TITLE:  Atlantic Research Marketing Systems, Inc., B-292743, December 1, 2003
BNUMBER:  B-292743
DATE:  December 1, 2003
**********************************************************************
Atlantic Research Marketing Systems, Inc., B-292743, December 1, 2003

   Decision
    
    
Matter of:   Atlantic Research Marketing Systems, Inc.
    
File:            B-292743
    
Date:           December 1, 2003
Richard Swan for the protester.
Angela J. Cosentino, Esq., Department of the Navy, for the agency.
Jennifer D. Westfall-McGrail, Esq., and Christine S. Melody, Esq., Office
of the General Counsel, GAO, participated in the preparation of the
decision.
DIGEST
    
Where solicitation provided that failure to offer desired product
improvements would not remove a proposal from consideration for contract
award, it was inconsistent with the terms of the solicitation for the
agency to remove the protester*s proposal from consideration for award for
allegedly failing to offer certain desired improvements.
DECISION
    

   Atlantic Research Marketing Systems, Inc. (ARMS) protests the rejection of
its proposal for four configurations of a rail interface system (RIS)
under request for proposals (RFP) No. N00164-02-R-0014, issued by the
Department of the Navy for miniature day/night sight development for the
special operations peculiar modifications system. The Navy determined that
each of ARMS*s RIS configurations was unacceptable due to operational
unsuitability.
    

   We sustain the protest.
    
The special operations peculiar modifications (SOPMOD) system is designed
and intended to provide special operations force (SOF) members, who
operate in a wide range of extreme conditions, with the ability to
reconfigure their weapons for various mission scenarios rapidly and
reliably.  The system*s core capability is accommodated by a rail
interface system, which attaches to the M4A1 carbine and provides
attachment points for accessories such as sights and lasers.  The goal of
the miniature day/night sight (MDNS) development effort is to improve on
current SOPMOD capabilities through miniaturization, ruggedization,
combination, or other enhancements to existing SOPMOD subsystems.  Among
the SOPMOD subsystems for which an improved version is sought is the rail
interface surface.[1]
    
The solicitation specified both minimum or threshold (T) requirements and
desired or objective (O) requirements for the RIS and other MDNS
subsystems.  In addition, it identified Key Performance Parameters (KPP)
and Additional Performance Parameters (APP).  The solicitation described
KPPs as *must-pass testing events* and provided that *[a]ny offering
failing the (T) value of any of the KPPs will be removed from further
testing and will not be considered for contract award.*  RFP, amend. 5, S:
3.1.2.  The solicitation described APPs as *tradable parameters . . . used
to measure effectiveness and performance,* and provided that
    
[f]ailure to meet either (T) or (O) requirement values specified in an APP
does not remove a submission from further testing or from consideration
for contract award.  APPs are evaluated to provide information leading to
a best value award determination.
    
Id. S: 3.1.3.  The solicitation further noted at S: 3.1.4 that *KPP (O)
values and APP (T) and (O) values are the equivalent of research and
development goals.*  In other words, KPP (T) values represented mandatory
features of the solicited subsystems, while KPP (O) values and APP (T) and
(O) values represented desired improvements to existing subsystems.
    
The solicitation identified KPP (T) values applying to the RIS as
waterproofing (subsection 3.1.2.4) and interoperability (subsection
3.1.2.6).[2]  RFP, addend. 3,
at 4.  It also identified a list of APPs that applied to the RIS as well
as other subsystems; these parameters, which represented desired general
improvements to current core capabilities, included improved operational
test results (S: 3.2.1), improved portability (S: 3.2.2), improved
corrosion resistance and ease of cleaning and maintenance (S: 3.2.3),
improved endurance (S: 3.2.4), improved reliability
(S: 3.2.5, S: 3.2.20), and improved safety features (S: 3.2.6).  In
addition to the foregoing general APPs, the solicitation identified APPs
that represented desired improvements to the RIS specifically.  These
included a rigid, free-floating barrel design concept (S: 3.3.1.5.1.2.1),
a method to attach future 6:00 systems[3] as close as possible to the
carbine barrel without touching it or interfering with the natural barrel
vibrations during firing (S: 3.3.1.5.1.2.2), and, with particular
significance for this protest, a method of attaching a grenade launcher
with the existing mount or of mounting it free of the carbine barrel
through application of *a simple modification plan/modification* (S:
3.3.1.5.1.2.3).
    
The RFP allowed for the award of one or more
indefinite-delivery/indefinite-quantity, fixed-price contracts for
developmental test prototypes, operational test prototypes, limited user
test items, and production quantities for the RIS and each of the seven
other subsystems.  The solicitation provided for a three-phase evaluation
process: phase 1 was to result in the selection of the proposal(s) that
would move on to
phase 2; phase 2 was to consist of developmental testing; and phase 3 was
to consist of operational testing, followed by final source selection. 
Phase 1, step 1 was to consist of a preliminary review of proposals to
determine whether go/no go criteria (i.e., KPP thresholds) had been
satisfied; phase 1, step 2, to be conducted after an oral
presentation/demonstration by each offeror, was to consist of an
evaluation of proposals on the basis of the following factors and
subfactors, listed in descending order of importance:
    
1.  Technical/User Assessment
a. Go/No Go (KPP Thresholds)
b. APPs and KPP Objectives
c. Suitability/Effectiveness
    
2.  Contracting and Management
a. Past performance
b. Schedule
c. Subcontracting
d. Price
    
RFP, addend. 3, at 1-2.
    
ARMS submitted a proposal for four configurations of its Selective
Integrated Rail (SIR) System:  models 45, 46, 50, and 58.  The agency
evaluators determined that each model met the KPP threshold values.  After
the protester*s oral presentation/
demonstration, however, the operational evaluation team found that each of
the ARMS models was operationally unsuitable and therefore unacceptable. 
On the basis of this finding, the source selection authority determined
that ARMS*s proposal for all four models should be rejected.  By letter
dated July 29, 2003, the contracting officer notified ARMS that its
proposal had been determined unacceptable *due to operational
unsuitability for each of the four (4) configurations proposed.*  ARMS
immediately requested a pre-award debriefing, which the Navy furnished by
letter of August 11.  ARMS asked the contracting officer to reconsider his
position, and, upon receipt of his letter confirming his earlier decision,
filed a protest with our Office on August 21.
    
In his debriefing letter, the contracting officer explained that ARMS*s
four SIR models had been determined unsuitable on two bases:  all four
models raised the operator*s line of sight, and none adequately provided
for the mounting of the M203 grenade launcher free of the carbine barrel. 
With regard to the first point, the contracting officer noted that, per
section 3.1 of the specification, MDNS subsystems were to *allow SOF
operators to better and more rapidly acquire, identify, and accurately
fire on enemy targets in combat,* but that *[b]y raising the optical line
of sight, . . . the SIR decreased the SOF operators* ability to better and
more rapidly acquire, identify, and accurately fire on enemy targets
because the standard cheek weld positions for currently fielded SOPMOD
equipment would not be compatible with this configuration.*  Debriefing
Letter at 1.  With regard to the second point, the contracting officer
noted that:
    
SIR Model 45 is designed such that the M203 grenade launcher is to be
mounted to the M4A1 barrel.  This is in violation of Performance
Specification Paragraph 3.3.1.5.1 which lists independence of the M4A1
barrel as a core requirement.
    
SIR Models 46, 50, and 58 provide a design that prohibits the mounting of
the M203 grenade launcher without permanently and irreversibly modifying
the fundamental M203 receiver.  This mounting scheme is not compatible
with currently fielded M203s.  This design does not conform to paragraphs
3.1.2.6 and 3.3.1.5.1.2.3 of the Performance Specification.
    
Id.
    
The protester challenges both aspects of the agency*s technical
evaluation.  In reviewing such a challenge, we will not reevaluate
proposals, but will instead review the record to determine whether the
evaluation was reasonable and consistent with the terms of the
solicitation.  Rolf Jensen & Assocs., Inc., B-289475.2, B-289734.3, July
1, 2002, 2002 CPD P: 110 at 4.  As explained below, we conclude that it
was unreasonable and inconsistent with the solicitation for the agency to
reject the protester*s proposal from further consideration for award based
on the evaluation findings it made.
    
In response to the contracting officer*s first point, ARMS argues that its
proposed SIRs comply with the KPPs and APPs set forth in the RFP, and
that, therefore, they should not have been rejected as unacceptable.  The
protester further argues that its SIRs do not decrease the SOF operators*
ability to acquire, identify, and accurately fire on enemy targets, as
demonstrated by testing data that it included in its proposal.
    
First, to the extent that by noting that *the SIR decreased the SOF
operators* ability to better and more rapidly acquire, identify, and
accurately fire on enemy targets,* the contracting officer meant that the
SIR configurations failed to improve the operators* ability to sight and
fire on enemy targets, improvement in firing accuracy was an APP (i.e., an
objective or desired improvement), as opposed to a KPP (i.e., a
requirement).  See Subsection 3.2.1.[4]  Accordingly, to the extent that
the evaluators found ARMS*s SIRs unsuitable on the basis that they failed
to improve operators* ability to acquire, identify, and fire on enemy
targets, the evaluators in effect found the SIRs unsuitable for failing to
meet the values specified in an APP.  In our view, rejection on such a
basis was contrary to the terms of the RFP, which, as previously noted,
provided that *[f}ailure to meet either (T) or (O) specified in an APP
does not remove a submission from further testing or from consideration
for contract award.*

    
Second, to the extent that the contracting officer instead meant that the
SIRs not
only failed to improve firing accuracy, but in fact decreased it, any such
conclusion was not based on a reasonable review of the record before the
agency.  Specifically, the protester submitted with its proposal an
evaluation report, completed by the Assistant Commandant of the 75th
Ranger Regiment, a Special Operations Command, that showed that the SIR
system improved shooters* accuracy over the existing system.  The report
noted that to determine the accuracy of the SIR system, shooters fired 50
rounds at different targets placed at varying ranges from 50 to 300 meters
and that 49 of 50 hits scored.  Protester*s Proposal, app. 1C at 2.  The
evaluation concluded as follows:
    
The SIR system is overall an extremely good candidate to replace the
current SOPMOD RAS system.  It is extremely rugged and truly modular.  All
shooters that used the system were impressed with its performance and
versatility.  Shooters were especially impressed with the increased
reliability of the weapon.  All of the shooters stated that even though
the SIR system was slightly heavier than the RAS system, the weight
tradeoff was more than worth it.  This was due to the fact that the SIR
system gave them an increased advantage in 3 areas: 1) weapons
reliability, 2) weapons accuracy (both are factors of increased
survivability) and 3) modularity.
    
Id. at 2. 
    
The agency argues that it justifiably gave the foregoing report no weight
in its evaluation because rather than a valid operational test, it was
merely the personal assessment of an individual user.
    
We fail to see a reasonable basis for the Navy*s having summarily
dismissed the test data contained in the user assessment from
consideration, particularly given that it had no testing data of its own
(i.e., it was dismissing the user assessment in favor of no, as opposed to
better, data of its own).  Consistent with the protester*s explanation,
the data appears to be not simply a biased endorsement of the ARMS
product, but rather a user*s assessment of the strengths and weaknesses of
the product undertaken to evaluate it for possible future use and to
provide feedback to the manufacturer so that it would be able to refine
its product further to suit the military*s needs.  While not the
equivalent of--and thus reasonably entitled to lesser weight than--the
results of operational testing, we nonetheless think that the user
assessment was sufficient to overcome the evaluators* assumption of
decreased accuracy, which was based on no testing data at all.  In sum,
assuming that the contracting officer*s conclusion, quoted above, was
meant to express the agency*s view that the protester*s SIR system
decreased firing accuracy, we cannot conclude that any such determination
has a reasonable basis, in view of the agency*s failure to consider the
protester*s testing data, and the lack of any testing data (or other
support) for the agency*s conclusion.
    
With regard to the agency*s second basis for determining the protester*s
SIRs unsuitable, i.e., that they did not adequately provide for the
mounting of the M203 grenade launcher free of the carbine barrel, the
protester argues the subsection pertaining to mounting of the grenade
launcher, 3.3.1.5.1.2.3, was an APP, rather than a KPP, and thus
noncompliance with it should not have resulted in rejection of the SIRs. 
The protester further argues that at its oral presentation, it proposed a
plan, applicable to all four of its models, for mounting the M203 grenade
launcher free of the carbine barrel.
    
The solicitation provided as follows at S: 3.3.1.5.1:
    
Supplemental Specifications for the Rail Interface System, M4A1 Carbine
and Other Weapons.  Notes:  The SOPMOD program is not seeking alternate
sources for systems that duplicate the currently fielded RIS/RAS.  The
SOPMOD Program instead is seeking alternative mounting subsystems with
improved operational performance characteristics.  The core requirements
for the future RIS are rigidity (no loss of zero due to rough handling),
independence of the M4A1 Barrel (no interference with the natural harmonic
vibrations of the barrel during firing), and provision for mounting future
6:00 subsystems more closely to the gun barrel (decrease in offset between
the 6:00 subsystems and the axis of the bore.)
    
                                       *          *          *         
*          *
    
In addition to the requirements and desired improvements listed in 3.1 and
3.2 above, the RIS shall demonstrate the following minimum performance
characteristics (Threshold):
    
3.3.1.5.1.1  Additional RIS KPPs:
    
No supplemental KPPs are required over and above those in 3.1. above.
    
3.3.1.5.1.2  Additional RIS APPs:
    
3.3.1.5.1.2.1  The future RIS should incorporate design features which
improve overall system performance.  This may include a rigid, floating
barrel design concept.  (APP)
    
3.3.1.5.1.2.2  The future RIS should provide a method to attach future
6:00 systems as close as possible to the carbine barrel without touching
it or interfering with the natural barrel vibrations during firing.  This
attachment method should provide repeatability of the zero of 6:00 systems
when attached and detached.  The future RIS should contain design features
which facilitate cleaning/maintenance of the area between the carbine
barrel and the body of the future RIS.  (APP)
    
3.3.1.5.1.2.3  Proposals for the Future RIS should either allow for the
attachment of the M203/M203E1 with existing SOPMOD Grenade Launcher Mount,
. . . (T) or provide a simple modification plan/mechanism for the mounting
of the M203 free of the carbine barrel (T), or both (O).  (APP)
                                      
First, regarding the agency*s rejection of the SIR model 45 on the grounds
that mounting it to the M4A1 barrel violates subsection 3.3.1.5.1, which
establishes independence of the barrel as a core requirement, the
referenced language from subsection 3.3.1.5.1 was, like the introductory
paragraph under 3.1 discussed above, a summary of the agency*s objectives,
which were then spelled out in other subsections as KPPs and/or APPs.  The
very fact that the improvements referred to as *core requirements* in the
introductory paragraph, including the *requirement* for independence of
the barrel, were further along in the specification identified as APPs,
rather than KPPs, indicates that they were desired improvements, as
opposed to mandatory requirements.  Moreover, subsection 3.3.1.5.1.2.3
designated as a (T) value attachment of the M203 with the existing grenade
launcher mount, which presumably means attachment to the barrel, since,
according to the subsection, a modification plan/mechanism is required for
mounting of the M203 free of the barrel.  Thus, we find no basis for the
agency*s argument that the model 45*s mounting of the M203 grenade
launcher to the M4A1 barrel violated a mandatory requirement. 
    
Regarding the other models, again we note that subsection 3.3.1.5.1.2.3
pertaining to attachment of the grenade launcher was an APP, as opposed to
a KPP, and thus noncompliance with it did not furnish a basis for removal
of ARMS*s proposal from further consideration for award.  We also note
that the protester has alleged that during its oral presentation, in
addition to the plan to modify the M203 receiver that the agency views as
unacceptable, it *offered a simple plan to change the receiver of the
M203, as it is easily interchangeable without modification, to provide a
free floating M203 grenade launcher,* which would obviate concerns about
interoperability.  Protester*s Comments, Oct. 2, 2003, at 20.  The agency
responded to this allegation by noting that ARMS had failed to furnish a
sample modified receiver at the oral presentation/demonstration.  Given
that subsection 3.3.1.5.1.2.3 stated that proposals should provide either
a modification plan or a mechanism for the mounting of the M203 free of
the carbine barrel, we do not see how the agency could reasonably have
determined the protester*s furnishing of only a plan unacceptable.
    
In our view, while there is no reason that the agency could not have
considered the impact of raising the operators* line of sight on their
speed and accuracy in firing and/or the feasibility of the protester*s
plans for mounting the grenade launcher free of the carbine barrel in a
best value determination, it was unreasonable and contrary to the terms of
the solicitation for it to reject the protester*s models as unacceptable
for the reasons cited.  Accordingly, we sustain the protest.
    
We recommend that the agency include the models proposed by ARMS among
those under consideration for award.  We also recommend that the protester
be reimbursed for the costs of filing and pursuing its protest.  Bid
Protest Regulations,
4 C.F.R. S: 21.8(d)(1) (2003).  In accordance with our regulations, ARMS*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 the decision.
    
The protest is sustained.
    
Anthony H. Gamboa
General Counsel
    

   ------------------------

   [1] Other subsystems for which this solicitation seeks improved versions
are the enhanced combat optical scope, miniature night vision sight,
clip-on night vision device, back-up iron sight, visible bright light,
carbine visible laser, and infrared pointing, illuminating, and aiming
laser.
[2] Subsection 3.1.2.4 provided with regard to waterproofing:
No MDNS subsystem prototype will exhibit design features that preclude
waterproofing to a depth of 66 feet.  All MDNS subsystems shall be
waterproof to a depth of 66 feet for a minimum of two hours (KPP).
Subsection 3.1.2.6 provided with regard to interoperability:
MDNS subsystem designs shall not cause unsafe conditions or interfere with
the functioning of the M4A1 Carbine (T).  MDNS subsystems will
interoperate with existing SOPMOD subsystems, or substitute them singly or
in combination (O).
    
[3] As we understand it, a 6:00 system is one mounted on the bottom part
of the carbine.
    
[4] Subsection 3.2.1 provided as follows:
Improved Operational Test Results.  Compatibility.  SOF operators while
wearing various uniforms, equipment, and possibly eyeglasses appropriate
for each individual mission shall achieve proper cheekweld, sight picture,
and eye relief.  The shooting position shall be the same as used for
current fielded M4A1 Carbines and other SOF Small Arms.  MDNS subsystems
will exhibit improved Operation Suitability and Operational
Effectiveness.  This includes improved performance/hit scores in
semi-automatic and full automatic fire, improved performance at both
shorter and longer ranges, and improved performance under low-illumination
and other adverse conditions.  The overall objective (O) is increased hit
scores at all ranges from 2 meters to 800 meters by SOF operators during
day, night, rain, mist, smoke, vegetation, fog, dust, and extreme low
light conditions (APP).
Subsection 3.1, from which the contracting officer excerpted the language
concerning better and more rapid target acquisition, is merely an
introductory paragraph that summarizes the overall goals of MDNS
development; subsystem requirements and developmental objectives are set
forth in subsequent subsections as KPPs and APPs.