, testing and/or production of 
headsets and other communications equipment for military and industry 
applications.  

The protester alleges that two of these contracts are not sufficiently 
similar or complex as compared to the current contract requirements to 
merit an excellent rating.  However, the contracts which the protester 
identified are just two of many listed by the subcontractor and are 
not representative of the overall experience of Specialty Plastic's 
subcontractor.  The remainder of the subcontractor's record of 
experience and performance includes requirements quite similar to 
those here, which we find reasonably supports the agency's evaluation 
rating.[6]
  
Finally, Electro-Voice alleges that the agency's selection decision 
did not give technical performance significantly more weight than 
price/cost, which it asserts was required.  This contention has no 
merit, since the stated downselection scheme did not provide for such 
a weighing of technical performance.  Although the downselection plan 
did not state the relative importance of the selection criteria, it 
did state that technical performance of the PDMs and cost/price were 
to be factors in the agency downselection decision.  In cases where 
the solicitation does not state the relative importance of the 
selection factors, but, as here, clearly indicates that a trade-off 
determination considering the stated factors will be performed, it 
must be assumed that the factors are of approximately equal 
importance.  Logicon RDA, B-252031.4, Sept. 20, 1993, 93-2 CPD  para.  179 
at 7.  Also, the RFP stated that the initial award of contracts would 
be based on a best value selection plan under which technical and 
cost/price were the most important factors and of equal importance to 
each other.  Here, the downselection decision was based on a 
cost/technical trade-off with equal weight given to technical and 
cost/price.  Such a weighing scheme is consistent with the weight 
initially assigned these two areas in the plan stated in the RFP for 
contract awards and with the weights implied in the stated 
downselection plan.[7]  

The determination that the marginal technical superiority of 
Electro-Voice's PDM's was not worth the substantially higher unit 
price is reasonable and consistent with these two criteria being of 
equal weight.  See Management Sys. Applications, Inc., B-259628, 
B-259628.2, Apr. 13, 1995, 95-1 CPD  para.  216 at 11; Logicon RDA, supra, 
at 12.  The protester presents no evidence to the contrary.

The protests are denied.

Comptroller General
of the United States

1. The agency inadvertently provided a draft version of this purchase 
description in the agency report in response to this protest, the use 
of which the protester asserts caused a defective evaluation.  
However, the record shows that this draft document was not used in the 
evaluation.

2. The measurement unit "dBA" is a composite decibel (dB) value, i.e., 
the A-weighted dB value, which reflects the industry standard for 
weighing the dB measurement for each frequency, i.e., hertz (Hz), to 
account for the impact of noise on the ear at that frequency and for 
combining the resulting individual weighted values into an overall 
measurement of the noise level for all applicable frequencies.

3. The use of this formula is a methodology which the Army uses to 
produce estimates of the noise hazard for any given user considering 
various noise environments.  The Army uses it instead of the Noise 
Reduction Rating, which is often used within the industry to calculate 
sound attenuation dBA values.

4. The PEAT requirements were established by the Surgeon General as a 
safety guideline.  They were not identified in the RFP or otherwise 
disclosed to the contractors.

5. Specialty Plastic submitted one set of PDMs with passive noise 
reduction and one set with active noise reduction (ANR).  Although 
Electro-Voice alleges that the test data from the ANR PDMs was, in 
whole or in part, the basis for Specialty Plastic's PDMs being rated 
better than Electro-Voice's, there is no support for this allegation 
in the record.  The agency kept separate the test data for the passive 
and ANR PDMs, and based its source selection entirely on the 
evaluation of the Specialty Plastic's PDMs employing passive noise 
reduction technology.  The agency's testing of Specialty Plastic's ANR 
PDMs resulted in rejection of those PDMs from further consideration. 

6. To the extent the protester is also alleging that the subcontractor 
does not have the resources or capabilities to perform the solicited 
requirement, the protest challenges the agency's affirmative 
determination of responsibility which our Office will not review, 
absent a showing of possible fraud or bad faith by government 
officials, or the misapplication of definitive responsibility 
criteria, none of which are present here.  4 C.F.R.  sec.  21.5(c) (1997); 
Oshkosh Truck Corp., B-252708.2, Aug. 24, 1993, 93-2 CPD  para.  115 at 6 
n.3.

7. Although Electro-Voice alleges that it relied on oral instructions 
that technical was more important than cost/price, the agency denies 
that any such oral instructions were given and the protester has not 
provided any evidence to support its allegation.