TITLE: B-296194.4; B-296194.5, Foster-Miller, Inc., August 31, 2005
BNUMBER: B-296194.4; B-296194.5
DATE: August 31, 2005
************************************************************
B-296194.4; B-296194.5, Foster-Miller, Inc., August 31, 2005

   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: Foster-Miller, Inc.

   File: B-296194.4; B-296194.5

   Date: August 31, 2005

   Matthew D. Schwartz, Esq., Timothy Sullivan, Esq., and Katherine S. Nucci,
   Esq., Thompson Coburn LLP, for the protester.

   Capt. Victor G. Vogel, John J. Reynolds, Esq., and Lea E. Duerinck, Esq.,
   U.S. Army Materiel Command, 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

   1. Under procurement calling for two stages of testing of equipment
   (chamber testing and field testing), contracting agency properly barred
   protester from using a programming load for its equipment during the field
   test different from the programming load that the protester had used
   during the chamber test; agency's decision was based on a reasonable
   interpretation of language in the chamber and field test plans as
   prohibiting changes to the programming load after the chamber test.

   2. Protest is denied where protester fails to demonstrate that agency's
   evaluation of proposal as unacceptable under critical evaluation subfactor
   and agency's exclusion of proposal from competitive range on that basis
   were unreasonable.

   DECISION

   Foster-Miller, Inc. (FMI) protests the exclusion of its proposal from the
   competitive range under request for proposals (RFP) No. W15P7T-05-S502,
   issued by the U.S. Army Communications-Electronics Life Cycle Management
   Command, Fort Monmouth, New Jersey, for a Counter Remote Control
   Improvised Explosive Device (RCIED) Electronic Warfare (CREW) System.

   We deny the protest.

   BACKGROUND

   The solicitation seeks to acquire a next-generation CREW system, to be
   used to prevent and defeat improvised explosive device ambushes [deleted].
   That is, the solicitation seeks improved technology for jamming
   radio-controlled roadside bombs. The goal is to improve on the
   capabilities of the currently-fielded CREW system by providing for
   simultaneous coverage against all RCIED threats at increased ranges,
   broader frequency coverage extendable to higher frequencies, ease of
   programmability, reduced size, weight, and power, and built-in capacity
   for future growth.

   The RFP, which was issued on February 4, 2005, contemplated the award of
   one or more 4-year, fixed-price, indefinite-delivery/indefinite-quantity
   and time-and-materials contracts to the offerors whose proposals were
   determined most beneficial to the government. The solicitation provided
   for the evaluation of proposals on the basis of the following four
   factors, listed in descending order of importance: technical performance,
   price, performance risk, and small business participation. The technical
   performance factor included the following subfactors, listed in descending
   order of importance: technical approach, schedule and production capacity,
   and supportability. The solicitation advised offerors that to receive
   consideration for award, proposals had to be rated no less than acceptable
   under the technical performance factor, each of its three subfactors, and
   the small business participation factor.

   The RFP's Statement of Objectives identified Band A (required) and Band B
   (desired) capabilities of the systems to be procured. One of the Band A
   requirements pertained to frequency spectrum; another pertained to
   effective range. The RFP advised that the government would evaluate the
   offeror's ability to meet the Band A requirements, as well as any offered
   capabilities from Band B. The RFP further advised that failure to meet any
   Band A requirement would render a proposal unacceptable. Offerors were
   cautioned that "[u]nsupported promises to comply with contractual
   requirements will not be sufficient," and that "[p]roposals must contain
   supporting rationale for any statements relating to proposed performance."
   RFP sect. M-3(C)(1). Similarly, offerors were advised that one of the
   criteria that would be considered in evaluating their proposals under the
   technical performance factor and its subfactors was completeness/adequacy
   of response and that "[m]ere statements of compliance or repetition of the
   technical requirements without a complete discussion and analysis [are]
   unsatisfactory." Id.

   The solicitation required the submission of at least two hardware system
   samples for testing in a laboratory anechoic chamber at Fort Monmouth and
   in the field at Yuma Proving Ground in Arizona, with results of the
   testing to be considered in the evaluation of proposals under the
   technical approach subfactor. The solicitation provided that the test
   results would be used to verify the content of the offeror's written
   proposal and to help the government assess the risk in the offeror's
   ability to meet solicitation requirements. The RFP further provided that
   an offeror's failure to submit at least two system samples for laboratory
   anechoic chamber and Yuma Proving Ground testing at the time of proposal
   submission would render the offeror's proposal ineligible for award.

   The RFP included both a Chamber Test Plan and a Field Test Plan. RFP
   Attachs. 5 and 6. Of relevance to this protest, the Chamber Test Plan
   instructed offerors as follows:

   The offeror may bring any test equipment, to be used for installation,
   verification, operation, and diagnostics of TEST ARTICLE(s), into Building
   600. This equipment will need to be included in the shipment of TEST
   ARTICLE(s). Equipment that is not shipped with the TEST ARTICLE(s) will be
   prohibited from entering the 12WD facility.

   RFP Attach. 5, at 5. The Field Test Plan, in contrast, did not place
   restrictions on the test equipment that offerors were permitted to bring
   to the test site.

   The Chamber Test Plan also advised offerors that as part of the testing,
   they would be provided with a list of test threats and their tuning ranges
   to be used to "set up, or program their TEST ARTICLES." Id. at 8. The plan
   further advised offerors that, after an initial or "dry" run, they would
   be allowed to "reprogram the test article with a new programming load,"
   [1] and then have their test articles retested for the record against the
   same list of threats. Id. at 5. The plan instructed that at the conclusion
   of the chamber testing, the government would ship the test equipment and
   test articles to Yuma for the field test, and that "[n]o software changes
   to the TEST ARTICLES [would] be permitted between the chamber tests and
   field tests." Id. The Field Test Plan provided that as part of the field
   test, offerors would be provided with the same list of test threats and
   their tuning ranges as used in the chamber test, and that they would be
   allowed to "input the TEST ARTICLE programming load once prior to the
   Field Tests." RFP Attach. 6, at 6. Offerors were cautioned that they would
   "NOT be permitted to reprogram [their] TEST ARTICLES at any time during
   the Field Testing." Id.

   Eight proposals were received by the March 21 closing date. FMI furnished
   hardware samples with its proposal, but failed to include with the
   proposal a laptop computer, which it needed to run the interface software
   which it planned to use to input the programming load into its test
   article.[2] When the FMI team arrived at Fort Monmouth for chamber testing
   of the protester's test articles on March 30, it brought with it a laptop
   computer that it intended to use to run the interface software and enter
   the programming load. Agency officials refused to allow the FMI team to
   bring the laptop computer into the test facility, however, since, as noted
   above, any test equipment was required to have been shipped with the test
   articles. Agency officials also refused to allow the protester's team
   access to an agency laptop. FMI was given the option of proceeding without
   loading the software or not proceeding at all. According to the protester,
   its test article [deleted]; while the agency's refusal to permit it to use
   the laptop would prevent FMI from adjusting the program load to maximize
   its system's performance, [deleted] the test article would allow some
   demonstration of the equipment's capabilities. As a result, FMI initially
   opted to proceed with testing. After the agency test facility director
   advised the FMI team that FMI also would not be permitted to use the
   laptop prior to the second round of testing at Yuma, meaning that it would
   also be precluded from demonstrating its system's full capabilities during
   the field testing, FMI elected not to proceed with testing of the system
   and its team left the test facility. The contracting officer subsequently
   notified FMI via telephone call that FMI's proposal had been disqualified
   from further consideration.

   On April 8, FMI protested its disqualification to our Office, arguing that
   it had elected not to proceed with testing of its samples because the test
   facility director had incorrectly advised it that it would not be
   permitted to use its laptop prior to field testing at Yuma. The protester
   maintained that the field test plan, unlike the chamber test plan,
   permitted offerors to bring equipment to the test site for use in
   installing its test articles, and thus it should be permitted to bring a
   laptop computer to the Yuma test site. The protester requested that it be
   reinstated in the competition and provided a reasonable opportunity to
   demonstrate its product at the chamber and field tests. In response to the
   protest, the agency agreed to reinstate FMI in the competitive range and
   to allow it to return to the anechoic chamber for testing. Upon receipt of
   notification from the agency that it was taking this corrective action, we
   dismissed FMI's protest as academic.

   FMI completed the chamber testing, and on May 5, received notice from the
   contracting officer that its proposal had been included in the competitive
   range. The contracting officer's letter further informed the protester
   that items for negotiations (IFN) would be furnished to it the following
   day, and that failure to resolve the deficiencies identified in the IFNs
   to the government's satisfaction would preclude it from receiving an
   award. A second letter dated May 5 notified the protester that its field
   test dates would be May 23-25.

   At the completion of the chamber test, the agency had loaded the
   programming load from FMI's test article onto a government laptop, which
   it then shipped to Yuma. When the protester arrived at the Yuma test site,
   it was furnished with the laptop and the list of test threats and
   frequency tuning ranges. Using the laptop, FMI then sought to enter into
   the test article a programming load different from the programming load
   that had been used during the chamber test. Agency officials barred FMI
   from doing so on the ground that entering a new programming load would
   constitute reprogramming of the test article, which was prohibited by the
   test plans.

   FMI protested the agency's actions to our Office on May 31, asserting that
   the Field Test Plan expressly authorized it to enter a programming load
   into its test article prior to commencement of the field testing. ("The
   offeror will be allowed to input the TEST ARTICLE programming load once
   prior to the Field Testing." RFP Attach. 6, at 6.) The protester argued
   that the agency's refusal to allow it to proceed in the manner authorized
   by the test plan had placed it at a significant disadvantage because its
   inability to enter the programming load had prevented it from
   demonstrating its system's full capabilities. As a consequence, the
   protester argued, "its system was significantly handicapped and could not
   react to as many threats or react as effectively as it would have had FMI
   been permitted to input the programming load as permitted by the Test
   Plan." Protest, May 31, 2005, at 6-7.

   On June 17, the agency notified FMI that its proposal had been excluded
   from the competitive range and thereby eliminated from the competition.
   The letter directed the protester's attention to sect. M-3 of the RFP,
   which placed offerors on notice that to receive consideration for award, a
   proposal had to be rated no less than acceptable under the technical
   performance factor and each of its three subfactors. The letter also cited
   the solicitation language providing that offerors who failed to meet any
   Band A requirements would be rated unacceptable. The letter informed the
   protester that after extensive evaluation, its proposal had been rated as
   follows:

     TECHNICAL PERFORMANCE   UNACCEPTABLE

       Technical approach   Unacceptable

       Schedule/Production Capacity   Acceptable

       Supportability   Acceptable

     PERFORMANCE RISK   Low

     SMALL BUSINESS PARTICIPATION   Good

   The letter explained that the rating of unacceptable under the technical
   approach subfactor was attributable to the protester's failure to
   demonstrate that its system complied with the RFP's frequency bandwidth
   and effective range requirements.

   Upon receipt of the contracting officer's letter, the protester sought and
   obtained an agency debriefing. On June 28, FMI filed a supplemental
   protest with our Office objecting to its exclusion from the competitive
   range. On the same day, the agency notified our Office that it was
   proceeding with award of a contract notwithstanding FMI's protest.

   ANALYSIS

   The determination of whether a proposal is in the competitive range is
   principally a matter within the reasonable exercise of discretion of the
   procuring agency, and in reviewing an agency's evaluation of proposals and
   subsequent competitive range determination, we will not evaluate the
   proposals anew in order to make our own determination as to their
   acceptability or relative merits; rather, we will examine the record to
   determine whether the documented evaluation was fair and reasonable and
   consistent with the evaluation criteria, as well as procurement statutes
   and regulations. Safety-Kleen (Pecatonica), Inc., B-290838, Sept. 24,
   2002, 2002 CPD

   para. 176 at 5-6. An agency is not required to retain in the competitive
   range a proposal that is not among the most highly rated ones or that the
   agency otherwise reasonably concludes has no realistic prospect of award.
   Federal Acquisition Regulation sect. 13.306(c)(1); SDS Petroleum Prods.,
   Inc., B-280430, Sept. 1, 1998, 98-2 CPD para. 59 at 5.

   FMI argues that the exclusion of its proposal from the competitive range
   was based on a substantially flawed and unreasonable evaluation of its
   written proposal and IFN responses and on the agency's refusal to adhere
   to the requirements of the Field Test Plan, which prevented FMI from
   demonstrating the full capabilities of its system. According to the
   protester, the agency's deviation from the Field Test Plan prevented it
   from demonstrating that its system could meet the requirements of the RFP.

   As discussed in detail below, the agency argues in response that it
   properly did not permit the protester to load a different programming load
   into its test article before the field test. The agency further argues
   that FMI's performance on the field test was not the basis for its
   elimination from the competitive range in any event; rather, the agency
   asserts, the proposal was eliminated because it contained an unresolved
   deficiency pertaining to FMI's approach to satisfying the Band A
   requirements pertaining to frequency bandwidth and effective range.

   Field Testing

   With regard to the conduct of the field testing, FMI argues that the
   agency improperly barred it from entering a programming load different
   from the one used during the chamber testing. The agency disagrees,
   arguing that it acted properly given that the test plans made clear that
   "there would be no change allowable to any software or programming load
   from the time the chamber test ended through the initiation of and the
   full conduct of the Yuma Field Test." Source Selection Evaluation Board
   (SSEB) Chairman's Statement, June 13, 2005, at 1. The agency cites as
   support for its position the statement in the Chamber Test Plan that "[n]o
   software changes to the TEST ARTICLES will be permitted between the
   chamber tests and field tests," id. at 2; according to the agency,
   "software" and "programming load" are synonymous terms. The Army asserts
   that the bar on changing the programming load reflects its intent to
   ensure that upon completion of the chamber test, the same programming load
   would then be used in the field test.

   FMI argues that the language in the Chamber Test Plan on which the agency
   relies--"no software changes to the TEST ARTICLES will be permitted
   between the chamber tests and the field tests"--does not impose a
   limitation on changing the programming load. According to FMI, the term
   "software" refers to "computer programs, which are sequences of
   instructions that are executed by hardware and define the basic
   characteristics and capabilities of a computer or computer-based
   equipment." Comments, July 8, 2005, at 7-8. In essence, FMI asserts, the
   limitation in the Chamber Test Plan applies only to any changes to the
   equipment's operating system or the interface software itself. Under FMI's
   interpretation, the programming load does not constitute software, and
   thus the prohibition on software changes does not bar loading a different
   programming load for use during the field test than was used during the
   chamber test.

   We think that the agency's position regarding the restriction on changing
   the programming load reflects a reasonable interpretation of the test
   plans. Accordingly, we see no basis to object to the agency's decision to
   bar FMI from changing the programming load for purposes of the field
   testing.

   First, even accepting the protester's definition of the term "software,"
   we find reasonable the agency's position that the language in the Chamber
   Test Plan barring software changes extends to changes to the programming
   load. As the SSEB Chairman explains:

   FMI has further stated [that] the programming load . . . consists of data
   (selective, targeted frequencies with start and stop frequencies and other
   variables such as step size in kilohertz, step time and dwell time) . . .
   . In actuality, the [programming] load provides these values, which are
   identified by the operational software and incorporated into the
   instructions being given to the hardware. Changing these numeric values
   changes the instruction. The FMI system observed in the Chamber Test was
   in a "Default Factory Setting" that had default values assigned to all of
   these parameters. Inputting the Threat Program Load would have introduced
   new values for these settings and would have changed the instructions to
   be executed by the hardware as a result. It would be similar to giving a
   person the verbal instruction "wait here for 10 seconds." This instruction
   is significantly different from the verbal instruction "wait here for 30
   minutes." Only the number value has changed, but the instruction to the
   person and the overall result of following the instruction is much
   different. . . . Changing any of the parameters listed above would have
   had a direct effect on the system's characteristics and capability.

   SSEB Chairman's Statement, July 25, 2005, at 5. As the SSEB Chairman
   explains, the programming load--like the equipment's operating system,
   which FMI asserts fits the definition of "software"--provides instructions
   to be executed by the hardware and defines the capabilities of the system.
   Id. Thus, to the extent that the programming load constitutes software in
   the context of the test plan and the test articles involved here, the
   prohibition on software changes in the Chamber Test Plan bars any changes
   to the programming load.

   Further, aside from the language prohibiting software changes, we think
   that, read as a whole, the overall scheme set out in the test plans
   contemplated that offerors would formulate a programming load that would
   be used for both the chamber and field tests, and that no changes to the
   programming load were contemplated once it had been used in the chamber
   test. In this regard, as explained above, after being given a list of
   threats and their frequency ranges, an offeror was to enter an initial
   programming load for chamber testing. After this initial test, or dry run,
   the offeror was allowed to "reprogram the TEST ARTICLE with a new
   programming load," if it so elected. RFP Attach. 5, at 5. The test article
   then would be retested against the same list of threats using the new
   programming load. Id. Similarly, the Field Test Plan provides as follows:
   "the offeror will be allowed to input the TEST ARTICLE programming load
   once prior to the field tests. The offeror will NOT be permitted to
   reprogram its TEST ARTICLES at any time during the Field Testing." RFP
   Attach. 6, at 6.

   It is clear that the term "reprogramming" is used throughout the test
   plans to refer to the act of making changes to the programming load. Thus,
   to the extent that the Field Test Plan states that no reprogramming will
   be permitted "at any time" during the field test, it clearly is reasonable
   to interpret it to mean that no changes can be made to the programming
   load. According to FMI, this language merely prohibits changes to the
   programming load once it is loaded for use in the field test; it does not
   prohibit changes to the programming load used in the chamber testing,
   before it is loaded into the system for use during the field test. The
   agency explains in response that no changes were intended to be made to
   the programming load used during the chamber test, since it wanted
   offerors to use the same programming load to allow a valid comparison of a
   test article's performance in both settings, chamber and field. While the
   protester disagrees with the agency's premise, and argues that there are
   valid technical reasons for allowing different programming loads in the
   two settings, Comments, July 8, 2005, Declaration of Foster-Miller
   Technical Advisor, its assertions essentially constitute disagreement with
   the agency's technical judgment, and thus are not a sufficient basis to
   conclude that the agency's position is unreasonable. R&B Equip. Co.,
   B-271194, May 22, 1996, 96-1 CPD para. 250 at 4-5.

   In sum, we see no basis to find unreasonable either the agency's
   interpretation of the test plan language or its decision to bar FMI from
   changing its programming load before field testing began.

   Proposal Evaluation

   Turning then to the protester's argument that the agency's evaluation of
   its written proposal and IFN responses was unreasonable, we think that the
   record shows that the agency had a reasonable basis for concluding that
   FMI had not demonstrated that its system would be capable of complying
   with the Band A requirements pertaining to frequency spectrum and
   effective range concurrently, and on that basis rating it as unacceptable
   under the technical approach subfactor.[3]

   In this regard, the agency found--and the protester does not dispute--that
   its written proposal did not contain adequate analysis or test data
   demonstrating compliance with these requirements, and while the
   protester's IFN responses did contain analysis, the evaluators concluded
   that this analysis in fact demonstrated that FMI's system would not meet
   the solicitation's minimum requirements. Specifically, in summarizing this
   key deficiency in FMI's technical proposal, the SSEB Chairman states that
   FMI failed to address the full requirement of simultaneously meeting the
   Band A threat frequency bandwidth coverage and the required effective
   range, and that FMI's analysis and calculations focused only on the
   ability to cover the frequency bandwidth. This finding is consistent with
   the conclusions in the technical evaluation report, where the evaluators
   observed as follows with regard to FMI's technical proposal:

   [Deleted]

   Technical Evaluation Report at 6.

   We recognize that the protester, in a statement submitted by its business
   development manager, disputes the agency's conclusion that FMI's system's
   ECM spectral density will be too low to jam the threats to meet necessary
   Band A effective range requirements when programmed to the entire
   bandwidth of the system. Comments, Aug. 5, 2005, Fourth Declaration of
   Michael C. Hargett, at 4. Beyond his general contentions, however, FMI has
   not demonstrated--and thus we have no basis to conclude--that the agency's
   analysis is in error. Moreover, to the extent that FMI argues that
   "proper" testing would have established that FMI's system fully meets the
   RFP's effective range requirement, id., as noted above, we think that the
   agency's testing was consistent with the test plans. In any event, the
   implicit premise of the protester's position on this point--that the only
   way to demonstrate the capabilities of FMI's system is through actual
   testing--is flawed. It was clear from the terms of the solicitation that
   offerors were required to demonstrate compliance with the Band A
   requirements in their written proposals and that the test results would be
   used to verify that compliance, but were not a substitute for the proposal
   requirements. RFP sect. M-3(C)(1). Thus, contrary to FMI's apparent view
   of the role of testing here, we think that it was clear that the test
   results could not be used to cure deficiencies in a written proposal. TMC
   Design Corp., B-296194.3, Aug. 10, 2005, 2005 CPD para. ___.

   In sum, the protester has not persuaded us that the agency's evaluation of
   its proposal as unacceptable under the technical approach subfactor and
   the agency's exclusion of its proposal from the competitive range on that
   basis were unreasonable.

   The protest is denied.

   Anthony H. Gamboa

   General Counsel

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

   [1] The term "programming load" is used to describe the data input into a
   test article by an offeror during the testing. Specifically, FMI describes
   "programming load" as

   data (selective, targeted frequencies with start and stop frequencies and
   other variables such as step size in kilohertz, step time and dwell time)
   entered into [an offeror's] system via the [graphic user interface]
   software, much like data is entered by a user on a computer spreadsheet
   via Excel applications software. The system's software then uses the data
   to tell the system where to direct power and energy levels to jam likely
   threats.

   Comments, July 8, 2005, at 9-10.

   [2] FMI did furnish a copy of the interface software with its hardware
   samples but, without a laptop computer, it could not use the software to
   enter a programming load.

   [3] We recognize that the contracting officer's letter to the protester
   notifying it of its exclusion from the competitive range cited additional
   bases for the determination of unacceptability under the technical
   approach subfactor, but we understand the protester's failure to
   demonstrate that its system would be capable of complying with the
   frequency spectrum and effective range requirements concurrently to have
   formed the underlying basis for the determination. In this regard, the
   Chairman of the SSEB observed in his technical statement that:

   despite two rounds of IFN requests and a detailed discussion of this issue
   during the one-on-one telephonic negotiation session, FMI failed to
   address the full requirement of simultaneously meeting the Band A threat
   frequency bandwidth coverage as set forth in Appendix A and the Band A
   effective range as specified in the Performance Based Specification. This
   was a minimum requirement of the RFP and therefore the failure to meet
   this requirement resulted in FMI being assigned a "deficiency" under the
   Technical Approach Subfactor.

   SSEB Chairman's Statement, July 25, 2005, at 2.