B-204635, MAR 22, 1982

B-204635, MAR 22, 1982

DIGEST: PROTEST AGAINST REJECTION OF A PROPOSAL FOR THE DEVELOPMENT OF A FUEL ANTIMISTING AGENT IS DENIED WHERE PROTEST PRIMARILY INVOLVES A TECHNICAL DISAGREEMENT AS TO THE MERIT OF THE TECHNICAL PROPOSAL AND PROTESTER HAS NOT SHOWN THAT THE CONTRACTING ACTIVITY WAS ARBITRARY OR UNREASONABLE IN CONCLUDING THAT THE PROPOSED APPROACH IS INSUFFICIENTLY PROVEN AND BASICALLY NOT PROMISING.

GENERAL TECHNOLOGY APPLICATIONS, INCORPORATED:

GENERAL TECHNOLOGY APPLICATIONS, INCORPORATED (GTA) PROTESTS THE REJECTION OF ITS PROPOSAL FOR AN ANTIMISTING FUEL ADDITIVE DEVELOPMENT PROJECT UNDER FEDERAL AVIATION ADMINISTRATION (FAA) REQUEST FOR PROPOSALS (RFP) DTFA03-81-R-50015. GTA SAYS THE FAA DECISION TO PRECLUDE IT FROM THE COMPETITIVE RANGE WAS ARBITRARY AND CAPRICIOUS AND WAS NOT BASED ON GTA'S ABILITY TO PERFORM OR ON THE COST OF ITS PROPOSAL. RATHER, GTA ASSERTS, IT WAS REJECTED BECAUSE IT IS A SMALL BUSINESS. WE DENY THE PROTEST.

THE PROCUREMENT SUPPORTS AN ONGOING FAA EFFORT TO DEVELOP MEANS OF REDUCING POST-CRASH FIRES INVOLVING AIRCRAFT FUEL. IN RECENT YEARS THIS EFFORT HAS FOCUSED ON THE DEVELOPMENT OF ADDITIVES WHICH CAN BE MIXED WITH JET FUEL TO REDUCE ITS CAPACITY FOR FORMING A MIST OF SMALL HIGHLY FLAMMABLE DROPLETS UNDER CRASH CONDITIONS. AN ACCEPTABLE ADDITIVE MUST, OF COURSE, BE SUITABLE FOR USE IN AIRCRAFT FUEL SYSTEMS AND ENGINES.

SPECIFICALLY, THE FAA SOUGHT THROUGH THIS PROCUREMENT TO DEVELOP AN ALTERNATIVE TO AN ADDITIVE CALLED "FM-9." FM-9 IS A PROPRIETARY PRODUCT OF A BRITISH FIRM WHICH HAS BEEN SHOWN TO PROVIDE SATISFACTORY ANTIMISTING AND HANDLING CHARACTERISTICS AT LEAST UNDER CONDITIONS WHICH HAVE BEEN STUDIED TO DATE. THE RFP PROVIDED THAT OFFERORS WOULD BE EVALUATED AS TO THE MERIT OF THEIR APPROACH, EXPERIENCE, QUALIFICATIONS, UNDERSTANDING, FACILITIES AND SCHEDULING TO CARRY OUT A SUCCESSFUL PROGRAM TO DEVELOP SUCH AN ALTERNATIVE. COST WAS TO BE CONSIDERED ONLY IN CONNECTION WITH THE FINAL SELECTION OF AN AWARDEE. A COST-SHARING CONTRACT WAS TO BE AWARDED.

GTA FOCUSED ITS PROPOSAL ON A SINGLE APPROACH: AN INVESTIGATION OF THE POTENTIAL FOR THE USE OF VERY HIGH MOLECULAR WEIGHT POLYISOBUTYLENE (PIB). GTA WAS AWARE THAT PIB IS ONE OF A CLASS OF VISCOELASTIC SUBSTANCES WHICH HAD BEEN THE SUBJECT OF PRIOR CONSIDERATION AND TESTING IN BRITIAN AND HAD BEEN FOUND TO HAVE A NUMBER OF DISADVANTAGES, INCLUDING POOR FLOW CHARACTERISTICS AT LOW TEMPERATURES (-40 DEGREES C) AND A TENDENCY TO DEGRADE EASILY WHEN HANDLED. ALSO, SOLID PIB WAS DIFFICULT TO DISSOLVE IN JET FUEL.

IN SUPPORT OF THE PROTEST, GTA ARGUES THAT THE OBJECTIVE OF THE PROCUREMENT IS TO SUPPORT RESEARCH REGARDING ANTIMISTING FUEL ADDITIVES. IT WAS INCONSISTENT WITH THIS OBJECTIVE, GTA SAYS, FOR THE FAA TO CONCLUDE THAT GTA'S PROPOSED APPROACH HAD NOT BEEN SHOWN TO BE CAPABLE OF OVERCOMING PRIOR DIFFICULTIES EXPERIENCED IN USING PIB. GTA SAYS THE EVIDENCE CITED IN ITS PROPOSAL SHOWS THAT PAST DIFFICULTIES CAN BE OVERCOME. MOREOVER, GTA CLAIMS THAT IT HAS LEARNED THAT PRICES WERE DISCLOSED DURING THE COURSE OF THE PROCUREMENT.

AS GTA INDICATED IN ITS PROPOSAL, IT STRONGLY BELIEVES THAT THE DIFFICULTIES WHICH HAVE BEEN ENCOUNTERED WITH PIB CAN BE OVERCOME. UNDER A PRIOR FAA CONTRACT IT DEVELOPED A METHODOLOGY WHICH PERMITS SOME CLASSES OF PIB TO BE RAPIDLY DISSOLVED IN JET FUEL. IT BELIEVES ITS PROCESS WILL PERMIT THE USE OF PIB OF GREATER MOLECULAR WEIGHT THAN WERE TESTED IN THE BRITISH EXPERIMENTS. BECAUSE LOWER CONCENTRATIONS OF PIB MIGHT BE ABLE TO PROVIDE ACCEPTABLE ANTIMISTING THAN WAS SHOWN TO BE NECESSARY IN THOSE EXPERIMENTS, PROVIDED HIGHER MOLECULAR WEIGHT PIB IS USED, GTA BELIEVES THE OTHER PROBLEMS INCLUDING LOW TEMPERATURE FLOW AND DEGRADATION MAY BE AVOIDED.

THE EVALUATION OF TECHNICAL PROPOSALS AND THE DETERMINATION OF WHO IS, AND WHO IS NOT, IN THE COMPETITIVE RANGE IS A MATTER WITHIN THE DISCRETION OF THE PROCURING ACTIVITY, SINCE THE AGENCY IS RESPONSIBLE FOR IDENTIFYING ITS NEEDS AND THE BEST METHOD OF ACCOMMODATING THEM. HEALTH MANAGEMENT SYSTEMS, B-200775, APRIL 3, 1981, 81-1 CPD 255. TECHNICAL EVALUATIONS ALSO IN LARGE MEASURE INVOLVE THE DISPARATE SUBJECTIVE JUDGMENTS OF THE EVALUATORS WHICH ARE SUBJECT TO REASONABLE DIFFERENCES OF OPINION. SEE BUNKER RAMO CORPORATION, 56 COMP.GEN. 712 (1977), 77-1 CPD 427. OUR REVIEW OF THE EVALUATION OF TECHNICAL PROPOSALS IS THUS NECESSARILY LIMITED - WE DO NOT INDEPENDENTLY EVALUATE PROPOSALS AND MAKE OUR OWN DETERMINATION AS TO THEIR ACCEPTABILITY. OUR REVIEW IS LIMITED TO DISCOVERING WHETHER THE DETERMINATION OF THE TECHNICAL MERIT OF A PROPOSAL IS UNREASONABLE, ARBITRARY, OR A VIOLATION OF PROCUREMENT LAWS AND REGULATIONS. STRUTHERS ELECTRONICS CORPORATION, B-186002, SEPTEMBER 10, 1976, 76-2 CPD 231; KIRSHNER ASSOCIATES, INC., B-178887, APRIL 10, 1974, 74-1 CPD 182.

IN THE FAA'S VIEW, USE OF THE GTA PROPOSED PIB AS AN ALTERNATIVE FUEL ADDITIVE IS NOT PROMISING; GTA SUBMITTED NO HARD EVIDENCE BASED, FOR EXAMPLE, ON A PIB TEST PROGRAM OF ITS OWN THAT THE PROBLEMS PREVIOUSLY ENCOUNTERED WITH THEM COULD BE OVERCOME. THE FAA ALSO FOUND THAT GTA LACKS EXTENSIVE EXPERIENCE WORKING WITH PIB AND WITH AIRCRAFT FUEL SYSTEMS AND FUEL. GTA'S PIB EXPERIENCE IS LIMITED TO THE DEVELOPMENT OF ITS METHODOLOGY FOR DISSOLVING PIB IN AVIATION FUEL. ALSO, AS THE FAA NOTES, GTA BY FOCUSING ON A SINGLE APPROACH LEFT ITSELF WITH NO OTHER APPROACH WHICH IT COULD PURSUE IF PIB WERE NOT FOUND TO BE A VIABLE AIRCRAFT ANTIMISTING ADDITIVE.

IT IS APPARENT TO US, BASED ON OUR READING OF THE RECORD, THAT THE FAA WANTED A DEVELOPMENT PROGRAM BASED ON WORK ALREADY DONE TO IDENTIFY CANDIDATE FUELS; THE RFP DID NOT OFFER TO FUND BASIC RESEARCH AS GTA SEEMS TO BELIEVE. RFP ATTACHMENT 1, "SPECIAL PROPOSAL CONDITIONS," EXPRESSLY REQUIRED THAT OFFERORS SUPPORT THEIR PROPOSED CHOICE OF ADDITIVES WITH SPECIFIC DATA. ATTACHMENT 1 STATED THAT THE FAA RESERVED THE RIGHT TO ASK OFFERORS "TO SUBMIT SAMPLES OF CANDIDATE ADDITIVES *** AFTER SUBMISSION OF THEIR PROPOSALS." ARTICLE III OF THE RFP REFERRED TO SUCH DATA, STATING THAT THE CONTRACTOR DURING PERFORMANCE WOULD:

"TAILOR THE CANDIDATE FUEL TO MINIMIZE REMAINING DIFFICULTIES IN ITS USE WHILE STILL RETAINING, OR IMPROVING, THE INITIAL DEGREE OF FIRE PROTECTION AS DEMONSTRATED IN THE PRE-AWARD SCREENING. THE FINAL GOAL OF THE RESEARCH EFFORT IS TO DEVELOP THE MOST PROMISING ANTIMISTING FUEL CANDIDATE ***."

IN THIS REGARD, IT WAS INCUMBENT UPON GTA TO ESTABLISH THE SUITABILITY AND DESIRABILITY OF ITS PROPOSED APPROACH. WE HAVE LONG HELD THAT IT IS THE RESPONSIBILITY OF EACH OFFEROR TO ESTABLISH THAT WHAT IT PROPOSES WILL MEET THE GOVERNMENT'S NEEDS. SEE DUROYD MANUFACTURING COMPANY, INC., B-195762, NOVEMBER 16, 1979, 79-2 CPD 359.

WE BELIEVE THAT THE FAA COULD REASONABLY CONCLUDE THAT GTA DID NOT ADEQUATELY ESTABLISH THE SUITABILITY OF ITS APPROACH. FOR EXAMPLE, THE FAA SAYS ITS DATA SHOWS THAT PIB "HAS VERY POOR CHARACTERISTICS FROM AN AIRCRAFT COMPATIBILITY STANDPOINT." GTA ACKNOWLEDGES ITS TECHNICAL PROPOSAL THAT THE HIGH VISCOELASTICITY OF PIB MAKES PIB/JET FUEL MIXTURES DIFFICULT TO PUMP, A PROBLEM WHICH IS AGGRAVATED AT LOW TEMPERATURES. WHAT TEST DATA GTA SUBMITTED WITH ITS PROPOSAL INDICATES THAT THE ADDITION OF PIB TO JET FUEL SIGNIFICANTLY INCREASES THE GUM ABSTRACT OF THE FUEL/ADDITIVE SAMPLE. GTA'S ANSWER TO THE PROBLEMS IS TO INVESTIGATE WHAT IT THEORIZES ARE THE ADVANTAGES OF USING LOW CONCENTRATIONS OF HIGH MOLECULAR WEIGHT PIB. WE THINK THAT SUCH A PROPOSAL COULD REASONABLY BE VIEWED AS A PROPOSAL TO PERFORM BASIC RESEARCH RATHER THAN AS AN EFFORT TO DEVELOP EXISTING CANDIDATE ADDITIVES THAT HAVE ALREADY BEEN SHOWN TO BE PROMISING. WE THEREFORE BELIEVE THAT IT WAS REASONABLE FOR THE FAA TO CONCLUDE THAT GTA'S PROPOSAL WAS UNSUITABLE FOR THE PROJECT AT HAND BECAUSE OF THE HIGH DEGREE OF RISK ASSOCIATED WITH IT.

FINALLY, WE FIND NO EVIDENCE ON THE RECORD BEFORE US WHICH SUPPORTS GTA'S CONTENTIONS THAT ITS PRICING WAS IMPROPERLY DISCLOSED OR THAT ITS PROPOSAL WAS IMPROPERLY DOWNGRADED BECAUSE IT IS A SMALL BUSINESS. PRICE WAS NOT A FACTOR IN GTA'S REJECTION. GTA'S SIZE WAS A FACTOR ONLY TO THE EXTENT ITS LACK OF EXPERIENCE AND CAPACITY MAY HAVE LIMITED ITS ABILITY TO SUPPORT IN ITS PROPOSAL ITS BELIEF THAT ADDITIONAL RESEARCH INTO THE USE OF A PIB BASED ADDITIVE SHOULD BE FUNDED.

SINCE THE RFP ANTICIPATED INITIAL SELECTION OF COMPETITIVE PROPOSALS WITHOUT REGARD TO COST AND SINCE GTA HAS NOT ESTABLISHED THAT THE FAA ACTED UNREASONABLY, ARBITRARILY, OR OTHERWISE IMPROPERLY IN DETERMINING THAT ITS PROPOSAL WAS OUTSIDE THE RANGE OF TECHNICALLY COMPETITIVE PROPOSALS, GTA'S PROTEST IS DENIED.