BNUMBER: B-278869
DATE: March 24, 1998
TITLE: Micromass, Inc., B-278869, March 24, 1998
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Matter of:Micromass, Inc.
File: B-278869
Date:March 24, 1998
Mike Colucci for the protester.
Gena E. Cadieux, Esq., Department of Energy, for the agency.
Paula A. Williams, Esq., and Michael R. Golden, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest that evaluation methodology in solicitation for commercial
thermal ionization mass spectrometer and related equipment unduly
restricts competition and favors a particular manufacturer is denied
where the record supports the agency's view that the methodology is
necessary for the agency to assess the compatibility of items offered
with existing laboratory equipment, and the evaluation methodology in
fact is aimed at enabling the agency to make such an assessment.
DECISION
Micromass, Inc. protests the terms of solicitation No.
DE-RP02-98-CH10908, issued by the Department of Energy, for a thermal
ionization mass spectrometer (TIMS) and related laboratory equipment
to be used by the New Brunswick Laboratory (NBL).[1] The protester
contends that certain evaluation factors in the solicitation unduly
restrict competition and favor the manufacturer of the agency's
existing TIMS.
We deny the protest.
On December 3, 1997, the agency issued a combined
synopsis/solicitation under
subpart 13.6 (June 1997) of the Federal Acquisition Regulation (FAR)
entitled, "Test Program for Certain Commercial Items" using simplified
procedures set forth in FAR subpart 12.6 for the acquisition of
supplies and services in amounts greater than the simplified
acquisition threshold but not exceeding $5,000,000, including
options.[2] As amended, the solicitation requires delivery of a
single commercial TIMS as well as related equipment, and offerors must
provide commercial literature or other information about the items
being offered to show that they are commercial items as defined in FAR sec.
2.101.[3]
The solicitation provides for award of a fixed-price contract to the
offeror whose proposal provides the best value to the government,
considering technical evaluation factors and price. As authorized by
FAR sec. 12.602, the synopsis/ solicitation provides for technical
evaluation factors and, as amended, states their relative importance
and calls for evaluation of these factors. Three technical factors,
which are subdivided into subfactors, are listed in descending order
of importance: instrument performance; compatibility with the
agency's existing Finnigan MAT 261 TIMS; and past performance.[4]
Regarding compatibility with the existing Finnigan MAT 261 TIMS
(factor 2), offers will be evaluated based on the following three
subfactors: compatibility of filament types and associated hardware;
software algorithms; and hardware compatibility and parts
interchangeability. Price will be evaluated for reasonableness and
the solicitation explains that, in selecting the best overall
proposal, the agency will consider the probable price of doing
business with the offeror, including the cost of training and
adaptation to new procedures for instrumental analysis, peripheral
equipment, and maintenance.
Micromass protests that the solicitation is unduly restrictive and
otherwise defective. Specifically, Micromass objects to the factor
addressing compatibility with existing Finnigan MAT 261 TIMS because
this evaluation methodology is "hardware restrictive" and favors
Finnigan. Micromass further protests the use of price reasonableness
as an evaluation factor on the grounds that it is a "subjectively
weighted" criterion.
Agency acquisition officials have broad discretion in selecting
evaluation factors that should apply to an acquisition, and the
relative importance of these factors. See FAR sec. 15.605 (June 1997);
see also U.S. Defense Sys., Inc., B-251544 et al.,
Mar. 30, 1993, 93-1 CPD para. 279 at 5. Where a protester alleges that a
solicitation provision is unduly restrictive, we will review the
record to determine whether the provision is reasonably related to the
agency's minimum needs. See Systems Application & Techs., Inc.,
B-270672, Apr. 8, 1996, 96-1 CPD para. 182 at 3.
The evaluation of proposed equipment's compatibility with the agency's
existing TIMS is unobjectionable. DOE explains that NBL requires a
new TIMS that is as compatible as possible with its existing TIMS so
that the laboratory can continue to achieve the highest possible
levels of analytical accuracy and precision in nuclear safeguards
measurements and in certifying isotopic composition for nuclear
reference materials. According to the agency, NBL currently operates
three Finnigan MAT TIMS, as well as a Finnigan MAT gas mass
spectrometer that shares some common electronic boards, components,
and vacuum apparatus. Although the existing mass spectrometers are
not current state-of-the-art instruments, they will be maintained for
a number of years to perform certain routine isotopic measurements to
fulfill the mission and programmatic needs of the laboratory.
While a new state-of-the-art TIMS will require some unique spare parts
because the change from analog to digital electronics will preclude
the interchangeability of some components, the agency states that
there are other components that can be shared with the mass
spectrometers the laboratory already owns. For example, NBL considers
it necessary that filament types be interchangeable between the
existing spectrometers and the new TIMS as this will allow
cross-calibration among all of the mass spectrometers, and provide NBL
with the capability to analyze the same sample load on different mass
spectrometers. In addition to the level of hardware compatibility
that already exists at NBL, the agency reports that the spectrometers
at NBL also share similar software protocols for data acquisition and
testing. DOE reports that it decided to include compatibility with
existing Finnigan MAT 261 spectrometer as an evaluation factor because
NBL has established analytical protocols for the TIMS which have been
used in certifying nuclear reference materials nationwide for more
than 10 years.
The agency reports that a new TIMS that possesses the most
similarities in hardware and software with the three existing TIMS
will best meet the ongoing needs of the NBL to maintain the highest
level of analytical consistency and minimize instrument analytical
bias, thereby improving the level of accuracy. Consequently, the use
of different filament types and different software would require
validation of new analytical protocols and testing to make sure that
analyses using the new instrument are comparable to previously
certified measurements; validation of new protocols would require
extensive staff-hours and the NBL staff would require training in
these new protocols.
While the protester continues to disagree with the agency's decision
to evaluate the compatibility of an offeror's instrument with the
existing Finnigan mass spectrometers at NBL, there is nothing improper
in such an evaluation. We think evaluating the compatibility of the
offered equipment clearly is consistent with the agency's goal of
achieving maximum accuracy and precision in certifying nuclear
reference standards and nuclear safeguards measurements. As discussed
above, the agency has determined that hardware and software
compatibility between the new and existing mass spectrometers is
directly related to the mission of the NBL; it is not apparent to us,
and Micromass does not explain, how the agency's determination in this
regard is unreasonable. Instead, the protester argues, for example,
that DOE has failed to present any data establishing that software
algorithms or filament types from any other manufacturer will produce
differences in analytical results. The protester claims other
laboratories have used both Micromass and Finnigan instruments and
report consistent readings between these instruments; however,
Micromass does not provide any evidence to support its assertions. We
do not know, for example, whether these laboratories perform the same
type testing for the same purposes as NBL, nor is it clear that these
laboratories use the same model instrument as the NBL. Under these
circumstances, we have no basis to question the agency's position that
use of a noncompatible instrument could give rise to differences in
analytical results that may adversely affect NBL's mission.
Further, contrary to the protester's contention, the evaluation
methodology does not restrict the competition only to Finnigan.
First, as the agency points out, the compatibility evaluation factor
does not require complete compatibility with existing NBL mass
spectrometers; the evaluation will simply give more credit for a
greater degree of compatibility. In any event, since this evaluation
factor is ranked second of the three factors, an offeror could receive
high enough scores on the other factors--instrument performance and
past performance (in combination with price)--to be awarded the
contract. Although claiming the evaluation methodology is unduly
restrictive, Micromass does not argue that it is unable to offer
compatible instrumentation. Even if Micromass were correct that the
evaluation methodology impermissibly favors Finnigan, agencies
properly may employ such evaluation factors that relate to their needs
which, as discussed above, is the case here. Premiere Vending, 73
Comp. Gen. 201, 206 (1994), 94-1 CPD para. 380 at 7. The fact that a
particular prospective offeror is unable or unwilling to compete under
a solicitation that reflects the agency's needs does not establish
that the solicitation is unduly restrictive. See Mortara Instrument,
Inc., B-272461, Oct. 18, 1996, 96-2 CPD para. 212 at 6; Systems
Application & Techs., Inc., B-270672, supra, at 5. We note that there
is no evidence that DOE included the challenged evaluation methodology
in order to eliminate Micromass from the competition.
Finally, Micromass complains that DOE impermissibly issued amendment
No. 4 to further extend the deadline for receipt of proposals after
the January 14, 1998, amended closing date. We find nothing improper
about the issuance of the amendment. Agencies may extend the closing
date for receipt of initial proposals after the expiration of the
original closing date to enhance competition. See Ivey Mechanical
Co., B-272764, Aug. 23, 1996, 96-2 CPD para. 83 at 1-2. The agency
reports that it decided to extend the closing date when it appeared it
would only receive one offer. The record further shows that the
amendment was posted on the CBD/Net web site on January 13 (1 day
prior to the January 14 amended closing date). In addition, the
agency reports, and the protester does not dispute, that the
protester's representative was apprised by telephone on January 13
that the deadline for receipt of proposals had been extended until
January 20. Under these circumstances, we have no basis to question
the agency's actions.
The protest is denied.[5]
Comptroller General
of the United States
1. NBL is the national standards laboratory for nuclear materials and
produces reference materials by certifying their isotopic and chemical
compositions. The reference materials certified by NBL are used by
commercial, academic, and other national laboratories for quality
control, quality assurance, and traceability measurements. NBL's
mission also includes work with other international reference material
organizations to verify and jointly certify international reference
standards.
2. The combined synopsis/solicitation was posted on the electronic
version of the Commerce Business Daily internet web site (CBD/Net) on
December 3, and published in the CBD on December 8.
3. FAR sec. 2.101 defines a commercial item in relevant part as:
(a) Any item, other than real property, that is of a type
customarily used for nongovernmental purposes and that--
(1) Has been sold, leased, or licensed to the general
public; or
(2) Has been offered for sale, lease, or license to the
general
public.
4. Amendment No. 2 of the solicitation states that while "the [three]
technical evaluation factors are listed in descending order of
importance . . . this does not apply to [the] technical evaluation
subfactors."
5. Although Micromass argues that the solicitation is defective
because it includes price reasonableness as a "subjectively weighted"
evaluation factor, there is no merit to this allegation. First, the
amended solicitation does not identify price reasonableness as a
weighted evaluation factor. Second, the amended solicitation simply
states that price reasonableness will be evaluated in accordance with
FAR part 15. The protester has provided no basis for our Office to
find this improper.