TITLE: NABCO, Inc., B-293027; B-293027.2, January 15, 2004
BNUMBER: B-293027; B-293027.2
DATE: January 15, 2004
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NABCO, Inc., B-293027; B-293027.2, January 15, 2004
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: NABCO, Inc.
File: B-293027; B-293027.2
Date: January 15, 2004
Ronald S. Perlman, Esq., and Michael B. Tuite, Esq., Buchanan Ingersoll,
for the protester.
John D. Pelligrin, Esq., for UXB International, Inc., an intervenor.
Michael J. O*Farrell, Jr., Esq., Department of the Air Force, for the
agency.
Sharon L. Larkin, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Awardee*s proposed explosive ordinance disposal total containment vessel
(TCV) is a commercial item, even though it is a modified version of an
existing commercially available TCV, where the modification is minor and
customarily available in the commercial marketplace.
DECISION
NABCO, Inc. protests the award of a contract to UXB International, Inc.,
issued by the Department of the Air Force under solicitation No.
F13-DEA-32200100, for 15 explosive ordinance disposal total containment
vessels (TCV). NABCO contends that UXB*s proposed TCV is not a commercial
item and does not comply with certain solicitation requirements.
We deny the protests.
The TCV is a trailer-mounted vessel that permits the safe transport of
terrorist devices out of populated areas to areas where the devices can be
safely counter charged. The solicitation for TCVs was issued on September
9, 2003 as a *combined synopsis/solicitation for commercial items.*[1]
The solicitation specified that award would be made to the *responsible
offeror whose offer conforming to the solicitation will be most
advantageous to the Government,* considering technical capability, price,
and delivery schedule. Solicitation at 1‑3.
The solicitation required that the proposed TCV meet certain physical and
performance-based requirements. Among these requirements was that the
proposed TCV was to be capable of operating in two separate modes: a *gas
tight* mode capable of containing all gases generated from a detonation of
no less than 3 pounds of C4 or equivalent explosives, and a *controlled
vent* mode capable of containing a detonation of no less than 10 pounds of
C4 or equivalent explosives. The TCV was also to contain drain and fill
ports for decontamination, as well as sampling capability to enable
monitoring and sample collection after detonation or during the treatment
process. The TCV was to have an inside diameter of no less than
42 inches, an access door located on the side of the vessel for safely
loading and unloading suspect devices, and a trailer to provide a stable
platform. The TCV, trailer, and all accessories were not to exceed 6,000
pounds in weight. Delivery was required no later than May 15, 2004.
Three offerors responded to the solicitation. UXB proposed a model
*MECV-L,* which is a modified version of its model *MECV-5L* (one of two
commercial lines of mobile explosive containment vessels UXB
distributes[2]), with a reconfigured door to meet the requirements of the
solicitation. NABCO and the other offeror also proposed TCVs from their
commercial product lines.
In evaluating offers, the agency did not affirmatively evaluate whether
each proposed TCV was a commercial item; rather, the agency presumed that
each of the offers was for a commercial item, based on its market research
performed in advance of the solicitation (which included responses from
both NABCO and UXB) and the fact that nothing in the proposals suggested
the TCVs proposed were not commercial items. Hearing Transcript (Tr.) at
36-40, 67-68. All three offerors* proposals were found to be technically
acceptable, but only NABCO*s and UXB*s proposals were found to meet the
delivery date. Award was made to UXB because, all other factors being
equal, its price of $2.7 million was lower than NABCO*s proposed $3.6
million price. Notice of award was provided to NABCO on October 2, 2003,
and these protests followed.[3]
NABCO first complains that UXB*s proposed TCV is not a commercial item.
Federal Acquisition Regulation (FAR) S: 52.202-1(c), incorporated by
reference in the solicitation, defines a commercial item to be:
(1) Any item, other than real property, that is of a type customarily used
by the general public or by non-governmental entities for purposes other
than governmental purposes, and that--
(i) Has been sold, leased, or licensed to the general public; or
(ii) Has been offered for sale, lease, or license to the general
public;
(2) Any item that evolved from an item described in paragraph (1) of this
definition through advances in technology or performance and that is not
yet available in the commercial marketplace, but will be available in the
commercial marketplace in time to satisfy the delivery requirements under
a Government solicitation;
(3) Any item that would satisfy a criterion expressed in paragraphs (c)(1)
or (c)(2) of this clause, but for--
(i) Modifications of a type customarily available in the commercial
marketplace; or
(ii) Minor modifications of a type not customarily available in the
commercial marketplace made to meet Federal Government requirements.
*Minor* modifications means modifications that do not significantly alter
the nongovernmental function or essential physical characteristics of an
item or component, or change the purpose of a process. Factors to be
considered in determining whether a modification is minor include the
value and size of the modification and the comparative value and size of
the final product. Dollar values and percentages may be used as
guideposts, but are not conclusive evidence that a modification is
minor[.]
NABCO contends that UXB*s proposed MECV-L is not a commercial item because
it has not been sold, or offered for sale, commercially in a configuration
that is fully compliant with all of the solicitation*s requirements.
However, the record demonstrates that UXB has commercially sold, or
offered for sale, its MECV-5L product line, upon which the proposed MECV-L
here is based, with all of the same features as required under this
solicitation, except for the door modification.[4] Tr. at 150, 153, 199;
Intervenor*s Hearing exh. No. 1, at 4, 6, 20-21, 26-29, 32, 39‑40.
The protester concedes that the MECV-5L units are commercial items as
defined in the FAR. Tr. at 83-84, 123. Thus, we need only consider
whether the door modification is of *a type customarily available in the
commercial marketplace* under paragraph 3(i), or a *minor modification*
under paragraph 3(ii), of the commercial item definition. Under these
paragraphs, the MECV-L does not have to have been sold, or offered for
sale, in the modified configuration in order to qualify as a commercial
item.
With regard to the door configuration, which UXB proposes to modify from a
*slide out* to *swing out* style to meet the Air Force*s requirements,
NABCO asserts that the modification is not commercially available and is
*substantial* in terms of the effort required for redesign. However, the
record evidences that the door modification is available commercially;
that is, UXB has already provided its *swing out* door to its commercial
customers on other containment vessel product lines (e.g., the portable
containment vessels and mobile containment vessels), and this same design
is applicable to the MECV-L in a *scaled down* size. Intervenor*s Hearing
exh. 2; Tr. at 161-62. The record also demonstrates that the door
modification is a *minor modification* because, as the agency asserts, and
we agree, it does not significantly alter the nongovernmental function or
essential purpose of the TCV, which is to contain a blast. Tr. at 64.
Thus, we find that the proposed MECV-L offered by UXB under this
solicitation is a commercial item.
NABCO complains that the Air Force did not formally evaluate, or document,
whether UXB*s (and the other offerors*) proposed TCV was a commercial item
at the time of the evaluation. However, there is no requirement in the
FAR that agencies formally evaluate or document whether an offered item is
a commercial item when using commercial item procedures, and the protester
has not provided any authority for its belief that such an analysis is
required. In any event, as the agency explains, even though it did not
undertake a formal analysis of proposals to determine whether the items
proposed were in fact commercial items, it did have a belief, based on its
market research, that the items proposed were commercial, and nothing in
the offerors* proposals, and in particular UXB*s, suggested that the items
proposed were not commercial items. In making award to UXB, the agency
further argues, it made a de facto determination that the item upon which
award was made was a commercial item. Tr. at 67-68, 96-97, 254-55.
Given that the record otherwise demonstrates that UXB*s proposed MECV-L is
indeed a commercial item, we cannot find the agency*s actions in this
regard objectionable. [5]
NABCO next contends that UXB*s proposed MECV-L does not comply with the
solicitation requirements for explosive capability in both the gas tight
and controlled vent modes, and for sampling capability.[6] However, the
record demonstrates compliance with each of these requirements, as
asserted by UXB in its proposal. Agency Report, Tab 6, UXB Proposal,
attach. A, at 1-3; attach. B; Tr. at 156-59 (explosive capability ratings
exceed that required under solicitation); Tr. at 205 (drain and fill ports
for sampling capability are a *standard item*). Although NABCO complains
that UXB has not provided any supporting evidence of compliance, such as
test results demonstrating explosive capability, such documentation was
not required under the solicitation, and was not provided by NABCO
either. Given that this procurement was conducted using simplified
acquisition procedures where detailed proposals demonstrating compliance
were not required, and the agency was unaware of any information
contradicting UXB*s statements of compliance (and NABCO has provided none
here), we find that the Air Force reasonably relied on UXB*s statements in
determining that UXB*s proposal was technically acceptable.[7] See
Premier Eng*g & Mfg., Inc., B‑283028, B‑283028.2, Sept. 27,
1999, 99-2 CPD P: 65 at 7-8.
NABCO finally complains that UXB cannot meet the May 15 delivery
requirement, given that performance is currently stayed and vessel
modifications will require 3 to 6 months for redesign efforts, and another
3 weeks for testing once performance resumes. However, contrary to
NABCO*s suggestion, the stay of performance does not render non-compliant
UXB*s otherwise compliant proposal because, as the Air Force explains,
*for every day contract performance is delayed due to this protest, the
successful offeror will be granted an additional day to complete contract
performance.* Air Force Supplemental Memorandum of Law at 5.
Furthermore, even assuming that the protester*s estimates of
reconfiguration and testing time are correct, it has not demonstrated that
the agency*s conclusion, that UXB could meet the delivery date as it
promised, was unreasonable.
The protests are denied.
Anthony H. Gamboa
General Counsel
------------------------
[1] The determination to acquire the TCVs as commercial items was made
after market research conducted by the Air Force revealed that three firms
had available commercial TCVs.
[2] The other commercial product line distributed by UXB is the *MECV-5.*
The *5* in either product line denotes the maximum explosive capacity for
the vessel, which in this case refers to 5 kilograms of TNT in a gas tight
mode. This equates to at least 8 pounds of C4 equivalent in a gas tight
mode.
[3] The performance of the contract has been stayed pending resolution of
the protests.
[4] Although some sales were for MECV-5L units weighing in excess of 6,000
pounds, which is also reflected in some of UXB*s marketing materials, the
intervenor explains that the vessel may be manufactured in varying
weights, depending on the size of the construction mold, weight of the
steel used in construction, and equipment features included with the
vessel, and asserts that it has sold vessels weighing less than
6,000 pounds to its commercial customers. Tr. at 198-203.
[5] To the extent that NABCO asserts that we should disregard the Air
Force*s post‑protest commercial item analysis and explanation as
reflecting a new agency judgment, see Boeing Sikorsky Aircraft Support,
B-277263.2, B-277263.3, Sept. 29, 1997, 97-2 CPD P: 91 at 15, we note that
the commercial item analysis and evidence presented here, and considered
by this Office, reflects less a matter of new judgment by the agency and
more a matter of additional objective evidence for us to determine whether
the agency*s original presumption--that UXB offered a commercial item--was
reasonable. See Chicataw Constr., Inc., B-289592, B-282592.2, Mar. 20,
2002, 2002 CPD P: 62 at 7-8 (objective evidence accorded more weight than
evidence of new agency rationale). The evidence presented supports the
Air Force*s determination that the MECV-L proposed by UXB under this
solicitation is a commercial item.
[6] In its supplemental protest, NABCO asserts for the first time that
UXB*s proposed MECV‑L also does not meet the weight requirement of
the solicitation. This allegation is untimely filed. Protest grounds,
other than those alleging solicitation defects, must be raised within 10
days of when the basis for protest is known or should have been known.
4 C.F.R. S: 21.2(2) (2003). Here, the record shows that NABCO was aware
of its basis for protest, and indeed discussed it with the agency, as
early as October 30, 2003, see Supplemental Protest, exh. 2, Letter from
NABCO to Air Force (Oct. 30, 2003), at 3, but did not raise this issue as
a basis for protest until November 17 (more than 10 days later). In any
event, UXB*s proposal asserts that the MECV-L weighs 5,800 pounds, which
is less than the maximum weight specified by the solicitation, and, as
discussed above, UXB explained how this would be achieved.
[7] NABCO also asserts that UXB*s proposal is ambiguous as to which model
TCV was proposed because of two isolated references to the *MECV-5L* as
opposed to the *MECV-L.* However, the Air Force did not find the proposal
ambiguous, as one reference was understood by the agency to be a
typographical error, and the other reference was understood to refer to a
current drawing of the MECV-5L (without the *swing out* door), which led
the agency to clarify with UXB the nature of the door configuration not
reflected on the drawing. Tr. at 230.