BNUMBER: B-271838.2
DATE: May 23, 1997
TITLE: Cosmodyne, Inc.--Reconsideration, B-271838.2, May 23, 1997
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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:Cosmodyne, Inc.--Reconsideration
File: B-271838.2
Date:May 23, 1997
Paul Shnitzer, Esq., Crowell & Moring, and Robert A. Brunette, Esq.,
for the protester.
Ronald S. Perlman, Esq., Porter, Wright, Morris & Arthur, for Pacific
Consolidated Industries, an intervenor.
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
1. Request for reconsideration is denied where protester fails to
demonstrate that decision erred in finding that awardee's liquid
oxygen/nitrogen generator complied with solicitation requirement for
prior deployment of the unit and that modifications to awardee's
previously deployed unit were minor.
2. Protester's argument that awardee's liquid oxygen/nitrogen
generator will not be able to continue operating after a chemical
warfare agent attack due to co-adsorption of carbon dioxide is without
merit where protester itself concedes that co-adsorption will not
occur if the unit contains [DELETED] for chemical warfare agent
capture, which the awardee's system does.
3. Erroneous identification of type of ship on which filter on
awardee's liquid oxygen/nitrogen generator has previously been
deployed does not provide basis for reversal or modification of
decision since record otherwise establishes effectiveness of the
filter for its intended purpose.
DECISION
Cosmodyne, Inc. requests reconsideration of our decision, Cosmodyne,
Inc.,
B-271838, July 30, 1996, 96-2 CPD para. 78, in which we denied its protest
of the selection of Pacific Consolidated Industries (PCI) for award
under request for proposals (RFP) No. 68335-95-R-0003, a small
business set-aside for liquid oxygen/nitrogen generators capable of
operating in an environment contaminated with nuclear, biological and
chemical (NBC) warfare agents. Cosmodyne contends that our decision
contains a number of errors.
We deny the request for reconsideration.
Under our Bid Protest Regulations, to obtain reconsideration, the
requesting party must show either that our prior decision contains
errors of fact or law, or present information not previously
considered that warrants reversal or modification of our decision. 4
C.F.R. sec. 21.14(a) (1996). Neither repetition of arguments made during
our consideration of the original protest nor mere disagreement with
our decision meets this standard. Dictaphone Corp.--Recon.,
B-244691.3, Jan. 5, 1993, 93-1 CPD para. 2. Nor will we consider
arguments that could have been, but were not, raised during our
initial consideration of the protest since to do so would undermine
the goal of our bid protest forum--to produce fair and equitable
decisions based on consideration of the parties' argument on a fully
developed record. Ford Contracting Co.--Recon., B-248007.3;
B-248007.4, Feb. 2, 1993, 93-1 CPD para. 90.
Cosmodyne argues first that we erred in concluding that PCI had
complied with the solicitation requirement that the generator offered
previously have been deployed. The protester contends that PCI does
not meet this requirement because it has not previously deployed a
2-ton generator with NBC protection.
We addressed this argument in our decision, noting that the RFP
required that "the unit without the minor modifications necessary to
meet the requirements of the solicitation" (emphasis added) to have
been deployed previously, and not that the precise unit have
previously been deployed. We found that to meet the requirements of
the solicitation here, PCI had made only two minor modifications to a
unit that it had previously deployed to [DELETED]. One of those
modifications was the substitution of [DELETED], a change undertaken
to assure compliance with the RFP requirement for NBC protection. In
other words, even assuming that the generator deployed by the
[DELETED] was not NBC-protected--a point which, as discussed in our
decision, both PCI and the Navy dispute[1]--PCI still complied with
the requirement for prior deployment because the substitution of
[DELETED] resulted in only minor modification of the unit. Thus, the
record does not establish that we erred in finding that PCI had
satisfied the prior deployment requirement.
The protester also argues that we incorrectly relied upon PCI's
representation that the only modifications that it had made to its
previously deployed unit to comply with the requirements of the
solicitation here were the previously discussed substitution of
[DELETED]. Cosmodyne insists that it is clear from the evaluation
record that at least one additional modification was required:
substitution of a higher flow capacity air compressor.[2] Along the
same lines, the protester argues that we incorrectly determined that
substitution of [DELETED] assembly for a standard HEPA filter would
require only minor modification of the unit. The protester maintains
that at least [DELETED] would be required to cover the air
compressor's air flow,[3] and that substitution of [DELETED] for the
standard filter would require significant redesign of the unit.[4]
With regard to the first of these two arguments, it was--and continues
to be--our understanding based on the record here that a higher flow
capacity air compressor was not required, as the agency's technical
expert had originally thought, because the air compressor used in
PCI's 1.85-ton/day unit had excess capacity and was in fact adequately
sized to process 2.0 tons/day. Moreover, even if the substitution of
a higher capacity air compressor had been required, such a
substitution still would have been a minor modification, according to
the Navy expert. The protester's second argument does not provide a
basis for reconsideration of our decision since it could have been,
but was not, raised by Cosmodyne during the course of its initial
protest. Id. In any event, the protester itself concedes that it is
possible to "[DELETED]" in housings designed for [DELETED], which
means that redesign of the unit to incorporate a series of [DELETED]
would not be required. We therefore remain unpersuaded that other
than minor modifications to PCI's previously deployed unit would be
required to meet the requirements of the solicitation here.
Cosmodyne argues next that we should not have dismissed as untimely
its argument that in the event of a chemical warfare agent attack,
PCI's plant would not be able to continue operating for 10 days
without stoppages for thawing, as required by the RFP.[5] We
dismissed this argument because it was not raised in the agency-level
protest that Cosmodyne pursued prior to coming to our Office. The
protester contends that it was appropriate for it not to have raised
the argument until it filed its comments on the agency report to our
Office because it was not aware until it received the agency report
that PCI had relied on tests of less than 10-days duration to
establish the effectiveness of PCI's [DELETED] in defeating chemical
warfare agents. According to Cosmodyne, it offered the above argument
to demonstrate the insufficiency of PCI's test results.
Assuming, for the sake of argument, that Cosmodyne's argument
regarding co-adsorption was a timely response to the position taken by
the agency in its report-- that PCI had adequately demonstrated the
effectiveness of its [DELETED] in protecting against chemical warfare
agent contamination--we find the argument to be without merit because
it is premised on the incorrect assumption that PCI's generator did
not contain [DELETED] and that the [DELETED] was therefore the only
protective system against chemical warfare agents. In this regard,
Cosmodyne's expert stated (in an affidavit submitted in connection
with the original protest) that Cosmodyne itself had avoided the
problem of co-adsorption in its system "by simply incorporating
[DELETED] designed solely for CW agents capture." (Affidavit of James
D. Yearout, dated June 11, 1996, at para. 8.) The direct implication of
this statement is that co-adsorption will not be a problem if a
generator incorporates [DELETED] for chemical warfare agent
capture--which PCI's unit did.
Cosmodyne further argues that in our decision we relied upon an
incorrect agency representation that [DELETED] were currently in use
aboard Navy aircraft carriers. The protester insists that [DELETED]
are not used aboard aircraft carriers.
The agency concedes that its statement regarding the use of [DELETED]
aboard aircraft carriers was in error. According to the agency, the
reference instead should have been to air capable ships, on which
[DELETED] are used as part of a total protective system. The error
had no significance, however, since the record still establishes--and
indeed the protester has never disputed--that the [DELETED] is an
Army/Navy approved chemical warfare filter effective against the
chemical agents involved here. Thus, the error does not provide a
basis for reversal or modification of our decision.
Next, Cosmodyne takes issue with our statement (made in response to
its argument that PCI's unit fails to meet the RFP's requirement for a
minimum field mean time between failures (MTBF) of 520 hours) that it
did not furnish information as to how long PCI's generators had been
operating prior to their failures. The protester insists that it did
furnish this information with regard to two of PCI's units (deployed
in Operation Desert Shield/Desert Storm), and that it also presented
evidence establishing that there had been no period of successful
performance for two other units (sold to the Turkish Ministry of
Defense) because they did not pass acceptance testing.
In asserting that it did furnish information as to how long two of
PCI's units had been operating prior to their failures (an assertion
which, as discussed below, the record fails to support), the protester
effectively concedes that it did not furnish such information for the
vast majority of the approximately 40 previously deployed GAMMA-design
PCI plants. Moreover, regarding the two units for which PCI did
provide hours of operation, the information presented is inconclusive
since it establishes only the number of hours that the units operated
in particular military operations (i.e., Desert Shield and Desert
Storm) prior to their failures. Since we had no way of knowing how
long the plants had been operating prior to being deployed in Desert
Shield/Desert Storm, it is impossible to tell how long they had
operated prior to failure.[6] With regard to the plants that were not
accepted by the Turkish Ministry of Defense, it is unclear from the
record how the matter was ultimately resolved (i.e., whether or not
they were ultimately returned to PCI as noncompliant).
Finally, the protester argues that fairness dictates that we not
accept PCI's "general assurances" regarding the scope of the
modifications required to increase the generator's capacity to 2.0
tons/day and regarding its compliance with the solicitation's MTBF
requirements since, in an earlier protest, we were unwilling to accept
Cosmodyne's general assurances of compliance with the RFP's NBC
requirements.[7]
In the earlier decision to which Cosmodyne refers, Pacific
Consolidated Indus.,
B-260650.2, Oct. 25, 1995, 95-2 CPD para. 247, aff'd, Cosmodyne,
Inc.--Recon.,
B-260650.3, Mar. 18, 1996, 96-1 CPD para. 201, we sustained PCI's protest
against the selection of Cosmodyne for award under the same RFP at
issue here[8] on the ground that the evaluation record (which
contained no discussion of the NBC requirement or Cosmodyne's proposed
approach for complying with it) did not support the evaluators'
conclusion that the Cosmodyne proposal demonstrated compliance with
the requirement for NBC protection. The nature of the record here is
different. As discussed in our earlier decision, PCI offered more
than "general assurances" that it would comply with the MBTF
requirement--it offered evidence that its currently fielded units were
meeting it, and that it had taken steps to correct a problem that had
resulted in failure of some of the older units. With regard to the
scope of the modifications needed to convert its 1.85-ton/day
generator to a 2.0-ton/day one, we did not simply rely on PCI's
assurances that only minor modifications would be required; we also
relied on the consistent conclusion of the agency's technical expert.
Thus, we see no inconsistency between our treatment of PCI's protest
and our treatment of Cosmodyne's.
The request for reconsideration is denied.
Comptroller General
of the United States
1. As noted in our prior decision, PCI's plant also includes a
[DELETED], which, according to both PCI and the Navy, functions as a
second protective system against chemical warfare agent contamination.
2. In this regard, Cosmodyne points to the statement of the Navy's
technical expert that:
"Modifications would be required to upgrade the [DELETED]
unit to meet the Navy's requirements of two tons per day
at 99.5%. A higher flow air compressor would be required.
. . . "
3. According to the protester, PCI's air compressor would need to have
an air flow of 720 cubic feet per minute (CFM) and each [DELETED] is
capable of filtering only 100 CFM.
4. The protester also argues that we erroneously ignored the testimony
of its technical expert that substantial modification of PCI's
previously deployed units would be required to meet the requirements
of the solicitation here. We did not ignore the testimony of
Cosmodyne's technical expert--we simply concluded that it was not
entitled to great weight given that it was premised on the incorrect
assumption that PCI would need to upscale its 1.5 ton/day unit by 33
percent to meet the 2-ton/day requirement in this solicitation.
5. According to the protester, PCI's plant will not be able to
continue operating after a chemical warfare agent attack since its
[DELETED], which serves to remove carbon dioxide as well as chemical
warfare agents from the feed air, could become ineffective at removing
the carbon dioxide in the presence of chemical agents, which could
allow some carbon dioxide to pass into the cold box portion of the
unit, where it would freeze on the heat exchange surfaces, disrupting
the production of oxygen and nitrogen.
6. The record also establishes that the failure of the Desert Shield
unit was the result of problems external to the unit (i.e.,
fluctuations in power from the
Saudi generating plant and the Army's emergency generators).
7. The protester also argues that we should not have accepted the
Navy's unsupported assertion that the [DELETED] are used aboard
aircraft carriers. As previously discussed, the Navy has conceded
that its reference to the aircraft carriers was in error; however, it
is apparent from the record that the error had no significance.
8. To remedy the defect, we recommended that the agency reopen
discussions and request an additional round of best and final offers
(BAFO). The Navy did so, and, after receiving responses from both
offerors, determined both proposals to be technically acceptable;
since PCI's BAFO price was lower than Cosmodyne's, it was selected for
award.