TITLE:   Elementar Americas, Inc., B-282698, July 16, 1999
BNUMBER:  B-282698
DATE:  July 16, 1999
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Elementar Americas, Inc., B-282698, July 16, 1999

Decision

Matter of: Elementar Americas, Inc.

File: B-282698

Date: July 16, 1999

Scott Hughes for the protester.

Thomas A. Darner, Esq., Environmental Protection Agency, 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

Agency reasonably determined protester's quotation was technically
unacceptable where solicitation required submission of descriptive
literature to establish that offered equipment met the performance
specifications, and protester submitted only general technical information
that did not show that all requirements were met.

DECISION

Elementar Americas, Inc. protests the issuance of a purchase order to Perkin
Elmer under request for quotations (RFQ) No. OH-99-00114, issued by the
Environmental Protection Agency (EPA) for an elemental analyzer system to be
used at the agency's National Risk Management Research Laboratory in
Cincinnati, Ohio. The protester contends that it quoted a lower price than
Perkin Elmer and, therefore, that EPA should have issued the purchase order
to Elementar.

We deny the protest.

A combined synopsis/solicitation using simplified acquisition procedures was
posted on the electronic version of the Commerce Business Daily Internet web
site on March 30, 1999, to obtain a commercial elemental analyzer system
with related equipment including an autobalance, data storage device, and
printer. Agency Report, Tab A; Legal Memorandum at 1. The RFQ identified 12
minimum performance specifications and requirements, and required vendors to
provide descriptive literature in sufficient detail to demonstrate that the
offered equipment meets those stated requirements. Id. at 2. At issue here
is the performance specification for "[o]ne (1) autobalance capable of
measuring microgram quantities." [1] Id. at 1. The solicitation provided
that a purchase order would be issued to the responsible vendor whose
quotation was most advantageous to the government and listed two evaluation
factors--technical capability of the items offered to meet the agency
requirements, and price. Id. at 2.

Four quotations were received, ranging from Elementar's low quote of
$40,547.49 to a high quote of $44,518.13. Agency Report, Tab E, Memorandum
from Contract Specialist to The File (Apr. 28, 1999). Elementar identified a
Sartorius M5P electronic autobalance as part of its proposed analyzer system
but did not include descriptive literature for the Sartorius equipment.
However, the protester's quotation stated that the Sartorius autobalance has
readability to 0.002 mg (i.e., 2 micrograms). Agency Report, Tab B,
Elementar Quotation, at 2. Perkin Elmer submitted the second low price of
$40,682.72 for its Model 2400 Series II with an autobalance capable of
weighing samples to a resolution of 0.001 mg. Agency Report, Tab C, Perkin
Elmer Quotation.

The agency evaluator reviewed the technical portion of each quotation, and
based on this review, he determined that the proposed Elementar autobalance
with readability of 0.002 mg failed to meet the requirement for measuring
microgram quantities to the level of 0.001 mg (i.e., 1 microgram). Agency
Report, Tab D, Technical Evaluation of Elemental Analyzer Systems. The other
three quotations proposed analyzer systems that were evaluated as meeting
all the performance requirements in the solicitation. On April 29, the EPA
issued the purchase order to Perkin Elmer on the basis that it submitted the
lowest-priced, technically acceptable quotation. Elementar filed an
agency-level protest on May 4, challenging the evaluation on various grounds
that are repeated in this protest. The agency denied Elementar's protest on
May 7, and this protest to our Office followed.

Elementar argues that the Sartorius autobalance it offered has a readability
of 0.001 mg and thus satisfies the performance requirement at issue, and
that the reference in its quotation to 0.002 mg was a typographical error.
Protest at 1. The protester claims that Sartorius, "one of the world's
leading manufacturers of microgram balances does not even produce one with
the specification of 0.002 mg readability." Id. Nor is it aware, the
protester states, of any manufacturer that makes this type of autobalance
with readability of 0.002 mg. Id.

Simplified acquisition procedures are designed to, among other things,
reduce administrative expenses, promote efficiency and economy in
contracting, and avoid unnecessary burdens for agencies and contractors.
Federal Acquisition Regulation (FAR) sect. 13.002. Even when using such
procedures, however, an agency must conduct the procurement consistent with
a concern for fair and equitable competition and must evaluate quotations in
accordance with the terms of the solicitation. See Sawtooth Enters., Inc.,
B-281218, Dec. 7, 1998, 98-2 CPD para. 139 at 3; Nunez & Assocs., B-258666, Feb.
10, 1995, 95-1 CPD para. 62 at 2. In reviewing protests against an allegedly
improper simplified acquisition evaluation and selection decision, we
examine the record to determine whether the agency met this standard and
exercised its discretion reasonably. Sawtooth Enters., Inc., supra. We have
reviewed Elementar's quotation and the agency's evaluation and find that EPA
reasonably determined that the protester's quotation was unacceptable.

As indicated, the RFQ contained minimum performance specifications and
vendors were required to provide descriptive literature to establish that
the offered equipment meets all the stated requirements. The protester's
quotation's only explicit reference to the issue in dispute here indicated
that it had readability only to 2 micrograms--i.e., it failed to meet the
requirement. [2] The agency evaluated the technical information in
Elementar's quotation and concluded that Elementar had not shown that the
proposed Sartorius autobalance met the RFQ requirement for microgram
readability. We see nothing unreasonable in this conclusion. Here, we think
it was both reasonable and consistent with the combined
synopsis/solicitation to select the firm which provided descriptive
literature establishing compliance with the minimum performance
specifications, rather than a firm whose submission did not establish
compliance, or at best was ambiguous regarding compliance, with the
specifications. West Coast Research Corp., B-281359, B 281359.2, Feb. 1,
1999, 99-1 CPD para. 27 at 3-4.

We also find without merit the contention that Elementar should be permitted
to "correct" its quotation to demonstrate that the proposed Sartorius
autobalance has readability to 1 microgram. The protester now, in essence,
wants to submit the descriptive literature missing from its quotation to
show that the proposed equipment does meet the specification requirement at
issue here. We agree with the EPA that it was not required under the
simplified acquisition procedures to permit the protester to revise its
quotation. [3] FAR sect. 13.106-2(b); see Environmental Tectonics Corp.,
B 280573.2, Dec. 1, 1998, 98-2 CPD para. 140 at 4-5.

Finally, Elementar questions whether the phrase "autobalance capable of
measuring microgram quantities" requires readability to 0.001 mg and
contends that, if it does, the requirement is superfluous because a
difference of +/- 0.001 mg cannot be detected using an analyzer system with
a 0.5 percent detection limit. Protest at 1. This remaining argument is
untimely and will not be considered since it relates to an alleged
solicitation impropriety apparent prior to the April 15 due date for
submission of quotations. Bid Protest Regulations, 4 C.F.R. sect. 21.2(a)(1)
(1999). As indicated above, it is clear that the protester understood the
requirement at issue here was for an autobalance capable of measuring
microgram quantities to 0.001 mg. In fact, the protester claims that its
equipment met this specification; and contends that its quotation's
reference to 0.002 mg was a typographical error. If it believed that the
requirement was ‘superfluous,' that is, exceeded the agency's needs,
it was required to raise that basis of protest prior to the April 15 date.
Id. In any event, the agency points out that the autobalance is a separate
component of the analyzer system, and it will be used in other research
applications requiring measurements at the microgram level.

Accordingly, the protest is denied. [4]

Comptroller General
of the United States

Notes

1. A microgram is one thousandth of a milligram (mg). See Webster's
Dictionary 750, 748 (9th ed. 1987).

2. Elementar states that it provided information in its quotation which
shows a computer screen with the weights of typical samples, and that these
weights have a readability of the requested 0.001 mg. The protester
concedes, "[w]hile we admit it would take a very attentive analysis of our
literature to see this, it does support the fact that our balances have
readability of 0.001 mg." Protester's Comments at 1. We do not believe it
would be reasonable to require agency personnel to find such obscure
evidence, particularly when it was contradicted by the firm's clear
statement that the equipment had readability only to 2 micrograms.

3. Elementar also challenges the use of the phrase "microgram quantities" in
the specification which, in its view, refers to quantities greater than one;
as such, a 0.002 mg autobalance can measure "microgram quantities." Protest
at 1. In any event, the protester states that if this specification was so
important, "more specific language" should have been used. Id. In its report
on the protest, the agency explains that, when read in context, the phrase
"microgram quantities" denotes quantities equal to or greater than 0.001 mg;
in other words, the autobalance must have readability of 0.001 mg in order
to measure a microgram. Contracting Officer's Statement at 2. Moreover, the
agency notes that this interpretation was understood by the industry, as
evidenced by the fact that the other three firms proposed autobalances that
meet this readability requirement. Id. In our view, the protester's
assertion that the readability requirement should have been more precisely
stated need not be addressed since its quotation was properly rejected in
any event because it failed to provide descriptive literature establishing
the readability specifications for the Sartorius model. Further, we note
that the protester's interpretation appears to be inconsistent with its
arguments that it understood the specification required an autobalance with
readability of 1 microgram, and that the reference to 0.002 mg in its
quotation was simply a typographical error, and with its related argument
that it knows of no manufacturer that makes an autobalance with 2 microgram
readability.

4. In its comments on the agency report, Elementar contends that the
analyzer system offered by Perkin Elmer is not Year 2000 compliant, as
allegedly required by the terms of the purchase order. Protester's Comments
at 1. The protester's objection, however, concerns the administration of a
purchase order issued to Perkin Elmer and is not for consideration by our
Office. 4 C.F.R. sect. 21.5(a).