B-400394; B-400394.2, Armorworks Enterprises, LLC, September 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.
Matter of: Armorworks Enterprises, LLC
Christopher
R. Yukins, Esq., Kelly Busby, Esq., and Jill Newell, Esq., Arnold & Porter
LLP, for the protester.
Major Walter Dukes and David Scott, Esq. U.S. Army Materiel Command, for the
agency.
Edward Goldstein, Esq., and Christine S. Melody, Esq., Office of
the General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Protest allegations challenging agency’s methodology for testing body armor are dismissed as untimely where the alleged problems were apparent from the face of the solicitation and the protester failed to raise its concerns prior to the time set for receipt of proposals.
2. To be timely, challenge to solicitation amendment, issued after initial proposals had been submitted and which did not provide offerors with an opportunity to submit revised proposals, should have been filed within 10 days of the issuance of the amendment.
DECISION
Armorworks Enterprises, LLC protests the exclusion of its proposal from the competitive range under request for proposals (RFP) No. W91CRB-07-R-0041, issued by the Army Materiel Command (AMC) for body armor. The protester challenges the agency’s testing methodology and the testing failures of its body armor.
We dismiss the protest in part and deny it in part.
The RFP, issued on
In order to be eligible for award, proposed body armor
designs (referred to as Preliminary Design Models (PDM)) had to first pass
extensive ballistics testing conducted by AMC’s
Several different types of projectiles, referred to as “threats,” were utilized in the ballistic testing of the PDMs and they were fired using two protocols (V0 and V50), which varied shot velocity, shot angle, and the number of shots. As a general matter, the PDs indicated that a failure of a body armor plate occurred during testing when a shot created an indentation in the clay testing block (referred to as “back face deformation”) in excess of 43 mm.[4] AR, Tabs 8 and 9, Purchase Description.
Regarding the measurement of back face deformation, the
PDs indicated that the clay material on which the test plates rested would
consist of a single block “at least 4.0-inches thick and 24 x 24 inches in
length and height.” PDs para. 4.9.9.3. As originally issued, the PDs indicated that
“the clay shall be conditioned for at least 3.0 hours at a temperature between
60 and 95 degrees Fahrenheit and worked thoroughly to remove any voids.” RFP, Attachs. 1 and 2, PDs para. 4.9.9.3. This language, however, was removed via an
amendment to the solicitation. In final
form, the PDs indicated that the clay backing material would be conditioned
“using a heated chamber or enclosure”; that conditioning time and temperature
may change; and that satisfactory clay consistency would be determined based
upon “drop test” performance, “such that a depression of 25 +/- 3 mm in depth
is obtained” when a cylindrical steel mass, with a specified diameter and
weight, is dropped from a specified height onto the face of the clay. PDs, para. 4.9.9.3. The depressions in the clay backing created
by the drop testing would be filled with additional clay, which had been
conditioned to the same initial temperature as the clay backing.
In response to the RFP, Armorworks proposed a total of [deleted] different PDMs ([deleted] ESAPI and [deleted] XSAPI). In performing the ballistic testing, AMC tested 300 of Armorworks’ plates and at least one plate for each PDM suffered a “catastrophic” failure under the V0 firing protocol ([deleted] of the PDMs suffered catastrophic failures for multiple plates); a total of 17 of the 300 plates failed. In all but one instance the catastrophic failure was the result of a shot completely penetrating the hard and soft body armor. The one remaining failure resulted where the shot produced a back face deformation greater than 48 mm. Because each PDM submitted by Armorworks failed testing, AMC eliminated Armorworks from the competition, and sent Armorworks a letter, dated July 2, to this effect. On July 17, AMC provided Armorworks with a debriefing of its decision and thereafter, Armorworks filed this protest.[5]
Untimely Issues
In its protest, Armorworks raises numerous concerns regarding the agency’s methodology for preparing the clay backing material and testing its “plasticity” or “consistency.” In this regard, Armorworks explains that proper conditioning of the clay backing is a critical aspect of testing the body armor. According to Armorworks, a soldier’s body is part of the armor system since the plates not only stop bullets but also dissipate the force of impact and spread that force through a wider surface area of the body, which helps the body absorb the force of impact without causing serious injury. Since the clay backing behind the body armor acts like the human body to absorb a test bullet’s force, if the clay is defective during testing, the armor system will fail. Comments at 18.
In challenging AMC’s testing to ensure that the clay
backing material was of a proper plasticity, Armorworks contends that the drop
testing methodology used was not sufficient because it only tested plasticity
to a depth of 25 mm (plus or minus 3 mm) and did not calibrate the clay’s
plasticity at the critical depth of 43 mm, the depth at which back face
deformation may cause a ballistic test failure.
Armorworks also takes issue with AMC’s methodology for
obtaining satisfactory plasticity of the clay.
Specifically, the protester asserts that “[m]aintaining the clay at a
minimal heat level in conjunction with repeated clay working methods is the
optimal means of achieving uniform clay plasticity throughout the full depth of
the clay” and it is the method used by private laboratories.
In addition, Armorworks takes issue with the procedures
utilized by AMC to test back face deformation.
Armorworks notes that AMC used “point of aim” as the point for measuring
back face deformation, which, according to Armorworks, was a deviation from
testing requirements, “a departure in test methodology from all historical
ESAPI tests performed, and “a radical departure from all known body armor
testing standards.”
We conclude that the above issues are untimely and
therefore not for consideration by our Office.
Our Bid Protest Regulations contain strict rules for the timely
submission of protests. These timeliness
rules reflect the dual requirements of giving parties a fair opportunity to
present their cases and resolving protests expeditiously without disrupting or
delaying the procurement process. Peacock,
Myers & Adams, B‑279327,
sect. 21.2(a)(1) (2008).
Where alleged improprieties do not exist in the initial solicitation,
but are subsequently incorporated into the solicitation (e.g., via an
amendment to the solicitation), they must be protested not later than the next
closing time for receipt of proposals following the incorporation.
Here, as discussed above, the solicitation clearly stated
that heating the clay would be the method used to prepare the clay for testing
and that proper consistency or plasticity of the clay would be determined based
upon whether the clay passed drop testing as described in the
solicitation. In fact, as noted above,
the agency issued an amendment which clearly placed offerors on notice of its
intended testing procedures. With regard
to the actual drop testing methodology, the solicitation specified that the
clay would be conditioned to a point such that drop tests resulted in a
depression of 25 mm. While Armorworks
now contends that these procedures and testing methods were inherently
unreliable and deviated from industry practice, it was incumbent upon
Armorworks to raise these issues before the RFP closed since the alleged
problems were apparent from the face of the solicitation. Knit-Rite, Inc., B-293088.3,
We also find Armorworks’ challenge to the agency’s use of the intended point of aim measure to evaluate back face deformation to be an untimely challenge to the solicitation; however, a different timeliness rule applies with regard to this argument. As noted above, where an alleged solicitation impropriety is incorporated into the solicitation--e.g., by an amendment, as in this case--after proposals have already been submitted, that impropriety must be protested before the next closing time established for submitting proposals. This rule, however, is silent regarding a situation where the agency does not provide an opportunity to submit revised proposals as a consequence of the solicitation change. That, however, is the situation here.
After offerors had submitted their proposals and PDMs for ballistics testing, AMC, on April 17, issued Amendment 14, “as a clarification” regarding how the agency intended to measure back face deformation. Amendment 14 expressly stated that back face deformation “will be measured at the point of intended impact following impact.” This amendment clearly put Armorworks on notice of how the agency intended to measure and test back face deformation, but did not provide offerors with an opportunity to revise their proposals in any way. In our view, to the extent Armorworks believed that the agency’s testing methodology was flawed, Armorworks was obligated to protest this issue, which concerns the fundamental ground rules of the procurement, within 10 days of receiving the April 17 amendment.
In applying the 10-day rule, we find instructive those
cases where a solicitation defect only became apparent after the closing date
for receipt of proposals and we held that the alleged impropriety had to be
protested not later than 10 days after the defect became apparent. See LBM, Inc., B-290682, Sept.
18, 2002, 2002 CPD para. 157 at 6-7; N&N Travel & Tours, Inc. et al.,
B-285164.2, B-285164.3, Aug. 31, 2000, 2000 CPD para. 146 at 7; Ocuto Blacktop
& Paving Co., Inc., B-284165, Mar. 1, 2000, 2000 CPD para. 32 at 6; Vitro
Servs. Corp., B-233040,
One could argue--although Armorworks has not in fact made
this argument--that, under our Bid Protest Regulations, Armorworks’ protest is
timely since it was filed within 10 days of its debriefing. Pursuant to our Regulations, all protests
other than solicitation improprieties must be filed not later than 10 days
after the basis of protest is known or should have been known, with the
exception of protests challenging a procurement conducted on the basis of
competitive proposals, as in this case.
In such cases, our Regulations expressly provide that “any protest basis
which is known or should have been known either before the debriefing or as a
result of the debriefing . . . shall not be filed before the debriefing date
offered to the protester, but shall be filed not later than 10 days after the
date on which the debriefing is held.” 4
C.F.R. sect. 21.2(a)(2).
Since Armorworks’ basis of protest concerns the
incorporation of a solicitation impropriety through an amendment, and the
agency did not establish a time for the submission of revised proposals, there
might be some question as to whether the debriefing timeliness rules should
apply since they broadly apply to “any basis of protest,” including those known
before the debriefing.
As noted above, our timeliness rules reflect the dual requirements
of giving parties a fair opportunity to present their cases and resolving
protests expeditiously without unduly disrupting or delaying the procurement
process. More specifically, underlying
our timeliness rules regarding solicitation improprieties is the principle that
challenges which go to the heart of the underlying ground rules by which a
competition is conducted, should be resolved as early as practicable during the
solicitation process, but certainly in advance of an award decision if possible,
not afterwards. Continental Staffing,
Inc., B-299054,
The purpose of the exception to the timeliness rules for
negotiated procurements, on the other hand, is to encourage offerors to seek,
and contracting agencies to give, early and meaningful debriefings prior to the
offeror’s deciding whether or not to file a protest and to preclude strategic
or defensive protests--i.e., protests filed before actual knowledge that
a basis for protest exists or in anticipation of improper actions by the
contracting agency. The
Because Armorworks’ allegations clearly concern the terms of
the solicitation as established by the agency and therefore implicate the
fundamental ground rules of the procurement, issues which were apparent to
Armorworks before its elimination from the competition, its protest allegation
implicates the policy considerations attendant to the solicitation impropriety
timeliness rules outlined above, as opposed to those associated with the
debriefing rules. We therefore find it
appropriate in this case to apply the solicitation impropriety timeliness
rules, consistent with our decisions holding that solicitation defects not
apparent before the solicitation’s closing date must be protested not later
than 10 days after the defect becomes apparent, and we expressly decline to
apply the debriefing timeliness rules under these circumstances.
Remaining Issues
In its comments on the agency report, Armorworks raised
concerns about shot placement during the testing. Specifically, it complained that the first
shot placement “made it impossible to fire a second shot at the ballistically
weakest point of the plate,” which was contrary to the solicitation, and
therefore did not “probe the plates’ weakest points.” Comments at 15. Our Office asked Armorworks to address,
among other things, how it was prejudiced by the agency’s alleged failure in
this regard. GAO E-mail to Parties,
In a supplemental protest, Armorworks asserts that AMC’s
testing facilities are not certified in accordance with Justice Department
standards, and that without those standards there were no meaningful controls
to ensure consistency among the three test ranges used and that consistency was
further undermined by a change of personnel during testing. Beyond these general concerns, Armorworks fails
to offer any specific indication of how these concerns negatively affected the
ballistic testing. Notwithstanding that
the agency provided Armorworks with the detailed results of the ballistics
testing, there is no indication that shots were misfired, that the agency
deviated from the standards set forth in the solicitation regarding shot
velocity or angle, that measurements were improper, or that the agency did not
follow timing procedures. Absent some
indication or evidence to suggest that the alleged lack of standards in some
way compromised the actual test results, we find that Armorworks’ general
allegations in this regard fail to comply with the
requirement that a protest provide a sufficiently detailed statement of the
legal and factual grounds for the protest, 4 C.F.R. sect. 21.1(c)(4) and (f);
accordingly, they are insufficient to warrant further consideration by our
Office. View One, Inc., B-400346,
Armorworks also argues that the drop testing performed by the agency during testing was flawed. According to Armorworks, the agency stated that it performed drop tests “at the edge of the chest mold area,” which was unreasonable since “measurements taken near the edge of the clay may result in excessive softness in the center of the clay (where the test bullets actually impact)” and using clay that is too soft “will lead to excessive back face deformation and, thus, excessive test failures.” Comments, Exh. A, Decl. of Christian Action at 2. Then, turning this argument on its head, Armorworks complains that the agency did not follow its flawed methodogy in a consistent manner, noting that in connection with the testing of one of its PDMs (candidate 11), an equal number of the drop tests were done in the “center of the mold.” Comments at 16.
As an initial matter, it is significant to note that all
of Armorworks’ PDMs, to include candidate 11, failed ballistic testing, not as
a result of excessive back face deformation, but because there was a complete
penetration of the body armor for at least one of the plates tested. Moreover, the drop testing results for the
one plate which failed testing for PDM candidate 11 appear to be one of those
instances where the agency performed the drop tests in the center of the mold,
which the protester contends was the proper testing methodology.[8] See AR, Tab 11, Candidate 11 Test
Report. Given the inherent inconsistency
of the protester’s arguments, the underlying record of the ballistics testing,
and absent any specific showing by the protester that its failures were the
result of improper drop testing, there is simply nothing to suggest that the
agency’s testing methodology in any way prejudiced Armorworks and was a
material cause of its body armor failures.
As a final matter, Armorworks argues that one of its failed plates never should have been the subject of testing since, before ballistic testing, the agency noticed what it described as a “manufactured flaw at the top left perimeter” in the plate. The agency explains that it performed an initial x-ray inspection of all plates and that “a minor change in density” was noted for the plate as a result of this inspection. Absent obvious shipping damage, any plate supplied was, as the agency describes, “fair game” for testing. AR, Encl. 1, at 2. Given the harsh environment in which the body armor must function, the extensive durability testing to which the body armor was subjected, and the critical life and safety issues inherent in the body armor testing, we do not think that the agency acted unreasonably in testing Armorworks’ plate, notwithstanding the identified flaw.
The protest is dismissed in part and denied in part.
Gary L. Kepplinger
General Counsel
[1] The solicitation also contemplated the award of contracts for delivery of Flexible Small Arms Protective Vests (FSAPV-E and FSAPV-X). Because the protester proposed only the ESAPI and XSAPI plates, this aspect of the solicitation is not at issue.
[2] Offerors could propose multiple ESAPI and XSAPI PDMs for testing.
[3] AMC also hosted a “Contractor Body Armor Demonstration Day,” during which offerors were provided a tour of the test facilities, observed a live fire test, witnessed post shot inspection, and were able to ask questions regarding the testing procedures. Contracting Officer’s (CO) Statement at 2.
[4] We recognize that this characterization is a simplification of the pass/fail criteria established in the PDs, which were based upon numerous variables, including the type of body armor, the type of threat, the degree of penetration of the body armor, the amount of back face deformation, and whether the penetration or deformation occurred on the first shot or a subsequent shot, and provided for “limited” versus “catastrophic” failures. Agency Report (AR), Tabs 8 and 9, Purchase Description. For example, regarding certain threats (identified as a, b, and c), a catastrophic failure resulted when there was complete penetration of the hard armor (ESAPI or XSAPI) and soft armor on any shots or if back face deformation exceeded 48 mm on any shots. For a different threat (threat d), however, these criteria only resulted in a catastrophic failure if they occurred on the first shot. For purposes of addressing the protest issues here, it is sufficient to note that an offeror could suffer several “limited” failures and pass testing, but could not pass with a “catastrophic” failure.
[5]
While Armorworks argues that its debriefing was inadequate and otherwise
flawed, we will not consider these issues, inasmuch as the adequacy and conduct
of a debriefing is a procedural matter that does not involve the validity of an
award. Healthcare Tech. Solutions Int’l, B-299781,
[6] Even if Armorworks’ protest were timely filed, we fail to understand how Armorworks was prejudiced by the agency’s method for measuring back face deformation as indicated in Amendment 14. In its protest, Armorworks explains that the agency’s method can result in body armor scoring better than it should otherwise, thereby suggesting that the testing should have been more stringent and resulted in more test failures. Armorworks’ PDMs, however, failed under the less stringent testing criteria about which it complains. Moreover, its argument in this regard is counter to the entire thrust of its protest, which is that AMC’s testing failed too many of the plates it tested, body armor which has previously been tested and passed, and which is currently used in the field. See Comments at 29.
[7]
Prejudice is an essential element of any protest and our Office will not sustain
a protest unless the protester demonstrates a reasonable possibility that it
was prejudiced by the agency’s actions, that is, unless the protester
demonstrates that, but for the agency’s actions, it would have had a
substantial chance of receiving the award.
McDonald‑Bradley, B‑270126,
[8] The ballistic test reports for candidate 11 include the location of the drop tests for each plate tested. The drop tests for the one plate failure in this batch are obviously closer to the center of the clay as compared to the other plates.