TITLE:  	Wilcox Industries Corporation, B-281437.2; B-281437.3; B-281437.4, June 30, 1999
BNUMBER:  B-281437.2; B-281437.3; B-281437.4
DATE:  June 30, 1999
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Wilcox Industries Corporation, B-281437.2; B-281437.3; B-281437.4, June 30,
1999

Decision

Matter of: Wilcox Industries Corporation

File: B-281437.2; B-281437.3; B-281437.4

Date: June 30, 1999

Robert F. Guarasi for the protester.

Patrick K. O'Keefe, Esq., and John M. Clerici, Esq., McKenna & Cuneo, for
Insight Technology, Inc., an intervenor.

Susan Spiegelman-Boyd, Esq., Department of the Navy, for the agency.

Katherine I. Riback, Esq., and James Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1. Agency reasonably found through testing that protester's submitted
product sample did not comply with salient characteristics of the product.

2. Protester whose product sample had been properly rejected as failing
various salient characteristics of the product is an interested party to
protest that the product samples of the awardee do not comply with the
salient characteristics where the awardee is the only other offeror.

3. Awardee's product sample cannot be said to satisfy salient characteristic
where this matter was not tested as required by the solicitation and the
protester has presented unrebutted evidence that there was a likelihood that
the awardee's product sample would not meet this characteristic if tested.

DECISION

Wilcox Industries Corporation protests the award of a contract to Insight
Technology, Inc. under request for proposals (RFP) No. N00164-98-R-0094,
issued by the Department of the Navy for laser borelights. Wilcox argues
that its low-priced proposal was improperly rejected by the agency for not
meeting the stated salient characteristics, due to testing irregularities
and bias on behalf of the agency evaluators. Wilcox also argues that the
awardee's proposed product did not meet certain stated salient
characteristics.

We sustain the protest on the basis that Insight's product was not tested to
ascertain compliance with certain salient characteristics required by the
RFP.

The laser borelight is used to determine the accuracy of various weapons.
Agency Report at 2. The operator inserts a mandrel into the barrel of the
weapon and then inserts the laser borelight device onto the mandrel. [1]
Agency Report, Tab 12, Laser Borelight Test Report, at 10. The type of
weapon that is to be boresighted determines the type of mandrel that the
operator uses. In other words, the operator would use one size mandrel for a
.50 caliber weapon, and a different size mandrel for a 5.56mm weapon. These
different size mandrels allow the same laser borelight device to be used on
a variety of weapons.

The RFP was issued under the Streamlined Procedures for Evaluation and
Solicitation for Commercial Items, Federal Acquisition Regulation (FAR) sect.
12.6 in a Commerce Business Daily (CBD) notice on June 5, 1998. The RFP,
issued on a brand name or equal basis, contemplated the award of a fixed
price supply contract for a 5-year period. RFP at 1-2. The RFP provided that
the agency sought Insight Technology Part No. LSB-001 or equal equipment.
The RFP advised that award would be made to the offeror whose proposal was
most advantageous to the government, price and other factors considered.
Proposals were to be evaluated under the following factors, listed in
descending order of importance: product samples, past performance and price.
The RFP required offerors to propose commercial items and to provide with
their offer three product samples for testing which "shall be evaluated to
determine compliance with [the] Brand Name or Equal salient
characteristics." Id.

at 2. The RFP listed 15 salient characteristics, including salient
characteristic No. 2, which states:

The standard shall include interfaces that boresight all 5.56mm, 7.62mm and
.50 caliber weapons. The interface mechanisms shall be easily installed,
removable and interchangeable. The interfaces shall not cause damage to
weapon's barrel. All interfaces shall retain adequate tightness when
installed into the weapon's barrel, including after repeated use.

Id. at 3.

The agency received proposals only from Wilcox and Insight by the June 23
due date. The agency performed technical, past performance, and price
evaluations on both proposals, and determined not to hold discussions. On
February 11, the agency issued amendment No. 5, which requested revised
prices, based on a different quantity of the borelight devices. [2] Both
offerors submitted revised prices by the February 18, 1999 due date.
Wilcox's evaluated price was $1,846,327 and Insight's evaluated price was
$2,476,102. The agency found no problems were reported regarding either
offeror from the past performance references.

Based on its tests of the product samples, the agency determined that
Wilcox's product failed to meet 8 of the 15 of the required salient
characteristics. Agency Report at 9-11 and Tab 12. While several areas were
only minor deviations necessitating minor redesign efforts, the agency also
determined that several of the areas (salient characteristics 2, 4, 14)
could only be remedied by a major redesign effort and that a redesigned
product may no longer fit the definition of a modified commercial item as
required by the RFP. Agency Report, Tab 10, Business Clearance Memorandum,
at 7. The agency determined that Insight's product complied with all of the
salient characteristics. Agency Report at 9-11 and Tab 12. On March 16,
award was made to Insight. These protests followed.

For most of the salient characteristics, Wilcox disputes in detail the
agency's determination that its product sample was noncompliant. However,
Wilcox has not disputed that its product samples failed to meet salient
characteristics No. 4 (the windage and elevation adjusters shall be tactile
with increments of no more than .5 milliradians), No. 7 (laser beam
divergence shall be no more than .8 milliradians), and No. 8 (safety
labeling requirements). Protester's Comments, Apr. 26, 1999, at 4. Thus,
based on this record, Wilcox product samples were properly found
noncompliant and Wilcox's proposal was properly determined unacceptable. [3]

Wilcox nevertheless argues that these tests were performed in a biased
manner due to the involvement of an evaluator who coordinated and performed
testing of the product samples and was involved in a previous attempt to
acquire the borelights on a sole source basis from Insight. In support of
its allegations of bias, Wilcox points to the fact that one of the mandrels
that was tested by the agency was returned to it "bent in a manner requiring
significant force in an improper direction." Supplemental Protest at 4.
According to Wilcox, "It is nearly impossible to bend the mandrel if used
properly, since the mandrel is intended to be inserted in line with the
barrel bore." Id. Wilcox also notes that one of the measuring cords that was
attached to its product sample and used to determine 10 meters distance for
sighting purposes, was returned to Wilcox "tangled and torn off the laser
body, like a torn limb . . . ." Id. Wilcox also references an alleged
additional "glove" test performed by the agency on Wilcox's product sample
under salient characteristic No. 5, which is not stated in the RFP. Id. at
5.

We do not attribute unfair or prejudicial motives to government officials on
the basis of inference or supposition; a protester must provide credible
evidence clearly demonstrating bias and that the bias itself translated into
action that unfairly affected the protester's competitive position. Rockhill
Indus., Inc., B-278797, March 16, 1998, 98-1 CPD para. 79 at 3. Based on our
review, we are not convinced that any agency bias unfairly affected the
protester's competitive position.

The fact that the agency considered noncompetitively procuring the
borelights from Insight is not itself evidence of bias. With regard to the
damaged mandrels, the agency explains that this occurred when the Wilcox
5.56mm mandrel failed to insert into the 5.56mm weapon. Agency Report, Tab
12, at 3-4. The agency noted that a measuring cord on a Wilcox product
sample tangled when it was unfurled in testing, so the agency removed it
from the laser body so that the protective shield would close and the agency
could continue to test the laser borelight device. Supplemental Agency
Report at 8. Based on this record, we are not persuaded by Wilcox's
assertion that these damages could only be caused by biased testing.

Next, Wilcox asserts that the agency added an additional requirement, a
"glove" test, to salient characteristic No. 5, which required that the
device shall allow the operator to determine the orientation of the laser
device during lowlight and darkness. RFP at 3. This assertion arose from the
agency statement that it considered Wilcox's alternate orientation method on
its borelight, but found it to be faulty because it requires orientation
using a knob that is tactilely similar to the unit's adjustment knobs,
"especially when operator [is] using gloves." Agency Report at 9-10. The
agency acknowledges that the solicitation did not explicitly state that an
operator must be able to orient the laser borelight using gloves, but argues
that given the low temperatures that the laser borelight device was required
to operate under, it was not unreasonable to assume that the operator would
be wearing gloves or to speculate that the orientation knob would be hard to
distinguish from the adjustment knobs wearing gloves. [4] Agency
Supplemental Submission, May 26, 1999 at 2. The agency's explanation appears
reasonable and does not evidence bias.

Wilcox also protests that Insight's product did not meet certain salient
characteristics, most specifically salient characteristic No. 2 (quoted
above). The agency and Insight

argue that because Wilcox's product sample was properly found unacceptable,
it is not an interested party to pursue a protest of the agency's evaluation
of Insight's proposal.

Under our Bid Protest Regulations, an interested party is an actual or
prospective offeror whose direct economic interest would be affected by the
award of a contract or the failure to award a contract. 4 C.F.R. sect. 21.0(a)
(1999); see also 31 U.S.C. sect. 3551 (1994 & Supp. II 1996). Generally, a party
will not be deemed to have the necessary economic interest to maintain a
protest if it would not be in line for award if the awardee were eliminated
from the competitive range. Eagle Mktg. Group, B-242527, May 13, 1991, 91-1
CPD para. 459 at 2.

Here, while the agency properly found that Wilcox's proposal was
unacceptable because its product did not comply with the salient
characteristics, Insight had submitted the only other proposal. Thus, if
Insight's proposal was unreasonably evaluated by the agency to the extent
that it should have been considered to be unacceptable (for example, if
Insight's product also did not satisfy the RFP's salient characteristics),
we would recommend that the agency reopen the competition to obtain revised
proposals or resolicit the requirement. In either case, notwithstanding the
unacceptability of its proposal, Wilcox may be in a position to either
submit a revised proposal or participate in a resolicitation. Accordingly,
Wilcox has a sufficient economic interest to maintain a protest of the
evaluation of Insight's proposal, but only to the extent that Wilcox argues
that Insight's proposal should have been rejected as unacceptable. [5] See
Eagle Mktg. Group., supra (protester whose proposal was found to exceed the
available funding was an interested party to protest that the awardee was
not eligible for the award of a contract under a solicitation issued as a
small business set-aside). Thus, Wilcox is an interested party eligible to
argue that Insight's product does not satisfy the salient characteristics.

As noted, Wilcox's protest focuses on salient characteristic No. 2, which
requires the borelight to interface on 5.56mm, 7.62mm, and .50 caliber
weapons and that "[t]he interface shall not cause damage to the weapon's
barrel." [6] RFP at 3. The protester included with his original protest
letters from manufacturers of .50 caliber and 5.56mm weapons. These
manufacturer letters state that a design, such as Insight's increases the
likelihood of damage to the barrel. This is because the Insight product
requires threading the laser body onto the mandrel, inserting the mandrel
into the barrel, and rotating the entire unit (mandrel and borelight) to
find the zero point of the weapon. [7] Agency Report, Tab 12, at 10. The
manufacturer of a .50 caliber weapon writes:

I find it highly objectionable to have a boresight device with any metal
mandrel designed to turn its entire length within the M82 barrel, especially
at the muzzle end. . . . If the mandrel is designed to turn in the weapon
bore, it significantly increases the likelihood of damage to the barrel.
Damage at the end of the barrel can significantly reduce accuracy of the
weapon. If a barrel were to be damaged due to a soldier continuously turning
a mandrel, this damage would not be covered under warranty.

Protest, Tab C, at 4.

Later, when the protester learned definitively that the agency did not test
Insight's borelights with any .50 caliber weapons it then asked, "[i]f the
Navy did not perform any tests on the M82 (a .50 caliber weapon), how did
the Navy Technical Evaluator judge Insight compliant in these [s]alient
[c]haracteristics?" and continues to argue that such a test would have
damaged the barrel of the .50 caliber weapon. [8] Protester's Comments, June
7, 1999, at 14.

The Navy concedes that it did not test the borelights with .50 caliber
weapons, notwithstanding the RFP requirement that "Product Samples shall be
evaluated to determine compliance with . . . salient characteristics." [9]
RFP at 2; Agency Supplemental Submission, June 14, 1999, at 6. In its
responses to this issue, the Navy never argues that it no longer needed the
laser borelights to interface with .50 caliber weapons and that this was why
these weapons were not tested. The Navy also does not argue that the
manufacturer's concerns about possible damage to barrels from the use of
borelights designed like Insight's was not a valid concern. [10] Thus, the
record contains no evidence that Insight's borelight will interface with .50
caliber weapons without damage to the barrel and the record also contains
the unrebutted opinion of the manufacturer of a .50 caliber weapon that a
design such as Insight's significantly increases the likelihood of such
damage. [11]

Instead of asserting that tests using a .50 caliber weapon were not
required, the Navy responds that it did not test .50 caliber weapons due to
"safety considerations." Agency Supplemental Submission, June 14, 1999, at
7. The agency explains that these weapons were to be tested on its outdoor
firing range in its facility in Crane, Indiana, but that in June 1998
testing on its only outdoor range was severely curtailed when it was
discovered that the range had a serious potential for ricochet. The testing
on the outdoor firing range at Crane was restricted until early September
1998 to only those weapons whose half maximum range was less than 6,041
feet. This temporary restriction effectively excluded the live testing of
.50 caliber and 7.62mm weapons. Therefore, on August 26, 1998 only the
5.56mm weapons were ground impact fire tested on Crane's outdoor range using
the borelight devices. [12] Id. at 8-9. The agency also notes that while one
evaluator knew of the fact that .50 caliber weapons could not be fired on
the outdoor range sometime shortly after July 21, 1998, the rest of the

evaluators, including the particular evaluator that Wilcox argues is biased
against it, were not aware of this development until the day of testing on
August 26. Id. at 9.

While the agency explains the restrictions on firing .50 caliber weapons on
its one outdoor firing range, it has never addressed why the live firing
tests could not have been postponed until all three types of weapons could
have been tested. Neither does the agency state why it was not possible to
have these weapons tested on a different range that could accommodate .50
caliber weapons. The Navy also offers no other method to determine whether
Insight's borelight device could interface with .50 caliber weapons and not
cause damage to the barrel, as alleged by the protester, and confirmed by a
manufacturer of .50 caliber weapons. Accordingly, we sustain the protest on
this point.

We recommend that the agency perform the live firing tests with the product
samples submitted by Insight on the .50 caliber weapons as contemplated by
the RFP. If Insight's product fails this test, we recommend that the agency
either terminate the firm's contract or, if the agency concludes that the
requirement is not needed, amend the solicitation for both offerors. We also
recommend that the protester be reimbursed the reasonable costs of filing
and pursuing that portion of its protest that we sustained. 4 C.F.R. sect.
21.8(d)(1); see HG Properties A, L.P., B-277572 et al., Oct. 29, 1997, 97-2
CPD para. 123 at 6-7. In accordance with 4 C.F.R. sect. 21.8(f)(1), Wilcox's
certified claim for such costs, detailing the time expended and the costs
incurred, must be submitted directly to the agency within 60 days after
receipt of this decision.

The protest is sustained.

Comptroller General

of the United States

Notes

1. A mandrel is "the shaft and bearings on which a tool (as a circular saw)
is mounted." Webster's Ninth New Collegiate Dictionary (1989).

2. Contrary to Wilcox's contentions, the agency did not conduct improper
discussions with Insight when it advised that firm that it need not submit
new product samples in response to amendment No. 5, which was silent on this
point.

3. Under the circumstances, we need not resolve whether Wilcox's product
satisfies the other five salient characteristics with which it was found
noncompliant.

4. The RFP stated the temperature environment for operation of the
borelights would range from –46 ï¿½C to +49 ï¿½C. RFP at 4.

5. While Wilcox argues that the agency improperly evaluated Insight's past
performance, it does not assert that this rendered Insight's proposal
unacceptable. Thus, Wilcox is not an interested party eligible to maintain
such a protest and we will not consider it further.

6. Wilcox also contends that Insight's borelight exceeds the 16-ounce
maximum weight provided for salient characteristic No. 13. The record
demonstrates that Insight's borelight satisfied this requirement. Agency
Report, Tab 12, at 6. Moreover, in response to the protest, the agency
reweighed the product sample and verified that this requirement had been
satisfied. Agency Report at 19.

7. In contrast, the Wilcox product requires inserting the mandrel into the
barrel, and then placing the laser body onto the mandrel. Then to find the
zero point of the weapon, the operator rotates only the laser body. Agency
Report, Tab 12, at 10-11.

8. Since this argument was contained in Wilcox's initial protest with
supporting evidence, we reject the agency's and Insight's arguments that
this protest ground is untimely raised. Protest, at 4 and Tab C, at 4.

9. The intervenor argues that the fact that the agency did not test the
borelights with .50 caliber weapons is a nonissue because Insight proposed
the brand name product "which, by definition, meets all of the salient
characteristics." Insight Comments, June 17, 1999, at 17. We disagree. The
fact that a brand name is designated does not necessarily mean that a
proposal offering this item is acceptable; the salient characteristics must
still be met. See, e.g., General Hydraulics Corp., B-181537, Aug. 30, 1974,
74-2 CPD para.133 (bid offering brand name product is nonresponsive where the
brand name does not meet the required salient characteristics); see also
Lanier Bus. Prods., Inc., B-220610, Jan. 30, 1986, 86-1 CPD para.110 (a protest
that a bid offering a brand name product is nonresponsive for that reason is
timely where filed within 10 days of when the protester was apprised that
the agency considered such a bid to be responsive).

10. As noted above, this particular design aspect is different for the
Wilcox borelight.

11. The Navy argues that the fact that it did not test .50 caliber weapons
did not disadvantage Wilcox because the agency's test of 5.56mm weapons
revealed no barrel damage from the use of Insight's borelight, even though
Wilcox asserted that this should occur. We find no logic to this argument.
The fact that the 5.56mm weapons were tested with the borelights and there
was no detectable barrel damage does not necessarily suggest that there will
be no barrel damage from Insight's borelight device to the .50 caliber
weapons, given that different sized mandrels are used.

12. The Navy notes that in early September 1998, Crane's new standard for
live fire testing on the outdoor range was approved and that it allowed live
fire testing of weapons such as the .50 caliber and the 7.62mm provided that
the weapons were fired into an impact pit by a certified "expert" marksman
and that the highway adjoining the firing range was closed. Agency
Supplemental Submission, June 14, 1999, at 8.