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.