Protest challenging the results of the agency’s evaluation product testing is denied, where the protester could not show that the agency had altered the settings on its device after receiving the sample for testing. GAO declined to dismiss the protest as untimely, even though the protester did not file until well after the debriefing following its exclusion from the competitive range and after the award decision. The protester successfully argued that it could not have known of its allegation that the agency changed the device’s settings until after the agency returned the item and after tests were conducted. GAO found the protester had diligently sought the reason its device had failed the agency’s testing and preserved its right to protest, even though it proved unsuccessful.
Miltope protested the Army’s exclusion of its proposal from the competitive range and the subsequent award of a contract for multipurpose standard automatic test equipment to Leonardo DRS, arguing that the agency altered the settings on its sample prior to testing, contrary to the solicitation’s evaluation criteria, resulting in its lower test score and elimination from the competition. As a result, the protester argued the testing was inaccurate and unreliable.
As an initial matter, the Army urged GAO to dismiss the protest as untimely, because Miltope knew the basis of its protest as a result of its pre-award debriefing. Specifically, the Army explained that Miltope knew it had been excluded from the competitive range because its sample had not achieved the objective score of 2,000 under the performance subfactor.
Miltope argued that it was not aware of its basis for protest until the agency returned its sample item, which was used for testing during the evaluation. This occurred after the pre-award debriefing and after the award itself. As an alternative, the agency argued that the RFP did not obligate it to return the sample prior to award and did not warrant the condition of the sample upon return. As a result, the agency argued that the timeframe required by Miltope to discover its specific basis for protest was unknown. The agency also argued Miltope did not need to determine a specific basis of protest to know that it disagreed with the agency’s test scores.
In response, Miltope explained that it did not know the settings on its device had been changed—which would have altered the test scores—until after the agency returned the sample. According to the protester, it discovered on September 21 that its display resolution was set at 150 percent, rather than 100 percent, after performing a forensic investigation and tests on its returned sample.
GAO declined to dismiss the protest, explaining that the protester did not make a broad challenge to its elimination from the competitive range, but made a specific allegation about an agency mistake. While Miltope was informed during the pre-award debriefing that its product had not achieved the agency’s benchmark score, it did not know that the settings on the device had been changed until it received the sample. Miltope alleged that the change to the setting violated the terms of the RFP, which required offerors to configure their devices to specific settings before delivering them. Because Miltope diligently sought to determine why its product failed the test, and did so within eight days of receiving the sample item.
Turning to the merits of the protest, Miltope argued that its device was set to 100 percent display resolution when it was delivered, as required by the RFP, but the agency tested the device at 150 percent. According to Miltope, the change resulted in the device failing the test and the proposal being eliminated from the competitive range. Miltope argued that had its device been tested properly—using the settings defined in the RFP—it would have exceeded the agency’s benchmark and not been eliminated from the competition.
The agency denied the allegation, providing a declaration from the technical evaluation team attesting that none of the device’s settings had been changed. The contracting officer also attested that only he, two contract specialists, and the TET had any contact with the devices, and that only the TET had used the devices at all.
In response, Miltope provided declarations from employees asserting the device was correctly set at 100 percent display resolution when it was shipped to the Army, but set at 150 percent when it was returned. The protester also provided a step-by-step declaration explaining how it reached this conclusion. According to the protester, it was able to recreate the agency’s test results only when the display resolution was set to 150 percent.
However, GAO concluded that the protester had not established that the agency altered the display resolution setting on its sample. GAO found that the Army’s average test score results for the two component tests Miltope argued would be affected by a change in the sample’s display resolution setting were strikingly similar to the results Miltope achieved in its pre-submission testing. GAO explained those test results undercut the protester’s contention that its lower scores occurred because the display resolution setting was changed.
In addition, the protester did not dispute the evaluators’ statement that they did not change the settings, nor allege that the agency engaged in sabotage or deliberate misconduct. Instead, the protester merely argued that someone must have changed the settings. However, GAO found this allegation alone insufficient to make the protester’s case.
The protester also argued that the agency’s sample testing was inaccurate and unreliable because the test logs produced in the agency report indicate the use of a Windows 8.1 operating system, rather than the Windows 10 system required by the solicitation. Miltope also argued the Army evaluators did nothing to determine the cause of the inaccuracy reflected in the test logs, and the Army’s inability to explain the inaccuracy undermines the validity of the testing and demonstrates that the agency did not comply with the RFP.
The agency conceded that it did not discover the “minor discrepancy” in the test logs identifying which Windows operating system was used until after the protest was filed, but argued there was not any competitive prejudice to Miltope. The agency argued that any error in the software that caused the incorrect operating system to be indicated in the test logs likely did not affect the validity of the offerors’ benchmark scores, and even if it did, all offerors were equally impacted. GAO agreed and denied the protest in full.
Miltope is represented by Howard J. Stanislawski and Patrick K. O’Keefe of Sidley Austin LLP. Leonardo DRS is represented by W. Jay DeVecchio, Kevin P. Mullen, Rachael K. Plymale, and Caitlin A. Crujido of Morrison & Foerster LLP. The government is represented by Jonathan A. Hardage and Jered J. Leo, Department of the Army. GAO attorneys Charmaine A. Stevenson and Laura Eyester participated in the preparation of the decision.
