TITLE:  Cross Match Technologies, Inc., B-293024.3; B-293024.4, June 25, 2004
BNUMBER:  B-293024.3; B-293024.4
DATE:  June 25, 2004
**********************************************************************
   Decision

   Matter of:   Cross Match Technologies, Inc.

   File:            B-293024.3; B-293024.4

   Date:              June 25, 2004

   Richard P. Rector, Esq., Carl L. Vacketta, Esq., and David E. Fletcher,
Esq., Piper Rudnick, for the protester.

   Anne B. Perry, Esq., and Jonathan S. Aronie, Esq., Sheppard Mullin Richter
& Hampton, for Identix Incorporated, an intervenor.

   Mark A. Allen, Esq., Department of Homeland Security, for the agency.

   David A. Ashen, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Although it was improper for an agency to incorporate into awarded blanket
purchase agreement additional, noncompeted items from vendor's General
Services Administration schedule contract, where pricing for noncompeted
items exceeded pricing limitation established in solicitation provision,
and incorporation of noncompeted items was therefore inconsistent with
agency obligation to evaluate vendors on an equal basis and in a manner
such that the total cost to the government can be meaningfully assessed,
nevertheless, protest in this regard is denied where protester was not
prejudiced by the agency's improper action. 

   DECISION

   Cross Match Technologies, Inc. protests the Department of Homeland
Security's (DHS) issuance of a blanket purchase agreement (BPA) to Identix
Incorporated, under request for quotations (RFQ) No. COW-3-Q-0047, for
live-scan electronic fingerprint scanning systems.  The BPA was issued to
Identix under its General Services Administration (GSA) Federal Supply
Schedule (FSS) contract.  Cross Match challenges the technical and price
evaluations.

   We deny the protest.

     The RFQ indicated that the live scan systems being acquired were "to be
used predominantly at domestic ASCs and other domestic BCIS sites to
replace existing Livea**Scan technology as it becomes worn or outdated." 
Statement of Work (SOW) SA 4.0.  The RFQ further indicated, however, that
"[i]n 2004, BCIS anticipates expanding the ASC Program to worldwide
operations at sites on up to five continents," with the overseas ASC
program "allow[ing] biometric capture for background checks prior to an
applicant entering the U.S.A."  Id.[1]

   Award was to be made to the vendor whose quotation was determined to
represent the "best value" to the government based on two evaluation
factors:  (1)A demonstrated technical capability, the evaluation of which
would be based on the vendor's technical proposal and a live test
demonstration of its equipment; and (2) price.  The RFQ provided that
"[t]he primary method of evaluating each technical factor in the SOW is
specified in the Technical Evaluation Checklist," that is, a checklist of
93A requirements, each denoted as either "critical" or not.  RFQ S 4.5.1. 
Any quotation receiving lower than a satisfactory rating for one or more
critical factors was to be deemed overall unsatisfactory for demonstrated
technical capability and ineligible for award.  As for price, the RFQ
required vendors to identify each category of quoted product/services to
the applicable GSA schedule items, furnish the GSA price, show the quoted
discount from the GSA price and the resulting BPA price, and furnish
copies of the GSA schedule contracts.  In this regard, vendors were warned
that "DHS may choose not to enter into a [BPA] with Offerors whose prices
are not competitive or which offer no pricing discounts on items or
services available at an undiscounted price on the GSA Schedule.  Pricing
proposed must be at or below the GSA Schedule price."  RFQ S 4.6.  In
addition, the RFQ cautioned that "[p]roposals which are . . .
unrealistically low in . . . price will be deemed to show an inherent lack
of technical competence or failure to comprehend the complexity and risk
of the BPA requirements."  RFQ S 4.6.  The RFQ provided that "the
Government is more concerned with obtaining performance capability
superiority rather than the lowest overall price."  RFQ SA 4.2.

   Initial quotations were received from five vendors by the September 11,
2003 closing time.  Four of the vendors, including Cross Match, quoted
only a desktop live scan system, that is, a system in which the
fingerprint scanner unit is attached to a desktop computer.  The fifth
vendor, Identix, quoted both a desktop live scan system and a booking
station system, that is, a system in which the fingerprint scanner unit
and the desktop computer are enclosed in a cabinet and which is designed
to be used in a fixed location.  Since there could be no "apples-to-apples
comparison" for evaluation purposes between a desktop system and a booking
station system, and a booking station solution was most consistent with
the domestic office environment in which the large majority of machines
would be used, DHS amended the RFQ on September 16 to clarify that DHS was
seeking to purchase "both stand-alone live scan booking stations and live
scan desktop solutions to satisfy multiple DHS users and environments." 
Amend. No. 0003 at 2.  The amendment provided that "each Offeror shall
provide a revised price proposal, using the two attached pricing tables,
to offer both stand-alone live scan booking station and desktop solutions,
if available on the Offeror's GSA Schedule."  Id.  Also, "[d]ue to the
change in requirements," the RFQ was amended to reserve to the government
the right to issue more than one BPA where the agency determined that
multiple BPAs would represent the best value.  Revised quotations were due
by September 16.  Id.

   In their revised quotations, Cross Match and three other vendors, as well
as Identix, responded to the call for a booking station solution.  Based
on its evaluation of the revised quotations, the agency's technical
evaluation committee (TEC) rated Identix's desktop and booking station
solutions outstanding, and Cross Match's only satisfactory, with respect
to demonstrated technical capability.  The TEC concluded, however, that
both vendors' technical quotations "stand out in terms of Demonstrated
Technical Capability," and "strongly recommend[ed]" awarding BPAs to both
vendors.  TEC Report, Sept. 26, 2003, at 24.  According to the TEC report,
"Identix Corporation's proposed technical solution, with its Standalone
Booking Station hardware and superior support, provides the best overall
value for existing domestic ASC locations and processes," while Cross
Match's desktop technical solution, "while not the best fit for domestic
ASC use, provides superior mobile features and would provide the best
overall value for mobile and overseas applications."  Id.  The source
selection authority (SSA), however, determined that the best value would
be obtained by awarding a single BPA for both the desktop and booking
station systems to Identix, whose prices were lower than Cross Match's. 

   Upon learning of the resulting September 30 award of a BPA to Identix,
Cross Match protested to our Office.  DHS responded to Cross Match's
protest by deciding to reevaluate quotations (but not to accept technical
or price revisions); we therefore dismissed Cross Match's protest. 
(B-293024, B-293024.2, Oct. 28, 2003).

   DHS reports that, during the course of the reevaluation, it learned that
Cross Match's booking station (as well as those quoted by three of the
other vendors) was not on Cross Match's GSA schedule contract at the time
of the September 16 closing date for receipt of revised quotations. 
Rather, the booking station quoted in Cross Match's revised quotation was
first added to its GSA contract as a result of a proposed modification
that was submitted by Cross Match to GSA on SeptemberA 12, the day after
amendment No. 003 was issued, but was not incorporated into Cross Match's
GSA schedule contract until September 25, that is, after the closing date
but before the September 30 award to Identix.  Cross Match Letter to DHS,
Oct. 31, 2003.  Although DHS ultimately concluded that Cross Match's
quoted booking station was ineligible for award because it was not timely
included on the firm's GSA schedule contract, the agency nevertheless
included the booking station in the technical evaluation.

   In its reevaluation report, dated February 19, 2004, the TEC assigned
Cross Match's desktop and booking station solutions overall outstanding
ratings for demonstrated technical capability, based on outstanding
ratings for nine technical subfactors (including three critical
subfactors).  The TEC likewise assigned Identix's solutions overall
outstanding ratings for demonstrated technical capability, based on
outstanding ratings for 15 technical subfactors (including 7 critical
subfactors).  Notwithstanding the increase in Cross Match's overall rating
for demonstrated technical capability (from satisfactory in September 2003
to outstanding in FebruaryA 2004), the TEC recommended award only to
Identix.  TEC Reevaluation Report, Feb. 19, 2004, at 21-31.  In addition,
as previously noted, Identix's evaluated prices for both the desktop and
booking station ($[DELETED] for the desktop and $[DELETED] for the booking
station) were lower than Cross Match's ($[DELETED] and $[DELETED]).  The
SSA concluded that Identix's quotation represented the best value for both
the booking station and desktop requirements.  In this regard, having
first adopted the TEC's findings with respect to technical strengths and
weaknesses, subfactor ratings and overall evaluation ratings (including
the overall outstanding ratings for demonstrated technical capability for
both Identix and Cross Match), the SSA concluded that neither Cross
Match's desktop solution nor its booking station solution provided
additional value relative to Identix's systems so as to warrant payment of
Cross Match's higher prices.  Furthermore, the SSA specifically discounted
the possibility of making multiple awards, noting, among other
considerations, that having multiple systems in the field would increase
the cost and effort for training and maintenance.  Source Selection
Decision at 7-8.  Upon learning of the determination that Identix's
quotation represented the best value to the government, Cross Match filed
this protest with our Office.

   INCORPORATED ITEMS

   Upon award of the BPA, DHS intends to incorporate the winning vendor's GSA
Schedule contract into the DHS BPA, to include all the vendor's Schedule
Live Scan products and services.  DHS will negotiate with the winning
vendor to obtain DHS BPA pricing for Live Scan models, equipment, and
services that were not part of the Offeror's proposal.  BPA pricing for
additional models shall be equal to, or below, the pricing on the proposal
model, including discounts.

   In its quotation, Identix not only completed the pricing tables furnished
with amendment No. 003, quoting specific pricing for the competed and
evaluated desktop and booking station systems and associated services as
set forth in the various contract line item numbers (CLIN) in the pricing
tables, but also quoted discount rates and resulting pricing for the
remainder of the live scan items from its GSA schedule contract that were
not included in the RFQ's pricing tables.  Specifically, Identix quoted an
aggregate [DELETED] percent discount from its GSA schedule pricing for the
booking station CLINs and an aggregate [DELETED] percent discount for the
desktop system CLINs.  In addition, Identix quoted a [DELETED] percent
discount for additional, specified [DELETED] from its GSA schedule that
were [DELETED] and were not included in its pricing tables; a [DELETED] of
[DELETED] percent for additional, specified items from its GSA schedule
contract that were [DELETED] and were not included in its BPA pricing
tables; and [DELETED] not included in Identix's BPA pricing tables.  (The
RFQ did not specifically require that a vendor's quotation include
discounts and pricing for the vendor's GSA schedule live scan products and
services that were to be incorporated into the DHS BPA pursuant to section
2.1, and Cross Match did not furnish such discounts and pricing with its
quotation.)

   Testimony at the hearing conducted in this protest indicated that the
agency's contract specialist, acting as the price analyst, had concluded
at the time of initial issuance of the BPA in September 2003 that
Identix's pricing for the additional items to be incorporated into the BPA
from Identix's GSA schedule contract pursuant to sectionA 2.1 did not meet
the requirement that the pricing for the incorporated items be equal to or
lower than the pricing for the quoted evaluated items.  However, according
to the price analyst, there was insufficient time to negotiate with
Identix over the pricing for the "noncompeted items."  Hearing Transcript
(Tr.) at 714-17.  Specifically, DHS was attempting to issue the BPA to
Identix on SeptemberA 30, the last day of the fiscal year, before the
agency appropriation to be used here had expired, and a delay had been
encountered in obtaining the approval of the contracting officer (who also
was the SSA) of the contemplated BPA (he had initially refused to sign any
BPA that incorporated the winning vendor's GSA schedule).  Id.; E-mail
from Chairperson of TEC to Members of TEC, Sept. 30, 2003, 3:44 p.m. 
Notwithstanding any concerns in this regard, however, once the reluctance
of the contracting officer to sign the BPA was overcome, a BPA was issued
to Identix on September 30 that included Identix's discounts and pricing
for the additional, noncompeted items to be incorporated into the DHS BPA
from Identix's GSA schedule contract pursuant to section 2.1.  The record
indicates that DHS did not subsequently renegotiate the pricing for these
noncompeted items (nor did it order any of the items under Identix's new
BPA).  Instead, the day before the hearing conducted by our Office, DHS
modified Identix's BPA to delete all of the incorporated noncompeted
items.

   Cross Match asserts that incorporating the noncompeted items at the quoted
prices into Identix's BPA was inconsistent with the RFQ requirement that
the prices for these items be equal to or lower than the prices for the
evaluated items.  We agree.  DHS concedes that Identix's quoted pricing
for some of the noncompeted items from Identix's GSA schedule exceeded the
pricing for the evaluated items, but asserts that this was not a violation
because the noncompeted item pricing did not need to meet the "equal or
less" requirement until after the negotiation of pricing, which had not
yet occurred, and because no orders had been issued.  DHS Comments, June
8, 2004, atA 18a**19; DHS Comments, June 15, 2004, at 2.  However,
Identix's quotation was noncompliant with that pricing restriction when
the BPA was awarded to Identix on September 30.  While DHS may have
intended subsequently to modify the BPA to remove the improper pricing,
this does not alter the fact that the BPA as awarded included noncompliant
pricing.  As a result, the issuance of the BPA was inconsistent with the
basis upon which quotations were issued and thus improper.  It is
generally improper for an agency to solicit quotations on one basis and
then make award on a materially different basis.  See Cellular One,
B-250854, Feb. 23, 1993, 93-1 CPD PA 169 at 4; Ann Riley & Assocs., Ltd.,
Ba**241309.2, Feb. 8, 1991, 91-1 CPD P 142 atA 4.[2]

   This is the general rule, and it is a fundamental one in our federal
procurement system, but it may be waived if competitors are not prejudiced
thereby.  See Cellular One, supra; Ann Riley & Assocs., Ltd., supra. 
Similarly, our Office will not sustain a protest unless there is a
reasonable possibility of prejudice, that is, unless the protester
demonstrates that, but for the agency's improper actions, it would have
had a substantial chance of receiving award.  McDonald-Bradley, B-270126,
Feb. 8, 1996, 96-1 CPD P 54 at 3; see Statistica, Inc. v. Christopher, 102
F. 3d 1577, 1581 (Fed. Cir. 1996).  Cross Match argues that it was
prejudiced because, by quoting pricing for the noncompeted items from
Identix's GSA schedule that was higher than permitted by sectionA 2.1,
Identix was in a position to gain an improper advantage by shifting its
costs to the unevaluated pricing and reducing its evaluated pricing. 

   We find no reasonable possibility of prejudice to Cross Match.  To the
extent that Identix could shift a disproportionate share of its costs to
the unevaluated items (there is no persuasive evidence that it did so),
the record shows that the amount involved could have accounted for no more
than a small portion of Identix's overall price advantage. 

   In response to the protest, DHS calculated the potential competitive
advantage obtained by Identix.  In this calculation, the agency assumed
that the section 2.1 pricing limitation applied to all noncompeted goods
and services that the agency reasonably anticipated ordering through
Identix's BPA.  We note that this approach is consistent with the
protester's June 8 statement of prejudice:

   Cross Match does not argue in connection with this allegation that Identix
gained an advantage equal to all money that would have been spent by the
agency on non-competed items under the BPA.  Rather, Cross Match argues
more narrowly that Identix's advantage in this area can best be measured
by the difference between (i) Identix's actual proposed prices for
nona**competed items that the agency reasonably expects to sell through
the BPA, and (ii) Identix's *should-have-been' prices for the same items,
assuming that no waiver [of RFQ paragraph 2.1] had occurred and that
discounts on non-competed items were as good or better than those on
similar, competed items.

   Cross Match Comments, June 8, 2004, at 14. 

   DHS reports that it anticipated ordering through Identix's BPA a quantity
of 10A mobile fingerprint scanning systems (model [DELETED]), a
noncompeted item incorporated into the BPA from Identix's GSA schedule
contract and priced at a [DELETED]A percent discount from the GSA schedule
price.  These mobile systems appear to be a variant of the desktop
fingerprint scanning systems (model [DELETED]) quoted by Indentix to meet
the RFQ desktop requirement, in which the desktop personal computer is
replaced by a laptop computer, and the agency considers the mobile systems
to be subject to the sectionA 2.1 pricing limitation.  The price for the
noncompeted mobile systems DHS anticipated ordering was $[DELETED] at a
[DELETED]A percent discount, while the price (according to DHS) for the
comparable element of the quoted desktop was $[DELETED] at a
[DELETED]A percent discount.  DHS Comments, June 15, 2004.  Cross Match
generally asserts that the difference in the quoted discount rates is the
proper comparison, based on which methodology it calculates prejudice
related to these items as only $[DELETED].  Cross Match also claims that
the agency is likely to order additional mobile systems through Identix's
BPA, but it concedes that the potential prejudice (calculated by Identix
as up to $[DELETED]) "does not appear to be substantial."  Cross Match
Comments, June 18, 2004, at 4.  

   DHS reports that it also intends to order an additional $1,704,160 in
other live scan equipment.  However, some of this equipment was not
available on Identix's BPA (including $670,800 in cameras) as issued, and
for the remainder of the equipment, there were no comparable items in the
RFQ's pricing tables; thus, the section 2.1 pricing limitation did not
apply to this equipment.  DHS Comments, June 15, 2004.  Cross Match has
not shown the agency's position in this regard to be unreasonable.

   DHS also anticipated ordering from Identix continuing maintenance for its
installed base of 417 legacy Identix Tenprinters fingerprint scanning
systems (similar to a booking station) and 254 legacy Identix CMS systems
fingerprint scanning systems (aA type of desktop system).  The noncompeted
items incorporated into Identix's BPA from its GSA schedule contract
included an item for Tenprinter maintenance ($[DELETED]A per month at
[DELETED]A percent discount), but there was no item for CMS maintenance. 
(Identix's consolidated price for out-of-warranty maintenance of the
booking station as included in the RFQ pricing tables was $[DELETED]per
year at a [DELETED]A percent discount.)  DHS reports that, based on the
agency's plan first to replace the older, more heavily used Tenprinters
with new systems, and then the CMS systems, the likely cost of the
maintenance for Identix Tenprinters ordered under Identix's BPA would have
been $[DELETED].  The agency calculates that, assuming that the section
2.1 "equal or less than" pricing limitation applied to services (and the
agency does not believe it does), and using the discount rate measure of
comparison suggested by the protester, the difference between the quoted
discount rate ([DELETED]A percent) for Tenprinter maintenance and the
minimum discount rate (a consolidated [DELETED]A percent) based on the
discount rate for the evaluated booking station maintenance, yields a
potential prejudice in the amount of $[DELETED].  DHS Comments, June 15,
2004; DHS Comments, JuneA 17, 2004. 

   As shown above, the magnitude of any potential competitive advantage
obtained by Identix from its noncompliant pricing for noncompeted items is
relatively small, and certainly is not sufficient to eliminate Identix's
$[DELETED] price advantage.  Accordingly, we find no prejudice to Cross
Match from the waiver of the pricing requirement.[3]

   DEMONSTRATED TECHNICAL CAPABILITY EVALUATION

   As noted above, the RFQ included a technical evaluation checklist of
93A requirements or subfactors, each denoted as either "critical" or not. 
RFQ SA 4.5.1.  Although the TEC in its reevaluation of proposals assigned
both Cross Match's desktop and booking station solutions overall
outstanding ratings for demonstrated technical capability, Identix's
desktop and booking station solutions received outstanding ratings under
significantly more subfactors than Cross Match's.  Specifically, Identix's
solutions were evaluated as outstanding under 15 of the 93A technical
subfactors, including 7A critical subfactors, while Cross Match's were
evaluated as outstanding under only 9A technical subfactors, including
only 3 critical subfactors.  Cross Match challenges the technical
evaluation, asserting that DHS improperly failed to take into account a
number of advantages offered by Cross Match's quoted approach, and
unreasonably attributed technical superiority to Identix's quotation under
a number of subfactors. 

   Under the FSS program, an agency is not required to conduct a competition
before using its business judgment in determining whether ordering
supplies or services from a particular FSS vendor represents the best
value and meets the agency's needs at the lowest overall cost.  Federal
Acquisition Regulation S 8.404(a); Information Spectrum, Inc., B-285811,
B-285811.2, Oct. 17, 2000, 2001 CPD PA 133 at 4.  However, where, as here,
an agency conducts a competition, we will review the agency's actions to
ensure that the evaluation and source selection were reasonable and
consistent with the terms of the solicitation.  Aerotek Scientific LLC,
B-293089, Jan.A 23, 2004, 2004 CPD P 21 at 3.  Based on our review of the
record here, we find no basis to question the overall technical
evaluation.  We discuss a number of Cross Match's more significant
arguments below.

    The TEC specifically noted in a separate section of its initial
(September 2003) evaluation report certain "Additional Strengths" of Cross
Match's system which, unlike the other evaluated strengths, were not
attributed to any particular technical subfactor, but which nevertheless
were viewed as beneficial for overseas and mobile uses.  These "Additional
Strengths" included:  (1) the ability to capture stained fingerprints,
considered good for overseas applications; (2) the ability to capture the
signature of the fingerprint technician, considered useful in both ASC and
overseas applications; (3) the ability to send fingerprints directly from
the fingerprint scanning system without going through a server, considered
good for overseas or other mobile applications; (4)A rugged scanner
construction, considered an outstanding feature for overseas or other
mobile applications; (5)A a scanner weight of just 11.5 pounds, considered
good for overseas or other mobile applications; and (6) a universal power
supply that adapts to most power conversions for foreign use.  Id. at
9-10. 

   We find that the evaluation in this area was consistent with the
evaluation approach set forth in the RFQ and reasonable in application. 
The RFQ S 4.5.1, "Demonstrated Technical Capability Factor Evaluation,"
specifically provided, in relevant part, as follows:

   The Government will evaluate the Offeror's demonstrated technical
capability factor based on the Technical proposal and test demonstration. 
The primary method of evaluating each technical factor in the SOW is
specified in the Technical Evaluation Checklist.

   The record indicates that, while in the initial evaluation the TEC
identified features not falling within the technical evaluation checklist
subfactors as "Additional Strengths," in its reevaluation the TEC
eliminated the "Additional Strengths" section of its report and instead
focused on evaluating in accordance with the 93 technical subfactors set
forth in the technical evaluation checklist.  Tr.A atA 263-65, 274-76,
279, 295-96, 307, 346-48.  Given the statement in RFQ S 4.5.1 that vendors
were to look to the technical evaluation checklist of 93 subfactors for
the "primary" evaluation method, we think it was reasonable for the agency
to use the 93A subfactors as the focal point for its evaluation.  (Indeed,
the record indicates that Cross Match itself expected that its quotation
would be evaluated against the 93A stated subfactors.  Tr.A at 812.)

   Further, as Cross Match itself has acknowledged, none of the 93 evaluation
subfactors specifically related to overseas use.  Cross Match Comments,
May 10, 2004, atA 12; Tr.A atA 276A (SSA).  While the RFQ indicated that
"[i]n 2004, BCIS anticipates expanding the ASC program to worldwide
operations at sites on up to five continents," SOW SA 4.0, the anticipated
overseas environment in which the fingerprint scanner systems would be
deployed is predominantly an office environment.  Tr.A at 130, 133-34,
197-98, 213.  DHS did not view the RFQ as providing for meeting a mobile
requirement, Tr. at 130, 212, 301, 370, 534, and the record suggests that
neither did Cross Match.[4]  Specifically, neither Cross Match nor Identix
quoted a mobile system, that is, a system in which the fingerprint scanner
is integrated with a laptop computer.  Tr. at 370-71, 427-28, 532-34. 
According to Cross Match's chief operating officer:  "We were not asked to
bid a mobile solution.  We were asked to bid a desktop solution.  We bid a
desktop solution that included a desktop computer."  Tr. at 775.  Indeed,
this focus on use in an office environment, rather than in a mobile
environment, is consistent with the requirement in the SOW and under
subfactor 49 that the live scan system provided by the contractor "[b]e
designed to function in an office environment of 60A to 90 degrees
Fahrenheit and 20A to 80 percent relative humidity .A .A . ."  SOW S
6.2.3. 

   We find that, given the focus in the evaluation provisions of the RFQ on
use in an office environment, the agency reasonably determined in the
reevaluation not to credit Cross Match's quoted solution with any
significant advantage in this area.  For example, testimony at the hearing
indicated that while the capability of Cross Match's systems to send
fingerprints directly from the fingerprint scanning system without going
through a server may have some value in an overseas or mobile application,
it would not work in an ASC office environment, that is, the environment
that was the focus of the evaluation and the procurement.  Tr. atA 309. 
Likewise, while the rugged construction and the 11.5A pound weight of
Cross Match's scanner was an advantage in mobile applications, the agency
viewed these features as of limited value in an office environment.  Tr.
at 13-17, 195-98, 201-02, 304.[5]  In any case, it appears that Identix's
scanner also possessed some, more limited ruggedizationa**a**including
being totally sealed, with no cooling fans or vents, and with no moving
parts for fingerprint capturea**a**which would be useful in a mobile use. 
Tr.A atA 257; TEC Evaluation Report, Aug. 11, 2003, at 19; TEC Evaluation
Report, Sept.A 26, 2003, at 20. 

   In addition, the record indicates that Identix's systems otherwise offered
some of the advantages attributed to Cross Match's in the initial
evaluation.  For example, while the TEC's reevaluation report acknowledged
that Cross Match's stated capability of capturing stained fingerprints
"might be useful," TEC Reevaluation Report, Feb. 19, 2004, at 9, the
record indicates that Identix's systems likewise possessed the capability
to capture stained fingerprints, with Identix actually having demonstrated
that capability to the TEC during the overall demonstration of its
system.  Tr. atA 428a**29; TEC Evaluation Report, Aug. 11, 2003, at 19;
TEC Evaluation Report, Sept.A 26, 2003, at 19.  Thus, this capability
furnished no basis for distinguishing between the quotations.  Nor does
Cross Match's statement that its systems had the ability to capture the
signature of the fingerprint technician furnish a basis for distinguishing
between the quotations.  The record indicates that Cross Match was unable
to demonstrate the capability to permanently record the technician's
signature and, in any event, Identix's systems also identified the
fingerprint technician, albeit not by the technician's signature.  Tr.A at
190, 310a**11, 430-31.  As for Cross Match's system possessing a universal
power supply that adapts to most power conversions for foreign use, the
record indicates that Identix's systems have been used by DHS for overseas
refugee use and have satisfactorily complied with any power conversion
requirements.  Tr. at 305-06, 312a**13.  In these circumstances, we
conclude that DHS's evaluation of the overseas and mobile features cited
by Cross Match was not unreasonable.

     TEC Reevaluation Report, Feb.A 19, 2004, at 15-16; Tr. at 459a**63; DHS
Comments, June 8, 2004, atA 12; DHS Comments, June 4, 2004, at 20-22.

   Cross Match argues that the agency's consideration of the fact that
Identix's quoted system has software and data entry screens with the same
look/feel/touch as the existing Identix software at DHS amounted to
consideration of an unstated evaluation criterion and, in any case, failed
to account for required post-award software modifications.   

   We find no basis to object to the evaluation in this area.  While an
agency may not consider evaluation criteria that are not reasonably
related to the evaluation factors set forth in the RFQ, KPMG Consulting
LLP, B-290716; B-290716.2, Sept. 23, 2002, 2002 CPD P 196 at 14, the
similarity in the look/feel/touch of the software and data entry screens
would facilitate meeting the EFTS file-creation requirement evaluated
under subfactor No. 4; therefore, this consideration was reasonably
related to an evaluation factor set forth in the RFQ.  Further, while SOW
S 6.2.4 contemplated that the successful vendor would "perform all
Live-Scan software modifications required to interface with BCIS systems,"
and "modify data entry (screens) to meet Government requirements," SOW S
6.2.4, DHS reports that there would be no need for modification of
Identix's quoted software and data entry screens because of the similarity
to the current software and data entry screens.  DHS Comments, June 8,
2004, at 12.  We conclude that the agency reasonably credited Identix's
quoted solution with having software and data entry screens that did not
need modification and which, as a result, guaranteed that the agency's
needs could be met without delay and without necessity for staff
retraining.

   Nor do we find merit in Cross Match's challenge to Identix's outstanding
rating under critical subfactor No. 12, which required that the live scan
system be capable of performing data entry of demographic information
using pulla**down menus/tables.  DHS accorded Identix's quotation an
outstanding rating on the basis that it demonstrated a superior
understanding of DHS data entry requirements and an increased likelihood
of meeting those requirements by citing the 11 pull down tables used by
DHS and indicating that Identix's software currently includes these
tables.  Tr. at 467; DHS Comments, June 4, 2004, at 23-24.  Although Cross
Match, citing SOW S 6.2.4 above, suggests that the agency would provide
this information to the  successful vendor, DHS maintains that the agency
will furnish no more than a list of entries that must be in each table,
and that it would be the responsibility of the vendor to modify its
software.  Cross Match has not shown the agency's position in this regard
to be unreasonable.

   Having reviewed Cross Match's challenges to the technical evaluation, we
find no basis for concluding that DHS unreasonably determined that Cross
Match's

   quotation was not technically superior to Identix's.[6]  Given Identix's
lower price, there is no basis for objecting to award of the BPA to
Identix.

   The protest is denied.

   Anthony H. Gamboa

   General Counsel

   ------------------------

   [1] Although the RFQ noted that DHS's Bureau of Immigration and Customs
Enforcement and Bureau of Customs and Border Protection operate
approximately 160 live scan devices at U.S. points of entry and other U.S.
border and interior locations, the solicitation indicated that the
requirements and configurations for enforcement and benefits functions are
somewhat different, and stated that the primary requirements to be met and
configurations to be furnished under the contemplated BPA would be for
BCIS immigration benefits processing.  SOW SA 4.1. 

   [2] Cross Match also argues that incorporating noncompeted items is
inconsistent with the statutory requirement for competition.  We note that
an agency is required to evaluate offerors or vendors on an equal basis
and in a manner such that the total cost to the government for the
required goods or services can be meaningfully assessed.  See Symplicity
Corp., B-291902, Apr. 29, 2003, 2003 CPD P 89 at 5; Lockheed Aeronautical
Sys. Co., B-252235.2, Aug. 4, 1993, 93-2 CPD PA 80 at 7 ("apples to
oranges" cost evaluation is inherently improper).  A solicitation
provision that provides for incorporating into a BPA or contract
additional, unevaluated items, in quantities for which no estimates are
provided in the solicitation, and at prices that are subsequently to be
negotiated, appears neither to ensure that competitors are evaluated on an
equal basis nor to comply with the requirement that the total cost to the
government for the required goods or services be taken into account in the
evaluation.  As discussed below, however, there is no basis for concluding
that any flaws with respect to section 2.1 resulted in competitive
prejudice to Cross Match.

   [3] Cross Match also suggests an alternative calculation of prejudice
based on the total cost of maintenance ($[DELETED]) the agency expected to
order from Identix, both for the Identix Tenprinters (for which an item
was incorporated into Identix's BPA) and for the Identix CMS systems (for
which no item was incorporated into Identix's BPA).  However, this
calculation appears inconsistent with the above differential calculation
suggested by Cross Match, and the protester has not otherwise shown that
the total dollar value of the incorporated work is the proper measure of
prejudice.

   [4] Agency contracting officials, however, did expect that if Identix's
GSA live scan schedule contract was incorporated into the BPA, any
requirement for mobile systems that might arise could be met under the
augmented BPA.  Tr. at 369-71. 

   [5] Identix's scanner weighed only 14 pounds, which also was viewed as an
advantage (strength) for mobile applications.  TEC Evaluation Report,
Sept.A 26, 2003, at 20. 

   [6] Cross Match challenges the agency's price realism determination,
asserting that Identix's quoted prices, representing an aggregate
[DELETED] percent discount from its GSA schedule pricing for the booking
station CLINs and an aggregate [DELETED] percent discount for the desktop
system CLINs, were unrealistic.  While an agency is not required to
conduct a realism analysis where a solicitation contemplates award on a
fixed-price basis, an agency may, as the agency did here, provide for the
use of a price realism analysis for the limited purpose of measuring a
vendor's understanding of the requirements or to assess the risk inherent
in a vendor's quotation.  See, Cortez, Inc., B-292178, et al., July 17,
2003, 2003 CPD P 184 at 2.  Here, DHS compared Identix's prices to those
of the other vendors, finding that Identix's aggregate price for the
booking station was only [DELETED] percent lower than the average price
for all vendors, and that Identix's aggregate price for the desktop system
was only [DELETED] percent lower than the average price for all vendors. 
In addition, the record indicates that Identix has been furnishing live
scan equipment under its current BPA with DHS, under which, the agency
reports, Identix has furnished Tenprinter fingerprint scanners at a
discount of approximately [DELETED] percent (originally [DELETED] percent)
from its GSA schedule price and CMS fingerprint scanners at a discount in
excess of [DELETED] percent.  DHS Comments, June 23, 2004.  In these
circumstances, and given that the outstanding technical rating accorded
Identix's quotation demonstrates Identix's understanding of the RFQ's
requirements, we find that Cross Match's challenge to DHS's evaluation of
price realism furnishes no basis for questioning the award.