BNUMBER: B-275385; B-275385.2
DATE: February 18, 1997
TITLE: Card Technology Corporation
**********************************************************************
Matter of:Card Technology Corporation
File: B-275385; B-275385.2
Date:February 18, 1997
Michael A. Hordell, Esq., and Laura L. Hoffman, Esq., Gadsby & Hannah,
for the protester.
David S. Cohen, Esq., Cohen & White, for DataCard Corporation, an
intervenor.
Jeanne A. Anderson, Esq., Department of Veterans Affairs, for the
agency.
Mary G. Curcio, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
Award of purchase order for printers to Federal Supply Service (FSS)
vendor without providing protester an opportunity to compete was
proper where agency determined that only one printer was compatible
with the system with which it was to operate, and protester does not
submit any evidence showing that it offers a compatible printer listed
on the FSS.
DECISION
Card Technology Corporation protests the Department of Veterans
Affairs (VA) issuance of purchase order Nos. A64026 and 101-C67065 to
DataCard Corporation for Image Card II color printers under its
General Services Administration (GSA) Federal Supply Schedule (FSS)
contract. Card Technology also challenges the award to DataCard under
its FSS contract pursuant to request for quotations (RFQ) No.
101-18-96, for a Veterans Identification Card (VIC) system.
We deny the protests.
On August 13, 1996, the VA issued the RFQ to three FSS vendors capable
of providing the VIC system. The RFQ set forth minimum and maximum
quantities, as well as the agency's current known requirements for
readers, reader/writers, and plastic cards. Two offerors--DataCard
and Card Technology--submitted quotations, and the agency made award
to DataCard based on its low price ($7,187,947.60 versus $8,688,260.70
for Card Technology). Subsequently, the VA identified a need for
color printers, pop-up keyboards, and service and support to modify
DataCard supplied software and to reinstall and relocate DataCard
equipment at certain VA facilities, and issued the two purchase orders
to DataCard for these requirements.
Card Technology maintains that it was improper for the VA to purchase
Image Card II color printers from DataCard under its FSS contract
without providing Card Technology an opportunity to compete for the
requirement.
The FSS program managed by GSA provides agencies with a simplified
process for obtaining commonly used supplies and services at prices
associated with volume buying. Federal Acquisition Regulation (FAR) sec.
8.401(a). When placing an order under a schedule contract, the
procuring agency is not required to seek further competition,
synopsize the solicitation or award, or to determine separately fair
and reasonable pricing, since the planning, solicitation, and award
phases of the FSS comply with FAR requirements. FAR sec. 8.404(a). When
ordering from the FSS, the determination of the agency's minimum needs
and which product meets those needs is the agency's responsibility;
the agency may consider such factors as special features of one item
not provided by comparable items which are required for effective
program performance. FAR sec. 8.404(b)(2)(ii)(A). We will only review
this determination for reasonableness. Design Contempo, Inc.,
B-270483, Mar. 12, 1996, 96-1 CPD para. 146.
The VA states that it purchased the Image Card II printers under
DataCard's FSS contract because it required a printer that was
compatible with the DataCard VIC system it had purchased (under the
RFQ), and it was not aware that any other printer would interface with
the DataCard system. More specifically, the agency's project manager
for the VIC project states that,
"[b]ased on our review of the technical manuals, our experience
with the hardware and software, and routine discussions with
DataCard during installation and set-up of their equipment, it
appears that the interface between the QuickWorks workstation and
the printers/embossers is non-standard and proprietary to
DataCard. Though the software runs on a standard personal
computer and connects via a standard cable, the actual data being
sent over that cable is formatted in such a way that only Data
Card printers understand its meaning. To the best of my
knowledge, there are no other printers available that conform to
this special interface."[1]
The protester does not dispute that the agency's minimum need is for a
color printer that is compatible with the DataCard VIC system; it
asserts only that it can provide a compatible printer. In this
regard, the protester asserts that, even if QuikWorks is proprietary,
it is simple enough to install other capture systems software products
on DataCard's 280 systems to make the system compatible with other
printers.
We find that the agency's actions were proper since the information
provided by Card Technology does not demonstrate that it offers a
color printer that can be made compatible with DataCard's 280 system.
In this regard, the protester has not explained or furnished
literature showing that any specific software would make a specific
Card Technology printer compatible with the DataCard system, or how
any specific software would achieve this end. Indeed, despite
specifically requesting permission to respond to comments in which
DataCard explains why no other printer will work with its 280 system,
the protester did not address DataCard's explanation that there are
special encoded devices on the printer, that the printer has been
specifically developed to take advantage of the selective overlay
capabilities that are available in QuikWorks software, and that no
other printer has these capabilities.[2] Absent such explanation and
information, Card Technology's general assertion that it would be
"simple" to achieve compatibility amounts to no more than disagreement
with the agency's specific determination that only DataCard's printer
is compatible with the DataCard system. This is not sufficient to
show that the agency's determination was unreasonable. See National
Mailing Sys., B-251932.3, Aug. 4, 1993, 93-2 CPD para. 78.[3]
In its December 23 comments in response to the agency's protest
report, Card Technology argues for the first time that DataCard's
quotation should have been rejected as unbalanced; the agency
improperly purchased a DataCard reader not covered by its FSS
contract; DataCard improperly was provided with inside information
that the VA would purchase additional components of the VIC; and the
VA's purchase of certain additional items constituted a cardinal
change to the initial RFQ. However, these arguments are based on
copies of purchase orders that the protester received under a FOIA
request on November 18. Since protest arguments such as these, to be
timely, must be raised no later than 10 days after the basis for the
argument was known or should have been known--here, November 18--these
arguments are untimely and will not be considered. Bid Protest
Regulations, section 21.2(a)(2), 61 Fed. Reg. 39039, 39043 (1996) (to
be codified at 4 C.F.R. sec. 21.2(a)(2)).
In a supplemental protest, Card Technology questions whether DataCard
included the price of required keyboards and service in the quotation
it submitted in response to the RFQ for the VIC system; Card
Technology maintains that an award to DataCard without these required
items would be improper. The VA states, and the record shows, that
DataCard's initial offer did contain pricing for the required items,
including the keyboards and warranty service.[4]
The protests are denied.
Comptroller General
of the United States
1. DataCard supports this position. It states that printers
configured to run with the DataCard 280 systems must receive commands
from DataCard's proprietary software, QuickWorks, and that Quickworks
contains a number of unique attributes that will not work on printers
that are not specifically designed to support it. For example,
DataCard states, QuikWorks has an interface that treats the magnetic
stripe data on an identification card in a specified manner. Special
encoder interfaces or filters have been developed, tested and released
for both the DataCard 280 and the DataCard Image Card II printer to
use this interface. DataCard also states that the ImageCard II has
been specifically developed to take advantage of the selective overlay
capabilities that are available in the QuikWorks software, and that
only DataCard's Image Card II printers provide these capabilities.
2. In addition, notably, although it is aware of the purchase price of
DataCard's printers, Card Technology has submitted no evidence that
its allegedly compatible printer is lower priced than DataCard's.
Card Technology did submit a copy of its FSS contract to show that it
had a printer available, but the schedule did not indicate a price (or
that the printer is compatible). Further, Card Technology has not
disputed DataCard's statement that Card Technology only offers
printers that are much higher priced than DataCard's.
3. Card Technology also argues that the agency improperly failed to
consider three price lists, as required by FAR sec. 8.404(b)(2) (to
ensure that the government's needs are being met at the lowest
available price), before issuing the purchase orders to DataCard.
However, as Card Technology has not shown that it offers a compatible
printer, Card Technology would not be in line for award if we
sustained the protest on this ground and thus is not an interested
party to raise this issue. See generally American Overseas Book Co.,
Inc., B-266297, Feb. 9, 1996, 96-1 CPD para. 60.
4. Card Technology filed January 23 comments on the agency's protest
report on the supplemental protest. However, those comments also
further addressed the issues raised in Card Technology's initial
protest. To the extent the comments address the original protest
issues, they are untimely and unauthorized, and have not been
considered.