BNUMBER:  B-260650.2
DATE:  October 25, 1995
TITLE:  Pacific Consolidated Industries

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REDACTED DECISION
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:Pacific Consolidated Industries

File:     B-260650.2

Date:     October 25, 1995

Ronald S. Perlman, Esq., Porter, Wright, Morris & Arthur, for the 
protester.
Robert A. Brunette, Esq., for Cosmodyne, Inc., an interested party.
Commander R. B. McKenna and Timothy Lasko, Esq., Department of the 
Navy, for the agency.
Jennifer D. Westfall-McGrail, Esq., and Christine S. Melody, Esq., 
Office of the General Counsel, GAO, participated in the preparation of 
the decision.

DIGEST

Protest is sustained where solicitation for liquid oxygen/nitrogen 
generators required offerors to demonstrate that their proposed 
generators were protected against nuclear, biological, and chemical 
warfare agent contamination, and record does not support the agency's 
determination that the proposed awardee's proposal complied with the 
requirement.

DECISION

Pacific Consolidated Industries (PCI) protests the Department of the 
Navy's selection of Cosmodyne, Inc. for award under request for 
proposals (RFP) No. N68335-95-R-0003, a small business set-aside for 
liquid oxygen/nitrogen generators.  PCI contends that Cosmodyne's 
proposal should have been rejected as technically unacceptable because 
it failed to demonstrate compliance with two solicitation 
requirements:  (1) that the generators be capable of operating, 
without decontamination, in an environment contaminated with 
biological or chemical warfare agents or radiological fallout; and (2) 
that the generators, without the minor modifications necessary to meet 
the requirements of this solicitation, have been previously deployed.

We sustain the protest.

The RFP, as amended, sought offers on a base quantity of 6, and an 
optional quantity of 14, non-developmental, 2-ton capacity liquid 
oxygen/nitrogen generators.  The solicitation provided for award to 
the offeror submitting the lowest-priced, technically acceptable 
offer.  Offerors were advised that to be determined technically 
acceptable, their proposals must clearly demonstrate compliance with 
the design and performance, reliability and maintainability, and 
quality assurance requirements specified in the RFP.  Among the 
performance requirements specified was the following:

 "Nuclear, biological, and chemical (NBC).  The generator shall be 
 capable [of producing] oxygen or nitrogen to the requirements of 
 paragraph 3.3 [which sets forth required minimum production rates and 
 purity/quality standards] while operating in a[n] environment 
 contaminated with the following NBC agents:  E.K., Mustard, Lewisite, 
 GB, GD, and radiological fallout.[1]"

Offerors were also advised that to be determined technically 
acceptable, their proposals must demonstrate that the generators, 
without the minor modifications necessary to meet the requirements of 
this solicitation, had been previously deployed, either commercially 
or militarily.

Three proposals were received by the March 6, 1995, closing date.  The 
agency included two of the three, PCI's and Cosmodyne's, in the 
competitive range and, after discussions were conducted, both offerors 
submitted best and final offers (BAFO) prior to the designated closing 
date of May 30.  On June 1, the contracting officer notified PCI that 
Cosmodyne was the apparent successful offeror and had certified itself 
as a small business.[2]  On June 7, PCI protested Cosmodyne's small 
business status to the agency, and on June 19, it filed the instant 
protest with our Office.  By letter dated July 6, the Small Business 
Administration determined that Cosmodyne is a small business.

In its proposal, Cosmodyne proposed to furnish  [deleted].[3]  The 
proposal stated that the plant proposed complied, without exception, 
with the solicitation, and that [deleted].  The proposal further 
represented that the following filtration systems would keep the 
products from being contaminated while in the plant:

 "[Deleted]"

Although there was no indication in Cosmodyne's proposal that any of 
the foregoing systems were not standard [deleted].

PCI contends that Cosmodyne's proposal fails to demonstrate compliance 
with the solicitation's NBC requirements, and that the evaluators 
could therefore not have reasonably determined it to be technically 
acceptable.  The protester maintains that [deleted] have not been 
proven to, and will not, protect the plant's products against 
contamination by chemical warfare agents.  In addition, PCI alleges 
that Cosmodyne has never previously deployed a 2-ton capacity liquid 
nitrogen/oxygen generator with NBC protection and that major 
modification to its previously deployed model 
would be required to protect it effectively.

Where an RFP provides for award to the lowest-priced, technically 
acceptable offeror, each offeror must include sufficient information 
in its proposal to establish compliance with the solicitation's 
technical requirements.  SBS Technical Servs., B-259934, Apr. 19, 
1995, 95-1 CPD  205.  The procuring agency is responsible for 
evaluating the data submitted by an offeror and ascertaining if it 
provides sufficient information to determine the acceptability of the 
offeror's item; we will disturb this technical determination only if 
it is shown to be unreasonable.  Inframetrics, Inc., B-257400, Sept. 
30, 1994, 94-2 CPD  138.  While we do not make an independent 
determination of the merits of a technical proposal, the agency's 
judgment must have a rational basis and be consistent with the stated 
evaluation criteria, even in cases such as this, where technically 
complex systems are involved.  Bendix Oceanics, Inc., B-247225.3, July 
27, 1992, 92-2 CPD  54, aff'd, B-247225.4, Nov. 24, 1992, 92-2 CPD  
368.  Consistent with this requirement, an agency must document its 
technical determinations in sufficient detail to show they are not 
arbitrary.  Northwest EnviroService, Inc., 71 Comp. Gen. 453 (1992), 
92-2 CPD  38.

Here, we find that the agency's determination that Cosmodyne had 
demonstrated compliance with the solicitation requirement for NBC 
protection was unreasonable. 
The proposal contained no technical literature, test data, or other 
information establishing the effectiveness in protecting against NBC 
contamination [deleted].  Further, there is no evidence in the 
contemporaneous record that the agency's technical evaluators had any 
reasonable basis for concluding [deleted] would provide effective NBC 
protection; the record is devoid of any discussion of either the 
requirement or Cosmodyne's proposed approach to complying with it.  In 
fact, based on our review of Cosmodyne's proposal, we do not see how 
the evaluators could reasonably have concluded that it demonstrated 
compliance with the requirement.  [Deleted] 

We also do not think that the evaluators could reasonably have 
concluded, based on their experience with [deleted] other 
oxygen-generating systems, that [deleted] would be effective in 
protecting against NBC contamination.  In this regard, the technical 
evaluation team leader responded to a question from our Office as to 
whether she had previously seen the filtration systems proposed by 
Cosmodyne used successfully in other oxygen/nitrogen air separation 
plants by pointing to two systems, the On-Board Oxygen Generating 
System (OBOGS) used in the F/A-18, F-14, AV-8B, and T-45 Naval 
aircraft and the Expeditionary Oxygen/Nitrogen System (EONS) used by 
the Marine Corps, and arguing that the Navy considered [deleted] to be 
an effective device in preventing NBC contamination based on its 
experience with those systems.  We do not think that [deleted] can 
reasonably be compared to [deleted] used in the OBOGS or the EONS, 
however, since--according to the protester and as unrebutted by the 
agency--these systems [deleted].  The protester asserts--and the 
agency does not dispute--that there is a significant difference 
between [deleted].

In sum, the technical evaluators simply did not have enough 
information concerning Cosmodyne's proposed system to reasonably 
conclude that it would offer effective protection against NBC 
contamination.  The record thus does not establish that the agency's 
determination--that Cosmodyne's proposal demonstrated compliance with 
the solicitation requirement for NBC protection--was reasonable.  We 
therefore recommend that rather than proceeding with award to 
Cosmodyne, the agency reopen discussions [deleted], followed by 
submission of BAFOs.  If, upon further consideration, the agency 
determines that Cosmodyne's proposal is not technically acceptable, we 
recommend that it proceed with award to PCI, if that firm is otherwise 
eligible for award.[4]   We also find that the protester is entitled 
to recover the costs of filing and pursuing its protest, including 
reasonable attorneys' fees.  4 C.F.R.  21.6(d)(1) (1995).  In 
accordance with 4 C.F.R.  21.6(f), PCI's certified claim for such 
costs, detailing the time expended and the costs incurred, must be 
submitted directly to the agency within 60 days after receipt of this 
decision.

The protest is sustained.

Comptroller General
of the United States

1. The Navy provided the following clarification of this requirement 
in amendment No. 0007:  "The sealed personnel enclosure does not have 
to withstand the challenge of NBC agents.  The unit must be able to be 
operated after NBC weapons have been issued and not require any 
decontamination in order to operate it."

2. This notice was furnished  in accordance with the requirements of 
Federal Acquisition Regulation  15.1001(b)(2).

3.[Deleted]

4. Given that the RFP calls for award to be made to the lowest priced, 
technically acceptable offeror, even if Cosmodyne is found to be 
technically acceptable, it would be in line for award only if its 
proposal remained the lowest priced after submission of BAFOs.   
[Deleted]