TITLE: Paraclete Armor & Equipment, Inc., B-293509, February 24, 2004
BNUMBER: B-293509
DATE: February 24, 2004
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Paraclete Armor & Equipment, Inc., B-293509, February 24, 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: Paraclete Armor & Equipment, Inc.
File: B-293509
Date: February 24, 2004
Ruth E. Ganister, Esq., Rosenthal and Ganister, for the protester.
Maj. Robert B. Neill, and Christopher E. Kernan, Esq., Department of the
Army, for the agency.
John L. Formica, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Agency reasonably determined that the protester*s proposal contained
elements of risk that justified the award of a contract to an offeror that
had submitted a slightly higher-priced proposal.
DECISION
Paraclete Armor & Equipment, Inc. protests the award of a contract to
Eagle Industries under request for proposals (RFP) No. USZA22-03-R-0027,
issued by the Department of the Army, for quick release body armor vest
systems. Paraclete protests that the evaluation of its proposal was
unreasonable, and evidenced bias against Paraclete and unequal treatment
of the offerors.
We deny the protest.
The RFP provided for the award of a fixed-price,
indefinite-delivery/indefinite-quantity contract, to the offeror
submitting the proposal representing the best value to the government
based upon the evaluation factors of technical, past performance, and
price. The RFP advised that the technical factor (which consisted of
20 evaluated criteria) was more important than the past performance
factor, and that the technical and past performance factors combined were
more important than price.
The RFP set forth detailed technical requirements for the vest systems,
providing, for example, that the vest systems were to have *a dual quick
release system that allows the operator easy access to the quick release
handle,* and were to *be capable of being worn by [special operations
force] operators under the parachute harness without causing any increased
risk of injury during static airborne operations.*
RFP at 23. The RFP contained detailed instructions regarding the
preparation of proposals, and required the submission of one sample vest
system per size (small, medium, large and extra large) for evaluation, as
well as written technical, past performance, and business/price
proposals.
The agency received sample vest systems and proposals from three offerors,
including Eagle and Paraclete. The samples/proposals were evaluated,
discussions conducted, and the offerors* responses to the discussion
questions and proposal revisions evaluated. Eagle*s revised proposal was
evaluated as *green/acceptable* under the technical factor and *low risk*
under the past performance factor, at an evaluated price of $6,191,110.
Specifically, the agency evaluated Eagle*s proposal
as *blue/excellent* under 3 of the evaluation criteria comprising the
technical evaluation factor, and *green/acceptable* under the remaining 17
criteria comprising the technical evaluation factor. Paraclete*s proposal
was evaluated as *green/acceptable* under the technical factor and *low
risk* under the past performance factor, at an evaluated price of
$[DELETED]. The agency evaluated Paraclete*s proposal as
*green/acceptable* under 18 of the evaluation criteria comprising the
technical evaluation factor, and *yellow/marginally acceptable* under the
remaining 2 criteria. Agency Report (AR), Tab 33, Post-Negotiation
Business Clearance Memorandum, at 3-4. The contracting officer/source
selection authority selected Eagle*s slightly higher-priced proposal for
award, explaining that while Paraclete*s and Eagle*s proposals were both
evaluated as technically acceptable, Paraclete*s proposal *still contained
some elements of risk.* AR, Tab 32, Source Selection Decision, at 1.
Paraclete first argues that the evaluation of its proposal under the
technical factor was unreasonable. In reviewing protests against
allegedly improper evaluations, it is not our role to reevaluate
proposals. Rather, our Office examines the record to determine whether
the agency*s judgment was reasonable and in accord with the evaluation
factors set forth in the RFP. Abt Assocs., Inc., B‑237060.2, Feb.
26, 1990, 90-1 CPD P: 223 at 4. The protester*s mere disagreement with the
agency*s judgment does not establish that an evaluation was unreasonable.
UNICCO Gov*t Servs., Inc., B-277658, Nov. 7, 1997, 97-2 CPD P: 134 at 7.
The record reflects that the agency, while evaluating Paraclete*s initial
proposal/sample as *green/acceptable,* determined that the proposal/sample
had *no areas of major strength, 4 areas of acceptable weakness, and 2
areas of marginal acceptance.* AR, Tab 19, Initial Technical Evaluation
Board (TEB) Report, at 13.
With regard to the areas of *acceptable weakness,* one of the agency
evaluators was able to *physically hand pull apart* the vest system*s
*release system,* and the TEB concluded that this created the risk that
the vest system could release prematurely *under ground impact loading
(e.g., airdrop).* Id. at 10, 13. Additional weaknesses noted were the
result of the agency*s determination that Paraclete*s vest system posed
*the potential for user mix-up between [the] vest release lanyard and
reserve parachute lanyard during a parachute mishap,* and the fact that
Paraclete*s vest system was comprised in part of *non-stainless marine
hardware, which would be subject to corrosion in salt water.* Id. at 11,
13.
The two areas of evaluated *marginal acceptance* were *somewhat related,*
in that both concerned the design of the vest system*s cummerbund. In
this regard, the record reflects that *[i]t was the consensus of the [TEB]
that the cummerbund on [Paraclete*s] system is a marginally acceptable
design and would not function well under the added weight of MOLLE pockets
and equipment.*[1] The agency found here, among other things, that
Paraclete*s vest system would not allow for *rapid access* to the vest
system*s *modular pocket/pouches,* as required by the solicitation, and
created *a significant operational deficiency,* in that it *compromise[s]
the intended load[-]bearing function of the releasable vest system and
need[s] to be corrected.* Id. at 9, 12-13.
The agency conducted written discussions with Paraclete, and specifically
informed Paraclete of each of the evaluated weaknesses and areas of
marginal acceptance discussed above. For example, with regard to the
design of the vest system*s cummerbund, the written discussions provided
as follows:
Regarding the requirement that the vest system shall orient the modular
pocket/pouches to provide rapid access: The vest was found to be
marginally acceptable on this criterion. When weighted MOLLE pockets were
attached to the cummerbund and the user moved up and down, the cummerbund
became dislodged from the Velcro attachment and the top edge rolled over.
Correspondingly, the upper portions of the pockets also rolled over,
inhibiting access to the MOLLE pockets and reducing the ability of the
user to rapidly retrieve his equipment. This is considered a major design
deficiency resulting in compromised operational suitability.
AR, Tab 22, Contracting Officer*s Letter to Paraclete (July 25, 2003),
attach.-Paraclete Discussion Items, at 1. The agency*s written
discussions concluded by providing that *responses and any proposal
revisions you wish to make are due via email,* and provided an e-mail
address. AR, Tab 22, Contracting Officer*s Letter to Paraclete (July 25,
2003).
The protester provided written responses to each of the discussion items
identified by the agency. With regard to the evaluated area of marginal
acceptability
associated with the design of the vest system*s cummerbund, Paraclete
responded as follows:
I assume that by *moved up and down* you mean jumped up and down. I was
not aware of a requirement that the cummerbund had to stay in place when
the operator repeatedly jumped up and down. It could be determined that
this aspect of the testing was unrealistic as it would never be repeated
in a real life situation. This aspect of the test could also be looked at
as targeted to manifest an artificial deficiency in one system while also
manifesting an artificial advantage of another system. I say this based
on the fact that of the many thousands of vest[s] that we have had in
service for the past several years we have never, ever, had an operator
return to us with feedback stating that when they jumped up and down
repeatedly with weighted pockets on the cummerbund, the cummerbund rolls
over at the top and they can*t use the pockets. One could assume from
this that it either is not a problem or that none of these operators ever
in the real life use of these system[s] has had to stand in one place and
repeatedly jump up and down.
I will not make this determination but will address this *deficiency* as
if it were actual.
Paraclete*s response continued by offering three different approaches to
resolving the agency*s evaluated concern with the design of the vest
system*s cummerbund. The protester*s responses to the remainder of the
agency*s evaluated concerns with Paraclete*s proposal/sample under the
technical factor were similar in manner; that is, they expressed
Paraclete*s disagreement with the agency*s determinations, suggested
alternatives to the current design, and concluded with a statement that
Paraclete would do *what ever is desired.* AR, Tab 23, Paraclete*s
Response to Discussions (July 28, 2003), at 1-3.
The agency reviewed Paraclete*s responses, and informed Paraclete that it
was unclear whether Paraclete was proposing *a specific change* for each
of the evaluated areas of acceptable or marginal weakness, or whether
Paraclete was *not proposing any changes.* This letter informed Paraclete
that the agency would *not make assumptions* regarding its proposal, and
requested that Paraclete *please clarify* its response to the agency*s
discussion items. AR, Tab 24, Contracting Officer*s Letter to Paraclete
(July 29, 2003). This letter was followed by an e-mail to Paraclete (in
response to a Paraclete query) that informed the protester that *wording
along the lines of *we*ll do whatever you want* is not a definitive
technical solution.* AR, Tab 25, Contract Specialist*s E-Mail to
Paraclete (July 30, 2004).
Paraclete responded by referring to what it viewed as the agency*s
*extremely subjective determinations about the so called deficiencies in
[Paraclete*s] design,* and again offering, for example, three different
approaches to resolving the agency*s evaluated concern with the design of
the vest system*s cummerbund. Paraclete continued here by clarifying that
it was *proposing three options and ask that you determine the severity of
this perceived problem.* Paraclete added that *[n]one of our current
users have ever encountered this problem before and therefore I would
recommend [DELETED].* Paraclete concluded this section of its response by
stating that *[w]e again offer three options,* and *[w]e ask that you
determine if any or all are necessary.* The protester*s responses to the
remainder of the agency*s evaluated concerns with Paraclete*s
proposal/sample under the technical evaluation factor were similar in
manner, in that they expressed Paraclete*s disagreement with the agency*s
determinations, suggested alternatives, and concluded by stating that
Paraclete would change its proposal/sample to *what ever [the agency]
desires,* although it commented that *[t]he approach of not cramming
somebody else*s ideas down their throat has made our system the
standard.* AR, Tab 26, Paraclete*s Response, at 1-3.
The agency evaluated Paraclete*s responses, and determined with regard to
the vest system*s cummerbund design that any of Paraclete*s three proposed
solutions *might work,* depending on *where [DELETED].* The agency noted,
however, that Paraclete*s response to the discussion questions did not
include *a sample, pictures or drawings incorporating the changes so it
was very difficult to assess the functional and operational efficacy of
the proposed corrective action based only on a written response.* As a
result, the agency again evaluated this aspect of Paraclete*s
proposal/sample as *marginally acceptable.* AR, Tab 30, Final TEB Report,
at 9-11. In selecting Eagle*s proposal/sample for award, the agency noted
with regard to Paraclete*s proposal/sample that there was *an element of
risk to their proposal, because, without a specific proposed solution, the
Government technical evaluators could not make an affirmative
determination that one of the possible solutions, if any, actually
resolves the problem(s).* AR, Tab 32, Source Selection Decision, at 1.
In our view, the agency*s determination that Paraclete*s response, as set
forth above, provided alternate solutions and not single solutions to
address the agency*s evaluated concerns was reasonable. This is
illustrated by Paraclete*s responses regarding the design of the vest
system*s cummerbund, where Paraclete proposed different technical
approaches to addressing the agency*s evaluated concerns, made a
recommendation as to which of the approaches may work best, but then
reiterated its three alternative solution approach and requested that the
agency *determine if any or all are necessary.* AR, Tab 26, Paraclete
Letter to the Contracting Specialist. Based upon our review of the
record, we cannot find unreasonable the agency*s determination that
Paraclete*s responses to the discussion questions did not set forth a
specific proposed solution, nor can we find unreasonable the agency*s
conclusion that Paraclete*s proposal contained elements of risk that
justified the award based on a slightly higher-priced proposal that did
not have such risks.
Paraclete contends that the agency*s actions during discussions evidenced
unequal treatment of offerors, given that Eagle submitted revised sample
vest systems in response to the agency*s discussion questions.[2] The
protester argues in this regard that the submission of samples in response
to the agency*s discussion questions was not *requested or in reality
permitted,* pointing out here that that the contracting officer*s
discussions letter provided that responses were to be submitted by
e-mail. Protest at 15. The protester also complains that because of
this, its responses to discussions were unfairly criticized by the agency
for lacking a vest system sample incorporating the changes Paraclete
proposed to make. The protester concludes that *had Paraclete known that
it too could have submitted revised samples and had it done so, it is
likely that that the evaluations would have been even closer, and the
outcome of the award determination might well have turned in Paraclete*s
favor.* Protester*s Comments at 17.
However, we find that the protester was not prejudiced by the agency*s
allowing Eagle to submit a revised sample in response to the discussions.
Competitive prejudice is necessary before we will sustain a protest; where
the record does not demonstrate that the protester would have a reasonable
chance of receiving award but for the agency*s actions, we will not
sustain a protest, even if deficiencies, such as an unreasonable or
unequal evaluation of proposals, is found. Leisure-Lift, Inc.,
B‑291878.3, B-292448.2, Sept. 28, 2003, 2003 CPD P: ___ at 10;
Metropolitan Interpreters & Translators, B-285394.2 et al., Dec. 1, 2000,
2001 CPD P: 97 at 9.
A variety of factors show the lack of prejudice to Paraclete.
We first note that, as set forth above, Paraclete*s responses to the
agency*s discussion questions were not found lacking by the agency solely
because Paraclete did not submit a revised sample vest system. Rather,
the agency noted that Paraclete, while proposing alternative solutions to
the areas of its proposal/sample evaluated as marginally acceptable by the
agency, did not include *a sample, pictures or drawing incorporating the
changes* Paraclete proposed to make to its vest system, and that because
of this, *it was very difficult to assess the functional and operational
efficacy of the proposed corrective action.* AR, Tab 30, Final TEB Report,
at 9-11. Thus, as provided by the agency*s evaluation documents,
Paraclete could have addressed the agency*s concerns had it submitted
either pictures or drawings of the vest system with the proposed changes,
and contrary to the protester*s assertion, there is nothing in the RFP or
record to suggest that the submission of pictures or drawings was
prohibited.
Another factor showing the lack of prejudice to Paraclete is evidenced in
its responses to the agency*s discussion questions (set out above), which
consistently take issue with the legitimacy of the agency*s evaluated
concerns, suggest that the design of its vest system remain in its current
configuration, and suggest alternative approaches to address the agency*s
concerns with concluding statements that the agency should choose the
approach from the alternatives provided and that Paraclete would do
whatever the agency desired. In our view, there is simply nothing in
Paraclete*s responses that indicates that Paraclete would have submitted a
revised vest system sample had it known that the submission of such a
sample was permissible, and in fact Paraclete does not claim that it would
have done so in these circumstances if it thought this were permitted.
Yet another factor showing lack of prejudice is the fact that Eagle*s
initial proposal/samples received the same ratings under the same 20
evaluation criteria as did its proposal/samples as revised, which suggests
that Eagle did not receive a material competitive advantage because of its
submission of the revised sample.
Paraclete finally protests that it *may have been the victim of an
improper evaluation by virtue of possible involvement of [certain unnamed]
personnel in the evaluation* who according to Paraclete *have developed an
inherent bias* against Paraclete. Protester*s Comments at 22, 25; Protest
at 16. The agency denies any bias in the evaluation, and asserts that, in
any event, the personnel Paraclete claims are biased against it *did not
participate in the evaluation review, testing or consideration of the
proposals.* Contracting Officer*s Statement at 10. According to the
agency, the role of the personnel Paraclete claims are biased against it
was *limited to non-evaluating advising and administrative support,*
including *activities such as coordinating the nomination of technical
evaluators and the user community; coordinating the location and time of
the technical evaluations; coordinating paperwork.* Id. at 3.
We have reviewed the record and find no credible evidence of bias or bad
faith on the part of the agency. Prejudicial motives will not be
attributed to contracting officials on the basis of unsupported
allegations, inference, or supposition. McDonnell Douglas Corp.,
B-259694.2, B-259694.3, June 16, 1995, 95-2 CPD P: 51 at 28. In our view,
the agency*s actions during this acquisition and evaluation of the
offerors* competing proposals were reasonable and in accordance with the
evaluation criteria set forth in the solicitation.
The protest is denied.
Anthony H. Gamboa
General Counsel
------------------------
[1] MOLLE is an acronym for the modular lightweight load-carrying
equipment system.
[2] The record shows that Eagle asked the agency after receiving its
discussion questions whether the submission of revised sample vest systems
was permissible, and was informed by the agency that *it is up to you how
to respond,* and *it is up to you to make sure that your response (with or
without physical sample) contains enough detail and information to permit
technical evaluation [of] your response against the negotiation issue and
requirements.* AR, Tab 28, Contracting Specialist*s E-Mail to Eagle (July
28, 2003).