B-242379.2, B-242379.3, Nov 27, 1991

B-242379.2,B-242379.3: Nov 27, 1991

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Protester's counsel are properly admitted to a protective order and permitted to receive protected information under our Bid Protest Regulations. Even though counsel are associated with a law firm in which the managing partner of the firm's home office serves on the protester's board of directors. Documents related to such allegations are not relevant to the protest. 3. Contention that solicitation is unduly restrictive because of abbreviated proposal response time and requirement for a technical demonstration within 30 days of proposal submission is denied where: (1) the agency allows 2 weeks more than statutorily required for proposal preparation. (2) the test data requirement in the request for proposals is not shown to be restrictive.

B-242379.2, B-242379.3, Nov 27, 1991

DIGEST: 1. Protester's counsel are properly admitted to a protective order and permitted to receive protected information under our Bid Protest Regulations, even though counsel are associated with a law firm in which the managing partner of the firm's home office serves on the protester's board of directors, because the counsel applying for admission: (1) state that they do not participate in competitive decision-making; (2) vow not to discuss any protected information with the individual in the firm serving on the protester's board; and (3) agree to take detailed special procedures to protect the information covered by the protective order in the protest. 2. Although our Bid Protest Regulations require agencies to provide all relevant documents, when the protester's allegations, even if true, do not establish a valid basis for protest, documents related to such allegations are not relevant to the protest. 3. Contention that solicitation is unduly restrictive because of abbreviated proposal response time and requirement for a technical demonstration within 30 days of proposal submission is denied where: (1) the agency allows 2 weeks more than statutorily required for proposal preparation; (2) the test data requirement in the request for proposals is not shown to be restrictive, as the protester suggests; and (3) the protester fails to show that the procurement schedule is otherwise unreasonable, or operates to preclude full and open competition. 4. Protest that performance specifications were improperly relaxed to permit consideration of other offeror's equipment and were relaxed without a valid determination of agency's minimum needs is dismissed because the General Accounting Office will not entertain arguments that agencies should use more restrictive specifications. 5. Allegations of agency bias unaccompanied by a corresponding allegation of injury-- such as, in this case, by a specific allegation that some performance requirement in the specification is unduly restrictive-- provide no basis for consideration of such a claim.


Mine Safety Appliances Company:

Mine Safety Appliances Company (MSA) protests any award under request for proposals (RFP) No. N61331-91-R-0019, issued by the Department of the Navy, for the design, development, testing and fabrication of engineering and test service models of a Fire Fighter's Breathing Apparatus (FFBA) for shipboard use. MSA argues that the specifications set forth in the RFP unduly restrict competition, and were improperly relaxed to permit consideration of equipment produced by National Draeger, Inc. MSA also contends that the Navy's procurement actions over the past 3 years reflect an on-going bias in favor of Draeger.

We deny the protest in part and dismiss it in part.


Previous History

At issue in this protest-- MSA's third challenge to the Navy's program to upgrade the FFBA-- is the Navy's choice of technology for generating oxygen in the next generation of FFBA equipment. /1/ MSA and Draeger are advancing different technologies for this equipment and are arguing that their respective approaches best accomplish the Navy's objective: to provide shipboard firefighters with portable breathing systems designed to ensure a safe and steady supply of oxygen in areas where oxygen might be depleted, or where toxic gases might pose a hazard to firefighters. MSA's device uses a potassium superoxide (KO 2) canister, while Draeger's device uses a chlorate candle. /2/

In MSA's first protest, filed in early 1990, the procurement involved an RFP that provided for the award of parallel development contracts to the two highest-rated offerors, followed by the competitive testing of prototype FFBA devices, and the subsequent award of a follow-on contract through the exercise of an option. See Mine Safety Appliances Co., 69 Comp.Gen. 562 (1990), 90-2 CPD Para. 11. The Navy chose Draeger and MSA to provide the prototype equipment, but failed to follow the evaluation plan in the RFP in selecting Draeger for the follow-on contract. As a result, we sustained MSA's challenge to the Navy's selection decision.

After receipt of our decision sustaining MSA's first protest, the Navy elected not to retest or reevaluate the prototype equipment provided by MSA and Draeger. Instead, by letter dated October 25, 1990, the Navy informed our Office that it was terminating Draeger's contract and developing a new competitive solicitation.

On December 19, 1990, the Navy published a notice in the Commerce Business Daily (CBD) announcing a new solicitation for FFBA equipment. the notice, the Navy specifically advised potential offerors that it was seeking FFBA devices using "chemical candle oxygen generation"-- i.e., the approach proposed and developed by Draeger under the previous procurement. On December 28, MSA filed a protest with our Office, alleging that the specifications in the RFP, as described in the CBD notice, were unduly restrictive. We dismissed MSA's protest as academic on February 7, 1991, after the Navy canceled the underlying procurement and withdrew the CBD notice. /3/

On February 11-- less than 1 week after the dismissal of MSA's second protest-- the Navy issued a new CBD notice of an upcoming FFBA procurement. In this second notice, the Navy advised potential offerors that it considered "a system which generates oxygen with a chlorate candle ... to be the approach most likely to meet the Navy's needs," but that other technologies would be considered. Although the February 11 notice set a proposal response date of May 15, the Navy did not issue the solicitation that forms the basis for this third protest until June 14. After receiving the solicitation and submitting a request for clarification, and after receiving the Navy's response on July 10, MSA filed this protest on July 22.

The Solicitation

The RFP requires offerors to develop, fabricate and deliver an FFBA in two stages: first, the contractor is required to provide 5 engineering models of its FFBA, together with 200 expendable oxygen supply packages; then, after qualification testing, the contractor is required to deliver 100 service test models of its FFBA, together with 1,800 expendable oxygen supply packages.

The specifications within the RFP set forth performance parameters for the next generation of FFBA devices, rather than specify the method for constructing the devices. The RFP states that proposals will be evaluated based on technical, management and cost factors, and that award will be made to the proposal representing the best value to the government considering the evaluation factors. Of these factors, the RFP advises that the technical factor will be "much more important" than the management factor, and that the management factor will be "substantially more important than cost." Further, the RFP requires offerors to provide a demonstration of "the potential of the apparatus and expendable package to meet key performance criteria" within 30 days after the proposal due date.


On July 22, 1 week before the proposal due date, MSA filed this protest with our Office arguing that the solicitation here unduly restricts competition and impermissibly favors Draeger's FFBA device. Specifically, MSA argues that: (1) the solicitation unduly restricts competition because the time for responding to the solicitation, together with the requirement for a technical demonstration within 30 days and the accelerated delivery schedule, is so short that only an offeror that already has developed a chlorate candlebased FFBA will be able to prepare a thorough proposal; (2) the FFBA specifications have been relaxed-- by changing the weight requirements for the FFBA device, and by eliminating the humidity requirements for operational testing-- to permit consideration of Draeger's unit; and, (3) numerous Navy actions, as well as the specifications here, evidence bias on the part of the agency in favor of Draeger's device and approach.


Admissions to Protective Order

Pursuant to our Bid Protest Regulations, 56 Fed.Reg. 3759 (1991) (to be codified at 4 C.F.R. Sec. 21.3(d)), our Office issued a protective order in this case covering material related to MSA's and Draeger's proprietary information as well as certain sensitive agency materials. Both MSA and Draeger retained outside counsel to represent them in this protest. Counsel for Draeger were ultimately admitted to the protective order without opposition, after revising and clarifying their initial application to address certain concerns raised by MSA. Counsel for MSA, however, were admitted to the protective order over the objections of Draeger.

MSA's lead counsel and four other attorneys, all employed by the law firm of Reed, Smith, Shaw & McClay, applied for admission under the protective order on behalf of the protester. Each of these attorneys submitted certified applications for admission, and each advised that his or her relationship with MSA is "strictly one of legal counsel." However, the Reed, Smith attorneys also advised that one member of the firm also serves on MSA's Board of Directors.

Draeger opposed the lead counsel's admission, as well as the admission of any other attorney from the Reed, Smith law firm, arguing that the Reed, Smith attorney on MSA's Board is not just any member of the firm, but the firm's managing partner. This fact, subsequently acknowledged by the lead counsel, was not mentioned in the initial applications and affidavits. According to Draeger, since the managing partner of the law firm serves on the Board of Directors of MSA, and since other close ties between the law firm and MSA are a matter of public record, /4/ the Reed, Smith firm should be viewed as intricately involved in competitive decisionmaking on behalf of MSA. Thus, Draeger contended that no applicant from the Reed, Smith firm should be admitted to the protective order in this case, or provided with any Draeger proprietary material.

In determining whether counsel may be permitted access to information covered by a protective order, we look to whether the attorney is involved in competitive decisionmaking for the client-- i.e., whether the attorney's activities, associations, and relationship with the client are such as to involve advice and participation in any of the client's decisions (such as pricing, product design, etc.) made in light of similar or corresponding information about a competition. See U.S. Steel Corp. v. United States, 730 F.2d 1465, 1468 (Fed. Cir. 1984). Where an attorney is involved in competitive decisionmaking, the attorney will not be granted access to the proprietary data of another company because there is an unacceptable risk of inadvertent disclosure of the protected material. Id. Although it is often easier for outside counsel to establish that they are not involved in competitive decisionmaking, see, e.g., International Tech. Corp., GSBCA No. 9967-P, Mar. 24, 1989, 89-2 BCA Para. 21,746; 1989 BPD Para. 92, we approach the admission of counsel on a case-by-case basis, and we do not assume that any attorney's status as outside counsel is dispositive of whether that attorney is involved in competitive decision-making. See U.S. Steel Corp. v. United States, supra.

Here, in revised affidavits, the Reed, Smith attorneys acknowledged that the managing partner of their firm-located in the firm's Pittsburgh office -- serves on the Board of Directors of MSA, and proposed additional precautions to isolate information received pursuant to the protective order in this case from other individuals in the firm, and from the managing partner. As a result of the revised affidavits, we agreed to admit the Reed, Smith attorneys to the protective order in this case for the following reasons: (1) the attorneys stated that they did not participate in decisions about product design, or in decisions about competitive structuring or composition of bids, offers or proposals with respect to which the use of protected material could provide a competitive advantage; (2) the attorneys vowed not to discuss any of the proprietary information in this protest with the individual in the firm serving on the Board of MSA; and (3) the attorneys agreed to implement special procedures to protect the information covered by the protective order in this protest.

Among other precautions, these procedures included: storing the protected materials in a locked cabinet located in Green's office; maintaining a log in which authorized users of the protected materials were required to sign out materials and enter the date and time of each use; barring the removal of any of the protected materials from the premises of Reed, Smith's office; creating one special data processing file solely for the purpose of responding to this protest; prohibiting the entering of any protected information on any data processing device, or in any data processing file, other than the specially created data processing file; and limiting access to the special data processing file to the lead counsel, the systems operator, and two named secretaries in the firm.

Under these circumstances, and based on these precautions, we think that the risk of disclosure of protected material by the Reed, Smith attorneys is sufficiently small to warrant granting access to protected material despite the presence of at least one individual in the firm who should not be permitted such access.

Production of Documents

In its initial protest, MSA filed an extensive document request pursuant to the provisions of our Bid Protest Regulations, 56 Fed.Reg. 3759, supra (to be codified at 4 C.F.R. Sec. 21.3(e)). The Navy challenged the scope of MSA's document request, arguing that many of the documents requested were not relevant to the issues in this protest. Although the parties reached an agreement on much of MSA's document request, one area remained unresolved: the Navy refused to provide documents relating to Draeger's performance under the initial contract to develop the FFBA-- the parallel development contract Draeger shared with MSA (and the contract in place when we sustained MSA's first challenge to the Navy's FFBA program).

Under our Regulations, agencies are only required to provide documents that are relevant to the issues raised in the protest. See 56 Fed.Reg. 3759, supra (to be codified at 4 C.F.R. Sec. 21.3(c), (d)). However, if an agency refuses to provide relevant documents, our Office may take any of several actions, including drawing an unfavorable inference, not allowing responses to certain arguments, or imposing appropriate sanctions. 56 Fed.Reg. 3759, supra (to be codified at 4 C.F.R. Sec. 21.3(i)). MSA principally argued that by gaining access to all documents relating to Draeger's performance under the initial contract, it would be able to show that the specifications in this solicitation were improperly relaxed to match the capabilities of Draeger's FFBA. In our view, and as a practical matter, documents generated during earlier contract actions are of limited relevance in reviewing subsequent procurement decisions. The connection in this case between MSA's specific challenges to the instant solicitation and its request for all documents relating to Draeger's performance under the initial contract is especially tenuous. MSA's document request was premised on the assertion that the specifications were too lenient-- and that the requirement was relaxed to permit Draeger to compete. Since our Office does not consider claims that specifications should be more, not less, restrictive, see Petchem Inc., B-228093, Sept. 8, 1987, 87-2 CPD Para. 228, we did not require the Navy to produce documents related to these claims. /5/


Restrictive Requirements in the Solicitation

As mentioned above, MSA's arguments that the solicitation is unduly restrictive, upon close inspection, contain only two claims: (1) that the procurement schedule-- including the time allowed for preparation of proposals, the schedule for technical demonstration, and the delivery schedule-- is so abbreviated that only a contractor with an FFBA unit already developed can meet the established deadlines and, at the same time, submit the test data required by the RFP; and (2) that only Draeger's device can meet the requirement for automatic replenishment of the breathing volume to 0.8 liters within 75 seconds after a collapse of the breathing bags during operation.

MSA's claim that the procurement schedule here is unfairly abbreviated is premised on its view of the RFP's requirement for test data to be submitted with each offeror's proposal. MSA argues that the requirement for submitting test data, when viewed in the light of the 6 week period for proposal preparation and the technical demonstration requirement within 30 days of proposal submission, bars from the competition any offeror that has not already built an FFBA for this procurement. /6/

The Navy responds that MSA's arguments are both legally insupportable and factually incorrect. According to the Navy, it allowed more time for submission of proposals than required by statute, and the time allowed was sufficient for offerors to prepare proposals meeting the requirements in the RFP. The Navy also argues that MSA has mischaracterized the RFP's requirements for test data in order to make MSA's claim more plausible, and that offerors are not required to have FFBA devices already developed to participate in this procurement.

When protesters argue that a solicitation's response time is operating to limit competition, we require a showing that the time allowed is inconsistent with statutory requirements or otherwise unreasonable or insufficient, or that it precludes full and open competition. See Control Data Corp., B-235737, Oct. 4, 1989, 89-2 CPD Para. 304; Owl Resources Co., B-221296, Mar. 21, 1986, 86-1 CPD Para. 282. Here, since the parties agree that the proposal preparation time is not per se improper, /7/ we look to whether the preparation time is otherwise unreasonable, or precludes full and open competition. See Control Data Corp., supra.

With respect to MSA's claim that the solicitation does not permit sufficient time to prepare the test data required, we note that the RFP language, on its face, does not require that tests be conducted on a completed device, but only on the components of the device. Specifically, the RFP states that "actual test data on the proposed apparatus or on components of the apparatus is required, to the extent of illustrating that the FFBA concept has been tested to, at a minimum, an individual component level."

Thus, according to the Navy, the test data requirement in the RFP was to provide assurances that the proposed design was feasible. The Navy explains that testing of the components of a device is sufficient, and that the provision does not require that units be built, or that offerors perform any human factors testing prior to submission of proposals. Therefore, the Navy argues that MSA, with its wealth of experience in building such devices, and its involvement in this series of procurements for more than 3 years, should easily be able to provide such data with its proposal. For the reasons below, MSA's contention that the time schedules in this solicitation unduly restrict its ability to compete do not withstand scrutiny. MSA has participated in procurements involving the OBA, and now the FFBA, for approximately 40 years. It and Draeger have obviously followed, or even instigated, each technical advance relating to these devices. The history of this procurement alone indicates that MSA is intensely involved in monitoring the agency's progress in procuring new devices. In short, few offerors could be more prepared to respond to an RFP for the FFBA than MSA.

In addition, MSA produced substantial test data about its FFBA device in connection with the earlier procurement. Although MSA argues that the testing data produced in that procurement is inapplicable here because the specification, at that time, required that all performance testing be conducted at 100 percent relative humidity, we note that current specification does not establish a different humidity rate for testing; it merely removes the requirement altogether. /8/ Thus, if needed, MSA could use test data generated at 100 percent relative humidity, or it could provide additional data. /9/

Further, we find unpersuasive MSA's reply that the evaluation score sheets belie the Navy's statement that component testing is sufficient to meet the RFP's requirements. MSA claims that since evaluators will consider the degree of risk involved in each offeror's proposal, as well as the likelihood that proposed devices will meet the performance requirements in the solicitation, offerors must use test data based on completed units. Our review of the score sheets, however, and the fact that those score sheets consider risk, does not refute the Navy's explanation that test data for components of the FFBA is sufficient to meet the requirements here.

Finally, and most importantly, we conclude that the Navy's schedules here were not improper in light of the competition obtained. See Control Data Corp., supra. The Navy received three offers in response to the solicitation, including one from MSA. MSA has, at this point, already concluded its technical demonstration, and has been included in the competitive range. Thus, it appears that neither the proposal due date nor the requirement for a demonstration test within 30 days operated to bar offerors other than Draeger from participating in the competition.

MSA's other argument that the specifications are unduly restrictive involves a requirement that the FFBA automatically replenish the breathing volume to 0.8 liters within 75 seconds after a collapse of the breathing bag during operation. According to MSA, since its KO 2 canister technology does not function automatically-- as described above, MSA's device uses exhaled air to generate replacement oxygen, thus generating oxygen at the speed required by the user-- only Draeger's candle technology will "automatically" replenish breathing gas volume. In our view, this contention, raised for the first time in MSA's comments on the agency report, is untimely and is therefore dismissed.

In its initial protest, MSA challenged the replenishment requirement in the specification, but complained that the requirement was too lenient, not too restrictive. Specifically, MSA argued that this requirement "does not reflect a user's actual needs at one of the most critical moments for the user and the system. In the event of a loss of system volume, the user would actually require several liters more than that specified in the solicitation."

Despite our willingness to broadly construe a protester's contentions, this argument cannot be fairly read to include an assertion that the replenishment requirement in the specification was overly restrictive. See Trijicon, Inc., B-244546, Oct. 25, 1991, 91-2 CPD Para. ***. Since MSA did not raise this claim in its initial protest letter, and failed to express this concern until it submitted its comments on the agency report (which were not filed within 10 days of its receipt of the report,) /10/ this argument cannot be considered. 56 Fed.Reg. 3759, supra (to be codified at 4 C.F.R. Sec. 21.2(a)(2)); see also Textron Marine Sys., B-243693, Aug. 19, 1991, 91-2 CPD Para. 162.

Relaxed Requirements in the Solicitation

MSA next argues that several of the requirements found in previous specifications for the Navy's FFBA device have been relaxed to favor or permit consideration of Draeger's equipment. Specifically, MSA complains that the specification in the first procurement required that each offeror's FFBA device had to weigh less than 20 pounds, while the instant specification maintains the same target weight but excludes the face piece and breathing hoses from the weight requirement. Also, MSA argues that the previous specification required that breathing performance tests be performed at or near the saturation point (100 percent relative humidity at body temperature), while the instant specification deletes the humidity requirement entirely.

Although MSA correctly states that agencies are only permitted to include restrictive provisions to the extent necessary to satisfy minimum needs, see Janke & Co., Inc., B-225710; B-226897, June 12, 1987, 87-1 CPD Para. 589, it fails to show how this loosening of technical requirements was restrictive of competition. Without a showing that competition is restricted, agencies are permitted to determine how best to accommodate their needs, and are entitled to use relaxed specifications when they reasonably conclude that they can increase competition and meet their needs at the same time. See Sea Containers Am., Inc., B-243228, July 11, 1991, 91-2 CPD Para. 45. As stated in connection with MSA's document request, our Office does not consider claims that specifications should be more, not less, restrictive. Id.; Petchem Inc., supra. Thus, we dismiss MSA's claims that these changes to the specification are evidence that the Navy has not established its minimum needs with respect to the FFBA equipment.

Agency Bias

MSA alleges that the pattern of the Navy's behavior over the last 3 years indicates that the Navy is biased in favor of Draeger's candle based technology. /11/ In support of its contention, MSA offers an extensive litany of actions that, in MSA's view, proves that the Navy is acting improperly here. In our review of MSA's pleadings, these actions fall into two categories: agency decisions during the entire course of procuring the new generation of FFBAs that, standing alone, provide little indication of bias, but, taken cumulatively, allegedly support MSA's claims; /12/ and agency actions, documents, or statements that, on their face, allegedly support a claim of bias. /13/

MSA's claims of bias, however, are curiously unconnected to any claim of injury as a result of such bias. Despite the extensive pleadings by both MSA and Draeger, this protest presented only one, timely-raised claim: that the agency's procurement schedule was unnecessarily abbreviated to favor Draeger. Since we conclude that the procurement schedule was not in violation of statute, otherwise unreasonable, and did not preclude full and open competition, we find no other claim in MSA's pleadings where we can even consider the effect of any alleged bias. At best, MSA has shown that the Navy had strong views about continuing its procurement on schedule, and little inclination to perform additional work to determine its minimum needs. Absent other challenges to the detailed performance requirements set forth in the specifications-- the only one of which even alleged was untimely-- there is simply no agency action to provide a framework for MSA's claims here.

For the reasons above, we find that MSA has failed to show any injury to it as a result of the agency's alleged bias. Prejudice, or injury, is an essential element of a viable protest, and where no prejudice is shown, or is otherwise evident, we have no basis to consider a protester's claim of agency bias. Merrick Eng'g, Inc., B-238706.3, Aug. 16, 1990, 90-2 CPD Para. 130, aff'd, B-238706.4, Dec. 3, 1990, 90-2 CPD Para. 444; American Mutual Protective Bureau, Inc., B-229967, Jan. 22, 1988, 88-1 CPD Para. 65.

The protest is denied in part and dismissed in part.

/1/ The previous generation of FFBA equipment is called the Oxygen Breathing Apparatus (OBA) and has been in use for approximately 40 years. Although not the sole producer of the OBA, MSA has apparently been the Navy's predominant supplier of the device.

/2/ By using a KO 2 canister as the source for its oxygen supply, MSA's device produces oxygen at a rate that varies with the demands of the user. MSA's KO 2-based device removes carbon dioxide from the user's exhaled breath and converts exhaled breath to replenishment oxygen as quickly or as slowly as the user requires it. On the other hand, Draeger's chlorate candle device produces oxygen, and removes carbon dioxide, at a uniform rate for the life of the canister-- set by the specification at 60 minutes.

/3/ Mine Safety Appliances Co., B-242379, Feb. 7, 1991 (unpublished opinion).

/4/ Draeger points out that a second member of MSA's Board of Directors-- on the Board since 1974-- was listed in a recent MSA Annual Report as "Of Counsel" to the Reed, Smith law firm. Although Draeger acknowledges that this individual is apparently not now associated with the firm, it suggests that the situation is further evidence of strong ties between MSA and the Reed, Smith law firm.

/5/ In addition, even if MSA had claimed that specific provisions of the performance requirement were unduly restrictive, and even if the withheld documents relating to Draeger's performance under the previous contract would provide a correlation between Draeger's capabilities there and the performance standards in the instant solicitation, such a correlation alone would not establish that the agency's specifications exceed its minimum needs. See Infection Control and Prevention Analysts, Inc., B-238964, July 3, 1990, 90-2 CPD Para. 7.

/6/ Although MSA mentions the delivery schedule in its allegation that the procurement is so truncated that only Draeger can compete, it offers no argument about why the delivery schedule is unduly restrictive, or what a more reasonable schedule might be. Since, there is no specific allegation regarding the delivery schedule here, we will not discuss it further.

/7/ Since contracting agencies generally are required to allow a minimum 30-day response period for procurements, see 15 U.S.C. Sec. 637(e)(3)(B) (1988), and since the Navy exceeded the statutory requirement by approximately 2 weeks, we have no reason to object to the procurement on this basis alone. American Contract Servs., Inc., B-231903, Nov. 2, 1988, 88-2 CPD Para. 432.

/8/ The deletion of the humidity requirement is discussed in more detail below.

/9/ In fact, more than 3 years ago, during the first procurement in the Navy's attempt to upgrade the FFBA device, MSA offered the Navy a developmental candle-based device as well as its KO 2 canister device. Thus, even if the RFP had explicitly required a candle-based device, which it did not, it appears that MSA probably could have produced the test data necessary here.

/10/ Due to an intervening document production, and the need to resolve protective order issues, the receipt date for comments was extended beyond the times envisioned in our regulations. See 56 Fed.Reg. 3759, supra (to be codified at 4 C.F.R. Sec. 21.3(h), (j)). Nonetheless, the protester was required to, and did, raise new grounds of protest within 10 working days of its receipt of the agency report. /11/ MSA specifically states that it does not believe that individuals within the Navy have "personal malice" towards MSA, but that the Navy has improperly determined that it wants Draeger's product and is violating applicable statutes and regulations to avoid allowing MSA to compete on a fair basis.

/12/ The following is a representative sample of the actions MSA requests that we view as part of a cumulative record of bias in favor of Draeger's product: that the Navy is procuring the FFBA on an abbreviated schedule that helps Draeger more than MSA; that the Navy has relaxed certain performance requirements (weight and humidity) in ways that might favor Draeger; that the Navy has previously made an improper selection of Draeger in an earlier procurement resulting in a decision by our Office overturning that decision; that the Navy extended Draeger's contract after our prior decision despite indicating to our Office that it was terminating the contract; and that Navy documents show ongoing assistance from Draeger with the agency's attempt to procure this device, such as providing the Navy with a first draft of the performance specifications here. The following are the items in the record that allegedly require little interpretation to support a conclusion that the Navy might favor Draeger's candle technology over MSA's KO2 technology: (1) the two CBD notices about this procurement, with the first, and subsequently withdrawn, notice expressly requiring the use of candle technology, and with the second expressing the view that candle technology would probably best meet the agency's needs; (2) the notes of one of the Navy officials stating that he wrote the requirement for automatic breathing volume replenishment "based upon what the Draeger candidate FFBA is capable of"; and (3) the notes of the same official recording a conversation where a colleague appears to state that higher-level officials had already decided that the Navy would stay on schedule with the Draeger device rather than devote additional time for research to further determine the agency's minimum needs.

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