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.