BNUMBER:  B-280664.2           
DATE:  December 28, 1998
TITLE: Plasma-Therm, Inc., B-280664.2, December 28, 1998
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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.