BNUMBER: B-279551; B-279551.2
DATE: June 29, 1998
TITLE: Envirodyne Systems Inc., B-279551; B-279551.2, June 29, 1998
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Matter of:Envirodyne Systems Inc.
File: B-279551; B-279551.2
Date:June 29, 1998
Robert E. Sheker for the protester.
Alton E. Woods, Esq., and Justin P. Patterson, Esq., Department of the
Interior, for the agency.
Christina Sklarew, Esq., and Paul Lieberman, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Protest that solicitation is overly restrictive of competition is
untimely when filed after award.
2. Protest that qualification in protester's quotation, taking
exception to solicitation requirements, would not have affected
performance and therefore should not have been considered material, is
denied where the agency reasonably supports its conclusion that the
exceptions taken would adversely affect performance.
DECISION
Envirodyne Systems Inc. protests the rejection of its quotation as
technically unacceptable under request for quotations (RFQ) No.
1500-8-0003, issued by the Department of the Interior, National Park
Service for a sludge dewatering solids bagging system for the water
treatment facility at the Mount Rushmore National Memorial.
Envirodyne contends that the agency improperly concluded that
Envirodyne's quotation did not satisfy material solicitation
specifications. Envirodyne also challenges the Park Service's
selection of Aero-Mod/Waterlink, Inc., alleging that the firm's
quotation took exception to the solicitation's performance
requirements.
We deny the protest.
The Park Service posted a notice in the Commerce Business Daily (CBD)
on February 19, 1998, described as a combined
synopsis/solicitation.[1] The solicitation required vendors to submit
complete assembly, foundation, and installation drawings, together
with detailed specifications and data covering materials, parts,
devices, and accessories forming a part of the equipment being
furnished. The solicitation also advised vendors that, while the
agency intended to evaluate quotations and award the contract without
conducting discussions, it reserved the right to conduct discussions
if they were later determined necessary by the contracting officer.
The solicitation generally described the agency's requirement as:
one self-contained wastewater solids dewatering system capable of
automatically pumping a sludge stream, injecting it with solution
polymer, discharging it into an enclosed pressure hood, funneling
it into a series of porous filter bags, air charging the hood to
enhance water removal, and then repeating the cycle until the
bags are full and ready for changing. This type of equipment is
manufactured by Aero-Mod Inc., Manhattan, Kansas.
Interested vendors were required to submit quotations. Envirodyne and
Aero-Mod were the only firms that responded.
Envirodyne offered to supply its ALL-AMERICAN Bagger Model SBS-6 as an
"alternative product," and included a "quotations submittal package"
providing further details. In the cover letter to its quotation,
Envirodyne described its product as an "equal" to the product
specified in the solicitation, and stated that it would "meet or
exceed the functional, performance and level-of-quality requirements
of the Specifications." However, in its submittal package, Envirodyne
reproduced the solicitation and inserted its "comments, deviations &
exceptions" to the stated requirements, in effect qualifying its
quotation. For example, next to the solicitation description of the
dewatering equipment, Envirodyne noted that the required air
pressurization feature is covered by a patent, and quoted the patent
holder as stating that the bagger could "operate perfectly well"
without the pressurization feature; in connection with a requirement
that filter bags were to be nonwoven polypropylene, Envirodyne noted
that its filter bags are woven polypropylene; in connection with a
requirement for a static mixer to be located inside the tank,
Envirodyne stated that its mixer is located outside its tank; and next
to the requirement for air pressurization, the protester stated
expressly that this feature is not used on the ALL-AMERICAN bagger
being quoted by Envirodyne. The protester quoted a price of $25,160.
Aero-Mod offered the pressurized, 6-bag DRAIMAD dewatering equipment
described in the solicitation. Aero-Mod's quotation included
technical literature that described performance features of the air
pressurization system and nonwoven polypropylene filter bags and
quoted a price of $34,700.
The contracting officer forwarded the two quotations to an
architect/engineering (A/E) firm that was to conduct the technical
analysis for the Park Service. The A/E firm concluded that
Envirodyne's quotation did not meet the specifications and, in
addition, that its price did not include certain required costs, such
as system installation, start-up, and the operation and maintenance
manuals. The reviewing firm found "no apparent evidence to support
the belief that the Envirodyne unit can match the specified
performance of the Aero-Mod type unit without also incorporating air
assist," and recommended selection of Aero-Mod. The contracting
officer concurred with the A/E firm's conclusion that Envirodyne's
equipment did not meet material solicitation specifications and
rejected Envirodyne's quotation. The Park Service then held
discussions with Aero-Mod, as the vendor quoting the only technically
acceptable solution. Aero-Mod subsequently lowered its initial
$34,700 price to $30,950, and the contracting officer entered into a
contract with this firm. On March 9, Envirodyne filed an agency-level
protest, essentially arguing that by specifying a patented feature,
the solicitation was unduly restrictive of competition; that the air
pressurization feature was not critical to performance and therefore
was not necessary to meet the agency's needs; and that its own product
would meet the performance requirement established in the solicitation
without the air pressurization feature. On March 18, Envirodyne filed
its protest in our Office.
Envirodyne protests that the solicitation fails to provide for full
and open competition, citing a number of provisions--including listing
a single manufacturer and specifying a feature of a product peculiar
to one manufacturer--as being overly restrictive. This basis of
protest is untimely filed. Under our Bid Protest Regulations,
protests based upon alleged improprieties in the RFQ which are
apparent prior to the time set for receipt of quotations must be filed
before that time. 4 C.F.R. sec. 21.2(a)(1); SWR, Inc., B-276878, July
29, 1997, 97-2 CPD para. 34 at 4. Based on the advice of the A/E firm that
analyzed the Park Service's needs, the agency specified certain
features, such as the air pressurization system, in the solicitation.
To the extent Envirodyne disagrees with the conclusion that this
system (and other specifications to which it took exception in its
quotation) were not necessary to meet the agency's needs, Envirodyne
was required to file its protest against those requirements prior to
the deadline that was established for the submission of quotations.
Since the protest against the allegedly restrictive requirements was
not filed until after Aero-Mod had received the contract award, we
dismiss it as untimely.
Envirodyne characterizes its quotation as "an unqualified performance
bid," alleging that the exceptions it took would not have affected
performance. In essence, the protester contends that, while its
quotation did not meet the letter of the specifications, its product
would meet the intent of the procurement by meeting the performance
requirements. The protester contends that the air pressurization
feature does not perform as represented by Aero-Mod and does not
provide any performance advantage, concluding, in essence, that its
own system should have been considered functionally equivalent to the
specified system.
It is an offeror's responsibility to affirmatively demonstrate that
its offered product meets all of a solicitation's material
requirements. Working Alternatives, Inc., B-276911, July 2, 1997,
97-2 CPD para. 2 at 4. The contracting agency is responsible for
evaluating the data supplied after ascertaining if it provides
sufficient information to determine the acceptability of the offeror's
item. JEOL USA, Inc., B-277160, July 2, 1997, 97-2 CPD para. 3 at 3.
Particularly where simplified acquisition procedures are used, the
contracting agency has broad discretion in fashioning suitable
evaluation procedures. FAR sec. 13.106-2(b)(1). In reviewing an
agency's technical evaluation, we will not reevaluate the proposals;
we will only consider whether the agency's evaluation was reasonable
and in accord with the evaluation criteria listed in the solicitation.
Herndon Science and Software, Inc., B-245505, Jan. 9, 1992, 92-1 CPD para.
46 at 3. A protester's disagreement with the agency's judgment is not
sufficient to establish that the agency acted unreasonably. Id.
Here, the protester took explicit exception to several features that
were required by the solicitation. While Envirodyne argues that the
requirements at issue were not material because they would not affect
performance, the agency has reasonably supported its conclusion to the
contrary. The record shows that the Park Service relied on the
analysis submitted by the reviewing A/E firm which had specifically
considered Envirodyne's claims in its quotation concerning the
performance of its product. The A/E firm's report provides the
following analysis:
Sludge is pumped into the bag filling hood until the hood level
sensor stops the sludge filling pump. At his point, either
gravity (Envirodyne) or gravity supplemented by air surcharge
pressure (Aero-Mod) causes water to seep/ooze from the bags.
After a period of time, generally controlled by a timer or level
sensor, the sludge pump starts up and refills the header and the
bags. The entire cycle repeats itself until the bags are
determined to be full, which is about 6 fill and seep cycles.
My professional [judgment] is that the air assist will be able to
more effectively and quickly fill the porous bags to capacity,
and that the material in the bag will have a higher percentage of
solids and therefore a lower percentage of water.
Further, the report advises:
If Envirodyne is not able to attain the required 20 pounds of
sludge per bag, it would force [Park Service] personnel to
operate on a maximum 3 shift/24-hour a day schedule rather than a
maximum 2 shift/16-hour a day schedule as for Aero-Mod.
Similarly, the report indicates that the woven-type filter bags that
Envirodyne offered to provide are less effective and allow more solids
to escape and return to the treatment basin, thus casting doubt on the
ability of Envirodyne's system to achieve the required 20 pounds of
sludge in its bags.
The record shows that the agency rejected Envirodyne's proposal on the
basis of a rational analysis of the ability of the offered product to
meet material solicitation requirements. The review was based on a
careful assessment of how the deviations indicated in Envirodyne's
offered product would affect performance, and the rejection was not
simply based on the fact that the protester's quotation was
noncompliant with the solicitation's terms on its face. Accordingly,
this portion of the protest is denied.
Envirodyne also alleges that Aero-Mod's quotation took exception to
the specifications, and therefore should not have been considered. In
its original quotation, Aero-Mod noted:
Under the proposed loading rate of 150 lb/day of biosolids,
Aero-Mod would normally supply a larger unit. Therefore, instead
of the (6) BCAP, we propose a (12) BCAP be provided for the Mount
Rushmore project.
The firm's submission then quoted an additional price for upgrading
the equipment in this way. Envirodyne characterizes this portion of
Aero-Mod's quotation as a qualification of the performance
requirements, essentially arguing that Aero-Mod's product should have
been considered noncompliant with the material terms of the
solicitation. We disagree. Aero-Mod never stated in its submission
that the basic equipment described in its quotation would not meet the
stated needs or otherwise took exception to the performance
requirements. The contracting officer considered Aero-Mod's offer to
upgrade the equipment as a recommendation to further enhance
performance--in essence, a sales pitch--not a disclaimer of the
standard product's ability to meet the stated requirement without the
upgrade. We think the contracting officer's conclusion was reasonable
and consistent with the solicitation requirements.
Envirodyne also alleges that the Park Service improperly permitted
Aero-Mod to modify its quotation and lower its price after the closing
date for receipt of quotations. The agency had before it only one
vendor whose quotation was found compliant with the material
solicitation requirements, and therefore its decision to conduct
discussions with that firm is unobjectionable.
The protest is denied.[2]
Comptroller General
of the United States
1. The CBD synopsis stated that further information would be provided
upon written request. The Park Service made a standard form 1449 and
a more detailed solicitation available to the offerors.
2. In addition to the protest issues discussed above, Envirodyne
raised several other issues in its original filing--e.g., that the
Park Service failed to include specific evaluation criteria in the
solicitation; that the procurement should have been conducted as a
small business set-aside; that the Park Service was required to refer
the rejection of Envirodyne's quotation to the Small Business
Administration under its certificate of competency procedures; and
that the Park Service's determination to proceed with performance
notwithstanding the protest was improper--which were not addressed by
the protester in its comments on the agency report. As a result, to
the extent that any of the issues are timely or cognizable, we
consider them to have been abandoned. Appalachian Council, Inc.,
B-256179, May 20, 1994, 94-1 CPD para. 319 at 8 n.8.