TITLE:  USIA Underwater Equipment Sales Corporation, B-292827.2, January 30, 2004
BNUMBER:  B-292827.2
DATE:  January 30, 2004
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USIA Underwater Equipment Sales Corporation, B-292827.2, January 30, 2004

   DOCUMENT FOR PUBLIC RELEASE                                                
The decision issued on the date below was subject to a GAO Protective      
Order.  This redacted version has been approved for public release.        

   Decision
    
Matter of:   USIA Underwater Equipment Sales Corporation
    
File:            B-292827.2
    
Date:              January 30, 2004
    
Shelton H. Skolnick, Esq., Skolnick & Leishman, for the protester.
Capt. Richard M. Sudder, Department of the Army, for the agency.
Charles W. Morrow, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
Protester*s proposal was properly rejected where its sample fabric failed
a *pass/fail* test conducted by a certified and accredited laboratory.
DECISION
    
USIA Underwater Equipment Sales Corporation protests the rejection of its
proposal under request for proposals (RFP) No. USZA22-03-R-0035, issued by
the United States Special Operations Command (SOCOM), MacDill Air Force
Base (AFB), Florida, for maritime assault suit systems (MASS).
    

   We deny the protest.
    
The RFP was to procure *[c]ommercial off the shelf [MASS,] consisting of
an over‑garment with neck ring, repair kit and user manual, which
can be used as a combat suit in maritime, terrestrial, airborne,
shipboard, and transitional environments by the U.S. Navy,* under a
5-year, fixed-price, indefinite-delivery/indefinite-quantity contract. 
RFP at 12.
    
The RFP provided that award would be made on a best-value basis,
considering technical, price, and past performance, listed in descending
order of importance.  The technical evaluation was to done in two parts: 
(1) a preliminary laboratory evaluation and (2) a full technical proposal
evaluation.  The RFP stated that the *proposed/submitted materials should
meet minimum Preliminary Laboratory Evaluation requirements . . . in order
to be considered for the Full Technical Proposal Evaluation and thus the
award*; that that preliminary evaluation was on a *pass/fail* basis
against seven specifically stated *pass/fail* standards; and that *[t]hose
offerors not passing all the standards may be eliminated from further
consideration.*  RFP at 17-18.
    
The RFP required each offeror to provide four product samples (small,
medium, large, and extra large) and two linear yards of the material used
in the manufacture of its MASS.  The product samples were required to be
delivered directly to the U.S. Natick Soldier Center, Massachusetts
(rather than MacDill AFB) for testing by the Textile Performance Testing
Facility.  The preliminary evaluation, which was to be performed on the
two linear yards of material, required the material to pass seven
*pass/fail* standards listed in the RFP.  Among the standards was the
requirement that the MASS material have abrasion at not less than 7500
cycles, as tested in accordance with American Society for Testing and
Materials (ASTM) Testing Method No. D 3884.[1]
    
Seven proposals, including USIA*s, were submitted in response to the RFP. 
Five of the proposals went through the preliminary evaluation.[2]  USIA
submitted product samples, including the *Thor-Tex* fabric material
(manufactured by Brookwood Laminating) used in the manufacture of its
MASS.  Three of the five proposals had product samples, which included
material made of Black Laminate and Gore Best (WKAX143604E), and the
remaining proposal included samples and material made of another product. 
    
The record evidences that the Textile Performance Testing Facility at
Natick conducted the preliminary evaluation of offerors* MASS material in
accordance with the testing methods specified in the RFP.[3]  Because
several proposals offered material manufactured by the same manufacturer
referencing the same product number, only one of these offerors* samples
was tested.  This was the only material that passed all of the *pass/fail*
standards, and the proposals offering this material were the only ones
permitted to undergo the full technical proposal evaluation.  The MASS
material submitted by USIA passed all the standards except abrasion. 
USIA*s fabric failed at 3300 cycles, short of 7500 cycles required by the
ASTM test.  On October 16, SOCOM notified USIA that its proposal had been
rejected because its material did not meet the abrasion requirement.  This
protest followed.
    
The gravamen of USIA*s protest is that SOCOM improperly found that its
material failed to meet the abrasion requirements.  USIA asserts that test
results performed by its supplier indicate that the material can meet a
7500-cycle abrasion requirement and it has proffered test reports
allegedly showing that its material satisfied this requirement in at least
four of five tests.
    
Our Office will review an allegedly improper technical evaluation of
product samples to determine whether the evaluation was fair and
reasonable and consistent with the evaluation criteria.  We will not make
an independent determination of the merits of an offeror*s proposal;
rather, we will review the evaluation record, including the results of any
test demonstration, to ensure that the agency*s technical judgment has a
rational basis and is consistent with the stated evaluation criteria.  Sun
Chem. Corp., B-288466 et al., Oct. 17, 2001, 2001 CPD P: 185 at 7.
    
As indicated above, SOCOM relied upon the tests performed by an
ISO-certified and accredited laboratory testing facility to conclude that
USIA*s material did not meet the abrasion requirement.  SOCOM explains
that testing of USIA*s material was performed by one of Natick*s
evaluators, who has a 4-year degree in textile technology and over 15
years of experience in performing the test.  Although USIA has presented
test results purportedly performed by Thor-Tex*s manufacturer showing
compliance with the abrasion requirement, the submitted documentation is
not on its face designated as a test by the manufacturer and does not
identify the product number of the tested material, and does not reflect
that the tests were performed by an ISO‑certified and accredited
laboratory facility.  Thus, the protester has provided no basis to
question the independent tests of the ISO-certified facility.  While USIA
argues that the varying test results suggest that the agency may have
mishandled the storage and/or rushed the testing of the fabric, we find no
credible evidence of mishandling or improper testing by this
ISO‑certified facility, to which the offerors directly delivered
their samples.  Given the test results, we find that the agency properly
eliminated USIA*s proposal from the competition prior to the full
technical proposal evaluation.[4]
    
Nevertheless, the protester argues that these *pass/fail* standards were
*non‑mandatory* and *discretionary,* and that its proposal could not
be rejected for failing to meet one of these standards.  In support of
this argument, USIA references the permissive words *may* and *should* (as
opposed to *must* or *shall*) in the relevant solicitation provisions
(quoted above).  We disagree with USIA*s interpretation. 
    
An interpretation must be consistent with the solicitation read as a whole
and in a reasonable manner.  Indeed, in some cases, the use of the
ordinarily permissive words *may* or *should* does not render a provision
other than mandatory when the context in which those words are used is
considered.  All Star Maint., Inc., B‑244143, Sept. 26, 1991,
91‑2 CPD P: 294 at 4-5.  Here, the solicitation made clear that each
of the standards was *pass/fail,* and that the preliminary evaluation,
which encompassed all seven standards, was *pass/fail.*  *Pass/fail* is a
term that is unambiguous and clearly connotes mandatory requirements that
must be met.  Thus, the solicitation read as a whole makes it clear that
an offeror*s submitted sample must meet all seven of the standards as a
prerequisite to the offeror*s proposal being considered in the full
proposal evaluation.  Id.
    
In sum, USIA*s proposal was properly rejected because its sample failed
the abrasion test.
    
The protest is denied.
    
Anthony H. Gamboa
General Counsel
    
    

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

   [1] Because fabrics can wear out when rubbed against another surface, an
abrasion test is utilized to measure this property in a fabric.  The
fabric is rubbed backwards and forwards across another surface at a
constant speed and in a specific manner for a given number of times, and
then examined for wear.  This property is measured using an abrasion
tester.  When the fabric shows wear, usually evidence of thread wear, the
test is stopped and the number of strokes taken to produce the wear is
quoted as the resistance to wear.  See http://www.pp-t.co.uk/INFO%20pages/
Archive/HowToTest.htm.
[2] Two proposals were eliminated from the competition for reasons not
relevant here.
[3] This laboratory facility is certified for ISO (International
Organization for Standardization) 9001:2000 and accredited for ISO/IEC
17205:1999.  ISO-9000 standards are a series of internationally recognized
quality assurance standards established by the ISO.  The former standard
covers requirements that an organization must have fulfilled to achieve
quality management and the latter standard pertains to general
requirements that a testing facility must have achieved to have a
competent testing and calibration laboratory.  To become registered, a
company*s procedures are reviewed for compliance with the standards by an
independently accredited registrar.  See
www.iso.ch/iso/en/ISOOnline.frontpage.
[4] USIA nevertheless questions the validity and credibility of the tests
conducted on the Black Laminate and Gore Best material, which found this
material met the ASTM requirements, because not all of the offerors*
samples were tested.  We see no basis to question the qualified
laboratory*s technical judgment that repeating tests for the same material
was unnecessary.  While USIA maintains that the timing of the tests on the
Black Laminate and Gore Best material indicates a bias by the agency in
favor of that fabric and a lack of good faith towards offerors proposing a
different material, unfair or prejudicial motives will not be attributed
to government officials on the basis of mere inference or supposition. 
Wilcox Indus. Corp., B-281437.2 et al., June 30, 1999, 99-2 CPD P: 3 at
4.