TITLE: ProMar; Urethane Products Corporation, B-292409; B-292409.2; B-292409.3, August 25, 2003
BNUMBER: B-292409; B-292409.2; B-292409.3
DATE: August 25, 2003
**********************************************************************
ProMar; Urethane Products Corporation, B-292409; B-292409.2; B-292409.3, August
25, 2003
DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective
Order. This redacted version has been approved for public release.
Decision
Matter of: ProMar; Urethane Products Corporation
File: B-292409; B-292409.2; B-292409.3
Date: August 25, 2003
William L. Walsh, Esq., Carla D. Craft, Esq., Carol F. Westmoreland, Esq.,
and J. Scott Hommer, III, Esq., Venable, Baetjer and Howard, for ProMar,
and Steven E. Kellogg, Esq., and A. Ben Foster, Esq., Thompson Coburn, for
Urethane Products Corporation, the protesters.
Eric Plane for Fender Care Naval Solutions Ltd., the intervenor.
Carl N. German, Esq., Department of the Navy, for the agency.
Henry J. Gorczycki, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Agency reasonably rejected protesters* quotations for pneumatic rubber
fenders as technically unacceptable where the quotations included product
literature that did not show compliance with the standards required by the
solicitation.
DECISION
ProMar and Urethane Products Corporation protest issuance of a purchase
order to Fender Care Naval Solutions Limited under request for quotations
(RFQ) No. N65540-03-Q-0274, issued by the Department of the Navy, Naval
Surface Warfare Center, Philadelphia, Pennsylvania, for pneumatic and
hydro-pneumatic rubber fenders for use in berthing and mooring ships and
submarines. The protesters allege that the agency unreasonably rejected
their proposals as technically unacceptable.
We deny the protests.
The RFQ, issued March 31, 2003, contemplated the issuance of a fixed-price
purchase order.[2] The RFQ stated that the agency intended to select,
based on initial quotations, the lowest-priced, technically acceptable
quotation. The RFQ stated the following three factors for determining
technical acceptability: technical compliance, corporate experience and
past performance. Under the technical compliance factor, the RFQ stated:
[A vendor] must demonstrate the Fenders it intends to furnish will comply
with the requirements contained in the Specifications included in this
RFQ. To comply with this requirement, [vendors] shall furnish existing
product or descriptive literature, brochures, etc. that demonstrate the
items to be furnished comply with the requirements set forth in the
attached Specifications.
RFQ at 3.[3]
The specifications in the RFQ stated that the fenders to be furnished
under the RFQ *shall be in accordance with the requirements of ISO
Standard Number 17357, 2002(E).* This standard, published by the
International Organization for Standardization, states the requirements
for high-pressure floating pneumatic rubber fenders, including performance
requirements and prototype test requirements. Agency Report, Tab 1, ISO
Standard 17357. Among those requirements are requirements for basic body
construction consisting in part of *synthetic-tyre-cord layers* for
reinforcement, for a *static ozone ageing test,* and for internal and
endurable pressure (i.e., inner air pressure at which the fender bursts).
Id., S:S: 6.1.1, 6.1.2, 6.1.3, 6.1.4, 6.3.1, Tables 3 & 4.
The agency received five quotations. One was immediately rejected as
unacceptable for not including complete technical compliance information
or any corporate experience or past performance information. The agency
evaluated the remaining quotations, including those of the protesters and
Fender Care. Fender Care quoted products manufactured by The Yokahama
Rubber Co., Ltd.[4] Both protesters quoted products manufactured by HS
R&A Co., Ltd.
The agency evaluation determined that only Fender Care*s quotation
included information demonstrating that the quoted products complied with
all of the requirements of ISO 17357. Although not required by the terms
of the RFQ, Fender Care*s quotation included independent testing and
certification documentation demonstrating compliance with ISO 17357.
Agency Report, Tab 7, Fender Care*s Quotation, Technical Compliance
Information. ProMar*s quotation included product literature and general
statements that the fenders manufactured by HS R&A comply with ISO 17357.
Agency Report, Tab 5, ProMar*s Quotation, at 2, P: 1.0, Technical
Compliance. Urethane*s quotation also included product literature but did
not include a statement of compliance with ISO 17357. Agency Report, Tab
6, Urethane*s Quotation. Based on its review of the quotations, the
agency determined that all except Fender Care*s were technically
unacceptable.[5] On May 23, the agency issued a purchase order for the
fenders to Fender Care. These protests followed.
Both protesters allege that the agency unreasonably evaluated their
proposals as unacceptable under the technical compliance factor.[6] The
protesters allege the product literature included with their proposals
demonstrated compliance with a Japanese International Standard (JIS),
which the protesters contend is equivalent to the ISO 17357 standard, and
that the quotations thus demonstrate compliance with ISO 17357.
In reviewing an agency*s evaluation, we will not reevaluate quotations; we
will only review the evaluation to determine whether the evaluation was
reasonable and consistent with the stated evaluation criteria, and with
applicable procurement laws and regulations. Gemmo Impianti SpA,
B‑290427, Aug. 9, 2002, 2002 CPD P: 146 at 3. A protester*s
disagreement with the agency*s judgment is not sufficient to establish
that the agency acted unreasonably. Microcosm, Inc., B-277326 et al.,
Sept. 30, 1997, 97-2 CPD P: 133 at 4.
Here, the RFQ stated that a quotation had to include information
demonstrating that the proposed fenders comply with the specifications
stated in the RFQ, which included ISO 17357. The quotations from ProMar
and Urethane included HS R&A product literature. However, neither that
literature nor any other information in the quotations demonstrated
compliance with all of the ISO 17357 requirements. In fact, some of the
information was interpreted by the agency as indicative that the product
did not comply with the ISO 17357 requirements.
Specifically, in the case of the ISO requirement for a reinforcement layer
consisting of *synthetic-tyre-cord,* Agency Report, Tab 1, ISO 17357, P:
6.1.1, the ISO standard warned of common confusion within the industry
over two very different types of reinforcement. These two categories are
*synthetic-tyre-cord* and *canvas fabric.* ISO 17357 defines and
illustrates each category in terms of the pattern of fibers.
Synthetic-tyre-cord, that is tyre cord made of synthetic fibres, primarily
consists of parallel strands of fiber (warps), with only an occasional
perpendicular fiber strand (weft) woven through the warps. The effect is
that synthetic-tyre-cord appears as parallel strands and not a woven
fabric, whereas canvas fabric consists of an equal number of warps and
wefts, with each warp weaving through all the wefts, and vice versa, thus
creating a woven fabric. These two categories of reinforcement layers
have markedly different density and tensile strength characteristics, and
ISO 17357 specifically states:
Although canvas fabric such as *belt fabric* or *tyre-cord-chafer* is also
used as reinforcement in the rubber industry and sometimes [is] mistaken
for synthetic tyre cord, it is completely different from synthetic tyre
cord. . . . The synthetic-tyre-cord arrangement has an obvious advantage
over the canvas-fabric arrangement, as it is able to eliminate friction
and wear points between wefts and warps.
Agency Report, Tab 1, ISO 17357, Annex A, at 14-15.
The agency*s evaluation referenced the product literature in the
protesters* quotations, which stated at various places that the
reinforcing layer of the fender body construction was *nylon fabric
layers* and *reinforcement fabric* that consists of *cord layers.* See
Agency Report, Tab 5, ProMar*s Quotation, HS R&A Spec. No. F-304-1199, at
3; HS R&A Spec. No. F-304-1200, at 3; S: 7.0 Product Literature, at 30;
Tab 6, Urethane*s Quotation, HS R&A Spec. No. F-304-1199, at 3; HS R&A
Spec. No. F-304-1200, at 3. The agency determined that this did not show
compliance with the ISO 17357 requirements because the reinforcement
appeared to be fabric and the literature did not demonstrate that the
reinforcement would consist of the required *synthetic-tyre-cord
layers.*[7] While ISO 17357 permits alternatives to synthetic-tyre-cord
layers with evidence that its strength is equal or superior to the
synthetic-tyre-cord arrangement, the quotations did not contain such
evidence. Based on this analysis, the agency determined the quotations
did not demonstrate compliance with the ISO 17357 requirement for
synthetic-tyre-cord reinforcement. Agency Report, Tab 9, Technical
Evaluation Memorandum, at 4.
We believe that the specific discussion of fabric and synthetic-tyre-cord
in the ISO 17357 standard supports the agency*s determination. While the
protesters* quotations used the term *cord* in describing the
reinforcement layers, that term alone is not sufficient to show compliance
with the ISO standard, especially since the quotations clearly state that
the reinforcement layers are *fabric.* See, e.g., Agency Report, Tab 5,
ProMar*s Quotation, S: 1.0, Technical Compliance, at 5; HS R&A Spec. No.
F-304-1199, at 3; HS R&A Spec. No. F-304-1200, at 3; S: 7.0 Product
Literature, at 30; Tab 6, Urethane*s Quotation, HS R&A Spec. No.
F-304-1199, at 3; HS R&A Spec. No. F-304-1200, at 3. As indicated above,
the ISO 17357 standard not only describes synthetic-tyre-cord in very
precise terms, but also warns that various reinforcement fabrics,
including fabric using the term *tyre-cord,* are mistaken for
synthetic-tyre-cord within the industry, but they are *completely
different from synthetic tyre cord.* Under the circumstances, the agency
could reasonably find that the protesters* quotations failed to
demonstrate compliance with the standard as required by the RFQ. See
Koehring Cranes & Excavators; Komatsu Dresser Co., B‑245731.2,
B-245731.3, Nov. 23, 1992, 92-2 CPD P: 362 at 4 (agency has broad
discretion to determine whether product literature demonstrates compliance
with a solicitation*s technical requirements, and we will disturb that
determination only if it is shown to be unreasonable).
Another requirement of ISO 17357 is the *static ozone ageing test.* The
standard requires that the rubber layers of the fender shall satisfy the
requirements identified in Table 3 of ISO 17357. Agency Report, Tab 1,
ISO 17357, P:P: 6.1.2, 9.2. Table 3 identifies a number of tests and
corresponding performance requirements, including the static ozone ageing
test for the outer rubber layer to be conducted in accordance with ISO
test method 1431-1:1989 and satisfy the following performance requirement:
No cracks after elongation by 20 % and exposure to 59 [parts of ozone per
hundred million of air by volume (pphm)] at 40DEGC for 96 [hours].
The protesters* quotations identify specific tests to be conducted in
accordance with *JIS K6301* standards. See Agency Report, Tab 5, ProMar*s
Quotation, HS R&A Spec. No. F-304-1199, at 4; HS R&A Spec. No. F-304-1200,
at 4; Tab 6, Urethane*s Quotation, HS R&A Spec. No. F-304-1199, at 4; HS
R&A Spec. No. F-304-1200, at 4. Although these tests appear to correspond
to some other ageing test requirements identified in Table 3 of ISO 17357,
the quotations do not identify a test that corresponds with the static
ozone ageing test. The agency determined that, since the quotations did
not address the static ozone ageing test, they did not demonstrate
compliance with this ISO 17357 and RFQ requirement. Agency Report, Tab 9,
Technical Evaluation Memorandum, at 2-3. Based on our review, we find
this evaluation judgment to be reasonable.
ISO 17357 also contains pressure requirements relating to internal (burst)
pressures in both compressed and non-compressed situations stated in Table
4 of ISO 17357. Agency Report, Tab 1, ISO 17357, P:P: 6.1.4, Table 4; Tab
9, Technical Evaluation Memorandum, at 5-6. The data included in the
quotations was limited to energy absorption and reaction force
calculations when the HS R&A fenders are inflated and under compression.
This data does not correspond to or show compliance with the requirements
in Table 4 of ISO 17357. Thus, the agency determined, reasonably we
think, that the protesters* quotation did not demonstrate compliance with
the pressure requirements related to internal (burst) pressures.[8]
Agency Report, Tab 9, Technical Evaluation Memorandum, at 5-6.
The protesters also contend that the JIS K6301 standards identified in
their quotations represent equivalent standards to ISO 17357 and that
their quotations demonstrate compliance with the ISO standards through
compliance with the JIS standards. The only evidence submitted to support
the protesters* allegations is a declaration by the president of ProMar
that people familiar with the industry are aware that the JIS standard is
equivalent to the ISO standard. ProMar*s Comments, attach. 1, Declaration
of ProMar*s President, P:P: 5-7. The agency responded to the declaration
with documentation showing that the JIS standard identified in the HS R&A
literature in the protesters* quotations was withdrawn in 1998, Agency
Supplemental Report, Tab 29, Information from Japanese Standards
Association, along with a comparison chart evidencing that some of the JIS
standard requirements identified in the quotations do not comply with
corresponding ISO 17357 requirements, Agency Supplemental Report, Tab 30,
Comparison of Specifications.
Our review of the record before us indicates that the JIS standard, as
referenced in the protesters* quotations, is not the equivalent of ISO
17357. For example, Table 3 of ISO 17357 states a required value of 400
percent or more for a pre-ageing elongation test of the inner and outer
rubber layers of the fender; however, HS R&A*s product literature states a
JIS *conforming standard* minimum elongation requirement of 350 percent.
Similarly, Table 3 of ISO 17357 states a required pre‑ageing range
of hardness values of 60 +- 10 for outer rubber and 50 +- 10 for inner
rubber; however, HS R&A product literature states a JIS *conforming
standard* maximum hardness value of 75. For a third example, Table 3 of
ISO 17357 states a pre-ageing tensile strength requirement for outer
rubber of *18 Mpa or more,* which the agency states is about 180 kg/cm2;
however, HS R&A*s product literature states a JIS *conforming standard*
minimum of 160 kg/cm2 . Agency Report, Tab 1, ISO 17357, Table 3; Tab 5,
ProMar*s Quotation, HS R&A Spec. No. F-304-1199, at 4; HS R&A Spec.
No. F‑304-1200, at 4; Tab 6, Urethane*s Quotation, HS R&A Spec.
No. F-304-1199, at 4; HS R&A Spec. No. F-304-1200, at 4; Agency
Supplemental Report, Tab 30, Specification Comparison.[9]
In response to the agency*s evidence that the JIS K6301 standards have
been withdrawn for 5 years, the protesters identify other JIS standards
that have replaced the withdrawn standards, alleging that the requirements
under the replaced standards are the equivalent of the ISO 17357
requirements. Assuming, arguendo, that these newly identified JIS
standards represent the equivalent of the required ISO 17357 standard, it
does not follow that the protesters* quotations demonstrated compliance
with those JIS standards, given that the quotations did not identify these
other JIS standards, but, as stated above, referenced specific
requirements from the withdrawn JIS standard that do not comply with
corresponding ISO 17357 requirements. Thus, regardless of any
requirements that may be stated under the replacement JIS standards, the
express language of the quotations evidences noncompliance with the
specific ISO 17357 and RFQ requirements.
ProMar alleges that its general statement of compliance with ISO 17357 was
sufficient to demonstrate technical compliance with the RFQ
specifications. The allegation fails to account for the RFQ requirement
for vendors to submit *existing product or descriptive literature,
brochures, etc. that demonstrate the items to be furnished comply* with
the RFQ specifications. RFQ at 3. Where the solicitation has such a
requirement, a firm responding to the solicitation has the responsibility
to demonstrate compliance. Koehring Cranes & Excavators; Komatsu Dresser
Co., supra, at 7. Moreover, since, as discussed above, the product
literature in Promar*s quotation contradicts the general statement of
compliance and indicates noncompliance with the RFQ*s stated minimum
requirements, the agency could not have accepted the general statement of
compliance in any case. See id. at 7-8.
Urethane alleges that the agency should have sought *clarification* of
Urethane*s quotation, at which time Urethane would have demonstrated
compliance with the RFQ requirements. The RFQ provide that the agency
intended to award based on initial quotations without conducting
discussions. If the agency had informed Urethane that its quotation was
technically unacceptable and provided the firm with an opportunity to
submit information to make its quotation acceptable, the agency*s actions
would have constituted discussions, not clarifications, and the agency was
not required to inform Urethane that its quotation was unacceptable and
provide the firm with an opportunity to revise its quotation. See Warden
Assocs., Inc., B-291238, Dec. 9, 2002, 2002 CPD P: 215 at 3.
The protesters also allege that the agency evaluation applied an unstated
evaluation factor requiring either Yokahama fenders or an independent
certification of fender compliance with ISO 17357.[10] The agency
evaluation was based solely on the information supplied in the quotations
concerning compliance with the RFQ specifications, and did not give any
evaluation credit for a particular manufacturer*s fender or otherwise
indicate a preference for Yokahama fenders. While the detailed
certification tests for Yokahama fenders provided in Fender Care*s
quotation demonstrated compliance with specific RFQ requirements, the RFQ
did not require that vendors demonstrate technical compliance with such
certification testing documentation, and the agency evaluation gave no
credit to Fender Care for achieving certification.[11]
The protests are denied.
Anthony H. Gamboa
General Counsel
------------------------
[1] A pneumatic fender is inflated with air and floats on the surface of
the water to serve as a protective buffer for ships. A hydro-pneumatic
fender is similar but contains water in addition to pressurized air, and
has a weight attached to one end so that the fender is partially submerged
as a protective buffer for submarines.
[2] The RFQ was issued pursuant to Federal Acquisition Regulation (FAR)
S: 12.203 and the agency employed the simplified procedures authorized by
FAR Subpart 13.5, Test Program for Certain Commercial Items, which is
applicable to acquisitions of commercial items that, as here, exceed the
simplified acquisition threshold but do not exceed $5 million, including
options.
[3] Under the corporate experience and past performance factors, the RFQ
also stated the information that vendors were required to submit and the
bases for which quotations would be determined acceptable.
[4] Fender Care was the only vendor to quote Yokahama fenders.
[5] The prices and evaluation results for Fender Care*s and the
protesters* quotations were as follows:
+------------------------------------------------------------------------+
|Evaluation Factor |Fender Care |ProMar |Urethane |
|----------------------+---------------+----------------+----------------|
|Technical Compliance |Acceptable |Unacceptable |Unacceptable |
|----------------------+---------------+----------------+----------------|
|Corporate Experience |Acceptable |[DELETED] |[DELETED] |
|----------------------+---------------+----------------+----------------|
|Past Performance |Acceptable |[DELETED] |[DELETED] |
|----------------------+---------------+----------------+----------------|
|Overall |Acceptable |Unacceptable |Unacceptable |
|----------------------+---------------+----------------+----------------|
|Price |$3,688,320 |$[DELETED] |$[DELETED] |
+------------------------------------------------------------------------+
[6] The technical acceptability of Fender Care*s quotation or Yokahama*s
fenders is not disputed here.
[7] To the extent the protesters allege that the agency unreasonably
determined that HS R&A*s nylon fabric was not synthetic, they are
factually mistaken. The record does not show that the agency determined
that HS R&A*s reinforcement was not synthetic.
[8] The president of ProMar submitted a declaration stating that the HS
R&A product literature does not address either the Table 3 static ozone
ageing test or the requirements at Table 4 of ISO 17357, but that he has
confirmed that the static ozone ageing test is performed by HS R&A and
that the offered fenders comply with the ISO 17357 Table 4 requirements.
ProMar*s Comments, attach. 1, Declaration of ProMar*s President, P:P: 8,
10. No such statement was included with ProMar*s quotation.
[9] ProMar correctly states that the agency*s comparison incorrectly
identifies, as maximum values, some of the minimum values in the HS R&A
product literature. However, our decision correctly states the values set
out in the product literature included in ProMar*s and Urethane*s
quotations.
[10] While the protesters allege that the short time between the
publication of ISO 17357, Yokahama*s certification under the standard, and
the agency*s issuance of the RFQ limited the field of technically
compliant fenders solely to Yokahama fenders, this concerns an alleged
improper restriction on competition that was apparent on the face of the
solicitation, which had to be protested prior to the RFQ closing date. 4
C.F.R. S: 21.2(a)(1) (2003). Since this issue was not protested prior to
the closing date, the protest basis is untimely.
[11] The remaining allegations of both protesters concern the agency*s
evaluation under factors other than technical compliance. However, since
the agency properly determined that the protesters* quotations did not
comply with the minimum requirements of the solicitation under the
technical compliance factor, the quotations are technically unacceptable
and not eligible for award, and we need not consider these issues.