B-168044(1), DEC. 29, 1969

B-168044(1): Dec 29, 1969

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PRICE WAS BUT ONE FACTOR AND GAO IS UNABLE TO CONCLUDE THAT NAVY DECISION WAS NOT PROPER EXERCISE OF DISCRETION IN DISCHARGE OF ITS PRIMARY RESPONSIBILITY AS CONTRACTING AGENCY TO DETERMINE MINIMUM NEEDS OF GOVT. WAS AWARDED UNDER SOLE-SOURCE NEGOTIATION PURSUANT TO CONTRACTING OFFICER'S FINDINGS UNDER 10 U.S.C. 2304 (A) (10). PROGRAMS ARE NOT UNREASONABLY DELAYED BY LACK OF NECESSARY SUPPLIES. IS IN BETTER POSITION TO DETERMINE EXTENT TO WHICH GOVT. THE PRODUCT IS IDENTIFIED AS LIGHT WATER. WHICH YOU CLAIM IS A 3M TRADE NAME. THE CONTRACT IS N00383-70-C-0874. YOU STATE THAT THE GOVERNMENT IS PAYING MORE THAN $11 PER GALLON FOR LIGHT WATER FOR USE BY THE NAVY FOR FLAMMABLE LIQUID FIRE PROTECTION PURPOSES IN PLACE OF FEDERAL SPECIFICATION O-F-555 FIREFIGHTING FOAM (A PROTEIN FOAM).

B-168044(1), DEC. 29, 1969

NEGOTIATION--COMPETITION--IMPRACTICABLE TO OBTAIN MANUFACTURER OF FIREFIGHTING FOAM WHO PROTESTS AWARD OF CONTRACT FOR WATER-BASED AGENT -- "LIGHT WATER" (AQUEOUS FILM FORMING FOAM) -- UNDER SOLE-SOURCE NEGOTIATION PURSUANT TO CONTRACTING OFFICER'S FINDINGS UNDER 10 U.S.C. 2304 (A) (10), ON BASIS THAT AWARD, RESTRICTED TO USE WITH FRESH WATER, CAUSES GOVERNMENT WASTE OF $690,000, OFFERS NO BASIS FOR OBJECTION SINCE CONTRACTING OFFICER'S FINDINGS SHOW THAT NO OTHER SOURCE PRODUCED AFFF IN COMPLIANCE WITH EXISTING MILITARY SPECIFICATION. PRICE WAS BUT ONE FACTOR AND GAO IS UNABLE TO CONCLUDE THAT NAVY DECISION WAS NOT PROPER EXERCISE OF DISCRETION IN DISCHARGE OF ITS PRIMARY RESPONSIBILITY AS CONTRACTING AGENCY TO DETERMINE MINIMUM NEEDS OF GOVT. AND TO DETERMINE WHICH PRODUCT WOULD BEST SATISFY SUCH NEEDS. SEE 46 COMP. GEN. 53 (1966). PROTESTS--STOP ORDER DENIED CONTRACT FOR WATER-BASED FIREFIGHTER AGENT, "LIGHT WATER" (AQUEOUS FILM FORMING FOAM), WAS AWARDED UNDER SOLE-SOURCE NEGOTIATION PURSUANT TO CONTRACTING OFFICER'S FINDINGS UNDER 10 U.S.C. 2304 (A) (10). MANUFACTURER OF FOAM WHO CONTENDS PROCUREMENT SHOULD BE STOPPED PENDING INVESTIGATION AND DECISION BY GAO ON PROTEST, OFFERS NO BASIS FOR OBJECTION SINCE THIS OFFICE CANNOT REQUIRE CONTRACTING AGENCY TO CAUSE WORK TO BE STOPPED UNTIL PROPRIETY OF AWARD HAS BEEN DECIDED ALTHOUGH GAO HAS OCCASIONALLY SUGGESTED THAT SUCH ACTION SHOULD BE TAKEN WHERE GOVT.'S INTERESTS WOULD NOT THEREBY BE PREJUDICED. PROCURING AGENCY, RESPONSIBLE FOR SEEING THAT GOVT. PROGRAMS ARE NOT UNREASONABLY DELAYED BY LACK OF NECESSARY SUPPLIES, IS IN BETTER POSITION TO DETERMINE EXTENT TO WHICH GOVT. WOULD BE PREJUDICED. SEE 46 COMP. GEN. 53 (1966).

TO NATIONAL FOAM SYSTEM, INC.:

WE REFER TO YOUR LETTER DATED SEPTEMBER 29, 1969, PROTESTING AGAINST THE NEGOTIATED PROCUREMENT BY THE AVIATION SUPPLY OFFICE (ASO), DEPARTMENT OF THE NAVY, PHILADELPHIA, PENNSYLVANIA, OF 67,810 GALLONS OF A FIREFIGHTING AGENT MANUFACTURED SOLELY BY MINNESOTA MINING AND MANUFACTURING COMPANY, INC. (3M) IN ACCORDANCE WITH MILITARY SPECIFICATION MIL-F-23905B (AS), APRIL 25, 1967. THE PRODUCT IS IDENTIFIED AS LIGHT WATER, WHICH YOU CLAIM IS A 3M TRADE NAME, AND THE CONTRACT IS N00383-70-C-0874, DATED AUGUST 25, 1969.

YOU STATE THAT THE GOVERNMENT IS PAYING MORE THAN $11 PER GALLON FOR LIGHT WATER FOR USE BY THE NAVY FOR FLAMMABLE LIQUID FIRE PROTECTION PURPOSES IN PLACE OF FEDERAL SPECIFICATION O-F-555 FIREFIGHTING FOAM (A PROTEIN FOAM), WHICH IS AVAILABLE FROM FIVE QUALIFIED SOURCES AT A PRICE OF $1 PER GALLON. THE O-F-555 FOAM, YOU STATE, HAS SERVED THE ARMED SERVICES WELL FOR MORE THAN 25 YEARS AND HAS BEEN CREDITED WITH SAVING MANY LIVES AND SHIPS FROM FLAMMABLE LIQUID FIRES. CONVERSELY, YOU ASSERT, LIGHT WATER IS SUITABLE FOR USE WITH FRESH WATER ONLY, AND WHILE THE NAVY HAS DEVELOPED DATA SHOWING THAT LIGHT WATER IS EQUAL TO OR BETTER THAN O-F -555 FOAM WHEN USED WITH FRESH WATER, OTHER AGENCIES SUCH AS THE CANADIAN DEPARTMENT OF TRANSPORT AND THE JOINT FIRE RESEARCH ORGANIZATION IN ENGLAND HAVE DEVELOPED DATA SHOWING THAT LIGHT WATER HAS WEAKNESSES WHICH REDUCE ITS OVERALL EFFICIENCY. YOU THEREFORE CLAIM THAT THE GOVERNMENT IS WASTING ABOUT $690,000 ON THIS ONE CONTRACT BY PROCURING LIGHT WATER IN LIEU OF O-F-555 FOAM. ACCORDINGLY, YOU RECOMMEND THAT AN INVESTIGATION BE MADE, IN THE INTERESTS OF ECONOMY, SAFETY OF LIFE, PROTECTION OF SMALL UNITED STATES BUSINESSES, AND SAVING POTENTIAL EMBARRASSMENT TO THE NAVY AND THE GOVERNMENT, OF THE VALIDITY OF THE DATA JUSTIFYING THE PROCUREMENT AND USE OF LIGHT WATER AND THAT THE PROCUREMENT BE STOPPED PENDING SUCH INVESTIGATION.

THE CONTRACTING OFFICER'S STATEMENT AND FINDINGS ISSUED IN JUSTIFICATION OF THE USE OF NEGOTIATION FOR THE PROCUREMENT LISTS FIVE PURCHASE REQUISITIONS AND STATES THAT THE 67,810 GALLONS OF LIGHT WATER IS BEING PROCURED AS A REPLACEMENT EXTINGUISHING AGENT FOR PROTEIN TYPE FOAM IN NAVY CRASH RESCUE VEHICLES, WHICH ARE DESCRIBED AS LANDBASED VEHICLES NOT REQUIRING THE USE OF SEAWATER, AND THAT THE ENTIRE QUANTITY WILL BE ISSUED IMMEDIATELY TO SATISFY OUTFITTING REQUIREMENTS.

WITH RESPECT TO THE ABSENCE OF COMPETITION, THE STATEMENT INDICATES THAT CONTACT WAS MADE WITH YOU AND TWO OTHER CONCERNS, AS WELL AS THE NAVAL RESEARCH LABORATORY, IN AN EFFORT TO ASCERTAIN WHETHER ANY SOURCE OTHER THAN 3M HAD MET THE MILITARY SPECIFICATION. THE RESULTS WERE NEGATIVE, AND IT WAS ALSO ASCERTAINED THAT THERE WERE NO SAMPLES CURRENTLY UNDER TEST BY THE TESTING FACILITY AND THAT NEITHER YOU NOR THE OTHER TWO CONCERNS CONTEMPLATED ANY SUBMISSIONS WITHIN THE NEAR FUTURE. SUCH FACTORS WERE CONSIDERED TO BE JUSTIFICATION FOR THE USE OF THE NEGOTIATION AUTHORITY IN 10 U.S.C. 2304 (A) (10) RELATING TO PROPERTY OR SERVICES FOR WHICH IT IS IMPRACTICABLE TO OBTAIN COMPETITION.

TECHNICAL COMMENTS BY THE NAVAL MATERIAL COMMAND (NMC) SHED FURTHER LIGHT ON THE PROCUREMENT ITEM, ON THE CONTRACT IN QUESTION, AND ON FUTURE USE BY THE NAVY OF A SIMILAR ITEM. THE FACTUAL STATEMENTS SET FORTH BELOW ARE TAKEN FROM THE NMC COMMENTS FOR THE MOST PART.

LIGHT WATER IS NOW CALLED AQUEOUS FILM FORMING FOAM (AFFF). WHEN THE ORIGINAL SPECIFICATION WAS DRAWN, THERE WAS NO INTENT TO USE AFFF IN SHIPBOARD FIREFIGHTING SYSTEMS; THEREFORE, THERE WAS NO NEED FOR SEAWATER COMPATIBILITY. (THE MILITARY SPECIFICATION PROVIDES FOR MIXING AFFF CONCENTRATE WITH CLEAN FRESH WATER AND STATES THAT FOAMS PRODUCED FROM LIGHT WATER CONCENTRATES ARE INTENDED FOR USE AS FIRE EXTINGUISHING TYPE AGENTS FOR THE PURPOSE OF ELIMINATING FLASHBACKS AND PREVENTING REIGNITION OF FLAMMABLE HYDROCARBON FUELS.)

THE VEHICLES WHICH ARE TO BE SUPPLIED BY THE 67,810 GALLONS OF AFFF UNDER THE 3M CONTRACT (EXCEPT FOR ONE VEHICLE CARRIED ON EACH OF 16 AIRCRAFT CARRIERS) ARE SHORE-BASED AIRCRAFT CRASH/RESCUE VEHICLES, OF WHICH THE NAVY HAS MORE THAN 650 AT SHORE FACILITIES THROUGHOUT THE WORLD. THE DELIVERY SCHEDULE CALLS FOR AN INITIAL DELIVERY OF 5,000 GALLONS ON AUGUST 25, 1969; DELIVERIES OF 7,500 GALLONS PER MONTH FROM SEPTEMBER 24, 1969, THROUGH APRIL 24, 1970; AND A FINAL DELIVERY OF 2,810 GALLONS ON MAY 24, 1970.

THE 67,810 GALLONS WILL PROVIDE AN INITIAL FILL OF APPROXIMATELY 17,000 GALLONS FOR ALL OF THE CRASH/RESCUE VEHICLES AND A 3 TO 1 SUPPLY BACKUP. THIS SUPPLY BACKUP, NMC OBSERVES, IS CONSIDERABLY LESS THAN THE 12 TO 1 SUPPLY BACKUP PREVIOUSLY MAINTAINED FOR THE FEDERAL SPECIFICATION O-F-555 PROTEIN FOAM, BUT IS MADE POSSIBLE BY THE GREATER EFFICIENCY AND LONGER SHELF LIFE OF AFFF.

WITH RESPECT TO THE 16 CRASH/RESCUE VEHICLES EQUIPPED WITH AFFF CARRIED ON AIRCRAFT CARRIERS, NMC REPORTS THAT THIS IS AN INTERIM MEASURE PENDING INSTALLATION ON THE CARRIERS OF IMPROVED FIXED SHIPBOARD FIREFIGHTING SYSTEMS. NMC POINTS OUT THAT THERE IS NO NEED FOR SEAWATER COMPATIBLE AFFF IN THIS USE, SINCE EACH OF THE VEHICLES CARRIES ITS OWN SUPPLY OF FRESH WATER FOR MIXING WITH AFFF AND IS IN NO WAY CROSS-CONNECTED TO THE CARRIER'S SEAWATER FIREMAIN. THESE 16 VEHICLES, IT IS NOTED, WILL RECEIVE LESS THAN 1,000 GALLONS FROM THE CONTRACT QUANTITY OF 67,810 GALLONS.

NMC ALSO REPORTS THAT THE NAVY HAS PROGRAMMED THE INSTALLATION OF IMPROVED FIREFIGHTING SYSTEMS, WHICH WILL UTILIZE AFFF, FOR SELECTIVE SHIPS. SINCE THE NEW FIREFIGHTING SYSTEMS WILL BE SUPPLIED BY SEAWATER FIREMAINS, HOWEVER, THE AFFF MUST BE SEAWATER COMPATIBLE. THEREFORE, FOR THE PAST YEAR, A NEW SPECIFICATION FOR A "UNIVERSAL" AFFF, WHICH WILL BE SUITABLE FOR USE WITH EITHER FRESH WATER OR SEAWATER AND WHICH WILL PERMIT USE OF ONE TYPE OF AGENT ON SHIP OR SHORE, HAS BEEN UNDER DEVELOPMENT. THE NEW SPECIFICATION, IDENTIFIED AS MIL-F-24385 (SHIPS), IS SCHEDULED FOR ISSUANCE BY THE END OF THE YEAR 1969 AND WILL CANCEL AND SUPERSEDE MIL-F- 23905B (AS), THE FRESH-WATER-ONLY AFFF SPECIFICATION.

WITH FURTHER REFERENCE TO THE NEW AFFF, NMC STATES THAT IN AN EFFORT TO INCREASE THE COMPETITIVE BASE, AND HOPEFULLY TO REDUCE THE PRICE OF AFFF, THE NEW SPECIFICATION HAS BEEN DISCUSSED AND COORDINATED WITH SEVERAL COMPANIES AND THAT YOU WERE AMONG THE COMPANIES SO APPROACHED WHO SUBMITTED PRODUCT SAMPLES FOR TESTING.

ON THE SUBJECT OF THE EFFECTIVENESS OF THE FRESH-WATER-ONLY AFFF AS COMPARED WITH THE PERFORMANCE OF OTHER FIREFIGHTING AGENTS, NMC REPORTS THAT DURING THE PAST THREE YEARS THE NAVY HAS CONDUCTED MORE THAN 150 LARGE SCALE FIRE TESTS ON FIRE EXTINGUISHING AGENTS. THOROUGH EVALUATION OF THE DATA FROM SUCH TESTS, TOGETHER WITH A COMPREHENSIVE LABORATORY ANALYSIS OF VARIOUS AGENTS, HAS DEMONSTRATED CONSISTENTLY THE SUPERIORITY OF AFFF OVER PROTEIN FOAM FOR EXTINGUISHING FLAMMABLE LIQUID FUEL FIRES.

THE ADVANTAGES OF AFFF, WHICH NMC STATES ARE DOCUMENTED, ARE DESCRIBED AS FOLLOWS:

"A. AFFF IS CONSIDERABLY FASTER THAN PROTEIN FOAM IN CONTROLLING AND EXTINGUISHING FUEL FIRES. THIS SPEED OF EXTINGUISHMENT PERMITS QUICKER RESCUE OF AIRCRAFT OCCUPANTS AND RESULTS IN LESS FIRE DAMAGE TO AIRCRAFT AND SURROUNDINGS. THE CATASTROPHIC FIRES ABOARD THE FORRESTAL AND ENTERPRISE HIGHLIGHTED THE CRITICALITY OF QUICK FIRE EXTINGUISHMENT PRIOR TO THERMAL DETONATION OF ORDNANCE. THE USE OF AFFF RESULTS IN GREATER EXTINGUISHMENT EFFICIENCY SINCE LESS AGENT IS REQUIRED PER FIRE. TESTS HAVE CONSISTENTLY DEMONSTRATED A MARGIN OF SUPERIORITY OF AFFF OVER PROTEIN FOAM OF ABOUT 3 TO 1 IN TERMS OF CONTROL TIME, EXTINGUISHMENT TIME, APPLICATION RATE, AND APPLICATION DENSITY. THE SUPERIORITY OF AFFF OVER PROTEIN FOAM HAS BEEN EXHIBITED ON MOTOR GASOLINE FIRES AS WELL AS ON FIRES INVOLVING COMMON AIRCRAFT FUELS: AVIATION GASOLINE; JP-4; AND JP-5.

"B. AFFF IS COMPATIBLE WITH DRY CHEMICAL EXTINGUISHING AGENTS SUCH AS POTASSIUM BICARBONATE (PURPLE-K-POWDER). THIS PERMITS A DUAL AGENT ATTACK WHICH IS ADVANTAGEOUS WHEN FIGHTING THREE DIMENSIONAL FIRES SUCH AS ENCOUNTERED WHEN FUEL POURS FROM A RUPTURED FUEL TANK.

"C. AFFF HAS AN EXTENDED SHELF LIFE. PROTEIN FOAM FORMS SEDIMENT AND SLUDGE IN THE BOTTOM OF STORAGE CONTAINERS WHICH CAN CLOG PIPING, HOSE, AND PROPORTIONING EQUIPMENT. PROTEIN FOAM IS NOT CONSIDERED RELIABLE AFTER THREE YEARS OF STATIC STORAGE. TESTS HAVE SHOWN THAT AFFF IS RELATIVELY STABLE IN STORAGE. AN EXTRAPOLATION OF LABORATORY TEST DATA INDICATES A RELIABLE SHELF LIFE OF AT LEAST EIGHT YEARS.

"D. AFFF CAN BE PRE-MIXED WITH WATER. PROTEIN FOAM CANNOT BE PRE MIXED. THE ABILITY TO PRE-MIX INCREASES THE VERSATILITY OF APPLICATION TO FIRE EQUIPMENT. AS AN EXAMPLE, SINCE IT MAY BE PRE-MIXED, AFFF IS FEASIBLE FOR AIRBORNE EXTINGUISHING SYSTEMS. MANY NAVAL AIR STATIONS ARE NOW USING HELICOPTERS TO CARRY PRE-MIXED AFFF SOLUTIONS FOR COMBATING OFF-RUNWAY AIRCRAFT CRASH FIRES IN AREAS INACCESSIBLE BY CONVENTIONAL GROUND VEHICLES.

"E. BECAUSE OF ITS SUPERIOR SURFACE SEALING AND VAPOR SECURING CAPABILITIES, AFFF IS USEFUL FOR FIRE PREVENTION AS WELL AS FIRE EXTINGUISHMENT. AFFF MAY BE APPLIED TO A FUEL SPILL TO SEAL THE FUEL SURFACE FROM IGNITION.

"F. AFFF IS MORE READILY ADAPTABLE FOR USE IN SHIPBOARD FIREFIGHTING SYSTEMS. IT IS MORE COST-EFFECTIVE SINCE IT ALLOWS UPGRADING OF CURRENT LEVEL OF FIRE PROTECTION WITH A MINIMUM OF OVERHAUL EXPENSE.

"IN AN EFFORT TO PREVENT RECURRENCE OF A FORRESTAL/ENTERPRISE TYPE DISASTER, THE NAVY IS IN THE PROCESS OF MODIFYING THE NBC (NUCLEAR, BACTERIOLOGICAL, AND CHEMICAL) WASHDOWN SYSTEMS INSTALLED IN THE FLIGHT DECK OF AIRCRAFT CARRIERS. THESE SYSTEMS WILL BE MODIFIED TO SERVE AS A FIREFIGHTING SYSTEM BY INJECTING AFFF INTO THE WASHDOWN SYSTEM SUPPLY PIPING. THIS MODIFICATION WOULD NOT BE POSSIBLE WITH PROTEIN FOAM WITHOUT COSTLY REPLACEMENT OF ALL WASHDOWN NOZZLES, SINCE PROTEIN FOAM IS NOT EFFECTIVE WHEN APPLIED THROUGH NON-AERATING NOZZLES. IT IS ESTIMATED THAT THE COST OF REPLACING ALL WASHDOWN NOZZLES WITH A TYPE SUITABLE FOR PROTEIN FOAM WOULD COST IN EXCESS OF $200,000 PER AIRCRAFT CARRIER.

"DUE TO THE INCREASED EFFECTIVENESS OF AFFF, PRESENTLY USED 2-1/2 INCH HOSE LINES DISCHARGING PROTEIN FOAM MAY BE REPLACED WITH 1-1/2 INCH HOSE LINES DISCHARGING AFFF WITHOUT SACRIFICING FIREFIGHTING ABILITY. THIS CONVERSION WILL RESULT IN LESS COST, LOWER WEIGHT, INCREASED MOBILITY, AND LESS MANPOWER PER HOSE TEAM.

"OVERHEAD WATER SPRINKLERS, SUCH AS FOUND IN OLDER CARRIERS FOR PROTECTING THE HANGAR DECK, MAY BE MORE ECONOMICALLY CONVERTED TO AFFF. SINCE PROTEIN FOAM WOULD HAVE TO BE APPLIED AT A MUCH HIGHER DISCHARGE RATE FOR EQUAL EFFECTIVENESS, PIPE SIZES WOULD HAVE TO BE INCREASED AT A PROHIBITIVE COST.

"G. THE USE OF AFFF WILL RESULT IN CONSIDERABLE MONETARY SAVINGS IN THE FUTURE WHEN LARGER TRANSPORT AIRCRAFT ARE COMMONPLACE. THE EVENTUAL USE BY THE NAVY OF LARGER AIRCRAFT (IN EXCESS OF 200,000 LBS. GROSS VEHICLE TAKE-OFF WEIGHT) WOULD NECESSITATE LARGER CRASH/RESCUE VEHICLES WITH HIGHER AVAILABLE FIREFIGHTING AGENT DELIVERY RATES. WITH PROTEIN FOAM, THE NAVY IS ALMOST AT A 'SATURATION POINT', NOW, IN TERMS OF THE NUMBER OF CRASH/RESCUE TRUCKS THAT CAN BE PRACTICALLY MANEUVERED, POSITIONED, AND CONTROLLED AT A CRASH SCENE. WITH AFFF, BECAUSE OF ITS INCREASED EFFICIENCY, EXISTING CRASH/RESCUE TRUCKS WILL NOT BECOME OBSOLETE IN THE FORESEEABLE FUTURE."

IN CONNECTION WITH THE ABOVE, NMC STATES THAT ALL SIGNIFICANT RESEARCH AND EVALUATION PROGRAMS CONCERNING AFFF HAVE BEEN FULLY DOCUMENTED BY THE NAVY. FURTHER, AS SUPPORTING DATA FOR THE ADVANTAGES MENTIONED ABOVE, NMC HAS FURNISHED CITATIONS TO EIGHT DETAILED TECHNICAL NAVY REPORTS, INCLUDING ONE BY THE NAVAL DAMAGE CONTROL TRAINING CENTER; FOUR BY THE NAVAL RESEARCH LABORATORY; TWO BY THE NAVAL SHIP ENGINEERING CENTER; AND ONE JOINTLY BY THE NAVAL SHIP ENGINEERING CENTER AND THE NAVAL RESEARCH LABORATORY. THE JOINT REPORT, WHICH WAS ISSUED ON AUGUST 25, 1969, IS ENTITLED "FULL SCALE FIRE TEST STUDIES OF SEA WATER-COMPATIBLE LIGHT WATER AS RELATED TO SHIPBOARD FIRE PROTECTION."

IN ADDITION TO THE NAVY TESTS, NMC STATES THAT OTHER ORGANIZATIONS HAVE CONDUCTED TESTS AND HAVE ISSUED REPORTS SUBSTANTIATING THE SUPERIORITY OF AFFF OVER PROTEIN FOAM. THREE FORMAL RESEARCH REPORTS ARE CITED AS FOLLOWS:

"A. FEDERAL AVIATION AGENCY (D.O.T.)

'FOAM AND DRY CHEMICAL APPLICATION EXPERIMENTS,' DOT-FAA, NAFEC REPORT #NA-68-34 OF DECEMBER 1968 (TESTS CONDUCTED IN COOPERATION WITH U. S. AIR FORCE).

"B. LOS ANGELES FIRE DEPARTMENT

'LIGHT WATER AND PROTEIN FOAM' LOS ANGELES FIRE DEPARTMENT REPORT, 1968.

"C. JOINT FIRE RESEARCH ORGANIZATION OF ENGLAND

'THE USE OF LIGHT WATER FOR MAJOR AIRCRAFT FIRES,' MINISTRY OF TECHNOLOGY AND FIRE OFFICERS COMMITTEE, FIRE RESEARCH NOTE #762, APRIL 1969."

IN FURTHER SUPPORT OF ITS POSITION RESPECTING THE SUPERIORITY OF AFFF OVER PROTEIN FOAM, THE DEPARTMENT STATES THAT MANY MUNICIPALITIES AND PRIVATE INDUSTRIAL CONCERNS HAVE ADOPTED AFFF, AFTER EVALUATION, AS A REPLACEMENT FOR PROTEIN FOAM FOR COMBATING FLAMMABLE LIQUID FIRES. AMONG 17 ORGANIZATIONS USING AFFF, WHICH NMC STATES IS BUT A PARTIAL LIST OF USERS, ARE THE UNITED STATES COAST GUARD (ALL STATIONS); TWO INTERNATIONAL AIRPORTS IN THE UNITED STATES; THE PORT OF NEW YORK AUTHORITY; THREE OF THE LARGE AMERICAN PETROLEUM COMPANIES; AND THE FIRE DEPARTMENTS OF EIGHT UNITED STATES CITIES, SEVEN OF WHICH ARE METROPOLITAN AREAS WITH POPULATIONS RANGING FROM 563,000 TO MORE THAN 6,000,000. AS TO YOUR STATEMENT REGARDING AN ADVERSE REPORT BY THE CANADIAN DEPARTMENT OF TRANSPORT ON THE PERFORMANCE OF AFFF, NMC REPORTS THAT IT COMMUNICATED WITH THE CHIEF SCIENTIST FOR FIRE PROTECTION IN THE CANADIAN ACTIVITY AND WAS ADVISED THAT NO SUCH REPORT HAS BEEN ISSUED BY HIS DEPARTMENT NOR DOES THE DEPARTMENT HAVE ANY DATA ON AFFF SINCE IT HAS NEVER CONDUCTED ANY TESTS ON AFFF.

WITH RESPECT TO THE TESTING OF AFFF IN ENGLAND, NMC REPORTS THAT A LARGE FIRE TEST INVOLVING AFFF, WHICH WAS WITNESSED BY REPRESENTATIVES OF 14 EUROPEAN NATIONS, WAS CONDUCTED IN MAY 1969 AT STANSTED AIRPORT, LONDON. AS A RESULT OF THIS, IT IS STATED, THE ROYAL AIR FORCE IS NOW IN THE PROCESS OF STANDARDIZING ON AFFF FOR ALL AIRCRAFT CRASH/RESCUE VEHICLES.

THE RECORD FURNISHED TO OUR OFFICE BY THE DEPARTMENT OF THE NAVY, WHICH WE ARE REQUIRED TO ACCEPT IN THE ABSENCE OF CLEAR AND CONVINCING EVIDENCE TO OVERCOME THE PRESUMPTION OF ITS CORRECTNESS, INDICATES THAT THE DECISION TO USE AFFF IN PLACE OF PROTEIN FOAM FOR COMBATING FLAMMABLE LIQUID FUEL FIRES WAS MADE BY THE NAVY ON THE BASIS OF DOCUMENTED TESTS AND EXPERIENCE OVER AN EXTENDED PERIOD SHOWING THAT AFFF IS SUPERIOR TO PROTEIN FOAM FOR THE PURPOSE FOR WHICH IT IS BEING PROCURED; I.E; USE IN CRASH/RESCUE VEHICLES WHICH ARE EQUIPPED WITH A SUPPLY OF FRESH WATER FOR MIXING WITH THE AFFF CONCENTRATE. THERE IS NO EVIDENCE THAT THE NAVY INTENDS TO USE THE AFFF IN A SITUATION IN WHICH ONLY SEAWATER IS AVAILABLE. ACCORDINGLY, WE ARE UNABLE TO CONCLUDE THAT SUCH DECISION WITH RESPECT TO THE PROCUREMENT IN QUESTION, IN WHICH PRICE WAS BUT ONE FACTOR, WAS NOT A PROPER EXERCISE BY THE NAVY OF DISCRETION IN DISCHARGE OF ITS PRIMARY RESPONSIBILITY AS THE CONTRACTING AGENCY TO DETERMINE THE MINIMUM NEEDS OF THE GOVERNMENT IN THE FIRST INSTANCE AND TO DETERMINE WHICH PRODUCT WOULD BEST SATISFY SUCH NEEDS IN THE SECOND INSTANCE.

AS TO THE PROPRIETY OF NEGOTIATING THE PROCUREMENT, THE CONTRACTING OFFICER'S WRITTEN STATEMENT AND FINDINGS ISSUED IN JUSTIFICATION OF SUCH ACTION SHOWS THAT THE PROCURING ACTIVITY VERIFIED THAT NO SOURCE BUT 3M PRODUCED AFFF IN COMPLIANCE WITH THE EXISTING MILITARY SPECIFICATION AND THAT NO OTHER SOURCE WAS LIKELY TO BE AVAILABLE WITHIN ANY FORESEEABLE TIME. ON THE RECORD BEFORE US, WE FIND NO ADEQUATE GROUND TO QUESTION THE SUFFICIENCY OF THE CONTRACTING OFFICER'S FINDINGS TO SUPPORT THE ACTION DECIDED UPON.

WITH RESPECT TO THE MATTER OF ISSUANCE OF A STOP ORDER ON THE CONTRACT PENDING DECISION BY OUR OFFICE ON YOUR PROTEST, YOU ARE ADVISED THAT OUR OFFICE HAS CONSISTENTLY TAKEN THE POSITION THAT WE CANNOT REQUIRE A CONTRACTING AGENCY TO CAUSE WORK TO BE STOPPED UNTIL WE HAVE DECIDED THE PROPRIETY OF THE AWARD, ALTHOUGH WE HAVE ON OCCASION SUGGESTED THAT SUCH ACTION SHOULD BE TAKEN WHERE THE GOVERNMENT'S INTERESTS WOULD NOT THEREBY BE PREJUDICED. HOWEVER, WE RECOGNIZE THAT THE PROCUREMENT AGENCY, WHICH BEARS THE RESPONSIBILITY FOR SEEING THAT OPERATIONAL PROGRAMS OF THE GOVERNMENT ARE NOT UNREASONABLY DELAYED BY LACK OF NECESSARY SUPPLIES, IS IN A BETTER POSITION TO DETERMINE THE EXTENT TO WHICH THE INTERESTS OF THE GOVERNMENT WOULD BE PREJUDICED. 46 COMP. GEN. 53, 56 (1966).

FOR THE REASONS STATED, WE SEE NO LEGAL BASIS TO QUESTION THE AWARD TO 3M, AND YOUR PROTEST IS THEREFORE DENIED.