BNUMBER: B-265934; B-265934.2
DATE: January 19, 1996
TITLE: Metfab Engineering, Inc.; Mart Corporation
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Matter of:Metfab Engineering, Inc.; Mart Corporation
File: B-265934; B-265934.2
Date: January 19, 1996
John T. Rego, for Metfab Engineering Inc.; and Michael Curth, and Gary
Minkin, for The Mart Corporation, the protesters.
Lee Curtis, Esq., and Jerone C. Cecelic, Esq., Howrey & Simon, for
Better Engineering Manufacturing, Inc., an interested party.
Timothy Lasko, Esq., Department of the Navy, for the agency.
Marie Penny Ahearn, Esq., 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 that request for proposals (RFP) for brand name or equal
commercial aircraft parts washers contains insufficient detail on
required preproduction testing examinations to enable the protester to
compete intelligently is denied where the examinations either are
based on the salient characteristics set forth in the RFP or concern
areas, such as accessibility, about which a commercial vendor should
understand what would be required.
2. Protest alleging noncompliance of the awardee's brand name product
with stated salient characteristics, which required modification of
brand name product for compliance, is denied where record demonstrates
that agency reasonably determined compliance based on the
representation in the awardee's proposal.
DECISION
Metfab Engineering, Inc. protests certain specifications and Mart
Corporation protests the award of a contract to Better Engineering
Manufacturing, Inc., under request for proposals (RFP) No.
N68335-95-R-0185, issued by the Department of the Navy for commercial,
off-the-shelf, brand name or equal, large aqueous parts washers, used
in the degreasing of aircraft parts. Metfab argues that the
specification provisions with respect to the required post-award,
preproduction testing are vague so as to preclude competition on a
common basis. Mart asserts that Better Engineering's proposed parts
washer did not meet the stated salient characteristics.
We deny the protests.
BACKGROUND
The RFP, specifying Better Engineering model F-4000-P or equal,
required offerors to propose "commercial items," that is, "items
regularly used in the course of normal business operations." See
Defense Federal Acquisition Regulation Supplement (DFARS) sec.
252.211-7012(b)(1). Offerors were required to describe in their
proposals compliance with the listed salient characteristics and to
include descriptive literature establishing details of the products
offered which were pertinent to significant elements such as design,
performance characteristics, and operation. Proposals were to be
evaluated on a pass/fail basis for compliance with the "performance
specification."
The Navy received six offers. Award was made to Better Engineering as
the lowest-priced technically acceptable offeror.
METFAB'S PROTEST
Metfab argues that the solicitation provisions for contractor
preproduction (post-award) testing provided insufficient detail for
intelligent competition on an equal basis.
Generally, the RFP provided that the contractor is to submit a
preproduction test plan after award, for review and approval by the
government. Once the plan is approved, preproduction testing is to be
conducted by the contractor on two units at its own expense; test
results are to be submitted to the government for approval. The
required preproduction testing includes operational tests "to evaluate
safe operation of all controls, components, and safety devices" and
"[f]it and placement of components, and equipment weight and
dimensions"; "[s]pecial concern [is to be given to] any unforeseen
operational anomalies affecting safe performance." The preproduction
test required the following examinations: (1) completeness; (2)
nameplates and identification; (3) alignment and tightness; (4)
finish; (5) fit and placement of components; (6) ease of operations,
switches, and controls; (7) equipment weight and dimensions; (8)
accessibility of components and parts; (9) power cord; and (10) safety
examinations/instructions.
Metfab complains that the solicitation did not include "specific and
complete requirements and test parameters" for the preproduction test
examinations, and that such detail was required to assure fair and
equal competition.
Where a DOD agency intends to acquire a commercial item, it is
obligated to describe the item in a way that identifies the agency's
needs with sufficient detail and clarity so that all offerors have a
common understanding of what is required under the contract in order
that they can compete intelligently on a relatively equal basis.
Adventure Tech, Inc., B-253520, Sept. 29, 1993, 93-2 CPD para. 202, aff'd,
Adventure Tech, Inc.--Recon. and Entitlement to Costs, B-253520.2;
B-253520.3, Feb. 9, 1994, 94-1 CPD para. 105; see Automated Power Sys.,
Inc., B-256242, May 31, 1994, 94-1 CPD para. 329.
Metfab has not established that the solicitation failed to include
adequate information for the preproduction examinations listed in the
solicitation. While the actual testing approach was not specified,
but instead was to be provided by the contractor in its test plan and
approved by the government, the examinations clearly are to be based
in the first instance on the salient characteristics set forth in the
RFP. In general, these salient characteristics, which the protester
has not challenged, were reasonably specific in nature. For example,
with respect to equipment weight and dimensions, an area cited by the
protester, the salient characteristics required a turntable of "1,500
pounds weight capacity" and overall dimensions "not to exceed 63
inches wide by 72 inches deep by 72 inches high." While other areas
to be evaluated in the preproduction examinations--e.g., accessibility
of components and parts--were not expressly addressed in the salient
characteristics, we see no reason why commercial vendors would not
understand what would be sufficient to meet the agency's requirements
in these areas in terms of performance required and form, fit and
function (e.g., that there be reasonable accessibility). See
Adventure Tech, Inc., supra. The fact that the Navy received five
proposals other than Metfab's, all offering different model machines,
with no indication that the other offerors viewed the specification as
uncertain or risky, supports the conclusion that the RFP contained
sufficient information for offerors to intelligently compete on a
common basis. See University Research Corp., B-228895, Dec. 29, 1987,
87-2 CPD para. 636.
MART'S PROTEST
Mart argues that Better Engineering's proposed modified brand name
parts washer did not comply with the RFP's salient characteristics (1)
requiring the capability to raise the water temperature to 200 degrees
Fahrenheit (F) within 2 hours (the heat-up requirement) and (2)
limiting the maximum amperage draw to 59 amperes (amps) with a
220-volt, three phase power source. Mart contends that Better
Engineering's water heater will either fail to heat in the time
required, or that if it heats as required, it will draw more than 59
amps of power. The protester asserts that the specifications were
relaxed and that it could have reduced its price had it been afforded
an opportunity to offer on the same relaxed specifications.
Although the RFP did not expressly state that it included
specifications which required modification of the brand name product
for compliance, there is no disagreement among the parties that this
was the case here; Mart and Better Engineering both recognized that
the 18 kilowatt (KW) heater of the brand name product was inadequate
to meet the solicitation's heat-up requirement, and both offered
larger heaters.[1] Better Engineering's proposal described its heater
as follows:
"Units to be equipped with 24 KW of electric heat (33 percent
more than on a standard F-4000-P) to ensure temperature rise to
200 degrees F in two (2) hours. Our experience and the laws of
physics have shown that less than 24 KW of heat in this tank size
will not provide required heat-up performance." (Emphasis in
original.)
In addition, Better Engineering responded to the 59-amp limitation by
describing its proposed parts washer as "220 volt, 3 phase, 60 HZ with
59 amp draw at full load." In contrast, Mart proposed a "primary"
heater of "15 KW (operates as required)" and a "secondary" heater of
"7.5 KW (de-energized when pump runs)," operating at 200 volts, but
did not mention the 59-amp requirement.
The Navy, which was familiar with Better Engineering's previous
descriptive literature showing its parts washers operating at 240
volts, interpreted Better Engineering's proposal as Better Engineering
states it intended--a 24 KW heater operating at 240 volts derated to
220 volts, which it determined will dissipate 20.17 KW of power, and
which will therefore not draw more than 59 amps. The agency engineer
concluded that Better Engineering's statement in its proposal that the
maximum amperage draw would not be exceeded was achievable based on
the engineer's knowledge of amperage limitation devices, including
load shedding devices, which could be utilized to avoid exceeding the
maximum allowable amperage (59) draw, and which it assumed Better
Engineering was offering.
Mart argues that Better Engineering's proposal should have been
determined noncompliant because (1) the proposal indicated that the
offered parts washer would need to dissipate at least 24 KW of
power--which would draw a higher amperage--to meet the heat-up
requirement, and (2) "nowhere in Better Engineering's technical
proposal . . . did they state that an 'amperage limiting device' was
included" to derate the heater to 220 volts from 240 volts.[2]
Generally, the contracting agency is responsible for evaluating the
data submitted by an offeror under a brand name or equal procurement
and ascertaining if it provides sufficient information to determine
whether the offeror's product meets the salient characteristics.
Andromeda Corp., B-245345, Nov. 20, 1991, 91-2 CPD para. 485; VG
Instruments, Inc., B-241484, Feb. 7, 1991, 91-1 CPD para. 137. We will
not disturb an agency's determination absent a showing that it was
unreasonable. Id.
The Navy reasonably determined that Better Engineering's proposal
adequately showed compliance with the requirements in issue. Better
Engineering expressly stated in its proposal that the brand name
heater would be modified to "ensure temperature rise to 200 degrees F
in two (2) hours," that is, to meet the heat-up requirement, and that
there would be a "59 amp draw at full load" with a 220-volt power
source. Mart has furnished no calculations establishing that the
anticipated resulting 20.17 KW of power dissipation would not meet the
heat-up requirement. Rather, Mart bases its argument that 20.17 KW of
power dissipation will not suffice on Better Engineering's statement
in its proposal that "experience and the laws of physics have shown
that less than 24 KW of heat in this tank size will not provide
required heat-up performance." (Emphasis in original.) While the
protester assumes that Better Engineering's reference to "24 KW of
heat" was a reference to the required power dissipation, rather than
to the size of the required heating element, there was nothing in
Better Engineering's proposal indicating that this was Better
Engineering's intent. Moreover, Mart itself apparently intends to
furnish a heater dissipating only 20.6 KW of power and did not explain
in its proposal exactly why 20.6 KW would be sufficient for its washer
to meet the heat-up requirement. It thus appears that both proposals
were evaluated on the basis of their statements of compliance with the
heat-up requirement,[3] and there is no basis for questioning the
agency's determination of Better Engineering's compliance with this
requirement. See Inframetrics, Inc., B-257400, Sept. 30, 1994, 94-2
CPD para. 138; Power Dynatec Corp., B-251501.3, Aug. 3, 1993, 93-2 CPD para.
73.
The failure of Better Engineering's proposal to describe the use of an
amperage limitation or load shedding device to be used to assure
compliance with the 59 amp limitation, also does not furnish a
basis for questioning the Navy's determination of compliance.
Although the solicitation required offerors to describe in their
proposals compliance with the salient features and to include
descriptive literature establishing pertinent details of the products
offered, the solicitation did not require offerors to detail exactly
how their offered equipment would perform in a compliant manner.
Since there was a feasible means of meeting the requirement, we think
the agency could reasonably assume that this means would be employed
by Better Engineering. Moreover, as discussed above, since the agency
accepted general statements of compliance with the salient
characteristics from both offerors, Better Engineering's failure to
provide more specifics with regard to its intent to use an amperage
limiting or load shedding device was not a basis for rejecting its
proposal. See Inframetrics, Inc., supra; Power Dynatec Corp., supra.
The protests are denied.
Comptroller General
of the United States
1. While the RFP did not specify the heating element size, and the
agency did not perform actual calculations to determine the necessary
heating element size, an agency engineer has explained that "[b]ased
on previous experiences of other aqueous parts washers of similar
size, the agency felt that the 18 KW heating element (standard on the
basic Better Engineering F-4000 unit) would provide only marginal
performance."
2. In comments to a supplemental agency report, Mart also contends
that the total amperage draw of Better Engineering's parts washer will
in fact exceed the 59 amp limitation based on additional amperage
resulting from a transformer for the system controls. This
contention, raised more than 10 working days--in fact, approximately 2
months--after the protester's receipt of a copy of the awardee's
proposal, when the basis of protest should have been known, is
untimely and will not be considered. 4 C.F.R. sec. 21.2(a)(2) (1995).
3. As another relevant example, although Mart states that "[its]
proposal also includes electrical devices that keep the amperage draw
. . . under the maximum 59 amps allowed," nowhere in its proposal did
it specifically state that it was using an amperage limitation or load
shedding device. In fact, Mart's proposal did not even mention the
59-amp limitation.