Comptroller General

of the United States

United States Government Accountability Office

Washington, DC 20548 

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: Armorworks Enterprises, LLC 

File: B-400394; B-400394.2 

Date: September 23, 2008 

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 May 25, 2007, contemplates the award of multiple fixed-price, 

indefinite-delivery/indefinite-quantity (ID/IQ) contracts for Interceptor Body Armor 

Enhanced Small Arms Protective Inserts (ESAPI), as well as “the next generation of 

hard ballistic inserts” for Interceptor Body Armor, X Small Arms Protective Inserts 
(XSAPI).1

 These ESAPI and XSAPI are essentially plates, which are placed inside

vests worn by U.S. combat troops, and are designed to protect them against small 

arms gunfire. 

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 Aberdeen Test Center. 2 The methodology and procedures for 

testing the different types of body armor were described in purchase descriptions 

(PD) referenced in the solicitation.

3

 Pursuant to the PDs, body armor plates were 

subjected to various stresses designed to test the durability of a proposed design, to 

include, among others: impact, oil soak, diesel soak, saltwater soak, weathering, 

extreme temperatures, and extreme altitude. AMC also tested a number of 

“ambient” or control plates for each design. After a plate was subjected to a 

particular durability test (e.g., impact testing or soaking the plate in diesel fuel), AMC 

conducted ballistic testing, which involved a gunner firing shots at the plate as the 

plate rested in a protective jacket on a clay testing block (clay substitute for soldier’s 

body mass). 

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. 

 

(continued...) 

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 

Page 2 B-400394, B-400394.2
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 ¶ 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 ¶ 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. Id. In 

addition, the agency issued amendment 14 to clarify that back face deformation “will 

be measured at the point of intended impact following impact.” RFP, Amend. 14. 

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

 

(...continued) 

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, July 19, 2007, 2007 CPD ¶ 132 at 5. 

Page 3 B-400394, B-400394.2
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. Id. at 19-20. While 

AMC’s drop testing “may have satisfied the letter of the specifications, that approach 

failed the broader test for reasonable testing, because, contrary to industry practice, 

it left a looming risk of inconsistent testing,” according to Armorworks. Id. at 20. 

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. Id. at 20. In this regard,

Armorworks discusses in great detail alleged industry standard methods for 

calibrating and maintaining clay plasticity. Id. at 21-22. According to Armorworks, 

AMC abandoned these methods, however, and instead used heat to calibrate the 

clay, which provides less consistency throughout the full depth of the clay, creates a 

situation where the clay is either too hard or too soft, and thereby results in 

inconsistent and unequal test results. Id. at 20-25. 

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.” Id. at 16. Armorworks maintains that back face 

deformation “is always measured at the deepest point (depth) within the post impact 

clay depression” since it is often the case that the deepest point of back face 

deformation is not the same as the point of aim. Id. Using point of aim “could make 

the plate appear (score) better than it really is.” Comments, Exh. A, Decl. of 

Christian Action, Sept. 1, 2008, at 4. 

Page 4 B-400394, B-400394.2
 

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, Mar. 24, 1998, 98-1 CPD ¶ 94 at 3-4; Professional Rehab. 

Consultants, Inc., B-275871, Feb. 28, 1997, 97-1 CPD ¶ 94 at 2. Under these rules, a 

protest based on alleged improprieties in a solicitation that are apparent prior to 

closing time for receipt of proposals must be filed before that time. 4 C.F.R. 

§ 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. Id.; see Cessna 

Aircraft Co., B-261953.5, Feb. 5, 1996, 96-1 CPD ¶ 132 at 16. 

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, Aug. 5, 2004, 2004 CPD ¶ 159 at 3-4 n.4. 

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 

Page 5 B-400394, B-400394.2
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 ¶ 157 at 

6-7; N&N Travel & Tours, Inc. et al., B-285164.2, B-285164.3, Aug. 31, 2000, 2000 CPD 

¶ 146 at 7; Ocuto Blacktop & Paving Co., Inc., B-284165, Mar. 1, 2000, 2000 CPD ¶ 32 

at 6; Vitro Servs. Corp., B-233040, Feb. 9, 1989, 89-1 CPD ¶ 136 at 3 n.1. These cases 

are similar to the situation at hand since they define the timeframe for protesting a 

solicitation impropriety where the solicitation closing date has passed. Since 

Armorworks waited until after it learned of its elimination from the competition, 

several months after the agency issued the clarifying amendment, to challenge the 

application of that amendment, its protest allegation is untimely and not for 

consideration by our Office.6

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. § 21.2(a)(2). 

 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. 

Page 6 B-400394, B-400394.2
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, Jan. 29, 2007, 2007 CPD ¶ 18 at 4-5. 

Such a rule promotes fundamental fairness in the competitive process by preventing 

an offeror from taking advantage of the government as well as other offerors, by 

waiting silently only to spring forward with an alleged defect in an effort to restart 

the procurement process, potentially armed with increased knowledge of its 

competitors’ position or information. Blue & Gold, Fleet, L.P. v. United States, 492 

F.3d 1308, 1313-14 (Fed. Cir. 2007). It also promotes efficiency by ensuring that 

concerns regarding a solicitation are raised before contractor and government 

resources are expended in pursuing and awarding the contract, thus avoiding costly 

and unproductive litigation after the fact. Id.

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 Real Estate Center, B-274081, Aug. 20, 1996, 

96-2 CPD ¶ 74 at 2. 

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. 

Page 7 B-400394, B-400394.2
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, Sept. 3, 2008. Assuming Armorworks’ allegation to be 

true, prejudice was not apparent, in our view, since Armorworks’ PDMs failed testing 

under the arguably less demanding standards. Armorworks, however, simply did not 

respond to this question. As a consequence, we dismiss this aspect of Armorworks’ 

protest.7

 

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. § 21.1(c)(4) and (f); accordingly, they are 

insufficient to warrant further consideration by our Office. View One, Inc., B-400346, 

July 30, 2008, 2008 CPD ¶ 142. 

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 

 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, Feb. 8, 1996, 96-1 CPD ¶ 54 at 3; see Statistica, 

Inc., v. Christopher, 102 F.3d 1577, 1581 (Fed. Cir. 1996). 

Page 8 B-400394, B-400394.2
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 

 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. 

Page 9 B-400394, B-400394.2