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.