TITLE:  Columbia Imaging, Inc., B-286772.2; B-287363, April 13, 2001
BNUMBER:  B-286772.2; B-287363
DATE:  April 13, 2001
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Columbia Imaging, Inc., B-286772.2; B-287363, April 13, 2001

Decision

Matter of: Columbia Imaging, Inc.

File: B-286772.2; B-287363

Date: April 13, 2001

John R. Holsey and Wayne M. Horsman for the protester.

LTC Richard B. O'Keefe, Jr., Department of the Army, for the agency.

Paul E. Jordan, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

In solicitations for maintenance of medical equipment, requirements that
vendors' technicians have factory training on specific models to be
maintained and telephone access to technical support for software, and that
vendors furnish proof of license agreement for access to diagnostic
software, are not unduly restrictive where requirements are reasonably aimed
at ensuring that vendors possess the capability to maintain the identified
equipment.

DECISION

Columbia Imaging, Inc. protests the specifications in amended request for
quotations (RFQ) No. DADA15-00-T-0053 (RFQ 0053) and RFQ No.
DADA15-01-T-0224 (RFQ 0224), issued by the Department of the Army for
maintenance of medical diagnostic and treatment equipment. Columbia asserts
that the requirements for factory training and access to diagnostic software
unduly restrict competition.

We deny the protests.

Each RFQ contemplated the award of a requirements contract for a period of 1
base year, with 3 option years, for preventive maintenance and unlimited
on-site emergency repair of medical equipment manufactured by Philips
Medical Systems (PMS). RFQ 0053 concerns cardiac catheterization laboratory
(CCL) equipment at Walter Reed Army Medical Center in Washington, D.C. and
RFQ 0224 concerns x-ray systems at DeWitt Army Community Hospital at Fort
Belvoir, Virginia.

With regard to RFQ 0053, both Columbia and PMS submitted quotes by the
September 15, 2000 deadline. The agency conducted discussions with both
vendors and each submitted a revised quote. After determining that
Columbia's quote was technically unacceptable, the Army awarded a contract
to PMS. Columbia challenged this award in a protest to our Office. The
agency subsequently took corrective action, and we dismissed the protest as
academic (B-286772, Nov. 20, 2000). The Army amended the statement of work
(SOW) primarily to specify the model numbers of the equipment to be
maintained. The agency then notified the vendors that it was reopening
negotiations; in doing so, the Army specifically notified Columbia that its
proposed personnel did not meet the factory training/experience requirement
for the now specifically identified equipment, and requested that Columbia
provide a copy of a licensing agreement with PMS regarding access to that
firm's diagnostic software. After receipt of this notice, Columbia filed a
protest with our Office challenging the RFQ amendments. During this same
time frame, the Army issued RFQ 0224, which required vendors to offer
software maintenance that included telephone access to technical support,
and technicians with factory training and experience on PMS x-ray systems.
Prior to the March 6, 2001 due date for quotes, Columbia filed a protest
challenging these RFQ provisions.

Columbia challenges the requirements in RFQ 0053 that technicians have
factory training on the models of the machines to be maintained, and that
the firm submit a license agreement with PMS to demonstrate that it will
have access to necessary diagnostic software. [1] With regard to RFQ 0224,
Columbia challenges that solicitation's similar requirements for telephone
software support and factory software training and experience. Columbia
asserts that PMS will not allow the protester's personnel access to its
factory training or telephone software support and will not negotiate a
software license with it.

The determination of the government's needs and the best method of
accommodating them is primarily the responsibility of the procuring agency,
since its contracting officials are most familiar with the conditions under
which supplies, equipment, and services have been employed in the past and
will be utilized in the future. DGS Contract Servs., Inc., B-249845.2, Dec.
23, 1992, 92-2 CPD para. 435 at 2. Where a protester challenges a specification
as unduly restrictive, it is the agency's responsibility to establish that
the specification is reasonably necessary to meet its needs. CardioMetrix,
B-259736, Apr. 28, 1995, 95-1 CPD para. 223 at 3. The adequacy of the agency's
justification is ascertained through examining whether the agency's
explanation is reasonable, that is, whether it can withstand logical
scrutiny. Keeson, Inc.; Ingram Demolition, Inc., B-245625, B-245655, Jan.
24, 1992, 92-1 CPD para. 108 at 4. Where a requirement relates to national
defense or human safety, as here, an agency has the discretion to define
solicitation requirements to achieve not just reasonable results, but the
highest possible reliability and effectiveness. Harry Feuerberg & Steven
Steinbaum, B-261333, Sept. 12, 1995, 95-2 CPD para. 109 at 3.

With regard to the requirement for factory training, the original SOW in RFQ
0053 required "factory training and experience . . . in the servicing of
[PMS equipment] including current software, as covered by this contract."
RFQ 0053 sect. C.15. The amended SOW specifies the model numbers of the
diagnostic and treatment machines to be maintained. Id. Likewise, RFQ 0224
requires the vendors' personnel to have "factory training and experience
(minimum 1 years), in the servicing of [PMS] X-Ray Systems including current
software, as covered by this contract." RFQ 0224 sect. C.10.

In explaining its need for factory training on the specific CCL models under
RFQ 0053, the Army states that the CCL at Walter Reed annually uses these
machines to perform more than 2,000 cardiac procedures, including
angioplasties, coronary and renal stent placements, and pacemaker
implantations. If these machines become inoperable, the "physicians are
robbed of vitally-important diagnostic and treatment tools that they need to
be instantly available in the event of cardiac medical emergencies."
Contracting Officer's Declaration, Feb. 15, 2001 (hereinafter Decl. A), at
2. As for the x-ray systems covered by RFQ 0224, the agency explains that if
either or both systems become inoperable, this would severely compromise
DeWitt Hospital's capability to deal with mass casualties (e.g., a school
bus crash) as well as more routine, though no less urgent, medical demands.
Contracting Officer's Declaration, Mar. 15, 2001 (hereinafter Decl. B), at
2. Inoperative machines could lead medical authorities to have to divert
patients to other treatment facilities with the possibility of "obviously
adverse medical outcomes." Id. Based on the medical importance of the
missions of the Walter Reed CCL and the DeWitt radiology department, the
agency states that it demanded that vendors "demonstrate the specific
capability to deal with the equipment actually in place" at both facilities.
Decl. A at 2; Decl. B at 2. In this regard, the Army explains that the
machines in both facilities are relatively new (2 years old), and that the
CCL machines are significantly different from earlier generations of PMS
equipment. Technical Evaluation Committee Chair Declaration at 2.

In light of the critical missions of the CCL and radiology department, the
relatively young age of the machines, and the need to keep those machines in
working order at all times, we think the requirements that vendors'
technicians have a minimum of 2 years of factory training and experience for
the CCL machines, and 1 year of factory training and experience for the
x-ray systems to be maintained, are reasonable. On their face, these
requirements appear to be aimed at ensuring the highest possible reliability
and effectiveness of the machines. Although Columbia asserts that it
successfully maintains "similar" CCLs and x-ray systems manufactured by PMS
at other Washington, D.C.-area hospitals, it has not submitted anything
showing that the agency's position regarding the need for specific
training/experience is unfounded. (Further, while Columbia apparently does
not now have technicians who meet the requirement, nothing in the RFQ
prevents it from hiring qualified technicians.)

The same factors which support the experience requirements also support the
agency's request that Columbia submit a software licensing agreement with
PMS and the requirement for telephone access to PMS's software support. [2]
Because the CCL and x-ray equipment operate through the use of proprietary
software, the agency has a legitimate need for vendors to establish that
they have the proper access to the software and diagnostic keys. The
protester itself recognizes the necessity for access to the appropriate
diagnostic software. In fact, the discussion question under RFQ 0053 arose
because the protester's proposal represented that PMS's service manager had
"assured [Columbia] that all necessary diagnostic keys and software are
available to [it] for a licensing fee." Columbia Quote, Vol. 3, at 1.

Columbia complains that the licensing requirement under RFQ 0053 will
prevent it from competing because PMS now refuses to license the CCL
software to Columbia. Similarly, it notes that PMS has the power to deny it
access to the telephone software support required under RFQ 0224. However,
an agency is not required to cast its procurements in a manner that
neutralizes the competitive advantages some firms may have by virtue of
their own particular circumstances. Precision Photo Labs. Inc., B-251719,
Apr. 29, 1993, 93-1 CPD para. 359 at 3. Where, as here, the agency is unable to
furnish offerors data necessary for the performance of a contract, it
properly may require that offerors obtain permission to use the data from
the holder of the proprietary rights. American Diesel Eng'g Co., Inc.,
B-245534, Jan. 16, 1992, 92-1 CPD para. 79 at 5. The agency is not responsible
for an original equipment manufacturer's decision not to license necessary
software, or provide access to technical support for software, to a vendor.
CHE Consulting, Inc.; Digital Techs., Inc., B-284110 et al., Feb. 18, 2000,
2000 CPD para. 51 at 8. So long as the data is reasonably related to the needs
of the agency, the fact that there is only limited competition, or even only
one source, does not render the requirement unduly restrictive. American
Diesel Eng'g Co., Inc., supra. Accordingly, the license and telephone
support requirements are unobjectionable.

In its comments in response to the agency's reports, Columbia for the first
time asserts that the agency's requirements are unduly restrictive because
equivalent alternatives are available. Specifically, Columbia states that an
unnamed "nationally recognized company" provides training on PMS's CCL and
x-ray equipment. RFQ 0053 Comments at 3; RFQ 0224 Comments at 2. It also
states that access to PMS's software is available without a license in
accordance with the provisions of 21 C.F.R. sect. 1020.30(g), (h) (2000). [3]
RFQ 0053 Comments at 5; RFQ 0224 Comments at 4. Under our Bid Protest
Regulations, protests must be filed no later than 10 days after the basis
for the protest was, or should have been, known, 4 C.F.R. sect. 21.2(a)(2), and
where, as here, a protester files supplemental protest grounds, each new
ground must independently satisfy our timeliness requirements. QualMed,
Inc., B-257184.2, Jan. 27, 1995, 95-1 CPD para. 94 at 12-13. If Columbia
believed the challenged requirements were unnecessary because less
restrictive alternatives were available, it was required to so allege within
10 days after it became aware of the alternatives; we see no reason why
Columbia would not have been able to raise these specific arguments in its
original protest submissions. Since the protester's comments identifying the
alternatives were filed in our Office well after its protests, these new
bases of protest are untimely and we will not consider them. [4]

The protests are denied.

Anthony H. Gamboa

General Counsel

Notes

1. The amended RFQ 0053 also eliminated evaluation subfactor 2.b.1,
regarding the identification of key personnel; Columbia asserts that it was
prejudiced by this action because it had allegedly scored higher than PMS
under this subfactor in the original evaluation. This argument is without
merit. First, the fact that a vendor's quote was evaluated highly under a
subfactor under a prior evaluation would have no bearing on the propriety of
the agency's subsequently omitting it. In any case, the record shows that
Columbia's proposal was not scored higher than PMS's under this subfactor.
In fact, PMS's initial overall score was 97 (out of an available 100 points)
and Columbia's was 0. Price Negotiation Memorandum at 3.

2. The RFQ required vendors to "provide [s]oftware [m]aintenance in
accordance with the manufacturer's latest established service procedure, to
include telephone access to technical support for use of program software
and trouble shooting of the operating systems." RFQ 0224 sect. C.3.

3. These provisions require the manufacturer of x-ray equipment (e.g., PMS)
to furnish, on request, certain technical and safety information, and
instructions for assembly, installation, adjustment, and testing of
components to assure that the products will comply with the applicable
provisions of related regulations which set forth proper operational
parameters.

4. In any case, there is no evidence that Columbia's technicians have
obtained the necessary training and experience from an alternative training
firm. Similarly, Columbia does not currently have access to PMS's diagnostic
software under 21 C.F.R. sect. 1020.30, or otherwise; rather, it is only
investigating with the Food and Drug Administration the legality of PMS's
refusal to grant it a license. We note that it is the Army's position that
the provisions would only require access to safety-related information and
not all the diagnostic software necessary for maintaining and repairing the
equipment in question.