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
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[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.