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.