B-227338, Aug 28, 1987, 87-2 CPD 206

B-227338: Aug 28, 1987

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Was not prejudicial where agency could not disclose required tolerances and protester has provided no evidence it could have independently developed adequate tolerances and sustained them during production. Tritan contends that it was not afforded a fair opportunity to compete for the contract. Certain of the specifications were critical. The RFP used the two approved manufacturers' part numbers to describe the cylinders because the government does not have unlimited rights to the technical drawings. The RFP required offers of alternate parts to be accompanied by evidence that the items were either identical to or physically. Were the only two offerors. Tritan was the lower priced offeror.

B-227338, Aug 28, 1987, 87-2 CPD 206

PROCUREMENT - Competitive Negotiation - Offers - Equivalent products Rejection - Government delays DIGEST: Agency delay in advising protester of rejection of alternate product for, in part, inadequate tolerances on critical dimensions, was not prejudicial where agency could not disclose required tolerances and protester has provided no evidence it could have independently developed adequate tolerances and sustained them during production.

Tritan Corporation:

Tritan Corporation protests the rejection of its proposal under request for proposals (RFP) No. DLA700-86-R-3825 issued by the Defense Construction Supply Center (DCSC) of the Defense Logistics Agency (DLA). Tritan contends that it was not afforded a fair opportunity to compete for the contract. We deny the protest.

DCSC issued the RFP to acquire 56 fluid cylinders for use in boiler cleaning equipment, which operates by directing high pressure jets of water against the inside of boilers. Because of the high pressures used in this application, certain of the specifications were critical. The RFP used the two approved manufacturers' part numbers to describe the cylinders because the government does not have unlimited rights to the technical drawings. The RFP required offers of alternate parts to be accompanied by evidence that the items were either identical to or physically, mechanically and functionally interchangeable with the approved manufacturers' parts.

Tritan and Jet Stream, an approved manufacturer, were the only two offerors; Tritan was the lower priced offeror. Tritan submitted a data package describing its cylinders directly to the DCSC's Value Engineering Division on July 15, 1986, the closing date for receipt of offers. DCSC forwarded Tritan's materials to the Navy Ships Parts Control Center (NSPCC) on October 15 for evaluation, with a request that the assessment be completed by December 31. DCSC expected that the evaluation might take 30 to 90 days or longer. DCSC initiated periodic follow-ups to the evaluation on December 3.

On March 3, 1987, DCSC issued an amendment increasing the quantity of cylinders to 160 and extending the opening date to April 7, 1987. Both Tritan and Jet Stream submitted revised prices; Tritan remained the lower priced offeror. On April 17, DCSC was advised that the supply of cylinders was critical and was requested to expedite award of the contract without waiting for the NSPCC evaluation of Tritan's offer. By letter dated May 8, DCSC advised Tritan that NSPCC had found Tritan's cylinders to be unacceptable because Tritan's drawing did not specify the heat treatment and condition of the materials used and critical dimensions were not adequately toleranced. On May 18, 1987, DCSC awarded the contract to Jet Stream.

Tritan objects to the delay in evaluation of its proposal and to DCSC's award of the contract without an opportunity for Tritan to respond to the deficiencies NSPCC found in Tritan's proposal. Tritan characterizes DCSC's award of the contract to Jet Stream as an improper sole-source. DCSC does not respond directly to Tritan's challenge of the delay in assessing Tritan's information, but does contend that DCSC could not have held meaningful discussions with Tritan in any event, since to do so would have required disclosure of proprietary information contained in the approved manufacturers' drawings. DCSC also argues that award of the contract was necessary to relieve a critical supply situation and was therefore proper.

Initially, we do not agree with Tritan's characterization of this procurement as an unwarranted sole-source. Because the agency lacked sufficient rights in the approved manufacturers' technical data for the preparation of specifications, the agency described the cylinders in terms of the approved manufacturers' part numbers and indicated its willingness to consider alternate offers. DCSC did, in fact, receive and consider Tritan's alternate offer, albeit not to Tritan's liking.

Moreover, we are not persuaded that Tritan was prejudiced by DCSC's delay in apprising Tritan of the reasons why its cylinders were unacceptable. NSPCC found Tritan's cylinders unacceptable, in part, because critical dimensions were inadequately toleranced. Tolerances, which are the allowable variances in dimensions or measurements that might be introduced in manufacture without jeopardizing product quality or effectiveness, can be critical to product performance. Neither NSPCC nor DCSC could apprise Tritan of the required tolerances, because it would have required the disclosure of proprietary information and, despite the issue being raised by DCSC, Tritan has neither argued nor provided evidence that it could independently develop adequate tolerances and sustain them during production. In short, there is no evidence that it would have benefited Tritan to know DCSC's basis for rejecting Tritan's offer, regardless of when the advice was proffered. In these circumstances, we have no basis upon which to conclude that Tritan was prejudiced by DCSC's delay in apprising Tritan of the reasons why Tritan's cylinders were unacceptable.

The protest is denied. 19921110