BNUMBER: B-271016
DATE: June 5, 1996
TITLE: Canberra Industries, Inc.
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Matter of:Canberra Industries, Inc.
File: B-271016
Date:June 5, 1996
John G. Tamburro, Esq., and Michael A. Zebarth, for the protester.
David C. Rickard, Esq., Defense Nuclear Agency, for the agency.
Jacqueline Maeder, Esq., Glenn Wolcott, Esq., and Paul Lieberman,
Esq., Office of the General Counsel, GAO, participated in the
preparation of the decision.
DIGEST
1. Protest that agency improperly relaxed requirement regarding
performance certifications is denied where there is no showing that
the protester was prejudiced by the agency's actions.
2. Agency properly accepted awardee's certification that its proposed
pedestrian radiation detector complied with the solicitation's
commercial item requirement where the product has been sold to the
general public and the modified product offered, based on newer
software, is the result of a minor modification which does not change
the product's physical characteristics or function.
DECISION
Canberra Industries, Inc. protests the award of a contract to Rados
Technology, Inc. under request for proposals (RFP) No.
DNA001-95-R-0045, issued by the Defense Nuclear Agency (DNA) for
pedestrian radiation detection equipment. Canberra asserts that Rados
did not submit product certifications or offer a commercial product as
required by the solicitation.
We deny the protest.
The RFP contemplated the award of a fixed-price contract to the
lowest-priced, technically acceptable offeror for 48 pedestrian
radiation detectors[1] capable of detecting special nuclear material
(SNM), which is weapons grade highly enriched uranium or plutonium.
Section C.3 of the RFP stated:
"Proposals shall be deemed non-responsive if each of the
following performance specifications is not addressed in the
technical proposal. General statements such as 'monitor meets or
exceeds all performance specifications' will not suffice."
Section C.4 of the RFP listed 15 performance specifications which
proposals were required to address. Specifically, this RFP section
provided that the proposed monitor "must be certified" as capable of
detecting a specified amount of Cesium in a particular background
radiation environment in at least 15 out of 20 passages when the
source moves horizontally through the center of the portal at a speed
of approximately 3.3 feet per second, and at all vertical positions
from floor level to 84 inches above floor level. Similarly, RFP
section C.4 provided that the contractor "shall certify" that the
nuisance alarm rate of the proposed monitor "is less than 1 nuisance
alarm in 1000 passages." With regard to these requirements, the RFP
stated that the "[c]ontractor shall provide complete details as to the
testing method" used to verify the detection sensitivity and the
nuisance alarm rate.
The solicitation also included the clause found at Defense Federal
Acquisition Regulation Supplement (DFARS), sec. 252.211-7012,
"Certifications-Commercial Items," which provides that "[o]ffers
received in response to this solicitation that do not offer commercial
items shall not be considered for award."[2] Pursuant to that clause,
offerors were required by the solicitation to certify whether the
items proposed were commercial items, defined by the clause as
follows:
"(b)(1) 'Commercial items' means items regularly used in the
course of
normal business operations for other than Government purposes
which:
(i) have been sold or licensed to the general public;
(ii) have not been sold or licensed, but have been offered
for
sale or license to the general public;
(iii) are not yet available in the commercial marketplace,
but will
be available for commercial delivery in a reasonable period of
time:
(iv) are described in paragraphs (i), (ii), or (iii) that
would
require only minor modification in order to meet the
requirements of
the procuring agency.
(2) 'Minor modification' means a modification to a
commercial
item that does not alter the commercial item's function or
essential physical characteristics."
Initial proposals were received from six offerors, including Canberra
and Rados. Canberra offered its JPM-21A pedestrian monitor and
submitted preliminary testing information and results. Rados offered
its RTM-950 gamma portal monitor. With regard to the performance
specifications contained in RFP section C.4, Rados's proposal stated:
"The Pedestrian Monitor meets or exceeds all of the requirements." No
certifications or any indication of test results were provided with
Rados's proposal. Both Canberra and Rados certified that their
proposed monitors were commercial products under subclause (b)(1)(i),
that is, the item "have been sold or licensed to the general public."
The agency included all six proposals in the competitive range and
subsequently conducted written discussions with each offeror. The
discussion letters sent to Canberra and Rados requested that each
offeror "[p]rovide certification that the performance specifications
in [the solicitation], respectively entitled 'Detection Sensitivity'
and 'Nuisance Alarm Rate Certification,' can be achieved without
modification using the units you have proposed."
Both Canberra and Rados submitted best and final offers (BAFO) by the
September 19 due date. In response to the solicitation requirements
and DNA's request for certifications, Canberra's BAFO contained a
four-page certification section regarding detection sensitivity and
false alarm rate. The section described Canberra's testing procedures
and provided test results. As to detection sensitivity, Canberra's
documentation demonstrated that it had performed tests at three
positions, floor level, waist level and head level, and that the
source was moved through the monitor with an average velocity of 3.3
plus or minus 0.3 feet per second. Overall, the documentation
submitted by Canberra indicated that the proposed JPM-21A monitor met
the specifications of the RFP concerning detection sensitivity and
false alarm rate.
In its BAFO, Rados stated that it was proposing modifications to the
monitor it had initially offered. Specifically, Rados offered the
same detector but with different software--the Real-Time Multitasking
Operation System QNX4 with a Graphic User Interface QNX-Windows. As
with its initial proposal, Rados's BAFO contained no certifications,
testing descriptions, or test results. Rados responded to DNA's
certification request by stating: "Detection Sensitivity and Nuisance
Alarm Rate are part of the parameter set of the measuring software.
They can be changed by the on line terminal."
In evaluating Rados's BAFO, the agency expressly documented the fact
that "[c]ertification of detection sensitivity and nuisance alarm rate
was not provided." The agency also noted that Rados's response "does
not assure that both requirements [detection sensitivity and nuisance
alarm rate] can be satisfied simultaneously." Rados's BAFO was for
$928,800 versus Canberra's price of $968,912. Based on its lower
price, Rados's proposal was selected for award.
Canberra asserts that Rados's proposal failed to comply with the RFP
requirement that offerors submit certifications that the proposed
monitor met the detection sensitivity and false alarm rate specified
in the RFP and, therefore, should not be eligible for award. Canberra
also asserts that Rados's modified RTM-950 fails to meet the
commercial product requirement of the solicitation. Specifically, the
protester claims that the proposed item has not been sold or licensed
to the general public and that the software revisions offered in
Rados's BAFO do not fit within the definition of a minor modification.
In responding to the protest, DNA acknowledged that, prior to award,
the testing and certification requirements contained in section C.4 of
the RFP were "dropped." More specifically, the agency states, "[the]
[s]ource selection was made without regard to this request or
offerors' compliance with it."
It is a fundamental rule of competitive procurement that all offerors
be provided a common basis for submission of proposals. AT&T
Communications, 65 Comp. Gen. 412 (1986), 86-1 CPD para. 247. Federal
Acquisition Regulation (FAR) sec. 15.606(a) requires that: "when, either
before or after receipt of proposals, the Government [materially
alters] its requirements, the contracting officer shall issue a
written amendment to the solicitation." Thus, if DNA believed the RFP
did not reflect the agency's minimum needs or was otherwise defective,
DNA was obligated to amend the RFP, particularly since DNA was
prepared to make an award on the basis of revised needs. FAR sec.
15.606(c) (where an award to a selected offeror involves a departure
from the RFP-stated requirements, the agency is required to issue an
amendment to all offerors to provide them with an opportunity to
propose on the basis of the revised requirements). However, even
where an agency improperly relaxes its requirements by selecting a
proposal that fails to comply with material solicitation requirements,
our Office will not sustain a protest challenging that award absent
evidence that the protester was prejudiced, for example, that the
protester would have altered its proposal to its competitive advantage
had it been given the opportunity to respond to the altered
requirements. Labrador Airways Ltd., B-241608, Feb. 13, 1991, 91-1
CPD para. 167; AT&T Communications, supra. Here, although DNA clearly
violated the FAR, the record does not show that Canberra was
prejudiced thereby.
Specifically, despite the fact that the agency report explicitly
alleged lack of prejudice, Canberra failed to provide any information
to establish that it was materially prejudiced; Canberra has not even
alleged that it would have altered its proposal or reduced its price
had it known of the relaxed specification. While Canberra states it
"assigned a PhD Nuclear Physicist . . . to this project to produce
[its] certification document for over a week," Canberra has not
provided any information showing its costs for this effort, and it is
not apparent from the record why the costs involved in preparing the
certifications would have accounted for the $60,000 price difference
between Rados's and Canberra's proposals. Since Canberra has not
provided information establishing the likelihood that it was
prejudiced by the agency's improper action, we cannot find on that
record that the agency's actions affected the protester's competitive
position in this procurement. See Labrador Airways Limited, supra.
Regarding the commercial item status of Rados's monitor, the
determination of whether a product is a commercial item is largely
within the discretion of the contracting agency, and will not be
disturbed by our Office unless it is shown to be unreasonable.
Coherent, Inc., B-270998, May 7, 1996, 96-1 CPD para. ___; Komatsu Dresser
Co., B-255274, Feb. 16, 1994, 94-1 CPD para. 119. The record here
establishes that the RTM-950 is Rados's standard pedestrian monitor
and has been regularly sold to laboratories, nuclear plants, and scrap
metal dealers. Information furnished by Rados to DNA identifying,
for example, commercial sales to power plants in Argentina, Germany,
and Switzerland, confirms the commercial nature of the RTM-950. As to
the software modification, nothing in the record indicates that the
modification is other than a minor modification to the monitor's
operating system. Specifically, the new software is a commercially
available program (under the name UNIX) that merely replaces the
software Rados previously used. DNA explains that Rados has not
changed the basic operation of its monitor, but has changed the
interface to make the monitor more "user-friendly." According to the
agency, the software will modernize the way in which the results
observed by the detector are reported to the user. Since this
modification does not alter the function or the physical
characteristics of the monitor, we find that the modified RTM-950 fits
within the definition of a commercial product.[3]
Accordingly, the protest is denied. We are, however, by separate
correspondence, bringing the violation of FAR sec. 15.606 to the
attention of the Director of DNA for whatever action he deems
appropriate to preclude a recurrence.
Comptroller General
of the United States
1. The basic requirement is for 36 units; 12 detectors are optional
units.
2. This clause was subsequently deleted from the DFARS by Defense
Acquisition Circular No. 91-9, Nov. 30, 1995, to conform to changes in
the Federal Acquisition Regulation implementing the provisions of the
Federal Acquisition Streamlining Act of 1994, with regard to the
acquisition of commercial items.
3. Canberra also complains that Rados is not a regular dealer or
manufacturer within the meaning of the Walsh-Healey Act, 41 U.S.C. sec.
35-45 (1994), and that Rados is not a responsible offeror. Our Office
does not consider protests against a contractor's Walsh-Healey legal
status. Oliver Prods. Co., B-245762, Jan. 7, 1992, 92-1 CPD para. 33.
Regarding Rados's responsibility, we do not review an agency's
affirmative determination of responsibility absent a showing of
possible bad faith by procurement officials or misapplication of
definitive responsibility criteria; there is no indication of either
in this case. See King-Fisher Co.,
B-236687.2, Feb. 12, 1990, 90-1 CPD para. 177.