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Posted: 12/23/2009 10:52:49 AM EDT
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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: FN Herstal, S.A. File: B-402203; B-402203.2 Date: December 15, 2009 DECISION FN Herstal, S.A. protests the Marine Corps Systems Command's (MCSC) decision to exclude its "Infantry Automatic Rifle" (IAR)[1] from further consideration of a delivery order under contract No. M67854-09-D-1037. FN contends that the agency's testing of its IAR, which led to the rejection of the IAR, was flawed. We dismiss the protest. On December 19, 2008, the agency awarded FN the indefinite-delivery/indefinite-quantity (ID/IQ) contract (referenced above) for IARs. This contract provided for the delivery of IAR production representative samples, IAR test articles for operational test, and IAR full rate production via delivery orders placed under the contract. The contract stated that the agency would issue delivery orders for production and fielding only upon "successful completion of operational testing and production acceptance testing."[2] Protest at 2-3. On October 23, 2009, the agency advised FN that its IAR had been eliminated from further consideration because the IAR "fails to meet several threshold requirements of [the] contract." Agency Report (AR), encl. 1, MCSC Letter to FN (Oct. 23, 2009), at 1. Specifically, the agency advised that FN's IAR failed to meet a "Barrel Life" requirement of the contract, due to the fact that the "minutes of angle" (MOA) recorded during the testing exceeded the acceptable amounts of MOA identified in the contract requirement. In addition, FN was advised that pistol grips fell off of two of the three rifles during testing at minus 25 degrees Fahrenheit, resulting in degradation of performance at extreme temperature. AR at 9-10; encl. 1, MCSC Letter to FN (Oct. 23, 2009), attach. On October 30, FN timely protested to our Office. FN asserted that the tests were "flawed" because they differed from FN's own testing and from testing performed by the Department of Defense (DOD). Although FN did not provide any details concerning its or DOD's testing, it argued that the barrel testing performed by the MCSC was likely skewed because "the barrel was infected by copper residue," and that the pistol grips fell off because it may have been that the "grips were not tightened at scheduled maintenance as they should have been." Protest at 7-8. On November 13, the agency provided an early production of documents, which included 10 volumes of relevant documents, including the detailed test reports and data that explained FN's IAR test failures and upon which the agency relied in excluding FN's IAR from further consideration. On November 23, which was within 10 calendar days of receipt of these documents, FN supplemented its protest to assert that the agency failed to reasonably evaluate price. FN did not challenge the accuracy of the test reports or supplement its earlier protest challenging the testing. On November 24, the agency submitted its legal memorandum and contracting officer's statement that fully responded to each of the initial and supplemental grounds of protest. Along with those submissions, the agency provided 16 additional documents, including the October 23 letter already provided to FN and 3 additional test or deficiency reports that were not considered in the evaluation. On December 4, FN submitted its comments on the agency report. In these comments, FN again asserted that the agency's testing was flawed because it differed from FN's own testing and DOD's testing; however, FN still did not provide any details of its or DOD's testing, and it did not provide any documentation of the test results. Because FN provided no details or evidence of the tests, either in its protest or comments or the supporting declarations of FN officials provided with the protest and comments, to demonstrate that there were differences in test results or that these differences show that the agency's testing was flawed, FN has not provided a sufficient factual or legal statement of protest and we dismiss the protest ground on this basis. See 4 C.F.R. sect. 21.5(f) (2009). FN also abandoned its protest arguments concerning copper residue and maintenance because it failed to respond in its comments to the agency report, which fully addressed these issues. American Sys. Consulting, Inc., B-298033.4, B‑298033.5, Mar. 28, 2007, 2007 CPD para. 65 at 5 n.3. FN's comments included several new bases for challenging the testing performed by the agency. The agency requests dismissal of the protest on the grounds that the protester's arguments, raised for the first time in its comments, are untimely. The protester contends that the arguments in the comments merely provide additional support for earlier, timely raised protests, and therefore the arguments are timely. Our Bid Protest Regulations contain strict rules for the timely submission of protests. Under these rules, a protest based on other than alleged improprieties in a solicitation must be filed no later than 10 calendar days after the protester knew, or should have known, of the basis for protest, whichever is earlier. 4 C.F.R. sect. 21.2(a)(2). Moreover, where a protester initially files a timely protest, and later supplements it with independent grounds of protest, the later-raised allegations must independently satisfy the timeliness requirements, since our Regulations do not contemplate the unwarranted piecemeal presentation or development of protest issues. L-3 Sys. Co. Wescam Sonoma, Inc., B-297323, Dec. 3, 2005, 2005 CPD para. 219 at 4. We view allegations raised for the first time in comments to constitute independent protest grounds if a further response by the agency is needed to adequately review the matter; such allegations by the protester must be raised within 10 days of when the information that provides the basis for the allegation becomes known. Id.; Comprehensive Health Servs., Inc., B-292858.3, B‑292858.6, B-292858.7, Apr. 27, 2004, 2004 CPD para. 165 at 8 n.4. Here, with respect to pistol grip testing, FN abandoned its initial protest argument that the agency may not have performed required regular maintenance. In its comments, FN instead asserted that the agency inaccurately reported to FN that more than one pistol grip fell off, that the agency misclassified this failure, and that the grips from other offerors' IARs also fell off and were not similarly rejected. FN's Comments at 2-6. These arguments are different from the initially asserted protest ground concerning maintenance and, in our view, constitute independent grounds of protest. Since the basis of protest stems from the protester's review of the test report and other documents provided on November 13, we find the protest arguments raised in FN's comments to be untimely. With regard to barrel testing and the MOA exceeding acceptable limits, FN abandoned its earlier theory that copper residue skewed the testing and it asserted, for the first time in its comments, that the MOA deviations were due to ammunition (or other unspecified "extraneous" factors) and not FN's IAR, that FN's MOA are within acceptable limits as shown by a Marine Corps Operational Test & Evaluation Activity (MCOTEA) report discussing MOA measurements of FN "Special Operations Forces Combat Assault Rifle" (SCAR) (which FN asserts is similar to its IAR), and that other offerors' IARs exceeded threshold MOA and were not rejected. FN's Comments at 6-11. In our view, these allegations are also unrelated to the initial argument concerning copper residue and constitute new, independent grounds of protest that must independently satisfy timeliness requirements. Like with the pistol grips, FN had in its possession all of the information necessary to challenge the accuracy of the MOA measurements as of November 13. On that date, FN received the IAR test report and data that identified the MOA deviations with respect to FN's IAR, as well as the evaluation record that led FN to believe that other offerors' IARs exceeded the threshold MOA and were not rejected. Prior to receipt of these documents, FN knew about the possible impacts of ammunition on the MOA measurements, as well as the MOA test results of its SCAR that appeared in the MCOTEA report.[3] Thus, FN had in its possession all of the information necessary to raise its grounds of protest as of November 13, and it failed to do so until December 4. These protest grounds are untimely. Finally, FN protests the agency's price evaluation. As noted above, this protest ground was timely filed. However, since the protester has not timely challenged, or has abandoned, any challenge to the test results that led to the exclusion of its IAR from competition, FN is not eligible for award, even if its protest challenging the price evaluation were sustained. As such, FN is not an interested party to protest the price evaluation. 4 C.F.R. 21.0(a)(1); Four Winds Servs., Inc., B-280714, Aug. 28, 1998, 98-2 CPD para. 57 at 2. The protest is dismissed. Lynn H. Gibson Acting General Counsel –––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– [1] The IAR is a lightweight, magazine fed, 5.56 mm weapon. Protest at 2. [2] The agency awarded similar ID/IQ contracts to other vendors in addition to FN. [3] With regard to the MCOTEA report, which FN did not receive until November 24, the MCOTEA's conclusions with regard to MOA measurements and baseline ammunition performance are based on an FN report dated June 12, 2007, which identifies the MOA measurements and baseline ammunition performance of FN's SCAR weapon. FN admits that it had knowledge of the June 2007 test report that it provided to the MCOTEA. FN's Timeliness Response (Dec. 11, 2009), at 3; AR, encl. 17, Navy Memorandum and Accompanying FN Test Report. Although FN asserts that the significance of the MCOTEA report here is "not the Report's conclusion with respect to MOA per se, but the fact that [the MCSC here] filed the Report thus effectively endorsing its accuracy," FN's Timeliness Response (Dec. 11, 2009), at 3, there is no evidence here that the agency "endorsed" the MCOTEA report with regard to FN's IAR, and the agency repeatedly asserts that it did not rely on the report in evaluating FN's IAR. E.g., MCSC E-Mail to GAO (Dec. 4, 2009); MCSC's Timeliness Response (Dec. 10, 2009), at 4 n.4. We note also that FN's initial protest ground, which asserted that the agency's testing of FN's IAR was inconsistent with its own testing, did not refer to the June 2007 SCAR test, and FN does not assert that it was referring to the June 2007 report in its initial protest. |
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