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.