BNUMBER: B-259823.4
DATE: July 3, 1995
TITLE: Martin Marietta Corporation
**********************************************************************
DOCUMENT FOR PUBLIC RELEASE
A protected decision was issued on the date below and was subject to a
GAO Protective Order. This version has been redacted or approved by
the parties involved for public release.
Matter of:Martin Marietta Corporation
File: B-259823.4
Date:July 3, 1995
Thomas J. Madden, Esq., Jerome S. Gabig, Jr., Esq., and Charles R.
Marvin, Jr., Esq., Venable, Baetjer, Howard & Civiletti, for the
protester.
Rand L. Allen, Esq., James J. Gildea, Esq., Phillip H. Harrington,
Esq., David A. Vogel, Esq., and Paul A. Misener, Esq., Wiley, Rein &
Fielding, for Westinghouse Electric Corporation, an interested party.
Wayne Wenzel, Esq., Shauna D. Russell, Esq., and Diane K. Townsend,
Esq., Naval Sea Systems Command, for the agency.
David A. Ashen, Esq. and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Protest against agency determination that proposed sonar system is
compliant with specification requirement for 360-degree coverage is
denied where it appears from record that, although a matter of some
uncertainty and considerable technical dispute, 360-degree coverage is
at least theoretically possible and protester offers no conclusive
evidence to the contrary.
2. Protest that agency improperly failed to disclose vital
information concerning acceptability of glass reinforced plastic
(fiberglass) sonar dome proposed by protester in prior stage of
development process and proposed again in current stage is denied
where record does not establish that agency possessed superior, vital
knowledge concerning fundamental acceptability of fiberglass dome
prior to receipt of proposals for current stage; agency did not view
fiberglass dome as unacceptable until after receipt of proposals,
protester was aware that fiberglass is an inferior material for sonar
domes, and protester knew or should have known of need to maximize
sonar effectiveness.
DECISION
Martin Marietta Corporation (MMC) protests the Naval Sea Systems
Command's (NAVSEA) exercise of a competitive, down-select option under
Westinghouse Electric Corporation (WEC) contract No. N00024-92-C-6223,
for the demonstration and validation (D&V) phase for the United
States/United Kingdom Joint Cooperative Project for Surface Ship
Torpedo Defense (SSTD). MMC challenges the evaluation of proposals
and argues that it was misled into offering a technical approach found
to be unacceptable.[1]
We deny the protest.
The SSTD joint project seeks to combine equipment and technologies
into a system that can successfully detect and defend against torpedo
threats to surface ships. The contemplated system consists of three
major operational functions or subsystems: (1) the Detection,
Classification and Localization subsystem, which provides the sonar
data and associated subfunctions needed to detect, classify and
localize torpedo threats; (2) the Combat Control subsystem, which
performs multi-sensor data fusion, threat evaluation, fire control
solution generation, engagement scheduling, countermeasure employment,
and command display and control; and (3) the Material Countermeasures
subsystem, which utilizes towed or expendable countermeasures to
divert threat torpedoes from their intended target or to inflict
incapacitating physical damage to them.
The Memorandum of Understanding establishing the SSTD Joint
Cooperative Project provided for a four-phase SSTD development and
production program: (1) Concept Evaluation, in which a feasibility
study would be conducted; (2) D&V, in which contractors would conduct
design tradeoff studies, develop a preliminary design, and produce
advanced development models (ADM) in areas of high technical risk to
validate the design approach; (3) Engineering and Manufacturing
Development (EMD) (also called Full Scale Development); and (4)
Production.
During the Concept Evaluation phase, a request for proposals
(RFP)--No. N00024-90-R-6066(Q)--was issued to solicit proposals for
the D&V phase. Proposals were received from consortia led by WEC,
MMC, and General Electric Aerospace Corporation. The agency reports
that due to concerns over program risk having nothing to do with the
content of the proposals received, but instead reflecting the
complexity of the effort and the advanced technology required, it was
determined that additional risk analysis was required prior to
entering into the D&V phase. Consequently, the RFP was amended to
include a Risk Mitigation Phase (RMP) of approximately 15 months to
precede the D&V phase. The RMP phase became the basic contract
effort, while the D&V phase was converted to option line items under
the RFP. Contracts were ultimately awarded to WEC (No.
N00024-92-C-6223) and General Electric (No. N00024-92-C-6222) on
January 28, 1992. (During RMP, General Electric Aerospace was
purchased by MMC; it was the General Electric proposal for RMP/D&V
which formed the basis of the current MMC proposal for the D&V
down-select competition.)
The objective of RMP was to perform further tests, trials and analyses
in specific areas of high program risk, including such key areas of
concern as the ability to detect, classify and localize torpedoes,
material countermeasures, shipfitting, and threat definition.
According to the agency, these efforts did not relate specifically to
any particular contractor's design approach, but instead focused on
the basic ability to perform these high risk functions using available
technology. The Joint Project Office (JPO) and the government
laboratories of both the United States and the United Kingdom took the
lead in this phase, with industry providing support via the RMP
contracts.
At the time of the RMP/D&V contract awards, it was intended that both
contractors would be carried through the D&V phase by means of the
exercise of the D&V option in both contracts, and that a single
contractor would subsequently be selected for EMD, based upon a
limited competition between the two D&V contractors. The agency
contemplated that a detailed design would be produced by the joint
project at the end of the EMD phase, followed by the award of a
production contract based upon full and open competition. However,
delays and funding constraints following the RMP/D&V contract awards
in January 1992 forced a restructuring of the project as part of which
it was determined that only one consortium would be selected for the
D&V contract. The performance specification, statement of work (SOW)
and contract options for D&V were revised, and issued to WEC and MMC
(as the successor to General Electric), on September 12, 1994, as a
modification to their contracts.
The modification requested proposals for a fixed-price incentive
contract to perform the D&V phase. It generally advised that:
"[o]fferors are to submit comprehensive, updated responses to
the requirements of this modification. These responses will
be utilized to reassess the offeror's understanding of, and
capability to accomplish, the stated requirements. The
reassessment will build on the Government's previous
evaluation of the offeror's original proposal. Additionally,
the reassessment will focus on changes to the offeror's
original proposal and the evaluation of new data generated
through subsequent work, such as Risk Mitigation, which
substantiates claims contained in the offeror's original
proposal."
Although the instructions for preparation of the down-select proposals
stated that an offeror was "only required to submit change pages to
its original proposal," the modification specifically stated that the
proposals "must clearly show how" the proposed concepts would meet or
exceed the performance requirements in the SOW or specification.
Likewise, the modification required offerors to "provide data in
sufficient detail to: . . . (2) provide performance predictions which
illustrate that the offeror's design concept has the potential to meet
or exceed the performance requirements for all proposed systems and
specified operational modes."
Award was to be made to "that responsible offeror whose offer,
conforming to this modification, is considered to represent the best
value to the government, price and other factors considered." The
modification provided for the evaluation of technical merit and price.
The evaluation of technical merit was to include consideration of:
(1) system effectiveness and (2) detection, classification and
localization, which were "of equal importance and . . . more important
than" (3) material countermeasures; these first three criteria were
"significantly more important than" (4) combat control, (5)
shipfitting and systems engineering, and (6) operations, all of which
were of equal importance. The modification stated that "[t]echnical
content and scope is of paramount importance. In determination of
best value, the offeror should be aware that technical superiority is
significantly more important than price."
Proposals were received from MMC and WEC on October 12, 1994.
Although MMC's proposed target price [DELETED] was substantially lower
than WEC's [DELETED], MMC's technical proposal was found to be
unsatisfactory overall, while WEC's was rated good overall.
MMC proposed to satisfy the specification requirement for 360-degree
coverage for first echelon units--e.g., aircraft carriers--through use
of an improved version of an existing towed passive sonar array and a
new bow-mounted passive sonar array. Although MMC's proposal stated
that the proposed bow sonar array could be furnished in either a
"Removable or Permanent Fit Mounting," and could be given an
"Intrusive/Integrated" mounting, the bow array was depicted in
drawings with a semi-permanent, detachable mounting, in which the unit
is held in place with hydraulic tensioning rods. MMC's proposal
stated that the sonar dome--which covers the sonar--and the array
fairing (i.e., the transition between the dome and the hull) was
"designed to be external to and non-intrusive of the ship's hull
structure," and was "based upon the US Kingfisher . . . program"
(which used a detachable sonar mounting). The proposal described the
sonar dome as made of a "Coated GRP," that is, of glass reinforced
plastic (GRP) or fiberglass.
MMC's technical proposal was found to be unsatisfactory with respect
to detection, classification and localization, systems effectiveness,
and shipfitting and systems engineering. Project evaluators assessed
the new bow array sonar "as an area of major risk. The main concerns
are the risks associated with shipfitting and self noise." With
respect to shipfitting, the evaluators noted that:
"[t]he typical production installation shown [in MMC's
proposal] has the dome and array mounted on a frame secured
externally to the hull. Compared with the rigid ship
structure to which sonar arrays and domes are normally
installed, this will be prone to vibration. Fairings are
required to create a smooth dome/hull interface. These are
prone to movement or loss with the consequent rise in self
noise levels. Additionally, as the fit is to take place with
the ship afloat, it will not be possible to put filler in the
gaps between fairing, hull and dome."
Concluding that "[t]he offeror pays insufficient attention to
achieving fairness of form with his proposed mounting arrangements"
for the dome, the evaluators reported that British experience "has
shown that this is extremely difficult to achieve and it is crucial to
self noise performance. The self noise levels are substantially
increased should the fairing be less than perfect."
The evaluators also expressed concern that the proposed ADM bow array
sonar dome "is held in place by wire strops attached to the hull above
the waterline. Such an arrangement will lead to cable strum and
cavitation at even modest ship speeds leading to high noise levels in
the vicinity of the array." In this regard, the evaluators noted that
United States experience with the Kingfisher sonar array temporary
mounting, from which MMC's mounting approach was derived, "indicated
poor self noise, vibration, etc.," resulting in a decision not to use
it for Operation Desert Storm during the Gulf War.
Evaluators also questioned the difference between the D&V and
production versions of the bow array. They noted that:
"[t]he production version requires welded brackets and stops
and hydraulic rams in place of the cable strops. Since the
ADM is mounted in a completely different manner to that
proposed for the production fit . . . it will not be possible
to extrapolate the expected production performance. Thus, it
will not be possible to judge the acceptability of the
proposed production design. Therefore, the ADM approach is
considered unsatisfactory."
Further, the evaluators expressed concern that the use of hydraulics
to hold the array and dome in position would bring machinery sources
close to the sensor, thus degrading performance unless substantial
vibration insulation was used. In addition, the evaluators noted that
although "[s]tiffening of the forward structure [plating] is necessary
to reduce self noise," it was unlikely that adequate stiffening would
exist on many types of ships without current bow-mounted sonar arrays.
The evaluators also questioned MMC's proposed use of a fiberglass
(GRP) dome on the basis that "[t]he lightweight fiberglass dome
concept is considered, from US and UK trials, to be a risk area since
fiberglass domes tend to be noisy and also have high failure rates."
As a result, the evaluators concluded that:
"[t]he dome and installation is poorly designed and this will
cause high self noise effects which would severely degrade
detection performance. The concept is, therefore, considered
flawed, and thus will not meet the requirements."
The Source Selection Evaluation Board (SSEB) likewise questioned MMC's
proposed approach, finding that: "[t]he dome and installation is
poorly designed and this will cause high self noise effects which will
severely degrade detection performance to an extent that it won't do
the job. The concept is, therefore, considered flawed and will not
meet performance requirements." In addition, the SSEB noted that
MMC's proposed "schedule carries significant risk. . . . [T]he main
sea trial is late in D&V giving very little time for the important
post trials analysis. Should schedules . . . slip the overall program
schedule will be impacted." Although recognizing that MMC had
indicated a willingness to consider alternatives to its non-intrusive
mounting arrangement, the SSEB noted that "[t]he proposed mitigation
measure of examining an intrusive design for [first echelon units] is
tantamount to a unique sonar design and development for every class of
ship and is therefore considered unsatisfactory on grounds of expected
cost and time to fit."
The SSEB rated MMC's proposal as characterized by "high technical risk
with attendant high cost and schedule risk." The SSEB reported to the
source selection advisory council (SSAC) and the source selection
authority that MMC's proposed bow array sonar will be "ineffective";
according to the SSEB, MMC's approach to detection, classification and
localization was "fundamentally flawed," such that "correction would
require [a] new design concept." The SSAC agreed, finding that MMC's
proposal was unacceptable in that it contained design deficiencies of
such magnitude that the necessary corrections or improvements would
necessitate major revisions and require an entirely new technical
proposal.[2] Upon learning of the resulting, December 14 selection of
WEC on the basis of initial proposals, MMC filed this protest with our
Office.
MMC'S EVALUATION
Prior Evaluation
MMC disputes the JPO's determination that its proposal was technically
unacceptable. As an initial matter, MMC argues that the determination
that its bow array mounting was unacceptable, the concern with respect
to its proposal of a GRP (fiberglass) dome, and the overall conclusion
that MMC's proposed approach will suffer from high self-noise which
will severely degrade detection performance were unreasonable because
these conclusions were inconsistent with those reached in the
evaluation of its proposal for the 1992 contract, which allegedly was
based on an identical mounting and fiberglass dome. Indeed, according
to the protester, the evaluators were precluded from reassessing MMC's
approach by the terms of the modification, which indicated that in
reassessing the offeror's understanding of, and capability to
accomplish, the stated requirements, the reassessment would "build on
the Government's previous evaluation of the offeror's original
proposal." We disagree.
While the modification stated that the evaluation for the down-select
contract would "focus on changes to the offeror's original proposal"
and "build on" the prior evaluation, neither this language, nor any
other provision of the modification, precluded the agency from going
beyond the prior evaluation or reaching different conclusions. The
modification required the submission of "comprehensive, updated
responses to the requirements," which "clearly show how" the proposed
concepts would meet or exceed the performance requirements, and
provided for a "reassessment" of the proposal. Implicit in the
concept of a reassessment is the possibility that different
conclusions may be reached. Indeed, the modification mentioned one
possible cause for a difference in conclusion when it indicated that
the reassessment would also focus on the evaluation of new data; as
discussed below, NAVSEA reports that additional data from recent sea
trials of a British sonar influenced evaluators ultimately to conclude
that MMC's proposed GRP dome was not merely a matter of concern, but
in fact was unacceptable. More generally, although clearly related in
that they represent steps in the ultimate development and acquisition
of an SSTD system, the 1990/1992 and 1994 competitions and awards were
legally separate contracting actions. We have previously recognized
that each procurement stands on its own; the fact that an agency in a
prior procurement reached one conclusion concerning the acceptability
of an offeror's approach does not preclude that agency from
subsequently reaching, upon further consideration, a different
conclusion. See generally Cobra Technologies, Inc., B-238031 et al.,
Feb. 27, 1990, 90-1 CPD para. 242.
Further, the contemporaneous evaluation record indicates that the bow
array mounting and sonar dome in fact were the subject of evaluator
concern during the 1990/1992 competition. The evaluators questioned
General Electric's reliance on the "Kingfisher" sonar program, asking
General Electric during discussions to "[e]xplain how you plan to
assess the risk of using the Kingfisher sonar over a wide range of
operational environments over which it must operate. Include a
discussion of flow-induced hull vibration problems encountered during
development." In its response, General Electric recognized that
"vibrational problems" had been encountered at "moderate to high
operational speeds" during the development of Kingfisher. The offeror
maintained, however, that "[t]hese vibrations, resulting from cable
and strut strum, were reduced to an acceptable level by addition of a
fairing and the problem has not reoccurred." Notwithstanding General
Electric's response to the discussion question, however, the record
indicates that the JPO's concerns with respect to the mounting
approach were not resolved. The evaluators concluded that "use of the
Kingfisher array may be risky at high sea states and ship speeds due
to potential reliability problems." According to the evaluators, "UK
trials have shown that poor bow array fitting/fairing can cause
excessive self noise. The proposed mounting has areas of likely
turbulent flow . . . and the concept must be considered (and the
offeror does . . . ) high risk." Likewise, the SSEB expressed concern
that "[t]he proposed bow array may have high levels of array
self-noise (e.g. flow noise) and survivability problems. . . ."
Indeed, in testimony given at the hearing conducted with respect to
this protest, the chief engineer for the SSTD project testified that
on two occasions subsequent to the 1992 RMP/D&V awards, he advised
General Electric/MMC of the JPO's continuing concern with the
potentially high self noise associated with their installation
approach, focusing on the strumming vibration experienced with the
Kingfisher. Hearing Transcript (Tr.) at 275-281, 302.[3] In
addition, with respect to General Electric's proposed sonar dome, the
SSEB noted that "[t]he lightweight fiberglass dome concept is
considered, from US and UK trials, to be a risk area since fiberglass
domes tend to be noisy and also have high failure rates. The offeror
seems to acknowledge this, since mountings and fairings are considered
high risk and only medium risk after D&V." In summary, neither the
terms of the 1994 modification nor the conclusions reached in the
1990/1992 competition precluded or rendered unreasonable the JPO's
determination that MMC's down-select proposal was unacceptable.
Dome
MMC argues that the JPO's concerns with respect to its proposed GRP
(fiberglass) dome were unreasonable and did not furnish a basis for
finding its proposal unacceptable.
Noting that MMC claimed that its proposed bow sonar array would
achieve only slightly higher self-noise levels than found on the
AN/SQS-53 surface ship sonar (the sonar on many American surface
ships), NAVSEA responds that "the evaluators determined it will be
impossible for [MMC] to achieve AN/SQS-53 self-noise levels using
[GRP] material for its dome window." The agency reports that GRP
domes were investigated during the development of the AN/SQS-26/53
sonar dome, and the initial development efforts at the United States
Naval Undersea Warfare Center "proved that fiberglass domes would not
achieve the low self-noise levels attained with reinforced rubber";
according to the agency, "[e]xtensive testing determined that the use
of rubber composites was the only way to achieve the desired noise
level." The agency reports that:
"[t]he essential property of rubber that makes it a very
suitable material for sonar window manufacture is that it has
wave speeds that are all sub-sonic. This means that any
energy that gets into the material will not be radiated off as
an acoustic signal that will interfere with the hydrophone
array. [GRP] on the other hand has supersonic wave
(compressional) speeds that cause energy trapped within the
material to radiate off at certain critical angles. This is
one of the problems experienced in the UK's submarine dome
program. Surface ship sonar systems . . . have experienced
numerous acoustic problems with their [GRP] domes. . . .
"The problems of [GRP] as a material, if the mounting at the
edges of a dome are not properly designed, are in fact
exceedingly complex. . . . Attempts to mechanically isolate a
[GRP] dome from its attachment have failed in the past, as the
noise levels were increased by the isolated mounting of the
dome. . . . In practice the dominating noise source was flow
induced dome vibrations. . . . The way in which a dome is
mounted at the edges is critical. . . . [T]he planned ADM
mounting arrangements would not hold the dome sufficiently
rigidly to prevent flow induced dome vibration with the
attendant self noise penalty."
In addition, NAVSEA maintains that recent sea trials (in early 1994)
of a British sonar with a GRP dome, the results of which first became
known to evaluators only during the evaluation of MMC's down-select
proposal, were a significant factor in the JPO's determination that
MMC's use of a GRP sonar dome was an unacceptable risk. Joint project
engineers testified that prior to the tests, self noise which had
interfered with the detection capability of the British sonar had been
primarily attributed to electrical interference, but that based on the
sea trials it was determined that "there were significant self noise
problems other than just the electrical noise problems and they . . .
[were] associated with the fiberglass [dome]." Tr. at 285-287,
316-317, 626, 657. According to the testimony, British technical
authorities now consider "fiberglass to be a significant contributing
factor to that self-noise." Tr. at 626, 633-634, 638. The agency
concludes that "[i]f the AN/SQS-26/53 was deemed incapable of
obtaining its noise goal with the use of Glass Reinforced Plastic
windows, there is likewise no probability that the [MMC] ADM bow sonar
dome will meet the Government's performance requirements as designed."
MMC does not deny that rubber is superior to fiberglass for sonar
domes. A consultant retained by MMC for this protest has noted that
"[t]he characteristics of rubber makes it a superb substance for a
sonar dome," while counsel for the protester acknowledges that "rubber
is marginally better than fiberglass in terms of preventing noise from
radiating within the bow dome." MMC and its consultant, however,
argue that it was unreasonable for the joint project evaluators to
conclude that the fiberglass dome proposed by MMC would necessarily
suffer from high self noise; they contend that "by applying
state-of-the-art techniques in baffling and constrained layer damping
in the construction of the dome, the difference in self-noise between
that dome [proposed by MMC] and a rubber dome would be relatively
insignificant." As evidence that fiberglass is acceptable, MMC notes
that fiberglass domes have been extensively used on submarines. Tr.
at 323, 444. As for the sea trials of the British sonar cited by the
agency as evidence of the unsatisfactory character of fiberglass for
use in sonar domes, MMC points out that the draft report on the
trials, issued in early 1995, does not specifically refer to
fiberglass as a cause of the self-noise.
The procuring agency has the primary responsibility for evaluating the
technical information supplied by an offeror and determining the
technical acceptability of the offeror's proposal; we will not disturb
a determination with respect to technical acceptability unless it is
shown to be unreasonable. See Intelligent Env'ts, B-256170.2, Nov.
28, 1994, 94-2 CPD para. 210. A protester's mere disagreement with the
agency's technical judgment does not establish that it was
unreasonable. See Diversified Technical Consultants, Inc., B-250986,
Feb. 22, 1993, 93-1 CPD para. 161.
MMC's arguments do not establish that the agency's determination as to
MMC's proposed fiberglass sonar dome was unreasonable. The fact that
fiberglass domes have been used on submarines does not establish that
the evaluators were unreasonable in concluding, based on the latest
information available, that use of a fiberglass sonar dome on a
surface ship could result in such self-noise as to interfere with the
detection, classification, and localization of incoming torpedoes in
sufficient time to take defensive action and permit compliance with
the overall effectiveness requirements. In this regard, testimony at
the hearing indicated that a submarine, with an intrusive, streamlined
bow dome, operating below the surface where wave action and associated
turbulence create significantly greater ship vibration, operates in an
"absolutely different," more benign noise environment than do the
surface ships to be defended here. Tr. at 335-336, 518, 636-637.
Moreover, the record indicates that problems in fact have been
encountered with fiberglass domes on British submarines; fiberglass
has been seen as a "suspect material" in the British submarine program
for approximately 20 years and is considered to be "acoustically
sub-optimum." Tr. at 626-628, 633-634, 649-650. Likewise, NAVSEA
reports that the United States has experienced many acoustic problems
with GRP submarine bow domes. (Although consultants retained by MMC
submitted declarations questioning NAVSEA's position in this regard,
we note that a sonar expert at the British Defense Research Agency
(DRA) testified to consultations with the Naval Undersea Warfare
Center, during which technical personnel indicated that they likewise
consider fiberglass a "problem material." Tr. at 650-651.)
As noted by MMC, the draft report on the recent sea trials of a
British sonar does not specifically refer to fiberglass when listing
four possible causes of the significant, "unacceptably high level of
self noise" affecting the sonar dome, which is made of fiberglass.
However, the draft report was published by the DRA, the agency which
conducted the sea trials, and a DRA sonar expert testified that
fiberglass was viewed as a significant contributing factor to dome
self-noise. Tr. at 334, 626-628. Furthermore, the report does list
"flow noise" as a possible cause of dome self-noise and states that
"[i]t is clear that the design of the dome, its material, mounting
arrangement and sitting are all contributing to high levels of self
noise which limit passive detection ranges against torpedoes."
(Emphasis added.) Again, the material of which the tested dome was
made is fiberglass, and testimony at the hearing indicated that the
fiberglass material comprising a dome affects flow noise. Tr. at
648-649. Thus, the DRA report does in fact call into question the use
of fiberglass as a material for sonar domes; the report does not belie
the agency's position that the British sea trials indicated that there
was a substantial risk that use of a GRP sonar dome would result in
significant self-noise.
Further, the record indicates that the detection of quiet electric
torpedoes, one of the specification requirements, is very difficult,
especially when high levels of self-noise are present to interfere
with sonar detection. Tr. at 637-638. In this regard, according to
NAVSEA, major sonar self-noise problems have been frequently
encountered on surface ships. Further, the record indicates that
fiberglass domes have been associated with high self-noise levels on
British and American surface ships and submarines. Indeed, MMC itself
concedes that rubber is superior to fiberglass with respect to its
inherent self-noise characteristics. Although the protester argues
that the difference with respect to self-noise can be rendered
relatively insignificant by applying state-of-the-art techniques in
baffling and constrained layer damping to a fiberglass dome, and the
evaluators agree that a number of techniques can reduce self-noise,
Tr. at 318, 323, the evaluators found that MMC's proposal lacked
adequate details concerning its mitigation measures. For example,
although MMC referred to a "Dome-Coated GRP," it never described the
coating to be applied to the dome. Tr. at 318, 329, 657-658.
Further, hearing testimony indicated that the inherent acoustic
superiority of rubber over fiberglass is considerable. Tr. at 651.
Moreover, the record supports the agency's position that the history
of fiberglass domes on surface ships indicates that it is often
difficult in practice to eliminate high levels of self-noise.
Based on this record, we find that MMC has not established that the
evaluators were unreasonable in concluding that MMC's proposed use of
fiberglass for the sonar dome, an approach which has often resulted in
high levels of self-noise in the past, posed an unacceptable risk of
creating such self-noise as to interfere with the specification
performance requirements with respect to detecting, classifying, and
localizing incoming torpedoes.
MMC further argues that even if its proposed bow sonar array was
ineffective because of self-noise, its bow sonar was "only essential
for meeting the requirements of a portion of two [of the 26 specified
threat] scenarios where the torpedo was directly off the bow";
according to the protester, its overall "average system effectiveness
score" was acceptable and the agency thus was precluded from finding
its proposal unacceptable.
This argument is without merit. The modification nowhere permitted an
offeror to propose a system which is effective in some of the threat
scenarios set forth in the system specification but not in others, and
MMC's position in this regard appears inconsistent with express
provisions of the modification. Paragraph 3.1.2 of the system
specification generally provided that "[t]he SSTD System shall provide
torpedo warning such that torpedo countermeasures can be executed,"
while paragraph 3.1.5.1(a) of the SOW required the contractor to
"[d]emonstrate that his systems meet the performance requirements of
Table 3-1 [with respect to specific effectiveness requirements for
each torpedo type] in the [threat] scenarios shown in Tables 4-1 and
4-2 of the US/UK SSTD Joint Project System Specification. . . ."
Paragraph 4.2 of the system specification provided that "[t]able 4-1
presents scenarios which shall be used to determine that proposed
systems meet the capability requirements of Table 3-1 for ship types
in each echelon required by each specific scenario." (Emphasis
added.) The plain language of these provisions contemplated
demonstrated effectiveness for all threat scenarios. Although the
system specification elsewhere appeared to permit the averaging of
effectiveness ratings between the torpedoes in a particular attack
salvo, we find no provision (and MMC points to none) which permits the
averaging of effectiveness between scenarios. MMC's interpretation
seems unreasonable, moreover, since it would permit the offer of an
SSTD system which would allow the sinking of a first echelon unit,
such as an aircraft carrier, subject to attack as set forth in certain
threat scenarios so long as the ship was well protected in other
scenarios. (MMC's position in this regard also is inconsistent with
its claim, discussed below, that WEC's proposal should have been found
unacceptable because it allegedly did not meet the system
specification requirement for a 360-degree sonar defensive
capability.)
We conclude that the JPO reasonably determined that MMC's proposed use
of fiberglass for the sonar dome posed an unacceptable risk of
creating such self-noise as to preclude compliance with the
specification performance requirements with respect to detecting,
classifying and localizing incoming torpedoes in time to take
defensive measures and overall system effectiveness, and that this
noncompliance was a material deviation from the mandatory
specification requirements. Accordingly, this was a proper basis for
rejecting MMC's proposal, and we need not consider MMC's challenge to
the JPO's determination that its proposed mounting approach was also
unacceptable.
WEC'S EVALUATION
MMC contends that WEC's proposal was technically unacceptable and
could not form the basis for award; according to the protester, the
agency was therefore required to open discussions with all offerors.
MMC primarily argues that WEC's proposed approach will not meet the
specification requirement for 360-degree coverage. WEC proposed to
satisfy the specification requirement for 360-degree coverage for
first echelon units through use of a [DELETED]. MMC alleges that
because [DELETED] are inherently limited in their ability to detect
acoustic signals which approach [DELETED] from the endfire
region--that is, towards 0 degrees relative to [DELETED]--WEC's
[DELETED] will be unable to meet the performance requirements with
respect to torpedoes approaching the target ship from ahead of its
bow. MMC maintains further that turbulence along the sides of the
ship will create noise and interfere with signal reception by WEC's
[DELETED].
The agency acknowledges that the signal detection capability of
[DELETED] is degraded as the angle of the signal approaches true
endfire--0 degrees relative to [DELETED]. See, e.g., Tr. at 677.
Indeed, agency evaluators recognized when evaluating WEC's proposal
that [DELETED], which had been used on submarines, had not been
demonstrated on surface ships, and that there was some risk that
[DELETED] would be unable to achieve 180-degree coverage [DELETED].
The evaluators also recognized that performance of [DELETED] may be
degraded by hull vibration-induced noise. However, based in part on
the results of a test [DELETED] on the aircraft carrier USS Kennedy,
the JPO ultimately concluded that WEC's overall system, [DELETED],
would satisfy the 360-degree coverage requirement. Likewise, NAVSEA
maintains that when the proposed [DELETED], they will provide
sufficient forward coverage such that WEC's proposed system will meet
the overall coverage requirements.
There is some uncertainty and considerable technical dispute as to
whether WEC's proposed [DELETED] will afford sufficient detection
capability with respect to torpedoes approaching from ahead of the
ship that WEC's system will offer the required 360-degree coverage.
MMC has submitted declarations from technical consultants, and its
consultants have testified, as to the theoretical impediments to
[DELETED] detection capability. Tr. at 449-483, 491-514, 515-549.
However, the record also includes declarations and testimony from
government sonar experts and a technical consultant retained by WEC
indicating that the proposed [DELETED] can be placed on ships so as to
avoid significant interference from turbulence, and that when
[DELETED], the [DELETED] will furnish the required 360-degree
coverage. Tr. at 668-687, 692-710, 713-791. Further, somewhat
fragmentary test results from the USS Kennedy trials, while not
conclusively establishing that the proposed [DELETED] will offer the
requisite coverage in the forward sector, appear to offer some support
for the agency's position that [DELETED] could potentially provide
such coverage. We are left to conclude that, while perhaps difficult
to achieve, 360-degree coverage is at least theoretically possible
with WEC's proposed [DELETED]; there is no conclusive evidence to the
contrary. This being the case, we have no basis for concluding that
the agency unreasonably determined that WEC's proposed system could
meet the coverage requirements such that the proposal was technically
acceptable in this regard.
In summary, having reviewed MMC's arguments with respect to the
acceptability of its own proposal and that submitted by WEC, and based
on the record before us, we find no basis for questioning the JPO's
determination that WEC's down-select proposal, but not MMC's, was
technically acceptable.
NOTICE
MMC alleges that it had no notice that its semi-permanent bow sonar
array mounting and GRP sonar dome were considered by the JPO to be
fundamentally unacceptable. MMC argues that it was unfairly misled by
the JPO into offering an SSTD approach in its down-select proposal
which the JPO knew or should have known would be fundamentally
unacceptable by (1) the fact that the JPO found General Electric's
1990 proposal of the same approach to be acceptable; (2) general
statements from the JPO that "[a]ll objectives and exit criteria of
the Risk Mitigation Program have been achieved and the US/UK SSTD
Joint Project is technically on a solid footing and ready to enter the
[D&V] Phase," and that "[o]bjectives of D&V can be successfully
achieved with low to moderate risk"; (3) the failure of the JPO to
advise MMC that the JPO considered MMC's approach to be fundamentally
flawed; (4) the addition to a list of factors to be considered by the
contractor in performing the required impact studies on subsystem
location of the possibility of SSTD approaches not requiring
drydocking for installation (which allegedly indicated to MMC the
JPO's interest in nonpermanent installation approaches which did not
require drydocking); and (5) the statement in the modification
requesting down-select proposals that the contemplated reassessment of
the offeror's understanding and capability would "build on the
government's previous evaluation of the offeror's original
proposal."[4]
MMC maintains that it was improper for the JPO to withhold vital
knowledge concerning the fundamental acceptability of its approach.
In support of its position, MMC cites our decision in EER Sys. Corp.,
B-248904.3, Mar. 8, 1993, 93-1 CPD para. 211, wherein we recognized that
"under the well established doctrine of superior knowledge, where the
government possesses special knowledge not shared by the contractor,
which is vital to the performance of the contract, the government has
an affirmative duty to disclose such knowledge to the contractor."
See also Helene Curtis Indus. v. the United States, 312 F.2d 774 (Ct.
Cl. 1963); Globe Woolen & Co. v. Utica Gas and Elec. Co., 121 N.E.
378, 380 (N.Y. 1918). Further, asserting that the 1992 awards were in
effect only a competitive range determination and that the RMP effort
thus constituted discussions, MMC contends that the JPO's failure to
advise it of JPO's concerns with respect to the semi-permanent
mounting approach and GRP dome prior to the submission of proposals in
1994 amounted to a failure to conduct meaningful discussions.
Moreover, even if the RMP effort is not considered to be discussions,
MMC argues, the contracting officer abused his discretion under
Federal Acquisition Regulation sec. 15.610 by not affording MMC an
opportunity to cure the perceived deficiencies in its proposal.
MMC's arguments do not furnish a basis for questioning the award to
WEC. First, as discussed above, although the 1992 RMP/D&V and 1994
down-select awards were related in that they represented steps in an
overall development and production process, they were legally separate
procurements. We do not find persuasive MMC's contention that the
1994 down-select proposals were best and final offers concluding a
process that commenced with the submission of initial proposals in
1990. The 1992-1993 RMP effort was not an extended period of
negotiations, but instead a period of contract performance, for which
the contractors were paid for their participation. Thus, the JPO made
award to WEC on the basis of its initial down-select proposal. Since
WEC's down-select proposal was the only acceptable proposal at the
time of award, MMC's having reasonably been found to be technically
unacceptable, the JPO was not required to conduct discussions prior to
making award. See Analytical Chemists, Inc., B-256037, Apr. 29, 1994,
94-1 CPD para. 283; see generally Infotec Dev., Inc., B-258198 et al.,
Dec. 27, 1994, 95-1 CPD para. 52; A. G. Crook Co., B-255230, Feb. 16,
1994, 94-1 CPD para. 118.
Second, the record does not support MMC's contention that the JPO
possessed superior, vital knowledge concerning the fundamental
acceptability of MMC's approach prior to the submission of the
down-select proposals. Again, during discussions with General
Electric during the 1990/1992 competition, the JPO specifically
questioned General Electric's semi-permanent--"Kingfisher"--bow sonar
array mounting, citing the "flow-induced hull vibration problems
encountered during development," that is, the very problems which led
to it being found unacceptable in 1994. In addition, on two occasions
subsequent to the 1992 RMP/D&V awards, the chief engineer for the SSTD
project advised General Electric/MMC of the JPO's continuing concern
with respect to the potentially high self-noise associated with their
installation approach, focusing on the strumming vibration experienced
with the Kingfisher. Although MMC complains that it was not
specifically told that the continued offer of this approach would be
unacceptable, we believe that it was placed on reasonable notice of
the essential nature of the JPO's continuing concerns in this regard
such that, as an experienced contractor, it could reasonably be
expected to take them into account in preparing its proposal.
As for MMC's offer of the fiberglass sonar dome, it is clear from the
record that the JPO for some time has viewed the use of fiberglass for
sonar domes as a weakness. As discussed above, the SSEB noted in 1991
that "[t]he lightweight fiberglass dome concept is considered, from US
and UK trials, to be a risk area since fiberglass domes tend to be
noisy and also have high failure rates." Indeed, the record indicates
that fiberglass has been seen as a "suspect material" in the British
submarine program for approximately 20 years and has been associated
with acoustic problems on United States surface ships and submarines.
However, NAVSEA maintains that the results of the early 1994 sea
trials of a British sonar with a GRP dome, which first became known to
evaluators only during the evaluation of MMC's down-select proposal,
were a significant factor in the determination that MMC's use of a GRP
sonar dome was an unacceptable risk. Again, prior to the tests,
self-noise which had interfered with the detection capability of the
British sonar had been primarily attributed to electrical
interference, but based on the sea trials it was determined that there
were significant self-noise problems associated with the fiberglass
dome. In our view, the fact that General Electric's 1990/1991
proposal was found acceptable, notwithstanding its inclusion of a
fiberglass dome, supports the agency's position that a fiberglass dome
was not viewed as unacceptable prior to receipt of the down-select
proposals.
Furthermore, we think the essential nature of the JPO's concern with
respect to the acoustic properties of fiberglass was or should have
been known to the MMC team. MMC acknowledges that rubber is a
material superior to fiberglass for domes with respect to preventing
noise from radiating within the sonar dome and interfering with sonar
detection and it does not claim that it was unaware of this when
preparing its down-select proposal. Nor does it claim to have been
unaware of the challenges posed by the need to detect quiet electric
torpedoes. (Indeed, inasmuch as it claims to include experienced
contractors in its team, it could hardly make such a claim.) Rather,
it appears that it simply made a cost/technical tradeoff, selecting
fiberglass because it was easier to work with and less expensive, and
in the expectation that the acknowledged acoustic inferiority of the
material could be mitigated. There thus is no basis for concluding
that the JPO had superior knowledge that should have been imparted to
MMC; the MMC team knew or should have known of the essential nature of
the JPO's concerns in this regard.
The protest is denied.
Comptroller General
of the United States
1. Inasmuch as significant portions of the record are classified, the
following unclassified discussion is necessarily somewhat general.
2. During the protest proceedings, NAVSEA stipulated that "[a]lthough
the Source Selection Evaluation Board determined that the Martin
proposal contained other weaknesses, the deficiencies associated with
the bow array sonar design were pivotal to the SSAC's determinations
that the Martin proposal was unacceptable and that it was not
necessary to enter into discussions."
3. Although MMC generally denies receiving any post-award notice as to
the agency's continued concern with respect to vibration caused by its
proposed installation method, see, e.g., Tr. at 340, we find the
testimony and sworn statement of the SSTD chief engineer to be
credible since the concern reportedly expressed to General
Electric/MMC was the same concern stated in the 1990/1992 evaluation
documents and the expression of the concern is consistent with the
action of the JPO in submitting the written question concerning this
matter to General Electric during discussions.
4. Although MMC also claims that it was advised by the JPO during the
RMP effort to retain its previously proposed bow array approach, it is
clear from our review of the record that MMC in fact was advised, in
response to its suggestion of the possibility of relying only on its
towed sonar array, of the agency's view that a hull-mounted sonar
array was necessary as a supplement to the towed array. There is no
basis in the record for concluding that MMC was advised again to
propose the same semi-permanent bow sonar array mounting and GRP sonar
dome.