TITLE: B-310018, The Protective Group, Inc., November 13, 2007
BNUMBER: B-310018
DATE: November 13, 2007
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B-310018, The Protective Group, Inc., November 13, 2007

   Decision

   Matter of: The Protective Group, Inc.

   File: B-310018

   Date: November 13, 2007

   Richard L. Moorhouse, Esq., John G. Stafford, Esq., David T. Hickey, Esq.,
   and Sean M. Connolly, Esq., Greenberg Traurig, LLP, for the protester.

   Christine M. Choi, Esq., Department of the Army, and John W. Klein, Esq.,
   and Kenneth Dodds, Esq., Small Business Administration, for the agencies.

   Peter D. Verchinski, Esq., and John M. Melody, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Agency determination not to set aside body armor procurement for small
   businesses was proper where record shows agency was familiar with body
   armor marketplace, and responses from firms participating in "industry
   day" conference with agency demonstrated that it was not likely to receive
   proposals from at least two responsible small businesses capable of
   meeting the unique requirements of the solicitation.

   DECISION

   The Protective Group, Inc. (TPG) protests the terms of request for
   proposals (RFP) No. H92222-07-R-0011, issued by the United States Special
   Operations Command (USSOCOM), for body armor plates for individuals in the
   special operations forces (SOF). TPG primarily contends that the
   requirements should be set aside for small business concerns.

   We deny the protest.

   The body armor being procured here is part of the SOF Personnel Equipment
   Advanced Requirements (SPEAR) body armor system, a family of integrated
   body armor and load carriage systems (BALCS) consisting of advanced
   clothing components and equipment that are tailored to different special
   operations uses. An important component of this system is the ballistic
   armor plates, which are specifically designed to stop certain munitions,
   and which consist of different sizes, shapes, and plate technologies.

   USSOCOM first began procuring ballistic plates to meet the SPEAR
   requirements in 1998, when it awarded a contract to Ceradyne, Inc., which
   was a small business at the time. Agency Report (AR), Tab 13, at 3; Tab
   19, at 2. In August 2006, the agency issued an unrestricted solicitation
   for these items, which included detailed ballistic plate specifications,
   designed to reduce the weight of the body armor while increasing ballistic
   protection. AR, Tab 2, Legal Memorandum, at 3; AR, Tab 13, at 5. The
   agency received four proposals--three from small businesses, and one from
   the incumbent, Ceradyne, which no longer qualified as a small business.
   One of the proposals was not evaluated because it was incomplete, and the
   three remaining proposals were found technically unacceptable for failing
   to meet certain "go/no go" criteria. USSOCOM canceled the solicitation on
   January 11, 2007. AR, Tab 1, Contracting Officer's Statement, at 1.

   On February 9, the agency issued a pre-solicitation notice stating that a
   new solicitation for the requirement would be released shortly, and that
   USSOCOM would be holding an open "industry day" conference, during which

     [i]ndividuals cleared at the Secret level will have the opportunity to
     provide information at that classification during one-on-one meetings
     about the status of ongoing ballistic technologies that are
     manufacturable for the upcoming solicitation. During this industry day,
     potential offerors will have the opportunity to comment on the
     requirements of the solicitation, and provide perspective on the
     technologies they have available to meet the requirement.

   AR, Tab 7. The notice further provided offerors a detailed explanation of
   the technical specifications for the ballistic plates. Id.

   Nine firms attended the industry day conference. On the morning of the
   first day of the conference, all firms received a briefing regarding the
   details of the competition, including configuration and technical
   specifications for the plates. Firms were then given an opportunity to ask
   questions in an open forum, and eight of the firms--including the
   protester and four other small businesses--then participated in individual
   one-on-one meetings. Thereafter, on May 9, USSOCOM issued the RFP. TPG
   filed this protest with our Office prior to the August 7 closing time.

   TPG maintains that the agency improperly failed to set aside this
   procurement for small businesses. In this regard, agencies generally are
   required to set aside for small businesses all procurements exceeding
   $100,000 if there is a reasonable expectation of receiving fair market
   price offers from at least two responsible small business concerns.
   Federal Acquisition Regulation (FAR) sect. 19.502-2(b). TPG asserts that,
   in addition to itself, at least one of its small business competitors is
   capable of competing, and that a set-aside therefore was required.

   An agency must undertake reasonable efforts to ascertain whether it is
   likely that it will receive offers from at least two responsible small
   businesses capable of performing the work in question. Rochester Optical
   Mfg. Co., B-292247, B-292247.2, Aug. 6, 2003, 2003 CPD para. 138 at 4. No
   particular method of assessing the availability of capable small
   businesses is required; rather, the assessment must be based on sufficient
   facts so as to establish its reasonableness. Id. at 5.

   USSOCOM's decision not to set this procurement aside was unobjectionable
   because the record shows that it reasonably determined that it was not
   likely to receive offers from two capable small businesses. As an initial
   matter, the record shows that USSOCOM is highly familiar with the body
   armor industry. It has been procuring ballistic plates for the last 8
   years, during which time it has worked with industry to modify the plate
   designs to increase their ballistic capabilities. AR, Tab 2, Legal
   Memorandum, at 2. Further, USSOCOM's small business advisor--who concurred
   with the agency's decision not to set the requirement aside--has been
   attending trade shows and small business innovation research events for
   the last 10 years. USSOCOM Letter to GAO, Oct. 9, 2007, Declaration of
   Karen L. Pera, at 1.

   The principal basis for the agency's determination was the information
   obtained through the industry day meetings with prospective offerors prior
   to the release of the solicitation. As noted, the agency met with five
   small businesses--including all three of the small business offerors under
   the first solicitation--in one-on-one sessions and specifically discussed
   with them their ability to meet the current requirement. In this regard,
   the agency asserts, and the protester does not dispute, that the required
   ballistic plates are "completely distinct from any other standard product
   in the marketplace," USSOCOM Letter to GAO, Oct. 9, 2007, Contracting
   Officer's Statement, at 1, and are significantly more difficult to produce
   than other body armor plates--including the "small arms protective
   inserts" and "enhanced small arms protective inserts" manufactured by the
   protester and the other small businesses that attended the industry day
   conference--which do not meet USSOCOM standards for weight, thickness, and
   ballistic requirements. USSOCOM Letter to GAO, Oct. 9, 2007, Declaration
   of Richard W. Elder, at 1-4.

   The agency asserts--and TPG does not dispute--that none of the small
   businesses, including the protester and the firm the protester identified
   as a second likely competitor for the requirement, provided any
   information during the industry day conference showing that they could or
   intended to try to meet the government's requirements for this
   procurement. TPG now asserts that it is has the desire and capability to
   supply the ballistic plates. However, notwithstanding its current stated
   intent, again, TPG does not dispute that it failed to furnish the agency
   any information during the industry day meetings that demonstrated its
   intent and capability to compete. Since there likewise is nothing in the
   record refuting the agency's determination that no other small businesses
   were viable prospective offerors for the requirement, we find the agency
   reasonably determined that it would not receive two offers from capable
   small businesses. See Belleville Shoe Mfg. Co. et al., B-287237 et al.,
   May 17, 2001, 2001 CPD para. 87 (set-aside not required where record
   supports finding that firm had never produced boots of the type and
   quantity required under the solicitation); MCS Mgmt., Inc., B-285813,
   B-285882, Oct. 11, 2000, 2000 CPD para. 187 (set-aside not required where
   there is no indication that small business concerns could perform food
   service contracts of the scope and complexity required under the
   solicitation).

   The protester maintains that the fact that the agency received three
   offers from small businesses under the first solicitation was sufficient
   to establish a reasonable expectation that two small business offers would
   be received under the current solicitation.[1] TPG goes on to argue,
   essentially, that the agency's determination of small business firms'
   capability went beyond FAR sect. 19.502-2(b), which only requires that a
   small business be "responsible"--which the protester characterizes as
   having "sufficient technical and financial capabilities and resources to
   successfully perform the contract," see FAR sect. 9.104-1--in order to be
   considered a prospective offeror for purposes of a set-aside
   determination. TPG Letter to GAO, Oct. 10, 2007, at 4.

   We do not agree that the agency's actions were improper. In making a
   set-aside decision, an agency need not make either an actual determination
   of responsibility or a decision tantamount to a determination of
   responsibility; however, an agency must make an informed business judgment
   that there is a reasonable expectation of receiving acceptably priced
   offers from two small business concerns that are capable of performing the
   contract. ViroMed Labs., B-298931, Dec. 20, 2006, 2006 CPD para. 4 at 3-4;
   Information Ventures, Inc., B-279924, Aug. 7, 1998, 98-2 CPD para. 37 at 3
   (in determining the availability of responsible small business concerns
   for set-aside purposes, the contracting agency's investigation goes not
   only to the existence of the businesses, but also to their capability to
   perform the contract). The considerations relevant to this judgment may be
   similar to responsibility standards. Railroad Constr. Co., Inc.,
   B-249748.3, Dec. 29, 1992, 92-2 CPD para. 446 at 5. In the final analysis,
   the set-aside decision necessarily entails consideration of whether small
   businesses can be expected to perform satisfactorily; if the agency
   reasonably determines that they cannot, a set-aside is not warranted. The
   agency here determined that, while the protester and other small concerns
   were in the business of manufacturing body armor, none was capable of
   furnishing body armor meeting the agency's unique requirements here, and a
   set-aside therefore was not warranted. We find nothing in the agency's
   actions or determination that was unreasonable or otherwise improper.

   The protester also maintains that there is an ambiguity in the
   solicitation that should be clarified by incorporating a question and
   answer generated during the procurement process. [2] We find no ambiguity.
   Prior to the submission of proposals, a questioner asked whether proposals
   were only required to include "high-level" approaches for first article
   testing (FAT) plans, the SPEAR unique quality assurance plan, and the
   production ballistic lot test (BLT) plan. The agency responded that
   proposals were to include a formal, complete quality assurance plan and a
   thorough discussion of the FAT and BLT plans. AR, Tab 15. The information
   in the agency's response was essentially the same as the information in
   the solicitation. Specifically, the solicitation states in the
   "Requirements Matrix" that "the proposal shall thoroughly discuss the
   offeror's plan for conducting first article testing"; that the contractor
   "establish, maintain and submit with their proposal a SPEAR Unique Quality
   Assurance Plan," with the government evaluating "the extent to which the
   plan is thorough and detailed"; and that the government will "evaluate the
   extent to which the proposal thoroughly discusses the offeror's Ballistic
   Lot Test Plan." AR, Tab 12, RFP attach. 2, at 3, 4. Accordingly, this
   argument is without merit.[3]

   The protest is denied.

   Gary L. Kepplinger
   General Counsel

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

   [1] In comments provided in response a request by our Office, the Small
   Business Administration (SBA) likewise asserts that the small business
   offers in response to the original solicitation, together with the
   attendance of five small businesses at the industry day conference,
   reasonably indicated that offers from at least two responsible small
   businesses would be received. SBA Comments, Oct. 15, 2007, at 2-3. For the
   reasons discussed, we disagree with SBA's position.

   [2] TPG asserts that it was told at the industry day conference that it
   would be required to have a separate production facility for the ballistic
   plates, and that the agency's failure to incorporate this requirement into
   the solicitation creates an ambiguity. However, oral advice does not
   operate to amend a solicitation or otherwise legally bind the agency, Shaw
   Envt'l, Inc., B-297294, Dec. 2, 2005, 2005 CPD para. 218 at 5, and thus
   does not provide a basis for finding a solicitation ambiguity.

   [3] In its protest, TPG also asserted that certain testing requirements
   and the number of plates required to be submitted with a proposal for
   testing purposes were unduly restrictive. The agency responded to these
   assertions in its report, and TPG did not rebut the agency's position in
   its comments on the report. In these circumstances, we consider these
   arguments to be abandoned. Planning Sys., Inc., B-292312, July 29, 2003,
   2004 CPD para. 83 at 6.