TITLE: B-299766; B-299766.2, Lockheed Martin Maritime Systems & Sensors, August 10, 2007
BNUMBER: B-299766; B-299766.2
DATE: August 10, 2007
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B-299766; B-299766.2, Lockheed Martin Maritime Systems & Sensors, August 10, 2007
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: Lockheed Martin Maritime Systems & Sensors
File: B-299766; B-299766.2
Date: August 10, 2007
W. Jay DeVecchio, Esq., Kevin C. Dwyer, Esq., Edward Jackson, Esq., and
Daniel E. Chudd, Esq., Jenner & Block LLP, for the protester.
David P. Metzger, Esq., Kristen E. Ittig, Esq., Stuart W. Turner, Esq.,
and Caitlin K. Cloonan, Esq., Arnold & Porter LLP, for Chesapeake Sciences
Corporation, an intervenor.
Sabrina L. Hay, Esq., Jessica Clark, Esq., Michael J. Glennon, Esq.,
Andrew Saunders, Esq., and Alex F. Marin, Esq., Department of the Navy,
for the agency.
Paul N. Wengert, Esq., and Ralph O. White, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest is sustained where solicitation provided for tow-off testing of
prototype arrays according to a procedure in which each offeror was
explicitly permitted to participate in installation and check-out of its
prototype, and then granted a single opportunity to repair any failure of
its prototype immediately prior to towed testing, but the agency did not
notify the protester that its prototype had already failed before arrival
at the testing site, and did not allow the protester to repair its
prototype, and as a result, the agency was unable to evaluate significant
aspects of the performance of the protester's array.
DECISION
Lockheed Martin Maritime Systems & Sensors protests the award of a
contract to Chesapeake Sciences Corporation by the Department of the Navy,
Naval Sea Systems Command (NAVSEA), under request for proposals (RFP) No.
N00024-05-R-6259, issued as a follow-on to development contracts awarded
under a broad agency announcement to procure production towed-arrays for
the TB-34 Next Generation Fat-Line Towed Array program. Lockheed argues
that the Navy failed to properly remedy a breach of procurement integrity,
did not follow the procedure for testing and evaluating prototype arrays
specified in the RFP, and made a defective source selection decision.
We sustain the protest.
BACKGROUND
The Navy conducted this competition for the production of towed arrays[1]
between the two contractors that had delivered prototypes of their own
design under separate contracts. Thus, the procurement process began in
September 2004 when, after competition among four firms under a broad
agency announcement, the Navy awarded separate contracts to Chesapeake and
Lockheed for each to develop a prototype of a next-generation towed array,
for a subsequent head-to-head competition for a production contract. Under
the prototype contracts, each contractor designed and delivered a
prototype of its array in October 2005.
The Navy experienced problems with both prototypes in mid-March 2006, and
returned each to the respective manufacturer for repairs from March 13 to
March 19, 2006.[2] Shortly thereafter, the Navy issued the RFP here on
March 23 to Chesapeake and Lockheed, requesting production offers. While
the RFP requested a technical proposal, the evaluation of the performance
of each offeror's prototype array, as discussed below, formed the basis
for a significant part of the technical evaluation. In this regard, it
should be noted that certain testing of the prototype arrays was ongoing
before and after issuance of the RFP for this competition.
The RFP described the non-price evaluation in terms of three factors:
technical performance, contractor statement of work, and past
performance.[3] RFP at 178. Of these three, the RFP specified that the
technical performance factor would be significantly more important than
the contractor statement of work and past performance factors combined. In
addition, the non-price factors were significantly more important than
cost/price. The RFP also made clear that the operation of the prototypes
would be a significant aspect of the technical performance evaluation. RFP
at 170-71.
The RFP described several stages of the evaluation of the protoypes,
including acoustic calibration, tow-off testing, and anechoic chamber
testing. These were described in a separate section of the RFP labeled
"Evaluation Plan for the Next-Generation Fat-Line Towed Array Testing."
RFP, Evaluation Plan, at 1. Initial acoustic calibration took place at the
Naval Undersea Warfare Center's Underwater Sound Reference Detachment,
near Leesburg, Florida, while towed testing was planned for Lake Pend
Oreille in Idaho using the Research Vessel Chinook. RFP, Evaluation Plan,
at 20. Regarding the towed testing, the RFP provided for vendor
involvement in a pierside checkout, at the outset, thus:
The array and tow cable being tested will be installed aboard the
Chinook winch and integrated with the shipboard laboratory equipment by
vendor personnel using appropriate procedures. The Navy personnel, and
vendor personnel if available, will power the array and verify proper
operation in accordance with vendor guidelines. After proper operation
is established, Navy personnel and/or vendor personnel will command the
array to turn on each electrical CAL[ibration] signal in sequence . . .
.
Id.[4]
The RFP Evaluation Plan also incorporated a document titled "Evaluation
Ground Rules," that described two phases in the tow-off. After
installation and pier-side checkout, "phase 1" would include operation of
the array with the vendor present, while "phase 2" would be conducted
without the vendor present. The ground rules explained the purpose of each
phase:
C.2 TOW-OFF EVALUATION RULES
* * * * *
Array vendors are welcome to participate in the phase-1 testing. . . .
In the event of an array failure during phase 1, the array vendor will
have no more than 7 days to make repairs to the array. There will not be
a second phase-1 test period after a failure. Once the array is
repaired, it will be in control of the government and will proceed to
phase 2.
The evaluation team will conduct the second phase of the tow-off without
vendor participation, but the vendors are welcome to leave their
troubleshooting equipment aboard the research vessel during phase 2 for
the evaluation team's use in the event of a failure. Phase 2 is expected
to require several days of towing testing. Daily briefings will not be
scheduled during phase 2. The evaluation team will contact a vendor if
necessary.
RFP, Evaluation Plan, app. C, at C-2 to C-3.
The Evaluation Plan also noted that "[t]his document lists the evaluation
testing approach and actual tests that may be performed in the design
competition; any of these tests may be performed, but the government may
not complete all the tests listed."[5] RFP, Evaluation Plan, at 2.
Beginning on March 27, the Navy began conducting a multi-day process of
calibration with the arrays at the Leesburg facility, starting with
Chesapeake's array. On March 29 the Navy began calibration of Lockheed's
array, and encountered a second failure of the device.[6] The Navy
explains that
[o]n the late afternoon of 30 March 2006, the evaluation team was
approximately three-quarters through the calibration process at Leesburg
on the [Lockheed] TB-34 prototype when the processing system stopped
receiving data. The next morning, using troubleshooting procedures
previously provided by [Lockheed] . . . prior to release of the
solicitation, the evaluation team isolated the failure to the [Lockheed]
array's [deleted]. Only the remaining wideband calibration was able to
be completed. As a result of the failure in the [deleted], the array was
not able to process and transmit any data from the array's sensors.
Agency Report (AR) at 19.
At the end of the calibration procedure in Florida, both prototypes were
moved to Lake Pend Oreille in Idaho. From April 10 through 14, the Navy
installed, checked, and towed Chesapeake's array from the Chinook,
recording the array's data as provided in the test protocol. From April 17
through 19, the Navy installed, checked, and towed Lockheed's array. The
towing process for Lockheed took less time, because, as the Navy knew, the
Lockheed array had been unable to transmit data since the failure that had
occurred during the calibration process at the Navy's Leesburg facility,
and thus data handling steps were unnecessary. Neither Lockheed nor
Chesapeake participated in the installation or check-out of its array.[7]
On May 8, both offerors submitted proposals in response to the RFP. The
Navy opened discussions on August 28. While the discussions dealt with
technical evaluation issues, the Navy did not inform Lockheed that its
array had not functioned during towing. Next, the Navy received and
evaluated revised written proposals from both offerors. At this point, the
technical evaluators produced an extensive narrative of strengths,
weaknesses, and risks associated with each proposal, as well as a
numerical score for each subfactor (to which the evaluators would later
apply weighting factors, reflecting the significance of each factor and
subfactor described in the RFP). The numerical scores assigned to each
subfactor are set forth below:
As these unweighted scores illustrate, the evaluators concluded that the
lack of towing data resulted in a score of zero on Lockheed's rating under
the acoustic self-noise subfactor. However, the technical panel report
explained that in other respects "the array was evaluated based on design
data" that had been delivered under the prototype contract. AR, Tab 8,
Technical Evaluation Review Panel Report (Aug. 10, 2006), at 2. After
weighting the subfactors, the failure of Lockheed's array had a fairly
minor impact on the point scores reflected in the technical panel report,
and the panel concluded that the proposals were technically equivalent.
The weighted scores after this evaluation are set forth below:
AR, Tab 9, Contract Award Review Panel Report Addendum, Oct. 12, 2006, at
4.
The source selection authority cited the reports of the technical and
price evaluators, noted the identical total weighted scores under the
non-price factors, and selected Lockheed because its evaluated cost was
23% lower than Chesapeake's. AR, Tab 10, Initial Source Selection
Memorandum, Nov. 7, 2006, at 1. On November 22, the Navy announced the
award of the contract to Lockheed. Chesapeake promptly requested a
post-award debriefing.
Several days before the scheduled date for the debriefing, a corporate
executive at Chesapeake received a telephone call that is relevant to this
dispute. According to the executive, the caller (who Chesapeake asserts is
not a government employee, but who is not otherwise identified in the
record) used words to the effect of: "Sorry you lost, but at least yours
worked."[8] Chesapeake understood the caller to be saying that Lockheed's
array had failed to function during towed testing. On December 1,
Chesapeake received its debriefing, where it inquired of the Navy whether
the information Chesapeake had received was true. According to Chesapeake,
the Navy personnel expressed discomfort at the inquiries, and responded
only that "[i]t depends..." Chesapeake Protest, exh. G, Declaration of
Chesapeake Executive, at 2.
On December 6, Chesapeake filed a protest with our Office, challenging the
award of the production contract to Lockheed, and alleging that the Navy
could not reasonably have selected Lockheed over Chesapeake, given that
Lockheed's array had failed to operate during the tow-off testing.[9]
Chesapeake also argued that the Navy had used improper or unstated
evaluation criteria. Before the due date for an agency report in that
protest, the Navy elected to reopen the procurement to conduct
discussions, seek revised proposals, and make a new best value
determination. Our Office dismissed Chesapeake's protest on the basis of
that corrective action. Chesapeake Scis. Corp., B-299234, Dec. 20, 2006.
After that earlier protest had been dismissed, and as a part of reopening
the procurement, the Navy provided Lockheed with a debriefing on January
4, 2007. See Federal Acquisition Regulation (FAR) sect. 15.507(b)(2).
Lockheed states that it was during this debriefing that it learned that
Chesapeake had been told of the failure of Lockheed's array via an
unauthorized disclosure, rather than the debriefing process. Protest at
27.
By letter dated January 17, Lockheed advised the Navy that the firm
considered the disclosure to Chesapeake that Lockheed's array had failed
during testing to be a violation of procurement integrity provisions. By
that time, however, the contracting officer (CO) had, on his own,
concluded that the disclosure was a violation of procurement integrity
provisions, and had already memorialized his conclusion in writing. In
this document, the CO concluded that the disclosure had not affected the
competition, and that the recompetition should go forward. Agency Report,
Tab 13, Memorandum from the CO, Dec. 20, 2006, at 4. Shortly after
Lockheed submitted its allegation of a procurement integrity violation,
the NAVSEA executive director of contracts reviewed the CO's conclusions
and authorized the recompetition to go forward on the basis that the
disclosure "did not prejudice or impact the Source Selection Process."
Agency Report, Tab 14, Memorandum from Executive Director, Jan. 10, 2007,
at 1. The CO informed Lockheed on January 25 that "any procurement
integrity act violation that might have occurred . . . in no way precludes
a fair and equitable competition." AR, Tab 16, Letter from CO to Lockheed,
Jan. 25, 2007, at 1.
The Navy then opened discussions by providing each offeror with its
section of the technical panel report, which contained the numerical
ratings and the narrative of evaluated strengths, and weaknesses, for all
subfactors. The Navy also requested that both offerors prepare final
proposal revisions. See generally AR, Tab 17, Discussions Letters to
Lockheed and Chesapeake. As part of its reevaluation, the Navy decided
that it would limit its consideration of data analysis or modeling, thus
making the results of towed testing significantly more important to the
evaluation.
Upon receipt of final proposal revisions, the Navy evaluated the proposals
as follows:
The record reflects that the decreases in Lockheed's technical scores were
largely driven by the revision in the evaluation scheme, under which the
Navy looked to data from the tow-off testing in order for the offerors to
receive full credit under several criteria. As a result, the weighted
scoring was significantly affected by the failure of Lockheed's array to
produce any data during the towing testing. The final weighted scores and
evaluated prices are set forth below:
After noting the technical panel report had found significant differences
between the offerors as reflected in their numerical scores, the source
selection authority reversed the initial decision selecting Lockheed, and
instead selected Chesapeake for award. The source selection authority
identified the key contributors to his decision as the higher overall and
subfactor ratings achieved by Chesapeake, the higher tactical and wideband
frequency bandwidth of Chesapeake's array, and the low ratings of Lockheed
under the passive localization and ranging, wideband capability, shallow
water capability, and acoustic self-noise criteria. The source selection
authority concluded that these differences were significant enough to
justify selecting Chesapeake at its higher evaluated cost. AR, Tab 21,
Final Source Selection Decision, Apr. 20, 2007, at 2.
DISCUSSION
Lockheed challenges the handling of the procurement integrity violation,
the testing of its prototype and the evaluation of proposals. With respect
to procurement integrity, Lockheed argues that the Navy failed to properly
investigate and consider the impact of the violation in determining what
corrective action to take, and consequently allowed Chesapeake to benefit
from the violation. With respect to the conduct of the procurement,
Lockheed argues that the Navy failed to follow the RFP ground rules that
provided the vendors an opportunity to be present at the pierside
installation--and if the need arose, to repair the array--before towing
testing at Lake Pend Oreille. Finally, Lockheed also argues that in the
course of corrective action, the Navy conducted misleading discussions,
changed the evaluation to increase Chesapeake's score while decreasing
Lockheed's, and relied excessively on those point scores in selecting
Chesapeake for award.
The Navy responds that notwithstanding the procurement integrity
violation, it properly determined to continue with the corrective action,
and that Lockheed's protest on this basis is untimely. The Navy also
argues that the offerors were already provided an opportunity to repair
their arrays (in mid-March, before the RFP was issued), and there is no
requirement that they be given a second repair opportunity. In addition,
the Navy contends that Lockheed can only speculate that its repairs would
have been successful. Finally, the Navy argues that discussions were
adequate, the final evaluation was fair and consistent with the RFP, and
the source selection decision properly considered the differences between
the offerors which were signified by the point scores.
Procurement Integrity Issues
In its initial protest, Lockheed argues that the agency did not properly
address the procurement integrity violation Lockheed alleged on
January 17. In its supplemental protest, upon reviewing the Navy's
documents regarding this matter, Lockheed alleges that the Navy's
consideration of the violation did not meet the procedural requirements of
FAR sect. 3.104-7. In particular, Lockheed argues that the Navy only
considered the impact of the violation on the initial source selection,
but did not consider any impact on the reopened competition. In answer,
the agency and intervenor argue that Lockheed did not timely raise its
procurement integrity allegation with the agency within 14 days of
learning of it, as required by section 21.5(d) of our Bid Protest
Regulations. 4 C.F.R. sect. 21.5(d) (2007). The Navy also argues that its
consideration of the matter was reasonable, and consistent with the
applicable regulations.
Lockheed's response to the agency and intervenor's timeliness arguments is
that it did not learn that the disclosure to Chesapeake (about the
operation of Lockheed's device during testing) occurred outside the
debriefing process until the firm received its own debriefing on January
4. Lockheed also explains that it was only during its debriefing that it
learned that the Navy considered the information to be source selection
information. In Lockheed's view, it had no reason to suspect a procurement
integrity violation until it learned that the Navy considered the test
failure to be source selection information. Letter from Lockheed Counsel
to GAO, July 13, 2007, at 2-3.
We will not conclude, on this record, that Lockheed failed to timely
allege a procurement integrity violation. On the other hand, we think
Lockheed's response to the timeliness arguments suggests that it saw no
harm to the procurement process as a result of this disclosure. The record
here shows that Lockheed learned that Chesapeake had been advised that
Lockheed's array did not work during testing when it intervened in
Chesapeake's protest to our Office late in 2006. There is no
contemporaneous evidence suggesting that the content of this information
was viewed by Lockheed as competitively harmful. In addition, it was not
the content of the disclosure that led to the allegation that the
procurement had been compromised, but the later-learned knowledge that the
Navy was not the source of the disclosure. In fact, Lockheed's apparent
lack of concern upon originally learning of the disclosure suggests that
it believed that the information could have been provided to Chesapeake
during that firm's debriefing. Moreover, the Navy has argued that even
though it did not disclose this information to Chesapeake, it would have
been permissible to do so during Chesapeake's debriefing. Supp. AR at 10.
The record shows that the CO concluded that the disclosure here
constituted a procurement integrity violation, and that he took steps to
memorialize this conclusion and his views of its impact on the
procurement. In addition, the CO prepared his memorandum almost a month
before Lockheed filed its allegation. The record also shows that both the
CO and the NAVSEA executive director of contracts were aware of both the
content of the disclosure and the fact that the competition was being
reopened when they considered the impact of the violation. We think that
the CO's handling of this matter, and his decision to proceed with the
reopened competition despite the earlier disclosure, were reasonable. We
also find reasonable the actions of NAVSEA's executive director of
contracts when he confirmed the CO's judgments and memorialized his own
consideration of the matter.[10]
Deviation from Evaluation Ground Rules
With respect to the testing of the array prototypes, Lockheed argues that
it was improperly denied the opportunity specified in the RFP to repair
its array before phase 2 of the towed testing. The Navy responds that
Lockheed had already been provided an opportunity to repair its array
before the RFP was issued, and the RFP had warned offerors that "the
government may not complete all the tests listed" and thus the Navy had
the discretion to omit phase 1,[11] and even if the firms had been given a
repair opportunity, Lockheed might not have been able to successfully
repair its array.
We have held that where an agency provides in a solicitation for the
evaluation of a product sample--a situation analogous to the prototypes
being tested here--that evaluation must be fair, reasonable, and
consistent with the evaluation criteria. Design Contempo, Inc.,
B-252589.2, Aug. 11, 1993, 93-2 CPD para. 90 at 4. This includes an
obligation to perform product tests as described in a solicitation. Mine
Safety Appliances Co., B-238597.2, July 5, 1990, 90-2 CPD para. 11 at 11.
Thus, while our Office will not make an independent determination of the
merits of an offeror's proposal or, in the case of a product
demonstration, the performance of the offeror's product, 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. Exploration Prods.,
B-279251.2, B-279251.3, June 1, 1998, 98-2 CPD para. 15 at 5.
The RFP provisions quoted above anticipated the possible failure of this
equipment before the beginning of phase 2 towed testing, and provided
certain repair rights to each vendor in such a situation. Specifically,
the RFP provided that in phase 1 the offeror would be given a single
repair opportunity of up to 7 days in which to return a failed prototype
array to a working state. Lockheed was denied this opportunity the RFP
"ground rules" had promised.
Additionally, given the specific language of the RFP here, we think it is
not reasonable for the Navy to argue that it was allowed to omit the phase
1 repair opportunity--particularly where that omission brought about
exactly the type of harm that the RFP seemed to be designed to avoid. The
Navy emphasizes that phase 1 was also intended, in part, to allow the
offeror to train Navy personnel in the proper handling and operation of
the array, and we accept the Navy's argument that its personnel needed no
further training. Nevertheless, the phase 1 testing plainly promised a
repair opportunity, apparently in an effort to ensure that the prototype
arrays would be operational at the start of phase 2 towed testing.
The Navy points out that both offerors repaired their arrays prior to
issuance of the RFP, and argues that Lockheed was not entitled to a second
repair opportunity. In our view, however, the earlier repair opportunity
cannot be relied upon by the Navy to meet a promise it had not yet made.
In any event, the mid-March repairs (made before the prototypes were
shipped from Florida to Idaho) cannot reasonably be seen as a substitute
for the RFP-provided right to restore a failed array to an operational
status at the most crucial time under the RFP, that is, pierside at Lake
Pend Oreille, immediately before the beginning of the towing testing.
We also are not persuaded by the Navy's speculative assertions that
Lockheed might have been unable to repair its array, if it had been
offered that opportunity. On this subject, Lockheed answers with its own
speculation that it could have repaired its array quickly and easily using
spares that it had on hand. Our process is ill-suited to deciding protests
on the basis of speculation--by either party. In our view, we need not
determine that Lockheed would have successfully repaired its array; we
need only conclude that it was denied the opportunity to do so immediately
before phase 2 testing, and that this was contrary to the ground rules
specified in the RFP.[12]
RECOMMENDATION
We sustain the protest because we conclude that the Navy did not conduct
the testing of Lockheed's prototype in accordance with the process set
forth in the RFP, and this failure prejudiced Lockheed in this
competition. We recommend that the Navy either follow the ground rules in
its RFP by allowing Lockheed an opportunity to repair its array
immediately before towed testing, or revise the evaluation ground rules by
an amendment to the solicitation and allow the offerors an opportunity to
compete under the revised RFP. In either case, the Navy should prepare a
new evaluation and source selection decision. If this process results in
selection of Lockheed, the Navy should terminate the contract with
Chesapeake. Finally, we recommend that the protester be reimbursed its
costs of filing and pursuing the protest, including reasonable attorneys'
fees. Bid Protest Regulations, 4 C.F.R. sect. 21.8(d)(1). The protester
should submit its certified claim, detailing the time expended and costs
incurred, directly to the contracting agency within 60 days of receiving
this decision. 4 C.F.R. sect. 21.8(f)(1).
The protest is sustained.
Gary L. Kepplinger
General Counsel
------------------------
[1] In simple terms, a towed array is a sophisticated listening/sensing
device, which is intended to be deployed behind a submarine by a towing
cable, and which produces data to assist in locating and identifying other
vessels and underwater features, particularly near shore.
[2] After repairing its array, Lockheed sent a letter to the Navy advising
that its array had failed because of the improper application of
electrical power, and offering to assist the Navy in testing the array.
[3] The subfactors under the technical performance factor, in descending
order of importance, were: handler and processing capability, array
reliability, life-cycle cost, array performance (further subdivided into
shallow water capability, passive localization and ranging, wideband
sensor, and acoustic self-noise), and suitability for production. The
subfactors under the contractor statement of work factor were:
approach/oral presentation, firm fixed-price data deliverables, and
cost-plus-fixed-fee data deliverables. There were no subfactors under the
past performance factor. RFP at 178.
[4] In contrast to the government-only testing that would follow, the
evaluation plan provided that "[t]he array vendors are welcome to
participate in the installation, pierside checkout, and initial (phase 1)
portions of the towing tests . . ." RFP, Evaluation Plan, app. A, at A-3.
[5] For example, while the RFP listed a number of performance measurement
tests, from calibration and a tow-off using the Chinook, to "at-sea
testing aboard an attack submarine," the record does not indicate that any
submarine-based at-sea testing was performed as part of the evaluation.
RFP, Evaluation Plan, at 1.
[6] As mentioned above, the first failure of the device had led to its
return to Lockheed for repairs in mid-March, which Lockheed completed
shortly before the issuance of the RFP on March 23.
[7] On April 18, while in the midst of towing Lockheed's inoperative
array, the Navy sent a letter to Lockheed advising it that the Navy did
not expect to need any assistance with towing testing. Neither the fact
that towing testing was already underway at Lake Pend Oreille, nor that
Lockheed's prototype array was inoperative, was mentioned.
[8] The record contains two separate declarations from Chesapeake, which
purport to quote the caller but show slight differences in the wording.
Compare Declaration of Chesapeake's President, Dec. 6, 2006, at 2 with
Declaration of Chesapeake's President, June 6, 2007, at 1.
[9] Lockheed intervened and was provided a redacted copy of the protest on
December 12 or 13, 2006, which contained the protest allegation that
"Chesapeake, on good information, believes that the Lockheed prototype
failed to function, and hence, the Navy was unable to collect data from it
during the towing test." Chesapeake Redacted Protest at 3. As the protest
was covered by a protective order, Lockheed itself (as distinct from its
legal counsel) did not learn that the information had come from a
telephone call, rather than the debriefing, until January 4, 2007, when
Lockheed received its own debriefing.
[10] To the extent that Lockheed argues that a sentence in Chesapeake's
proposal suggests the company may have been provided other information
about the Lake Pend Oreille testing, we think the record does not support
this claim. During the course of this protest, Chesapeake responded to the
allegation by explaining that the proposal reference was to the results of
tests performed on a different array it provides to the Navy--not the
array at issue here. In our view, given Chesapeake's plausible
explanation, the absence of any challenge to this answer, as well as the
absence of any other information to support Lockheed's allegation of a
broader disclosure, we have no basis to find that this sentence in
Chesapeake's proposal should have led the Navy to reach a different
conclusion here.
[11] While the Navy also argues that the failure of Lockheed's array
occurred during phase 2, we believe the Navy's argument in this respect
relies on a strained reading of the RFP. Read as a whole, we agree with
Lockheed that the RFP contemplated that phases 1 and 2 of the evaluation
would occur at the location of the towed testing, which was Lake Pend
Oreille, Idaho. Thus, events before delivery of the arrays to Lake Pend
Oreille--in particular the calibration in Leesburg, Florida, where
Lockheed's array failed--could not be considered part of either phase 1 or
phase 2 of the tow-off described in the RFP.
[12] As noted above, Lockheed also argues that the evaluation was
improper, discussions were misleading, and the source selection decision
was superficial. In light of our recommendation that will result in, among
other things, a new source selection decision, we find it unnecessary to
address these grounds of protest.