TITLE: B-299864; B-299864.2; B-299864.3, Harris Corporation, September 14, 2007
BNUMBER: B-299864; B-299864.2; B-299864.3
DATE: September 14, 2007
***********************************************************************
B-299864; B-299864.2; B-299864.3, Harris Corporation, September 14, 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: Harris Corporation

   File: B-299864; B-299864.2; B-299864.3

   Date: September 14, 2007

   Thomas P. Humphrey, Esq., John E. McCarthy, Jr., Esq., Michael D. Newman,
   Esq., Rogelyn D. McLean, Esq., Dane Swanson, Esq., Derek A. Hahn, Esq.,
   Crowell & Moring, and Ronald S. Blum, III, Esq., for the protester.

   Mark D. Colley, Esq., Drew A. Harker, Esq., Paul E. Pompeo, Esq.,
   Patricia L. Stasco, Esq., and Antonella Karlin, Esq., Arnold & Porter, and
   Charles D. Coleman, Esq., for the Raytheon Company, the intervenor.

   Sandra Cain, Esq., Marian Ciborski, Esq., Robert Schlesinger, Esq., and
   Cheryl Parker, Esq., for the agency.

   David A. Ashen, Esq., and John M. Melody, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest of award of contract under downselect competition for naval
   satellite communications terminal is denied where agency reasonably
   determined that testing of awardee's prototype demonstrated that it met
   nearly all of the hardware and software specification requirements, while
   protester's prototype failed to satisfy many specification requirements,
   such that a significant amount of work that had been scheduled for
   completion in initial development phase had not been accomplished by
   protester, resulting in a medium to high risk in event of award to
   protester.

   DECISION

   Harris Corporation protests the Space and Naval Warfare Systems Command's
   (SPAWAR) award of contract No. N00039-07-C-0012 to the Raytheon Company,
   pursuant to a downselect competition under contract No. N00039-04-C-0011,
   for the Navy Advanced Extremely High Frequency (AEHF) Multiband Terminal
   (NMT). Harris challenges the evaluation of proposals and resulting source
   selection.

   We deny the protest.

   The AEHF NMT is a multiband-capable satellite communications terminal that
   will be installed on ship, shore, and submarine platforms to provide the
   capability to communicate with satellite systems (such as Milstar) using
   various frequency bands, communications protocols and data rates. The
   surface ship NMT comprises a below decks Communications Group and a
   topside Antenna Group that includes two antennas and two radomes. The
   submarine NMT includes a Communications Group and modifications, as
   necessary, to the submarine mast antenna and periscope antenna/high power
   amplifier (HPA) interfaces, provided as government furnished property
   (GFP). The shore NMT consists of a Communications Group capable of
   interfacing to the GFP shore Antenna Group, including modifications to the
   GFP shore Antenna Group, as necessary.

   On October 28, 2003, SPAWAR awarded Raytheon and Harris cost-plus-award
   fee contracts for system design and development of the NMT, with
   fixed-price, not-to-exceed options for production. Under the initial phase
   of these contracts, each contractor developed and fabricated four
   prototypes (two for surface ships, one for submarines and one for shore),
   which were to undergo a prototype test (PT1) to demonstrate that the
   prototypes were capable of meeting the requirements in the specifications
   (including SPAWAR-T-895, Navy Advanced Extremely High Frequency (AEHF)
   Multiband Terminal (NMT) Specification). The specific subset of
   requirements to be verified in the PT1 testing, referred to as REQIDs,
   numbered 388 as listed in Appendix E, Test Matrix, of SPAWAR-T-895. NMT
   Statement of Work (SOW) sect. 3.4; Agency Report (AR) at 15. As discussed
   below, the results of the PT1 testing were crucial to the resulting
   downselect decision.

   On June 22, 2006, SPAWAR issued a downselect contract change package (CCP)
   that provided for selection on a "best value" basis of a single contractor
   to continue development, and then undertake production and logistic
   support, of the NMT terminal. The downselect decision was to be based on
   four evaluation factors: (1) technical approach (including
   equally-weighted subfactors for system performance and design; terminal
   systems engineering; and software development, engineering and technical
   data/computer software rights); (2) current and past performance
   (including a subfactor for NMT test results and analysis, and a
   significantly less important subfactor for current and recent past
   performance); (3) management approach (including equally weighted
   subfactors for system effectiveness engineering; production plan;
   integration and test plan: and risk management plan); and (4) cost/price.
   Regarding the PT1 testing, the CCP provided that "[t]he Government will
   evaluate the extent to which the contractor's NMT PT1 test results satisfy
   or exceed the requirements in accordance with SPAWAR-T-895, Appendix E PT1
   test requirements and as stated in Section H-20(b)." CCP sect. H.20(c)(5)
   at H-62. Technical approach and current and past performance were of equal
   importance and, when combined, were significantly more important than
   management approach and cost/price, which were of equal importance. All
   evaluation factors other than cost/price, combined, were significantly
   more important than cost/price. In addition, the CCP provided that the
   "evaluation of risk will be an integral part of the evaluation of each
   applicable factor and subfactor through the Government's identification of
   strengths, weaknesses, deficiencies, omissions, and risks in the
   contractor's proposal." CCP para. H-20(c)(5) at H-51.

   SPAWAR evaluated the proposals as follows:

   +------------------------------------------------------------------------+
   |                                     |Raytheon         |Harris          |
   |-------------------------------------+-----------------+----------------|
   |Technical Approach                   |Good             |Good            |
   |-------------------------------------+-----------------+----------------|
   |System Performance/Design            |      Good       |      Good      |
   |-------------------------------------+-----------------+----------------|
   |Terminal Systems Engineering         |      Good       |  Satisfactory  |
   |-------------------------------------+-----------------+----------------|
   |Software Development                 |      Good       |      Good      |
   |-------------------------------------+-----------------+----------------|
   |Current/Recent Past Performance      |Good             |Marginal        |
   |-------------------------------------+-----------------+----------------|
   |NMT Test Results                     |      Good       |    Marginal    |
   |-------------------------------------+-----------------+----------------|
   |Current/Recent Past Performance      |      Good       |      Good      |
   |-------------------------------------+-----------------+----------------|
   |Management Approach                  |Good             |Good            |
   |-------------------------------------+-----------------+----------------|
   |System Effectiveness Engineering     |      Good       |  Satisfactory  |
   |-------------------------------------+-----------------+----------------|
   |Production Plan                      |      Good       |      Good      |
   |-------------------------------------+-----------------+----------------|
   |Integration and Test Plan            |      Good       |  Satisfactory  |
   |-------------------------------------+-----------------+----------------|
   |Risk Management Plan                 |      Good       |      Good      |
   |-------------------------------------+-----------------+----------------|
   |Evaluated Cost/Price                 |  $955,383,722   |  $779,400,693  |
   +------------------------------------------------------------------------+

   Notwithstanding the overall factor ratings, the agency's Downselect
   Evaluation Committee (DSEC) reported to the source selection authority
   (SSA) that Raytheon's proposal was superior under each of the
   non-cost/price evaluation factors. The DSEC determined Raytheon's proposal
   to be technically superior under the technical approach factor based in
   part on the fact that: (1) Raytheon [REDACTED] had demonstrated that it
   had a fully developed Prime Power Interface (PPI) and Power Distribution
   Unit (PDU), with its power subsystem exceeding the government's
   expectations for correcting for power fluctuations and handling momentary
   power interruptions as a result of power bus transfers on submarine and
   ship power systems, and (2) Harris was proposing [REDACTED].

   The DSEC determined Raytheon's proposal to be "dominantly" technically
   superior under the current/recent past performance factor based upon
   Raytheon's superior test results in the PT1 tests of the NMT prototypes.
   While Raytheon was evaluated as verifying in the government-observed PT1
   testing that its terminals satisfied 348 of the 361 REQIDs it attempted,
   or 90 percent of the overall 388 REQIDs specified in SPAWAR-T-895,
   Appendix E, Harris was evaluated as verifying only 177 of the 238 REQIDs
   it attempted, or only 46 percent of the overall 388 REQIDs.

   More specifically, PT1 testing was intended to verify the terminal's
   ability to acquire (establish communications with the satellite), track
   and communicate with a satellite under a specified set of conditions,
   including acquisition of a specified satellite beam in a specified mode,
   acquisition in spite of specified time and space uncertainty with respect
   to the location of the satellite at a particular time, and acquisition in
   spite of specified levels of dynamic ship motion (pitch, roll and
   heading). AR at 15. While Raytheon's prototype terminals were evaluated as
   consistently acquiring the satellite faster than required without a failed
   acquisition attempt for all cases from nominal to worst case, Harris's
   terminals did not attempt satellite acquisition in all of the required
   modes and were evaluated in many attempted instances as not meeting the
   specified acquisition timelines. Raytheon's terminals likewise were
   evaluated as significantly outperforming Harris's with respect to antenna
   handover, a critical function for shipboard satellite communications in
   that, due to antenna locations and ship movement, the terminals must
   handover uplink and downlink data transfers from one shipboard antenna to
   another without errors even at extremely high data rates. While Raytheon's
   terminals were evaluated as surpassing the handover requirements even when
   using the least robust uplink and downlink communication modes available,
   Harris's terminals were evaluated as failing to satisfy the handover
   requirements despite using more robust uplink and downlink communication
   modes. As for the third fundamental functionality tested, the quality of
   data communications achieved using digital signal processing, Raytheon's
   terminals were evaluated as achieving error free communications at lower
   signal-to-noise ratios than required while using less robust
   communications modes and without running additional tests. In contrast,
   Harris's terminals were evaluated as failing to satisfy key requirements
   with respect to timing and control and the ability to operate with
   cryptographic communications security equipment, and then satisfying other
   requirements only on the basis of extended testing rather than at the
   outset of the testing.

   In summary, the agency determined that, while the PT1 testing of
   Raytheon's terminals "demonstrated that nearly all Phase IA hardware and
   software objectives were met," the testing of Harris's terminals "show[ed]
   a significant body of work that was scheduled for completion in Phase IA
   was not accomplished," resulting in a medium to high risk with respect to
   Harris's ability to successfully execute the next phase in the program.
   DSEC Report at 13.

   Finally, the DSEC determined Raytheon's proposal to be "slightly"
   technically superior to Harris's under the less important management
   approach factor, in part on the basis that, in contrast to the outlook for
   Raytheon, Harris's inability to meet their PT1 test objectives resulted in
   high risk that they would be unable to successfully execute the next phase
   in the program.

   In summary, the DSEC determined that Raytheon's proposal offered a
   technically superior NMT approach with the lowest risk to program
   performance and schedule, and that this superiority under the more
   important non-cost/price factors warranted paying the evaluated 22 percent
   cost/price premium associated with Raytheon's proposal. The SSA
   subsequently concurred with the DSEC's determination that Raytheon's
   proposal represented the "best value" and made award to Raytheon. Upon
   learning of the resulting award, and after being debriefed by the agency,
   Harris filed this protest with our Office.

   Harris challenges the evaluation on numerous grounds. 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 RFP
   criteria and applicable procurement statutes and regulations. See Rolf
   Jensen & Assocs., Inc., B-289475.2, B-289475.3, July 1, 2002, 2002 CPD
   para. 110 at 5.

   We have considered all of Harris's arguments, and we find that none
   furnishes a basis to question the award to Raytheon. We discuss the most
   important challenges below.

   UNMET REQIDS

   Harris challenges the marginal rating assigned its proposal under the PT1
   testing subfactor of the current/recent past performance factor. Again,
   while Raytheon verified in the government-observed PT1 testing that its
   terminals satisfied 348 of the 361 REQIDs it attempted, or 90 percent of
   the overall 388 REQIDs specified in SPAWAR-T-895, Appendix E, Harris was
   evaluated as verifying only 177 of the 238 REQIDs it attempted, or only 46
   percent of the overall 388 REQIDs.

   Test Plan Approval

   As an initial matter, Harris asserts that, since the government approved
   its test plan, it should not be penalized for not satisfying those REQIDs
   for which it did not plan to demonstrate compliance. In this regard, the
   CCP established three requirements for entry into formal TP1 testing: (1)
   "approved Test Plans . . . and Test Procedures"; (2) "[t]he contractor
   shall conduct a Test Readiness Review (TRR) in accordance with the SOW
   Section 3.1.2.3.7 (CDRL [Contract Data Requirements List] A023) no later
   than 31 December 2006"; and (3) "[h]ardware and software baselines are
   placed under configuration control and remain fixed throughout the
   duration of test." CCP sect. H.20(b) at H-28 to H-29. In addition, the CCP
   provided that formal PT1 testing "will start March 1, 2007 and shall
   conclude on March 31, 2007," although the contractor could request an
   earlier start. Id.

   Harris's reliance upon the government's approval of its test plan is
   inconsistent with both the terms of the CCP and the agency's position
   during the procurement. In this regard, NMT SOW sect. 3.4 established the
   requirements to be verified in the PT1 testing (that is, the 388 REQIDs
   listed in Appendix E, Test Matrix, of SPAWAR-T-895), while the CCP
   provided for the agency to "evaluate the extent to which the contractor's
   NMT PT1test results satisfy or exceed the requirements in accordance with
   SPAWAR-T-895, Appendix E PT1 test requirements and as stated in Section
   H-20(b)." CCP sect. H.20(c)(5) at H-62. Thus, the agency was required by
   the terms of the competition to consider in the evaluation, the extent to
   which an offeror failed to verify during PT1 testing one or more REQIDs.
   Furthermore, the agency's approval of the test plan and procedures made it
   clear that this did not guarantee that the agency would favorably evaluate
   the test results, precluding the agency from downgrading Harris for
   capabilities it did not include in its test plan. Specifically, the
   agency's December 2006 approval cautioned that:

     This approval asserts the contractual requirements to deliver the
     document have been satisfied. However, our approval does not assert or
     imply that the documents contents will result in a successful Prototype
     Test (PT1). The performance of, and associated results of PT1, is solely
     the responsibility of the contractor.

   Letter from Contracting Officer Representative to Harris, Dec. 19, 2006.
   In addition, the record indicates that the caution in the approval letter
   that the approval did not guarantee that the contractor's approach would
   receive a favorable evaluation was reiterated by agency officials during
   the contract meetings. See Declaration of SPAWAR NMT Assistant Program
   Manager. We conclude that the evaluation in this area was reasonable.

   Test Readiness Review (TRR)

   Harris asserts that the offerors were treated unequally with respect to
   the PT1 testing. In this regard, as noted above, the CCP provided that the
   "[h]ardware and software baselines are placed under configuration control
   and remain fixed throughout the duration of test." CCP sect. H.20(b) at
   H-29. The record indicates that, pursuant to this provision, the offerors
   were advised by the agency that while they could revise the hardware
   and/or software baseline for the terminal and rerun the test, PT1 testing
   would have to be rerun in its entirety if the hardware and/or software
   baseline were changed. Declarations of SPAWAR NMT Assistant Program
   Manager, NMT Deputy Assistant Program Manager, NMT Technical Director, and
   NMT Vendor Test Lead. (Offerors could also rerun a particular test event
   without changing the baseline and without rerunning the entire test. First
   Declaration of NMT Assistant Program Manager.)

   Harris claims that, in addition to the above warning that baseline changes
   would necessitate retesting in its entirety, Raytheon also was advised
   that a new TRR would not be required in the event of such retesting after
   a change in baseline.[1] Harris claims that it was not provided with this
   same additional information. According to Harris, its plans to revise its
   software baseline were hindered by the fact that, unlike Raytheon, it was
   not made aware that a new TRR would not be required prior to testing a new
   terminal baseline.

   There is no basis for finding that Harris was deprived of a meaningful
   opportunity to improve its test results. The record is in dispute as to
   whether the information regarding a new TRR was provided to Harris.
   SPAWAR's NMT Deputy Assistant Program Manager states that he advised
   Harris (as well as Raytheon) during the course of the ongoing meetings
   under the existing contract that a new, contractual TRR would not be
   required in the event that testing were rerun after changing the baseline,
   First and Second Declarations of NMT Deputy Assistant Program Manager, but
   Harris's Program Manager and Deputy Program Manager state that they were
   not told this. This dispute notwithstanding, we consider it determinative
   of this issue that nothing on the face of the CCP indicated that a new,
   formal contractual TRR would be required in the event that a contractor
   changed its baseline after the contractual TRR. The CCP not only referred
   to a single "Test Readiness Review (TRR)," but also specified that this
   TRR was to occur "no later than 31 December 2006." CCP sect. H.20(b) at
   H-28 to H-29. As noted by SPAWAR, since the testing was scheduled to run
   between March 1 and March 31, 2007, the December 31, 2006 deadline for
   conducting the formal, contractual TRR is wholly inconsistent with any
   interpretation that a new formal, contractual TRR would be required in the
   event that the testing was rerun after modification of the terminal
   baseline.

   Further, the record suggests that Harris understood that a new TRR would
   not be required. In this regard, in June 2006, when Harris requested
   "SPAWAR's confirmation of our interpretation of the recently issued
   contract modification . . . which revised Section H-20 of the contract,"
   its description of its intended testing approach included the
   clarification that "[a]dditional TRRs are not required if we decide to
   re-start PT1 testing with a more mature build." Harris Letter to SPAWAR,
   June 27, 2006. When SPAWAR then asked Harris to redact the proprietary
   information about its intended testing approach from this request, so that
   the agency could issue the request and response to both contractors,
   Harris withdrew the request. We think it is reasonable to assume that, had
   Harris been in serious doubt in this regard, it would have redacted its
   request for release to both contractors in order to obtain agency
   confirmation of its understanding of the CCP. Harris's understanding also
   appears to be confirmed by the fact that, in its presentation at its
   subsequent October 2006 Program Management Review (PMR) and December 2006
   TRR, Harris anticipated a modification of the software baseline in
   January-February 2007 without giving any indication that a new formal,
   contractual TRR would be necessary. PMR at 20-21, 108; TRR at Test
   Overview and Approach 7.

   Moreover, we agree with the agency that it is not apparent why the limited
   effort involved in a new, revised TRR would have affected Harris's
   decision whether to modify its baseline. The agency notes in this regard
   that Harris, which like Raytheon had elected to undertake early testing of
   its antenna, conducted an antenna TRR in September 2006 which lasted only
   30 minutes and was conducted by telephone, while its broader December 2006
   TRR consisted of only 66 slides presented over 4 hours. Agency
   Supplemental Report, Aug. 20, 2007, at 7 n.8. The limited effort likely to
   be required for a revised TRR appears especially significant in light of
   the fact that Harris completed its PT1 testing 11 days prior to the
   deadline, which would have allowed more than sufficient time to conduct a
   new TRR. AR at 16. Finally, our view is supported by Harris's account, in
   its August 9, 2007 comments, of how it came to determine its testing
   plans. According to the protester, prior to the agency's amending the
   contracts to impose a freeze in the baseline during testing, "Harris's
   planning for PT1 contemplated substantial ongoing software development"
   and "several new software builds." Harris Comments, Aug. 9, 2007, at 15.
   "As a result of the freeze," however, "Harris had to change these plans
   dramatically and was limited to only one earlier software build." Id.
   Harris's account clearly indicates that it was the requirement to freeze
   the baseline--and the resulting need to rerun the entire testing in the
   event that the baseline was modified--and not any perceived need to
   undertake a new TRR, on which Harris's decision not to modify its baseline
   was founded. We conclude that Harris was not unfairly deprived of a
   meaningful opportunity to improve its test results.

   Substantial Completion

   Harris asserts that the marginal rating assigned its proposal under the
   TP1 testing subfactor is not consistent with the following facts
   (according to Harris): its terminals in a number of instances during
   testing substantially (if not entirely) met the performance requirements;
   in a number of instances it was the failure of GFP or in the entry of the
   test parameters, rather than the failure of Harris's terminals, that
   resulted in the failure of its terminals to fully satisfy the test
   requirements; in some instances, the agency's interpretation of the test
   requirements under Appendix E, Test Matrix, of SPAWAR-T-895 was
   unreasonably demanding; in at least one instance, Harris was held to a
   stricter standard than was Raytheon; and in some cases where Harris did
   not demonstrate a capability, the agency should otherwise have been aware
   (from various contract meetings for example), that Harris nevertheless had
   developed some or all of the required capability. In summary, Harris
   maintains that it has developed approximately "90% of the Required
   Prototype Phase Capability," Harris Comments, July 30, 2007, at 24, such
   that the marginal rating and the agency's concerns with the risk
   associated with Harris's development and testing program were not
   warranted.

   We find no basis to question the agency's overall evaluation under the PT1
   testing subfactor. As an initial matter, we note that Harris's focus on
   capabilities it allegedly possesses, but did not clearly demonstrate
   during PT1 testing, reflects a fundamental misunderstanding of the
   evaluation scheme set forth in the CCP (and perhaps of Harris's
   contractual obligations as well). While the CCP generally provided for the
   contractor to verify performance through several methods, "(e.g., test,
   demonstration, analysis, inspection, etc.)," CCP sect. H-20(b) at H-28,
   the contractor was required in the PT1 testing to "verify a subset of the
   core terminal requirements as stated in the ELEX-S-488G and SPAWAR-T-895,"
   SOW sect. 3.4.1, and the agency was required to "evaluate the extent to
   which the contractor's NMT PT1 test results satisfy or exceed the
   requirements in accordance with SPAWAR-T-895, Appendix E PT1 test
   requirements and as stated in Section H-20(b)." CCP sect. H.20(c)(5) at
   H-62. This being the case, and given the agency's need to assure that the
   NMT terminal will reliably and satisfactorily perform even under worst
   case conditions, we think the agency reasonably focused in its evaluation
   on those instances where Harris's terminal failed to demonstrate a
   capability required to be verified under Appendix E, Test Matrix, of
   SPAWAR-T-895; failed to satisfactorily perform under the totality of worst
   case conditions specified by Appendix E; or needed repeated tests of the
   final baseline in order to demonstrate at least one occurrence of
   performance in full compliance with SPAWAR-T-895 requirements.

   Further, given Harris's determination not even to attempt to demonstrate
   150 of the 388 REQIDs in Appendix E, Harris's attempt to show that some of
   the 61 REQIDs it attempted to demonstrate but was evaluated as not fully
   satisfying either were not its fault or were substantially satisfied, in
   no way calls into question the reasonableness of the agency's
   determination of resulting risk if award were made to Harris. Moreover,
   given Raytheon's "dominantly" superior performance in the PT1 testing,
   with its terminal having been found to successfully perform 348 of the 388
   REQIDs, there is no basis to question the agency's view that the relative
   maturity of Raytheon's prototypes was a major discriminator favoring
   Raytheon. We conclude that the evaluation in this area was reasonable.

   INTERNATIONAL PARTNER VARIANT

   Harris asserts that Raytheon's proposed schedule with respect to the
   International Partner Variant (IPV) Engineering Design Models (EDM) to be
   furnished under the contemplated contract failed to meet the required
   delivery schedule set forth in the CCP. SPAWAR denies that Raytheon's
   schedule is noncompliant. We find the agency's position to be reasonable.

   An IPV EDM is a modified NMT terminal that will be provided to other
   "International Partner" nations. Of the 37 EDMs to be delivered under the
   contract, 13 are IPV EDMs. Under contract line item number (CLIN) 0105 in
   section F of the CCP, the initial 2 EDMs are to be delivered 26 months
   after exercise of option, with 2 more to be delivered every month
   thereafter, until the final IPV EDM is delivered 32 months after option
   exercise.

   In a July 2 supplemental protest, Harris asserts that Raytheon failed to
   comply with the above schedule for the delivery of the IPV EDMs
   themselves. Harris bases its assertion on references in Raytheon's
   Integrated Master Schedule (IMS) which, when viewed in the context of a
   June 1, 2007 award (option exercise) date, Harris claims indicate delivery
   of the first IPV EDM would occur approximately 30 months after option
   exercise and the last IPV EDM a little more than 37 months after option
   exercise. However, Raytheon's IMS in fact indicated that it was based upon
   an assumed December 1, 2007 award date, that is, a date 6 months later
   than Harris's argument assumes. Harris's calculations thus show that
   Raytheon would deliver the first IPV EDMs not later than 26 months after
   option exercise and the last to be delivered not later than 32 months
   after option exercise, in accordance with the CCP schedule. Harris
   Supplemental Protest, July 2, 2007, at 5-6; Raytheon IMS, lines 3555,
   3557, 4048, 4341, 4369.[2]

   Harris further asserts in its July 2 supplemental protest that, because
   Raytheon proposed to perform design and verification testing (DVT) of the
   IPV EDMs well after their delivery, with DVT not scheduled by Raytheon to
   be completed until (by Harris's calculation) 43 months after option
   exercise, Raytheon's schedule was noncompliant with the requirement for
   delivery to be completed not later than 32 months after option exercise.
   Harris Supplemental Protest, July 2, 2007, at 5-6; see CCP sect. F, CLIN
   0105. (In DVT, the contractor conducts environmental qualification of the
   EDMs, validating any new functionality while ensuring that earlier
   features perform as expected. By the completion of DVT, the hardware and
   software under test have been modified, as required, to correct design
   deficiencies and retested such that the terminal is ready for production
   at the end of DVT. AR at 91 n.54; SOW sect. 3.4.2.)

   SPAWAR responds, and we agree, that the CCP does not clearly require DVT
   to be completed before delivery. In this regard, CCP Clause E-5,
   Inspection and Acceptance--Origin, provides that "[t]he Government will
   inspect and accept Items . . . 0105 . . . after successful completion of
   SPAWAR-T-895 Quality Conformance Inspection (QCI) Group A testing in
   accordance with SPAWAR-T-895." As noted by the agency, the only testing
   this clause requires with respect to CLIN 0105--the CLIN requiring
   delivery of the IPV EDMs within 32 months--is QCI testing. SPAWAR-T-895
   treats DVT separately from QCI testing; it defines the latter as
   examination and testing to prove the workmanship and reveal the omissions
   and errors of the fabrication process, such as functional and performance
   tests at a limited number of points, tests which detect deviations from
   design, tests of adjustment, and tests that detect hidden defects in
   material. SPAWAR-T-895 sections 4.1.2, 4.1.3.[3] Whatever the rationale
   for not requiring DVT before delivery of the IPV EDMs, this appears to be
   consistent with the overall approach to DVT under the CCP. In this regard,
   we note that Harris does not dispute the agency's position that DVT was
   not required under the CCP to be conducted before delivery of domestic,
   non-IPV EDMs, and that in fact Harris itself proposed post-delivery DVT
   for domestic, non-IPV EDMs. We conclude that the agency reasonably
   determined Raytheon's schedule regarding the IPV EDMs to be compliant with
   the CCP.

   SOURCE SELECTION

   On May 29, 2007, 26 days after he signed the source selection decision
   (and 2 days prior to the award to Raytheon), the SSA sent an e-mail to the
   Assistant Secretary of the Navy, Research, Development and Acquisition, in
   which the SSA briefed the Assistant Secretary on the decision to award to
   Raytheon. The SSA generally explained that "award to Raytheon is based on
   the assessment that Raytheon's proposal is technically superior, though
   higher cost, to Harris's proposal and provides the best value to the
   Government to complete the remaining contract phases within the program
   schedule." Email from SSA to Assistant Secretary, May 29, 2009. The SSA
   specifically cited "three areas of concern" that demonstrated why
   Raytheon's proposal was the best value, including that: (1) Harris, unlike
   Raytheon, was proposing a new antenna technology that had not been fully
   demonstrated during PT1 testing, with the concern focusing on the fact
   that, if design changes were required, "it would have a significant impact
   to EDM cost and schedule as well as production pricing"; (2) while
   Raytheon's PT1 test results indicated that its system has a "very mature
   hardware and software design," with all critical hardware components
   developed and tested, Harris's PT1 test results demonstrated an "immature
   hardware and software design," with a large body of the work scheduled to
   have been already completed instead postponed to the forthcoming EDM
   phase; and (3) Harris's contract documentation did not always demonstrate
   a clear understanding of the anomalies that had been encountered, and
   indeed, indicated that in many cases the cause of the problems experienced
   had not even been identified. Id. The SSA further explained that, given
   Harris's inadequate understanding of the anomalies and problems
   encountered, and the significant body of work scheduled for completion in
   the EDM phase, "Harris's ability to meet EDM cost and schedule is
   adversely impacted. Any required design changes ([engineering change
   proposals]) would have an impact to production pricing." Id.

   Harris asserts that the SSA's consideration of potential production
   pricing increases was improper because Harris (and Raytheon) proposed
   fixed pricing for the production phase.

   The SSA's actions were unobjectionable. As is evident from the e-mail
   itself, and as was further explained in a subsequent declaration executed
   by the SSA during these proceedings, the SSA was of the view that, given
   the demonstrated immaturity of Harris's design, it was highly likely that
   changes to the Harris design (upon which Harris's production pricing was
   based) would be necessary. The SSA was concerned that, since the design
   changes could affect Harris's production costs, there was some risk of
   requests for equitable adjustment and other claims from Harris.
   Declaration of SSA. The SSA's concern as to the potential consequences of
   Harris's demonstrably immature design was both reasonable and consistent
   with the terms of the CCP, which generally provided for the agency to
   consider in the evaluation the potential risk--probability of negative
   consequences--associated with each offeror's proposed approach. CCP sect.
   H-20(c)(3) at H-51.

   The protest is denied.

   Gary L. Kepplinger
   General Counsel

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

   [1] The purpose of a TRR is to coordinate the logistics of the test event
   and ensure that the test is being conducted with an appropriate system
   maturity. Agency Second Supplemental Report at 3. The contractor provides
   an overview of the test conduct, test procedures, and expected test
   results. In addition, the contractor reviews the results of prior tests
   and known system deficiencies, and presents a proposed approach to resolve
   outstanding deficiencies. SOW sect. 3.1.2.3.7.

   [2] SPAWAR calculates that Raytheon proposed to deliver the First IPV EDM
   23 months after option exercise and the last IPV EDM 30 months after
   option exercise. AR at 91. See also Raytheon Proposal, Management
   Approach, at III-3-6, which supports SPAWAR's interpretation that the last
   Raytheon IPV EDM was scheduled for delivery not later than 30 months after
   award.

   [3] Harris asserts that DVT was separately required under CLIN 0106. This
   argument is untimely, since it was raised more than 10 days after Harris
   received a copy of Raytheon's downselect proposal. 4 C.F.R
   sect. 21.2(a)(2). Moreover, the relevant provisions do not support
   Harris's assertion that CLIN 0106 establishes a requirement for DVT prior
   to delivery of the IPV EDMs.