B-157177, SEP. 28, 1965

B-157177: Sep 28, 1965

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TO MISS LOLA DICKERMAN: REFERENCE IS MADE TO LETTERS DATED JULY 1 AND JULY 15. A PURCHASE DESCRIPTION WAS SET FORTH IN THE INVITATION TO DESCRIBE THE REQUIRED EQUIPMENT. FOUR BIDS WERE RECEIVED AND OPENED ON JUNE 1. LOW BID WAS ACCOMPANIED BY A LETTER DATED MAY 26. STATED: "THE SPECIFICATIONS FOR THE INSTRUMENTATION WHICH WE ARE OFFERING ARE GIVEN ON THE ENCLOSED DITTO SHEETS.'. IT WAS DETERMINED BY THE PROCUREMENT AGENCY THAT THE EQUIPMENT OFFERED CONFORMED TO THE SPECIFICATIONS AND THE OTHER REQUIREMENTS OF THE INVITATION. M204-38783 WAS AWARDED TO THE JARRELL-ASH COMPANY ON JUNE 22. YOU PROTEST AGAINST SUCH AWARD TO JARRELL-ASH ON THE BASIS THAT ITS BID WAS NONRESPONSIVE TO THE INVITATION BECAUSE THE SPECIFICATION SHEETS WHICH ACCOMPANIED THE BID CONTAINED A NUMBER OF DEVIATIONS AND SIGNIFICANT OMISSIONS FROM THE ADVERTISED SPECIFICATIONS.

B-157177, SEP. 28, 1965

TO MISS LOLA DICKERMAN:

REFERENCE IS MADE TO LETTERS DATED JULY 1 AND JULY 15, 1965, SETTING FORTH THE PROTEST OF BAIRD-ATOMIC, INC., AGAINST AWARD OF A CONTRACT TO THE JARRELL-ASH COMPANY RESULTING FROM INVITATION FOR BIDS NO. IFB 204-113 -65, ISSUED ON APRIL 30, 1965, BY THE NAVAL AIR STATION, PENSACOLA, FLORIDA.

THE INVITATION REQUESTED BIDS UNDER ITEM 1 FOR FURNISHING, INSTALLING, AND CALIBRATING ONE DIRECT PRINT-OUT SPECTROMETER, COMPLETE WITH EXCITATION UNIT AND ALL OTHER AUXILIARY EQUIPMENT NECESSARY TO CONSTITUTE A COMPLETE SPECTROMETRIC ANALYTICAL INSTRUMENT FOR THE ANALYSIS OF HYDROCARBON OILS FOR METALS CONTENT IN THE RANGE 1 500 PARTS PER MILLION. A PURCHASE DESCRIPTION WAS SET FORTH IN THE INVITATION TO DESCRIBE THE REQUIRED EQUIPMENT.

FOUR BIDS WERE RECEIVED AND OPENED ON JUNE 1, 1965. THE JARRELL-ASH COMPANY SUBMITTED THE LOWEST BID IN THE AMOUNT OF $64,375, FOLLOWED BY THE BID OF THE CONSOLIDATED ELECTRODYNAMICS CORPORATION IN THE AMOUNT OF $64,950, AND THE BID OF BAIRD-ATOMIC, INC., IN THE AMOUNT OF $72,300. LOW BID WAS ACCOMPANIED BY A LETTER DATED MAY 26, 1965, WITH ATTACHED SPECIFICATION SHEETS, AND STATED: "THE SPECIFICATIONS FOR THE INSTRUMENTATION WHICH WE ARE OFFERING ARE GIVEN ON THE ENCLOSED DITTO SHEETS.' THE INVITATION DID NOT REQUIRE THAT BIDDERS SUBMIT DESCRIPTIVE LITERATURE WITH THEIR BIDS. AFTER REVIEWING THE LOW BID OF THE JARRELL- ASH COMPANY, INCLUDING THE LETTER AND SPECIFICATION SHEETS WHICH ACCOMPANIED ITS BID, IT WAS DETERMINED BY THE PROCUREMENT AGENCY THAT THE EQUIPMENT OFFERED CONFORMED TO THE SPECIFICATIONS AND THE OTHER REQUIREMENTS OF THE INVITATION. THEREFORE, CONTRACT NO. M204-38783 WAS AWARDED TO THE JARRELL-ASH COMPANY ON JUNE 22, 1965, AS THE LOWEST RESPONSIBLE, RESPONSIVE BIDDER.

YOU PROTEST AGAINST SUCH AWARD TO JARRELL-ASH ON THE BASIS THAT ITS BID WAS NONRESPONSIVE TO THE INVITATION BECAUSE THE SPECIFICATION SHEETS WHICH ACCOMPANIED THE BID CONTAINED A NUMBER OF DEVIATIONS AND SIGNIFICANT OMISSIONS FROM THE ADVERTISED SPECIFICATIONS.

AT THE OUTSET, WE WISH TO POINT OUT THAT OUR OFFICE HAS NEITHER AN ENGINEERING STAFF NOR THE TECHNICAL CAPABILITY TO DETERMINE FACTUALLY WHETHER THE SPECIFICATION SHEETS VOLUNTARILY SUBMITTED BY THE JARRELL ASH COMPANY SO SIGNIFICANTLY DEVIATED FROM THE ADVERTISED SPECIFICATIONS AS TO HAVE RENDERED ITS BID NONRESPONSIVE. WE ARE REQUIRED, THEREFORE, TO GIVE GREAT WEIGHT TO THE TECHNICAL AND ENGINEERING EXPERTISE OF THE PROCUREMENT AGENCY AND THE OPINIONS OF ITS TECHNICAL STAFF. IT IS WELL ESTABLISHED THAT THE PROCUREMENT AGENCY HAS THE PRIMARY RESPONSIBILITY FOR DETERMINING FACTUALLY WHETHER EQUIPMENT OFFERED BY BIDDERS MEETS THE SPECIFICATIONS DRAFTED BY THAT AGENCY AND INCLUDED IN INVITATIONS TENDERED TO THE BUSINESS PUBLIC ON AN ADVERTISED COMPETITIVE BASIS. SINCE RESOLUTION OF YOUR PROTEST COMES WITHIN THESE GUIDELINES AND, IN ORDER THAT YOU MIGHT BE FULLY APPRISED OF THE BASES UPON WHICH THE PROCUREMENT AGENCY JUSTIFIED ITS AWARD IN THE LIGHT OF YOUR PROTEST, THERE ARE SET OUT BELOW THE PROCUREMENT AGENCY'S RESPONSES TO YOUR POINTS OF PROTEST.

"A. LISTED DISCREPANCY: "THE JARRELL-ASH BID STATES THAT NORMAL ROUTINE MAINTENANCE CAN BE ACCOMPLISHED BY A COMPETENT PERSON AFTER TRAINING BY THE MANUFACTURER. THE BID INVITATION REQUIRES THAT THE EQUIPMENT SHALL BE DESIGNED SO THAT OPERATING PERSONNEL CAN BECOME CAPABLE OF ROUTINE MAINTENANCE WITHOUT SPECIAL REFERENCE TO THE MANUFACTURER.

"COMMENT: THE PHRASE "WITHOUT SPECIAL REFERENCE TO THE MANFACTURER" IS AN INCOMPLETE QUOTATION FROM THE SPECIFICATIONS. THE COMPLETE SENTENCE (PAGE 6 OF THE SPECIFICATIONS) READS: "THE SPECTROMETER AND AUXILIARY EQUIPMENT SHALL BE SO DESIGNED THAT OPERATING PERSONNEL CAN BECOME CAPABLE, AFTER SHORT TRAINING AND WITHOUT SPECIAL REFERENCE TO THE MANUFACTURER, OF CONDUCTING NORMAL, ROUTINE MAINTENANCE, AND OF AFFECTING CHANGES, SUCH AS REPOSITIONING AND REALIGNMENT OF EXIT SLITS AND PHOTO MULTIPLIER TUBES, WHICH WILL ADJUST THE SPECTROMETER TO NEW SPECTRAL LINES.' THE SPECIFICATIONS LISTED SIX SPECIAL REQUIREMENTS (SUBPARAGRAPHS A THROUGH F, PAGE 6 OF SPECIFICATIONS) FOR THE DESIGN OF THE EQUIPMENT SO THAT NORMAL, ROUTINE MAINTENANCE AND THE SPECIFIED CHANGES COULD BE ACCOMPLISHED.

"THE JARRELL-ASH COMPANY SPECIFICATION SHEETS STATED: "NORMAL ROUTINE MAINTENANCE CAN BE ACCOMPLISHED BY ANY COMPETENT PERSON, AFTER TRAINING BY THE MANUFACTURER.

SIMPLE CHANGES IN COMPUTER PROGRAMMING, REPOSITIONING AND REALIGNMENT OF EXIT SLITS AND PHOTO MULTIPLIER TUBES WILL BE WITHIN HIS CAPACITY. WILL BE POSSIBLE FOR HIM TO ADJUST THE SPECTROMETER TO POSITION EXIT SLITS TO NEW SPECTRAL LINES.' THE JARRELL-ASH COMPANY SPECIFICATION SHEETS SHOWED THAT THE EQUIPMENT WAS DESIGNED TO MEET THE SIX SPECIAL REQUIREMENTS GIVEN IN SUBPARAGRAPHS A THROUGH F ON PAGE 6 OF THE INVITATION. SINCE THE OFFERED EQUIPMENT WAS SO DESIGNED, IT WAS DETERMINED THAT NORMAL, ROUTINE MAINTENANCE AND THE SPECIFIED CHANGES COULD BE ACCOMPLISHED BY OPERATING PERSONNEL AFTER SHORT TRAINING AND WITHOUT SPECIAL REFERENCE TO THE MANUFACTURER AS REQUIRED BY THE INVITATION. THE PROVISION THAT "SPECIAL REFERENCE TO THE MANUFACTURER" NOT BE REQUIRED FOR NORMAL, ROUTINE MAINTENANCE AND CHANGES WAS INSERTED IN THE INVITATION FOR THE PROTECTION OF THE INTERESTS OF THE GOVERNMENT AND IT WAS DETERMINED THAT FAILURE TO ENFORCE SUCH PROVISION WOULD NOT INFRINGE UPON THE RIGHTS OF OTHER BIDDERS. THEREFORE, THE FAILURE OF JARRELL-ASH TO COMPLY WITH THE PROVISION WAS CONSIDERED A MINOR DEVIATION AND WAS WAIVED.

"B. LISTED DISCREPANCY: "THE INVITATION SPECIFIES THAT THE SPECTROMETER SHALL BE EQUIPPED WITH AN OPTICAL MONITORING SYSTEM THAT WILL AUTOMATICALLY MAINTAIN A CORRECT RELATIONSHIP BETWEEN THE EXIT SLITS AND THE SPECTRAL LINES OF THE MATRIX. JARELL-ASH, IN ITS SPECIFICATION, HAS CHANGED THE WORD "CORRECT" TO "NEARLY PERFECT.' THE EFFECT OF THIS APPARENTLY MINOR DEVIATION IS TO CHANGE A DETERMINABLE, FINITE REQUIREMENT INTO ONE WHICH CANNOT BE DEFINITELY DETERMINED, AND WHICH IS SUBJECT TO INTERPRETATION.'

"COMMENT: HE WORDS "CORRECT RELATIONSHIP" AS USED IN THE INVITATION DO NOT MEAN NOR WERE THEY INTENDED TO MEAN A PERFECT RELATIONSHIP BUT RATHER A PROPER RELATIONSHIP. THE WORDS "NEARLY PERFECT RELATIONSHIP" AS USED IN THE JARRELL-ASH COMPANY SPECIFICATION SHEETS WERE DETERMINED TO MEET OR EXCEED THE REQUIREMENT FOR A "CORRECT RELATIONSHIP.'

"C. LISTED DISCREPANCY: "THE INVITATION LISTS SPECIFICALLY THE SUB- SYSTEMS WHICH ARE TO BE CHECKED OUT BY THE DIAGNOSTIC SYSTEM. AMONG THOSE LISTED ARE THE TIMING AND PROGRAMMING SYSTEMS. JARRELL ASH, IN ITS OWN SPECIFICATION, ALSO LISTS EACH OF THE COMPONENTS WHICH ITS DIAGNOSTIC SYSTEM WILL CHECK OUT. THEIR LIST DOES NOT INCLUDE THE TIMING AND PROGRAMMING SYSTEMS.'

"COMMENT: THE INVITATION REQUIRED THAT THE SPECTROMETER BY EQUIPPED WITH A DIAGNOSTIC SYSTEM THAT COULD BE USED ROUTINELY TO TEST ALL OF THE ELECTRICAL AND ELECTRONICS SYSTEMS OF THE SPECTROMETER AND ASSOCIATED EQUIPMENT FOR PROPER OPERATION AND WOULD PINPOINT THE LOCATION OF ANY MALFUNCTIONING COMPONENT. THE INVITATION LISTED SOME OF THE SYSTEMS TO BE TESTED BY THE DIAGNOSTIC SYSTEM, INCLUDING THE TIMING AND PROGRAMMING SYSTEMS.

"THE JARRELL-ASH COMPANY SPECIFICATION SHEETS STATE: "THE ENTIRE SYSTEM IS EQUIPPED WITH A FULLY AUTOMATIC DIAGNOSTIC SYSTEM WHICH CAN PINPOINT OPERATIONAL MALFUNCTION IN ANY SECTION.' ALTHOUGH THE TIMING AND PROGRAMMING SUB-SYSTEMS ARE NOT SPECIFICALLY MENTIONED IN THE JARRELL-ASH COMPANY SPECIFICATION SHEETS, SINCE THE SPECIFICATION SHEETS STATE THAT THE DIAGNOSTIC SYSTEM WILL PINPOINT OPERATIONAL MALFUNCTION IN ANY SECTION, IT WAS DETERMINED THAT THE OFFERED DIAGNOSTIC SYSTEM MET THE REQUIREMENTS OF THE INVITATION. THE INVITATION ITSELF DID NOT LIST ALL OF THE SUB-SYSTEMS WHICH WERE TO BE TESTED BY THE DIAGNOSTIC SYSTEM.

"D. LISTED DISCREPANCY: "THE INVITATION STATES THAT A MEANS SHALL BE PROVIDED OF PHOTOGRAPHING THE LINES OF THE SPECTRUM TO DETERMINE THEIR RELATIONSHIP TO THE EXIT SLITS AND TO DETERMINE THE PRESENCE OF POSSIBLE SPECTRAL INTERFERENCES. THE JARRELL-ASH PROPOSAL PROVIDES A MEANS OF PHOTOGRAPHING ONLY A SECTION OF THE SPECTRUM RATHER THAN THE ENTIRE SPECTRUM.'

"COMMENT: THE INVITATION (SUBPARAGRAPH C, PAGE 6) DID NOT REQUIRE THAT THE ENTIRE SPECTRUM BE PHOTOGRAPHED AT ONE TIME. THE REQUIREMENT THAT A MEANS BE PROVIDED FOR PHOTOGRAPHING THE SPECTRUM LINES WAS INCLUDED IN THE INVITATION SO THAT IT WOULD BE POSSIBLE TO DETERMINE THE SPECTRUM LINES' RELATIONSHIP TO THE EXIT SLITS AND TO DETERMINE THE PRESENCE OF POSSIBLE SPECTRAL INTERFERENCES. THE JARRELL-ASH COMPANY SPECIFICATION SHEETS STATED THAT THE SPECTRUM LINES ON THE OFFERED EQUIPMENT COULD BE PHOTOGRAPHED, ALLOWING THE PRECISE DETERMINATION OF THE WANTED SPECTRAL LINE IN RELATION TO THE EXIT SLIT AND ENABLING THE OPERATOR TO DETERMINE WHETHER OR NOT THERE WERE SPECTRAL INTERFERENCES. IT WAS DETERMINED THAT THE EQUIPMENT OFFERED BY TH JARRELL-ASH COMPANY MET THE REQUIREMENTS OF THE INVITATION RELATIVE TO PHOTOGRAPHING THE SPECTRUM LINES.

"E. LISTED DISCREPANCY: "THE JARRELL-ASH PROPOSAL DESCRIBES THE EQUIPMENT CALLED OUT IN THE INVITATION WITH VERY SIGNIFICANT OMISSIONS. EXAMPLES ARE THE SENSITIVITY, ACCURACY AND RELIABILITY REQUIREMENTS OF THE SPECTROMETER, AND THE REQUIREMENTS FOR DARK CURRENT CORRECTION OF THE PHOTOMULTIPLIER TUBES.'

"COMMENT: SINCE DESCRIPTIVE LITERATURE WAS NOT REQUIRED BY THE INVITATION, THE FACT THAT THE UNSOLICITED DESCRIPTIVE LITERATURE SUBMITTED BY THE JARRELL-ASH COMPANY DID NOT DESCRIBE THE OFFERED EQUIPMENT IN COMPLETE DETAIL WAS NOT CONSIDERED GROUNDS FOR REJECTION OF THE BID.

"F. LISTED DISCREPANCY: "THE JARRELL-ASH SPECIFICATION MAKES NO MENTION OF THE TYPE OF EXCITATION SOURCE THEY WILL PROVIDE, ALTHOUGH THE INVITATION SPELLS OUT A REQUIREMENT FOR A HIGH VOLTAGE AC SPARK OF THE UNIVERSITY OF MICHIGAN TANDEM AIR GAP TYPE. HOWEVER, THEY STATE THAT THE NUMBER OF DISCHARGES PER CYCLE IS PRESENTED THROUGH A TACHOMETER CIRCUIT BUILT INTO THE SOURCE UNIT. THIS LATTER STATEMENT IMPLIES THAT THE JARRELL-ASH EXCITATION SOURCE WILL NOT BE OF THE UNIVERSITY OF MICHIGAN TANDEM AIR GAP TYPE.'

"COMMENT: SAME AS COMMENT IN SUBPARAGRAPH E ABOVE. THE STATEMENT IN THE JARRELL-ASH COMPANY SPECIFICATION SHEET THAT THE NUMBER OF DISCHARGES PER CYCLE WAS PRESENTED THROUGH A TACHOMETER CIRCUIT BUILT INTO THE SOURCE UNIT WAS NOT CONSIDERED TO IMPLY THAT THE EXCITATION SOURCE OF THE OFFERED EQUIPMENT DID NOT CONSIST OF A HIGH VOLTAGE AC SPARK OF THE UNIVERSITY OF MICHIGAN TENDEM AIR GAP TYPE AS REQUIRED BY THE INVITATION.

"G. LISTED DISCREPANCY: "THE JARRELL-ASH SPECIFICATION STATES THAT ONCE THE DIAGNOSTIC SYSTEM HAS POINTED OUT THAT A PART OF THE SYSTEM IS IN ERROR, IT IS NECESSARY FOR THE OPERATOR TO CHECK ON THE VARIOUS METERS AND CORRECT THE DIFFICULTY BEFORE PROCEEDING. THIS STATEMENT IS IN DIRECT CONFLICT WITH THE REQUIREMENT OF THE INVITATION THAT THE OPTICAL MONITORING SYSTEM BE AUTOMATICALLY REALIGNED.'

"COMMENT: THE SPECIFICATIONS IN THE INVITATION REQUIRE AN OPTICAL MONITORING SYSTEM THAT WILL AUTOMATICALLY MAINTAIN A CORRECT RELATIONSHIP BETWEEN THE EXIT SLITS AND THE SPECTRAL LINES OF THE MATRIX. THE INVITATION ALSO REQUIRES THAT A DEVICE BE PROVIDED FOR DETERMINING WHETHER OR NOT THE AUTOMATIC ALIGNMENT SYSTEM IS OPERATING PROPERLY AND THAT A MEANS BY PROVIDED FOR ADJUSTING THE AUTOMATIC ALIGNMENT SYSTEM. THE INVITATION DOES NOT REQUIRE THAT THE OPTICAL MONITORING SYSTEM BE AUTOMATICALLY REALIGNED. THE JARRELL-ASH COMPANY SPECIFICATION SHEETS STATED THAT THE OFFERED EQUIPMENT HAD AN OPTICAL MONITORING SYSTEM WHICH AUTOMATICALLY MAINTAINS A NEARLY PERFECT RELATIONSHIP BETWEEN ALL EXIT SLITS AND THEIR RESPECTIVE SPECTRAL LINES. THE JARRELL-ASH COMPANY SPECIFICATION SHEETS ALSO STATED THAT THE DETERMINATION OF THE PROPER OPERATION OF THE AUTOMATIC ALIGNMENT SYSTEM WAS ACCOMPLISHED BY THE AUTOMATIC DIAGNOSTIC SYSTEM, BUT THAT AN EASILY VISIBLE METER WOULD INDICATE WHETHER OR NOT THE SYSTEM WAS OPERATING PROPERLY AND IF IT WAS NOT, IT COULD BE ADJUSTED. IT WAS DETERMINED THAT THE OPTICAL MONITORING SYSTEM OFFERED BY THE JARRELL ASH COMPANY MET THE REQUIREMENTS OF THE INVITATION.'

THE AUTHORITY OF THE PROCUREMENT AGENCY TO MAKE AS AWARD IN SITUATIONS SUCH AS HERE INVOLVED IS GOVERNED BY THE ARMED SERVICES PROCUREMENT REGULATION (ASPR). ASPR 2-301 (A) AND 2-405 PROVIDE---

"/A) TO BE CONSIDERED FOR AWARD, A BID MUST COMPLY IN ALL MATERIAL RESPECTS WITH THE INVITATION FOR BIDS SO THAT, BOTH AS TO THE METHOD AND TIMELINESS OF SUBMISSION AND AS TO THE SUBSTANCE OF ANY RESULTING CONTRACT, ALL BIDDERS MAY STAND ON AN EQUAL FOOTING AND THE INTEGRITY OF THE FORMAL ADVERTISING SYSTEM MAY BE MAINTAINED.

* * * * * * * "* * * A MINOR INFORMALITY OR IRREGULARITY IS ONE WHICH IS MERELY A MATTER OF FORM OR IS SOME IMMATERIAL VARIATION FROM THE EXACT REQUIREMENTS OF THE INVITATION FOR BIDS, HAVING NO EFFECT OR MERELY A TRIVIAL OR NEGLIGIBLE EFFECT ON PRICE, AND NO EFFECT ON QUALITY, QUANTITY, OR DELIVERY OF THE SUPPLIES OR PERFORMANCE OF THE SERVICES BEING PROCURED, AND THE CORRECTION OR WAIVER OF WHICH WOULD NOT AFFECT THE RELATIVE STANDING OF, OR BE OTHERWISE PREJUDICIAL TO BIDDERS. THE CONTRACTING OFFICER SHALL EITHER GIVE TO THE BIDDER AN OPPORTUNITY TO CURE ANY DEFICIENCY RESULTING FROM A MINOR INFORMALITY OR IRREGULARITY IN A BID, OR, WAIVE ANY SUCH DEFICIENCY WHERE IT IS TO THE ADVANTAGE OF THE GOVERNMENT. * * * " WE HAVE HELD THAT THE PROPER GUIDELINE FOR DETERMINING WHETHER BID VARIANCES MAY BE REGARDED AS INFORMALITIES NOT AFFECTING THE QUALITY, QUANTITY, OR PRICE OF THE ITEM TO BE PROCURED IS THE DIFFERENCE BETWEEN WHAT IS OFFERED BY THE BID AND WHAT IS REQUIRED BY THE TERMS OF THE INVITATION. 30 COMP. GEN. 179; 40 ID. 132. HERE, THE PROCUREMENT AGENCY DETERMINED, AFTER A TECHNICAL EVALUATION, THAT ANY DIFFERENCES THAT EXISTED IN THE JARRELL-ASH EQUIPMENT OFFERED WERE MINOR IN RELATION TO THE ADVERTISED SPECIFICATION; THAT IN SOME INSTANCES, ALLEGED TO BE FATAL DEVIATIONS, THE OFFERED EQUIPMENT MET THE SPECIFICATION; AND THAT THE FAILURE OF JARRELL-ASH SPECIFICATION SHEETS TO COMPLY FULLY WITH INVITATION PROVISIONS WERE MINOR DEVIATIONS NOT GOING TO THE SUBSTANCE OF THE BID OR AS PREJUDICING OTHER BIDDERS. IT THUS APPEARS THAT ANY DIFFERENCES BETWEEN THE JARRELL-ASH EQUIPMENT AND THAT CALLED FOR BY THE INVITATION WERE CONSIDERED TO BE MINOR FROM A TECHNICAL STANDPOINT AND, AS SUCH, PROPERLY WERE WAIVED PURSUANT TO ASPR 2-405. WE FIND NO BASIS TO QUESTION THIS ADMINISTRATIVE CONCLUSION ON THE RECORD BEFORE US. 37 COMP. GEN. 763; CF. 43 ID. 77. YOUR PROTEST IS THEREFORE DENIED.