TITLE: B-310667; B-310667.2, Silynx Communications, Inc., January 23, 2008
BNUMBER: B-310667; B-310667.2
DATE: January 23, 2008
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B-310667; B-310667.2, Silynx Communications, Inc., January 23, 2008

   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: Silynx Communications, Inc.

   File: B-310667; B-310667.2

   Date: January 23, 2008

   David B. Dempsey, Esq., David S. Black, Esq., and Megan M. Mocho, Esq.,
   Holland & Knight, LLP, for the protester.

   Len Rawicz, Esq., Mitchell S. Ettinger, Esq., and Elizabeth C. Billhimer,
   Esq., Skadden, Arps, Slate, Meagher & Flom, LLP, for Nacre, AS, an
   intervenor.

   James L. Yohn, II, Esq., and Robert C. Peterson, Esq., Department of the
   Navy, for the agency.

   Scott H. Riback, Esq., and John M. Melody, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1. Protest that agency misevaluated technical proposals is denied where
   record shows that protester's product was reasonably determined
   technically unacceptable for failing to meet mandatory threshold
   specifications.

   2. Agency reasonably made award on basis of initial proposals, without
   holding discussions, where solicitation advised offerors of agency's
   intent to make award without discussions.

   3. Agency's price reasonableness determination was unobjectionable where
   it was based on historical information relating to cost of items being
   acquired; fact that protester offered a lower price for product determined
   to be technically unacceptable does not demonstrate that determination was
   unreasonable.

   4. Protest that agency technical evaluator was biased and could not
   objectively evaluate protester's product is denied where protester
   presents no evidence to credibly support its assertion.

   DECISION

   Silynx Communications, Inc. protests the award of a contract to Nacre, AS
   under request for proposals (RFP) No. N65236-07-R-0139, issued by the
   Department of the Navy to acquire a quantity of combat radio headsets.
   Silynx maintains that the agency misevaluated proposals, improperly failed
   to engage in discussions, and exhibited bias in favor of the awardee.

   We deny the protest.

   The agency issued the RFP as a commercial item acquisition seeking to
   award a fixed-price contract for the headsets, which provide individuals
   in combat settings both hearing protection and hearing enhancement, to
   allow them to hear ambient noises in a combat setting and to engage in
   radio communications among the members of combat squadrons. The RFP
   included 149 mandatory performance, test and acceptance specifications;
   all had to be met by the proposed headsets in order for a firm's product
   to be considered for award. Offerors were advised that the agency would
   make award to the firm whose offer best conformed to the RFP's
   requirements, price and other solicitation requirements considered.

   The agency received proposals from Nacre and Silynx, both of which
   essentially listed, and indicated whether the proposed product met, the
   149 specifications. Thereafter, the agency amended one of the
   specifications relating to the requirement for noise attenuation in blast
   environments, and also made a minor change to the solicitation's language
   relating to the basis for award. In response, Silynx submitted a proposal
   revision on September 24. Supplemental Agency Report (SAR), exh. 1. The
   agency reviewed the proposals and, rather than rely entirely on the
   offerors' representations, sought to verify that their proposed headsets
   in fact met all requirements. In this connection, the agency relied
   principally on a performance study prepared by the Department of the Air
   Force, dated August 2007, and a first article test report prepared by the
   U.S. Marine Corps, dated February 2007.[1]

   Based on its evaluation, the agency determined that Silynx's proposal
   failed to meet 5 of the 149 specifications. As relevant here, the agency
   found that Silynx's product did not meet specification [deleted], which
   required the proposed headsets to be [deleted], and did not meet
   specification [deleted], which required the headsets to provide [deleted].
   Agency Report (AR), exh. 4, at 4-7. On the basis of these considerations,
   the agency concluded that Silynx's proposal was technically unacceptable,
   and therefore made award to Nacre at a price higher than the protester's.
   After learning of the award and receiving a debriefing, Silynx filed this
   protest.

   TECHNICAL EVALUATION

   Silynx challenges each of the five findings regarding the technical
   unacceptability of its headset. In considering protests of an agency's
   evaluation of proposals, it is not our role to reevaluate the proposals;
   rather, we will examine the record to determine whether the agency's
   evaluation conclusions were reasonable and consistent with the terms of
   the solicitation and applicable procurement laws and regulations.
   Engineered Elec. Co. d/b/a/ DRS Fermont, B-295126.5, B-295126.6, Dec. 7,
   2007, 2007 CPD para.__ at 3-4. We find the agency's evaluation conclusions
   with respect to specifications [deleted] and [deleted] reasonable and,
   therefore, that the agency reasonably found Silynx's proposal technically
   unacceptable.

   Specification [deleted]

   The agency's technical evaluator found that the Silynx product did not
   meet the [deleted] requirement because the [deleted] utilized to form
   [deleted] was made from a [deleted] material that potentially could
   [deleted]. The evaluator based her conclusion on the informal feedback
   provided by members of operational forces who had used the Silynx product,
   and the opinion of a Department of the Army audiologist familiar with the
   Silynx product, who advised that this was a [deleted]. AR, exh. 4, at 4.

   Silynx challenges the agency's conclusion. Silynx maintains that the
   agency unreasonably failed to physically inspect or test either its
   originally proposed foam earpiece, or a new foam earpiece proposed in its
   September 24 revised proposal (in response to the amendment), and also
   unreasonably declined its offer to demonstrate its product. The protester
   asserts that it was unreasonable for the agency to base its conclusion on
   an informal inquiry of operational forces, and on the audiologist's
   opinion, which, Silynx asserts, is essentially unsubstantiated in the
   record.

   We find that the agency's determination was reasonable. First, nothing in
   the solicitation contemplated or required the agency to conduct product
   inspection or testing, or to permit product demonstrations; in fact, the
   RFP's instructions called for submission of product samples only where
   such samples were otherwise required under the terms of the solicitation,
   and there was no such requirement for product samples in the RFP. RFP at
   27. Rather, the RFP contemplated that offerors would include product
   literature or other information--for example, test data or feedback from
   prior or current users of their product--to demonstrate compliance with
   the RFP's requirements,[2] id., and that, after award, the contractor
   would conduct first article testing and field user evaluation
   demonstrations to verify compliance of its product with the performance
   characteristics proposed in the firm's offer. RFP at 19-25. Thus, there
   was nothing improper in the agency's declining to conduct an inspection or
   to perform testing of the Silynx product, or to permit demonstrations as
   part of the evaluation process.[3]

   Second, we find no basis to object to the agency's reliance on the
   informal inquiry of operational force members and the audiologist's
   opinion. While the inquiry of the operational forces was informal in
   nature, there is no indication in the record that it did not accurately
   reflect the users' opinions. Silynx has submitted no information--for
   example, its own user feedback information or test data for either of its
   proposed earpieces--showing different results from the information
   obtained by the agency. We thus see no reason why the agency could not use
   the information to assist it in making a judgment as to the [deleted]. As
   for the audiologist, the record shows that she is a consultant to the
   Army's Surgeon General for hearing conservation and audiology. SAR, exh.
   4, at 2. The protester has presented no evidence or information bringing
   into question this individual's qualifications to render an opinion on the
   safety of Silynx's product, and has not shown that her opinion is
   unreasonable. We conclude that the agency reasonably determined that the
   Silynx earpieces were [deleted].[4]

   Specification [deleted]

   Specification [deleted] required the proposed headset to provide
   [deleted]. The protester principally asserts that the agency improperly
   relied on averaged data to evaluate compliance with this requirement; in
   the protester's view, the specification required the agency to measure the
   device's compliance on a "per frequency" basis, as measured on the scale
   of [deleted] specified in the solicitation. Assessing compliance in this
   manner, according to Silynx, would show that, while its own product did
   not meet the [deleted] requirement, neither did the awardee's.

   The evaluation in this area was unobjectionable. First, there was nothing
   in the language of specification [deleted] that required devices to meet
   the requirement for every frequency on the scale. Rather, as noted, the
   specification only required proposed devices to provide [deleted]." We
   find no basis for questioning the agency's determination that averaging
   the data for each device was a valid approach to obtaining a measure of
   the degree to which the devices met the desired [deleted] threshold. This
   approach appears to be consistent with the way the data were presented in
   the Air Force's report, which consistently presented the average [deleted]
   of the devices. AR, exh. 11, at 10-12. Similarly, the results of testing
   performed on Silynx's device by the Institut franco-allemand de recherches
   de Saint-Lois (ILS) are expressed in terms of averaged data. Protester's
   Comments, Nov. 26, 2007, exh. B.

   The Air Force report relied upon by the agency shows that the Nacre device
   met the as close to [deleted] standard, while Silynx's did not. The report
   shows that the Nacre product had average [deleted] measurements of
   [deleted] with the device turned off, and [deleted] with the device turned
   on. In comparison, the measurements for the Silynx device were [deleted],
   and [deleted], respectively. AR, exh. 11, at 10. While both products had
   data points above and below the [deleted] threshold, the averaged results
   show that, for the Nacre product, the overwhelming number of data points
   occurred at or above the [deleted] threshold, while for the Silynx product
   the overwhelming number of data points occurred below the
   [deleted]threshold. We conclude that the agency reasonably relied upon
   this information in finding that Nacre's device met this requirement,
   while Silynx's did not.

   We conclude that the agency reasonably determined that Silynx's product
   was technically unacceptable for failure to meet specifications [deleted]
   and [deleted], which were mandatory. [5]

   COMPLIANCE OF NACRE PRODUCT

   Silynx asserts that the agency did not have information in the Nacre
   proposal with which to confirm that firm's compliance with 47 of the RFP's
   149 requirements. This argument is without merit. The record shows that
   the agency's technical evaluator also serves as the project engineer and
   receiving agent for another acquisition where the Nacre product is being
   purchased. On the basis of her knowledge of Nacre's product through this
   other acquisition, she was able to confirm Nacre's compliance with a large
   number of the 47 requirements in question. SAR, exh. 4. Of the remaining
   requirements, the evaluator confirmed Nacre's compliance with most of them
   with individuals who had been responsible for conducting the Corps's first
   article test, and by reference to another evaluation of Nacre's product by
   individuals she considered to be subject matter experts. Id. We find
   nothing objectionable in the evaluator's methodology or conclusions; the
   protester has not shown that they were unreasonable.

   Silynx complains that the evaluator did not take similar steps to
   determine whether its product met these additional requirements. However,
   the evaluator did not rate Silynx's proposal technically unacceptable
   based on any of these requirements--she merely noted that she was unable
   to obtain information showing compliance--and Silynx's proposal was not
   rejected as unacceptable based on any of these requirements. Since we have
   already found that the agency properly rejected Silynx's proposal for
   failure to meet specifications [deleted] and [deleted], it is not apparent
   how Silynx was prejudiced by the agency's actions in this regard. We
   therefore have no basis to object to this aspect of the evaluation.

   DISCUSSIONS

   Silynx asserts that the agency unreasonably failed to conduct discussions.
   The protester maintains that, because the agency's initial technical
   evaluation was flawed, it had no reasonable basis to distinguish between
   the proposals for purposes of making a best value determination. Silynx
   claims that our decision in The Jonathan Corp; Metro Mach. Corp.,
   B-251698.3, B-251698.4, May 17, 1993, 93-2 CPD para. 174 at 13-15, aff'd,
   Moon Eng'g Co.--Recon., B-251698.6, Oct. 19, 1993, 93-2 CPD para. 233 at
   3-4, requires agencies to hold discussions where there is no reasonable
   basis to distinguish between proposals.

   The agency was not required to conduct discussions here. The RFP
   incorporated Federal Acquisition Regulation (FAR) sect. 52.212-1, which
   expressly advised offerors of the agency's intent to make award without
   discussions. Further, the circumstances here are distinguishable from
   those in Jonathan. In that case, there was no clear basis to distinguish
   among the cost proposals due to the degree to which they varied from the
   government estimate, and our finding was that the agency had failed to
   conduct a reasonable cost evaluation; in effect, we found, the agency
   could not determine from the initial evaluation which proposal offered the
   lowest overall cost to the government. Here, in contrast, the agency had a
   clear basis for distinguishing between the proposals--the acceptability of
   Nacre's proposal and the unacceptability of Silynx's. Therefore, the
   Jonathan rationale is inapplicable here, and the agency's decision not to
   conduct discussions was legally unobjectionable in these circumstances.

   PRICE REASONABLENESS

   Silynx maintains that the agency unreasonably determined Nacre's price to
   be reasonable, since it was almost twice Silynx's price.

   This argument is without merit. In evaluating price reasonableness,
   agencies may use a variety of techniques, including comparison of the
   proposed prices received in response to the solicitation, comparison of
   the proposed prices to prices previously paid for the item being acquired,
   comparison of the prices proposed with published commercial price lists
   and comparison of the prices received with an independent government
   estimate. FAR sect. 15.404-1(b)(2). The record shows that the agency based
   its price reasonableness determination on a comparison of Nacre's price to
   the government estimate and Nacre's commercial price list. AR, exh. 15, at
   5-7. Silynx has not shown that Nacre's proposed price was unreasonably
   high compared to these proper benchmarks. The fact that Silynx's proposed
   prices were significantly lower than Nacre's does not establish that
   Nacre's price was unreasonable, given that Silynx's product was
   technically unacceptable, and thus did not meet the agency's requirements.
   See Idaho Norland Corp.--Recon., B-230598.2, Aug. 1, 1988, 88-2 CPD para.
   103 at 2-3.

   BIAS

   Silynx asserts that the agency's technical evaluator was biased against
   its product, and in favor of Nacre's. Further, according to the protester,
   because the evaluator also functions as the program engineer responsible
   for helping to meet the Corps's requirement for these headsets, she could
   not objectively evaluate Silynx's product.

   Government officials are presumed to act in good faith and we will not
   attribute unfair or prejudicial motives to procurement officials on the
   basis of inference or supposition. TPL, Inc., B-297136.10, B-297136.11,
   June 29, 2006, 2006 CPD para.104 at 20-21. Where a protester alleges bias,
   it must not only provide credible evidence clearly demonstrating bias
   against the protester or in favor of the awardee, but must also show that
   this bias translated into action that unfairly affected the protester's
   competitive position. Id. Silynx has not met this standard.

   Silynx points to several actions by the agency that it believes evidence
   bias, including, for example, the following: the agency initially
   attempted to make award to Nacre on a sole-source basis; e-mails prepared
   by the technical evaluator, including one pointing out that there would be
   delays associated with award to Silynx because of a requirement to obtain
   a safety release for the firm's product; and the evaluator advocated
   making award to Nacre without discussions, rather than conducting
   discussions to remedy any deficiencies in Silynx's proposal.

   Silynx's assertions do not establish bias. To the extent that the agency
   initially considered a sole-source award to Nacre, the record shows that
   the agency issued a competitive solicitation upon becoming aware of
   Silynx's product. As for the evaluator's e-mail noting that the Silynx
   product would require a safety release that would delay the acquisition
   (whereas award to Nacre would not), her observation was correct; Nacre's
   product already had received a safety release, while Silynx's had not.
   Regarding the agency's decision not to engage in discussions, as noted,
   the RFP advised offerors of its intent to award without discussions. As
   for the evaluator's alleged impaired objectivity, we fail to see--and the
   protester has not shown--how her involvement with the Corps's acquisition
   would have any improper effect on the manner in which she evaluated
   Silynx's product. Simply stated, the agency's evaluator had expertise
   relevant to this procurement, and her involvement was both understandable
   and appropriate.

   In any case, as noted, the record shows that the Silynx product was found
   technically unacceptable based on objective, third-party technical
   findings relating to the [deleted] and its inability to [deleted]. Thus,
   there would be no basis for us to find that any bias or impaired
   objectivity translated into action that affected the protester's
   competitive position. TPL, Inc., supra.

   The protest is denied.

   Gary L. Kepplinger
   General Counsel

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

   [1] The Air Force's study evaluated both the Silynx and Nacre headsets,
   while the Corps's report considered only the Nacre headset. The Corps did
   not evaluate the Silynx product because, at the time of its study, only
   prototypes of its headsets were available, and there was no available
   safety test data that could form the basis for the issuance of a safety
   release by the Corps, which would be required for the Silynx product to be
   evaluated. SAR, exh. 6.

   [2] In this respect, Silynx's proposal represents that its product has
   been fielded with all branches of the armed forces, AR, exh. 10, at 6, 20,
   21, but does not provide any information from previous or current users
   relating to any of the performance aspects of its product or any test
   data, despite the RFP's call for such information.

   [3] Silynx also maintains that the agency improperly declined to test the
   foam ear tips proposed in its September 24 revised proposal for compliance
   with specification [deleted] which required the device to provide
   [deleted]. However, the revised proposal presented only a passing
   reference to the new ear tips, and that reference showed that the ear tips
   were, at best, in a prototype development stage. SAR, exh. 1, at 9.
   Silynx's revised proposal did not contain any documentation or technical
   information to establish the performance capabilities of its new ear tips,
   or to show that they would meet the requirement of specification
   [deleted]; indeed, it did not even make an affirmative claim that the new
   ear tips met this requirement. Silynx's revised proposal did not provide
   pricing for the new ear tips (it provided prices for only the three
   previously-offered ear tip sizes), despite the fact that it included
   changes in other aspects of the original pricing. Id. at 8. As discussed
   in more detail below, we conclude that the agency reasonably relied on its
   evaluation of the firm's originally-proposed ear tips, for which there was
   both a claim of compliance in Silynx's proposal, and test data from the
   Air Force report that was less than a month old.

   [4] Silynx asserts that Nacre's earpieces should not have been evaluated
   as acceptable for [deleted]. The basis of this assertion is the Corps's
   first article test report, which, the protester maintains, shows that the
   earpiece was [deleted]. However, this report in fact shows that the Nacre
   product was rated as acceptable for [deleted] by the end users
   participating in the study. SAR, exh. 3, at 12.

   [5] Silynx also asserts that the agency improperly found that its product
   did not comply with three other specifications. We need not address these
   arguments given our conclusion that the agency reasonably determined that
   its product did not meet specifications [deleted] and [deleted].