BNUMBER: B-280664.2
DATE: December 28, 1998
TITLE: Plasma-Therm, Inc., B-280664.2, December 28, 1998
**********************************************************************
Matter of:Plasma-Therm, Inc.
File:B-280664.2
Date:December 28, 1998
Timothy Saviano, Esq., Foley & Lardner, for the protester.
Vincent A. Salgado, Esq., National Aeronautics & Space Administration,
for the agency.
Scott H. Riback, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Agency properly rejected protester's proposal as technically
unacceptable where it did not meet material solicitation requirement;
fact that solicitation did not expressly state that agency would find
proposal unacceptable for failing to meet only one specification
requirement did not preclude rejection, since award may not be based
on a technically noncompliant proposal.
2. Protest that awardee's proposal failed to meet solicitation
requirement is denied where there is nothing in the firm's proposal to
show noncompliance with specifications; protester's challenge to
awardee's offer amounts to unsupported speculation regarding actual
performance of awardee's offered product.
DECISION
Plasma-Therm, Inc. protests the award of a contract to Surface
Technology Systems (STS) under request for offers (RFO) No. 3-100573,
issued by the National Aeronautics and Space Administration (NASA) for
a plasma and gas-phase plasmaless micromachining tool for the
fabrication of silicon carbide
micro-electro-mechanical systems. Plasma-Therm maintains that the
agency improperly rejected its proposal, and that the agency is biased
against it.
We deny the protest.
The solicitation sought fixed-price offers to provide a micromachining
tool capable of performing various etching processes used in
connection with the fabrication of micro-electro-mechanical devices.
Essentially, the device is used to "cut out" micromechanical parts.
Among other requirements, the RFO specified that the device "shall
support" high-rate isotropic gas-phase plasmaless etching of silicon
using a xenon diflouride etching process or equivalent dry isotropic
silicon etch process. RFO sec. C.3, as amended by Amendment No. 1. The
RFO also specified that the device "shall meet" the specification for
a selectivity ratio of at least 500:1 for silicon dioxide, silicon
nitride, silicon carbide, aluminum, nickel and chrome. RFO sec. C.3(f),
as amended by Amendment No. 1.[1]
In addition to their written proposals, offerors were required to
submit etch specimens to allow the agency to evaluate their offered
device. RFO, Amendment No. 1 at 2. The solicitation advised that the
agency would make award to the firm submitting the proposal deemed to
offer the best overall value to the government considering price,
technical merit and past performance (all weighted equally). The RFO
further advised that the agency would consider various "value
characteristics" in making its award decision. Among the
characteristics identified were early delivery, and features which
enhanced the device's performance, flexibility, ease of use and
reliability.
NASA received offers from STS and Plasma-Therm. The offers were
evaluated and Plasma-Therm was found technically unacceptable because
its written technical proposal offered a selectivity ratio of only
"greater than" 150:1 for silicon dioxide and was silent with respect
to the selectivity ratio for silicon nitride. The record further
shows that the firm's etch specimens exhibited a selectivity ratio of
150:1 for silicon nitride and 470:1 for silicon dioxide. In contrast,
the STS device met or exceeded all the specified selectivity ratios.
On the basis of these results, NASA made award to STS at a price
higher than that offered by the protester.
Plasma-Therm protested the agency's award decision to our Office
(B-280664), maintaining, among other things, that the agency had not
afforded firms enough time to process the etch specimens. In
response, NASA offered to allow firms an opportunity to submit new
etch specimens. We therefore dismissed Plasma-Therm's protest as
academic.
Plasma-Therm submitted a new batch of etch specimens. NASA evaluated
the etch specimens and found that Plasma-Therm's device still had
failed to achieve the selectivity ratio specified for silicon nitride;
the firm's etch specimen exhibited a selectivity ratio for silicon
nitride of only 40:1. This, coupled with the fact that the STS device
was considered to offer numerous "value characteristics" (for example,
it had produced specimens that exhibited selectivity ratios well in
excess of the specifications--2,000:1 for silicon dioxide and 3,000:1
for silicon nitride), led the agency to affirm its original award to
STS.
Plasma-Therm contends that the agency improperly rejected its offer as
technically unacceptable, since the silicon nitride selectivity ratio
specified in the solicitation is not a critical or material
measurement for the device, and the RFO did not state that offers
would be rejected for failure to meet only one of the selectivity
ratios. Plasma-Therm Letter of Protest at 7.
A proposal that fails to meet one or more of a solicitation's material
requirements is technically unacceptable and cannot form the basis for
the award of a contract. Severn Cos., Inc., B-275717.2, Apr. 28,
1997, 97-1 CPD para. 181 at 3-4. Here, there is no dispute that
Plasma-Therm's proposal failed to show that its micromachining device
met the RFO's requirement for a selectivity ratio of 500:1 for silicon
nitride. Further, there is no merit to Plasma-Therm's position that
NASA unreasonably rejected its proposal for failing to meet "only one"
of the selectivity ratios. The RFO stated that the proposed device
"shall" meet the various tolerances and selectivity ratios specified,
and NASA explains that the selectivity ratio for silicon nitride is in
fact material to the agency's requirements. Specifically, NASA
states:
Based on the anticipated uses of the micromachining tool, a
selectivity of 500:1 with respect to silicon nitride was
specified. The amount of silicon that must be etched is
approximately 500 micrometers. This is a typical dimension for a
micromachined part, such as a gear, that would need to be
released. Sputter deposited silicon nitride is presently used as
a passivating layer[2] for our silicon carbide electronics. The
deposition rate of this material is about 1 micrometer per hour.
Deposition of more than 2 micrometers is impractical due to the
excessive time required as well as buildup of stresses in the
film. Given a 500:1 selectivity, half of a 2-micrometer thick
silicon nitride film would be consumed in etching 500 micrometers
of silicon. Since a final passivating layer thickness of about 1
micrometer is desired, 500:1 was determined to be the minimum
acceptable selectivity.
Contracting Officer's Statement at 2. In other words, NASA's
anticipated use of the device requires that it be capable of etching
silicon to the desired depth (500 micrometers) without etching through
the passivating layer of silicon nitride. Nothing in the record
brings into question the agency's explanation. Moreover, to the
extent that Plasma-Therm believes that the RFO's selectivity ratio
requirement for silicon nitride was unnecessary to meet the agency's
needs, it was required to protest on this basis prior to the deadline
for submitting offers. See 4 C.F.R. sec. 21.2(a)(1) (1998); Envirodyne
Sys., Inc., B-279551, B-279551.2, June 29, 1998, 98-1 CPD para. 174 at 3.
Plasma-Therm maintains that the device offered by STS also is
unacceptable, because it will not comply with the requirement that
there be no interaction between etch processes. Interaction, or
"cross-contamination," occurs where a particular gas has been used for
one etch process and another gas for a second process; if the gas used
for the first process leaves a residue in the processing chamber, the
second etch process may be contaminated by the residue.[3]
Plasma-Therm asserts that, because STS's device uses xenon diflouride
in certain etch processes, there is a risk that this gas may
contaminate the chamber for subsequent etch processes that do not use
xenon diflouride. In contrast, Plasma-Therm states that its device
uses the same gas for all relevant etch processes, thereby eliminating
the risk of cross-contamination.
Although Plasma-Therm has couched its argument in terms of an alleged
technical deficiency in STS's offer, its assertion actually amounts to
an alleged solicitation impropriety, and therefore is untimely. 4
C.F.R. sec. 21.2(a)(1). In this respect, the RFO specifically stated
that the agency was interested in purchasing a micromachining tool
that was capable of "high-rate isotropic gas-phase plasmaless etching
of silicon using xenon diflouride, or equivalent dry isotropic silicon
etch process." RFO sec. C.3, as amended by Amendment No. 1. The RFO
further specifically stated "the same process chamber shall be used
for anisotropic plasma etching and isotropic dry etching, with no
interaction between etch processes." RFO sec. C.3(a) as amended by
Amendment No. 1. The RFO therefore expressly called for offers of
micromachining tools that use xenon diflouride while at the same time
imposing a requirement that there be no cross-contamination between
etch processes. If Plasma-Therm believed these two requirements were
inconsistent, it was required to raise the allegation prior to the
deadline set for the submission of proposals.[4]
In any case, we note that Plasma-Therm's argument amounts to no more
than speculation regarding what it views as a possible performance
problem with the STS device. Plasma-Therm has submitted no evidence
beyond its self-serving statements to support its position regarding
this aspect of the STS device, and there is nothing in the STS offer
taking exception to the requirement that there be no
cross-contamination between etch processes.
Plasma-Therm also argues that the agency's actions reflect bias
against it, and in favor of STS, in the conduct of the acquisition.
In this connection, Plasma-Therm asserts that the RFO originally was
written to acquire the STS device; that subsequently, although the RFO
was amended, it included new requirements that tended to favor award
to STS; that NASA delayed providing the firm the blank specimens that
had to be etched and submitted with the firm's offer; that NASA's
corrective action in response to Plasma-Therm's earlier protest was
calculated to ensure that STS would receive the award; and that NASA
had originally considered this acquisition for a small business
set-aside, but subsequently issued the acquisition on an unrestricted
basis when it learned that STS was a large business.
Virtually all of Plasma-Therm's assertions in connection with its bias
argument are untimely, and therefore not for consideration. Its
contentions relating to the terms of the original RFO, as well as the
amended solicitation that implemented the agency's corrective action
(including its argument regarding the agency's decision to issue the
acquisition on an unrestricted basis, and its assertion that NASA
failed to provide adequate time for it to process its etch specimens),
amount to alleged solicitation improprieties that had to be protested
no later than the deadline for submitting the revised etch specimens.
4 C.F.R. sec. 21.2(a)(1).
In any case, in order to successfully demonstrate bias, a protester
must show, not only that agency officials acted improperly, but that
the bias translated into improper agency action. ECC Int'l Corp.,
B-277422, B-277422.2, Oct. 14, 1997, 98-1 CPD para. 45 at 5 n.4. Where an
agency's evaluation of proposals is shown to be otherwise proper,
there is no basis to infer bias. Id. Although Plasma-Therm argues
that the agency was biased against its micromachining tool, the record
shows that Plasma-Therm competed on the basis of the RFO as written
(that is, the
firm did not complain about the terms of the solicitation until after
it lost the competition), and was properly eliminated from further
consideration because its device failed to meet one of the
solicitation's material requirements.[5]
The protest is denied.
Comptroller General
of the United States
1."Selectivity" refers to the ratio between etch rates that a
particular etch process exhibits between two different materials such
as silicon and silicon nitride.
2. A passivating layer is a coating of an insulating substance (such
as silicon nitride) that serves to protect the completed micromachined
part.
3. The device must be capable of performing both isotropic and
anisotropic etching in the same processing chamber, RFO sec. C.3;
isotropic etching is performed by introducing a gas into the
processing chamber, whereas anisotropic etching is performed by
introducing a gas, along with a radio frequency, into the chamber to
create a plasma. STS's device uses xenon diflouride for certain etch
processes but not others.
4. The record shows that Plasma-Therm in fact was aware of all
information necessary to advance this contention no later than the
date it submitted its revised proposal. In the proposal revision in
which Plasma-Therm submitted its second etch specimens, it stated:
[A]s there are no known studies of the long term effects .
. . of mixing alternative chemistries, such as [xenon
diflouride], with the Bosch
process, it would be irresponsible for a vendor to
guarantee that there will be no interaction between such
processes.
Plasma Therm Proposal Revision of Aug. 31, 1998 at 2-3.
5. Plasma-Therm also maintains that the agency improperly waived the
delivery date for STS in making its award. Since Plasma-Therm's offer
properly was found technically unacceptable, however, the firm is not
an interested party to maintain this assertion; even if we sustained
this aspect of its protest and Plasma-Therm were permitted to submit
an offer based on a relaxed delivery schedule, it still would be
ineligible for award because its proposal was technically unacceptable
for reasons unrelated to the delivery schedule. See System Resources
Corp., B-270241 et al., Feb. 12, 1996, 96-1 CPD para. 69 at 5-6.