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