BNUMBER:  B-271838
DATE:  July 30, 1996
TITLE:  Cosmodyne, Inc.

**********************************************************************

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.

File:     B-271838

Date:July 30, 1996

Paul Shnitzer, Esq., Crowell & Moring, and Robert A. Brunette, Esq., 
for the protester.
Ronald S. Perlman, Esq., and Frederick P. Hink, Esq., Porter, Wright, 
Morris & Arthur, for Pacific Consolidated Industries, an intervenor.
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

1.  Protest that awardee's liquid oxygen/nitrogen generator fails to 
comply with solicitation requirement for protection against nuclear, 
biological, and chemical warfare agent contamination because it does 
not incorporate a High Efficiency Particulate Air (HEPA) filter 
followed by a bed of activated carbon is denied [deleted].

2.  Protest that awardee's liquid oxygen/nitrogen generator will not 
be able to continue operating after a chemical warfare agent attack as 
required by the solicitation is dismissed as untimely where argument 
was not raised in agency-level protest challenging award on other 
grounds.

3.  Protest that awardee's liquid oxygen/nitrogen generator does not 
meet solicitation requirement that the unit, without the minor 
modifications necessary to meet the requirements of this solicitation, 
have been previously deployed is denied where protester fails to 
demonstrate that modifications to previously deployed unit were other 
than minor.

4.  Protest that awardee's liquid oxygen/nitrogen generator fails to 
meet solicitation requirements regarding reliability and 
maintainability is denied where awardee's proposal stated that its 
previously deployed units had exceeded the requirements.

DECISION

Cosmodyne, Inc. protests the Department of the Navy's selection of 
Pacific Consolidated Industries (PCI) for award under request for 
proposals (RFP) No. N68335-95-R-0003, a small business set-aside for 
liquid oxygen/nitrogen (LOX/LIN) generators.  Cosmodyne contends that 
the PCI unit fails to comply with solicitation requirements regarding 
protection against nuclear, biological, and chemical (NBC) warfare 
agent contamination; prior deployment; and reliability.

We deny the protest.

BACKGROUND

The RFP, as amended, sought offers on a base quantity of 6, and an 
optional quantity of 14, non-developmental, 2-ton capacity LOX/LIN 
generators, with award to be made to the offeror submitting the 
lowest-priced, technically acceptable offer.  One required technical 
feature was that the generators be capable of operating in an 
environment contaminated with biological or chemical warfare agents or 
radiological fallout.  Another requirement was that the generators, 
without the minor modifications necessary to meet the requirements of 
this solicitation, have been previously deployed, either commercially 
or militarily.

The agency received three proposals by the March 6, 1995, closing 
date, and included two of the three (Cosmodyne's and PCI's) in the 
competitive range.  After conducting discussions with both offerors 
and receiving best and final offers (BAFO) from both, the agency 
notified PCI that Cosmodyne was the apparent successful offeror.  In 
response, PCI protested Cosmodyne's small business status to the 
agency and the technical acceptability of Cosmodyne's proposal to our 
Office.  The Small Business Administration ruled in Cosmodyne's favor 
with regard to its small business status, but PCI prevailed in its 
protest to our Office.  We sustained PCI's protest on the ground that 
the record did not support the evaluators' conclusion that Cosmodyne's 
proposal demonstrated compliance with the solicitation requirement for 
NBC protection.  We recommended that the agency reopen discussions 
with Cosmodyne and then request an additional round of BAFOs.  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.  

In response to our decision, the agency reopened discussions with both 
Cosmodyne and PCI concerning their units' protections against NBC 
contamination.  Upon conclusion of the discussions, both proposals 
were determined technically acceptable.  On January 29, 1996, the 
agency solicited BAFOs from both offerors with a closing date of 
February 1.  PCI's total price was lower than Cosmodyne's, and on 
March 19, the Navy notified Cosmodyne that PCI was the apparent 
successful offeror.

On March 25, Cosmodyne filed an agency-level protest objecting to the 
selection of PCI for award on the grounds that PCI's proposal did not 
meet the solicitation's requirements for protection against NBC 
warfare agents and that PCI had not previously deployed a 2-ton 
LOX/LIN plant.  On April 3, Cosmodyne filed a supplement to its 
agency-level protest, arguing that PCI's proposed plant did not meet 
the reliability and maintainability requirements of the RFP.  On April 
16, the agency denied all three grounds of Cosmodyne's protest, and on 
April 22, Cosmodyne protested to our Office.

ANALYSIS

NBC Warfare Protection

Cosmodyne argues first that PCI's proposed plant fails to meet the 
RFP's NBC warfare protection requirements.  These requirements were as 
follows:

     "The generator shall be capable of producing oxygen or nitrogen 
     to the requirements of paragraph 3.3 while operating for one (1) 
     hour after commencement of attack in an environment contaminated 
     with the following NBC agents:  C.K., Mustard, Lewisite, GB, GD, 
     and radiological fallout."  

     "From the time of issuance of an attack, the units should be able 
     to operate for one (1) hour without any contaminants entering the 
     product stream." 

Cosmodyne contends that PCI's plant fails to meet these requirements 
because its NBC filtration system does not incorporate a High 
Efficiency Particulate Air (HEPA) filter to remove biological warfare 
agents and radiological fallout, followed by a bed of impregnated 
activated carbon to remove chemical agent vapors.  According to 
Cosmodyne, such a system is "the only completely safe and approved 
fielded system for military LOX/LIN plants to date."

Cosmodyne's allegation that PCI's system does not incorporate a HEPA 
filter/carbon bed combination to protect against NBC contamination 
[deleted].  As explained in the agency report on the protest, 
[deleted] Army/Navy approved chemical warfare filter effective against 
CK, HB, GB, GD, Lewisite, and Mustard, and that it is currently in use 
aboard Navy aircraft carriers.  Thus, the record does not support the 
protester's initial allegation concerning PCI's proposal.

The protester also argues that PCI's plant will not be able to 
continue operating after a chemical warfare agent attack, as required 
by the RFP,[1] [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.

We dismiss this basis of protest as untimely since it was not raised 
in Cosmodyne's agency-level protest.  Cosmodyne's agency-level protest 
was premised on the [deleted] assumption that PCI was proposing to 
furnish one of its GAMMA plants,  incorporating an RPSA system.  Once 
Cosmodyne elected to initiate a protest on the basis of this 
assumption, it was required to raise all related arguments; to hold 
otherwise would be to invite the submission of piecemeal protests, 
which our Bid Protest Regulations do not contemplate.  Since we will 
not consider issues that could have been, but were not, raised in a 
preceding agency-level protest, this basis of protest is dismissed.  
Research Technology Int'l, B-243844, Aug. 19, 1991, 91-2 CPD  para.  165; 
Armstrong Motorcycles Ltd., B-238436; B-238436.2, June 5, 1990, 90-1 
CPD  para.  531.

Prior Deployment/Nondevelopmental Item

Cosmodyne argues that the LOX/LIN plant proposed by PCI does not meet 
the following solicitation requirement:
     
     "The Unit without the minor modifications necessary to meet 
     therequirements of this solicitation has been deployed, either 
     commercially or militarily."

The protester contends that PCI has not previously deployed a 2 ton 
per day capacity LOX/LIN plant either commercially or militarily and 
that it would need to make major modifications to the 1.5 ton units 
that it has previously deployed in order to meet the solicitation's 
requirements.

[Deleted] Cosmodyne disputes that determination, arguing that it is 
apparent from differences between [deleted] and the Navy 
specifications that a unit meeting the [deleted] specifications would 
have to be modified substantially to meet the Navy specifications.  We 
disagree.  The fact that the two specifications differ in certain 
regards does not necessarily mean that a particular unit could not 
meet the requirements of both.  For example, the fact that [deleted] 
specification did not require simultaneous production of oxygen and 
nitrogen does not mean that the unit offered by PCI was necessarily 
incapable of simultaneous production.  Likewise, the fact that 
[deleted] specification required only 99.2 percent liquid oxygen 
purity and only 99.0 percent liquid nitrogen purity does not mean that 
the plant is incapable of producing liquid oxygen and liquid nitrogen 
of 99.5 percent purity, as required by the Navy RFP.[2]

[Deleted] to meet the Navy's requirements here:  [deleted] and 
[deleted].  PCI explains that other changes to its previously deployed 
unit to increase the unit's production capacity and to increase the 
level of purity of the oxygen and nitrogen produced were not required 
since the various components of its previously deployed unit (e.g., 
the air compressor, the adsorber beds, the heat exchanger, and the 
separation columns' cross section) were adequately sized to process 
2.0 tons per day.  PCI maintains that the [deleted] changes that it 
did make were at most minor [deleted].

The determination as to whether modifications to already developed and 
deployed equipment are minor is a technical judgment, which we will 
overturn only if it is shown to be unreasonable.  See Eyring Corp., 
B-245549.7, Mar. 31, 1992, 92-1 CPD  para.  320.  In assessing whether a 
modification is minor, we will consider both the technical complexity 
of the change and the degree of risk associated with it.  Id.  We will 
also consider the value and size of the modification relative to the 
value and size of the end product.  See Federal Acquisition Regulation  sec.  
52.202-1(c)(3).

Here, PCI maintains--and the protester does not dispute--that 
[deleted] changes were not technically complex, risky ones.  [Deleted]  
The value of the modifications, according to PCI, [deleted].  Given 
this evidence--which the protester did not seek to rebut--that the 
changes that PCI proposed were neither technically complex nor risky 
and that their value relative to the overall value of the end item was 
extremely small, we think that the agency reasonably concluded that 
the modifications proposed by PCI to meet the requirements of this RFP 
were minor.

Reliability/Maintainability

Cosmodyne argues that PCI's unit fails to meet the RFP's requirements 
regarding reliability and maintainability, which were as follows:

     "Reliability.  The generator shall have a minimum field mean time 
     between failures (MTBF) of 520 hours."

     "Maintainability.  The generator shall have a mean time to repair 
     (MTTR) of 2.5 hours or less.  The maximum time to repair at the 
     95th percentile shall be 8 hours. . . ."

According to Cosmodyne, PCI's previously deployed generators have 
suffered serious operational defects in the field, demonstrating their 
lack of reliability and maintainability.  In support of its 
allegation, Cosmodyne offered a list of instances in which PCI's units 
have failed.[3]

In concluding that PCI's plant satisfied the reliability requirement, 
the evaluators relied on statements in PCI's proposal as well as their 
own knowledge of the unit.  Specifically, PCI stated in its proposal 
that [deleted].  In addition to this information, the evaluators 
relied upon their knowledge of a design change that PCI had made to 
correct a problem that had resulted in failure of the turboexpanders 
in a number of the earlier units.[4]  Given this information, we see 
no basis to challenge the evaluators' determination that PCI 
demonstrated compliance with the reliability requirement. The evidence 
proffered by the protester concerning past failures of PCI plants does 
not alter our conclusion in this regard: at a minimum, without 
information (which the protester did not furnish) as to how long the 
generators had been operating prior to their failures, it is 
impossible to determine that they failed in less than 520 hours.

The protest is denied.

Comptroller General
of the United States

1. The RFP required that the generator "be capable of continuously 
producing product to the requirements of paragraph 3.3 for 10 days 
without stoppages for thawing."

2. Along the same lines, the fact that the maximum allowable 
dimensions for [deleted] unit were greater than the maximum allowable 
dimensions for the Navy units does not demonstrate that [deleted] 
unit, without modification, would exceed the Navy's dimensions.

3. The protester has offered no evidence in support of its allegation 
that PCI's generators do not meet the RFP's maintainability 
requirement.

4. The design change in question, as we understand it, was [deleted]. 
Although the protester contends that there is no evidence in the 
record that this design change was ever made, we disagree; [deleted].  
Also, even if the protester is correct that this change in design was 
not incorporated into PCI's previously deployed units, that does not 
show that it has not been incorporated into the design of the plants 
that PCI is now manufacturing.