Matter of: Ionsep Corporation, Inc. File: B-255122 Date: February 10, 1994

B-255122: Feb 10, 1994

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General Accounting Office review of an agency's technical evaluation is limited to ensuring that the evaluation is fair. Allegation that awardee will violate another firm's patents in performing a contract is dismissed because the matter is for consideration by the courts. Contracting officer's determination that awardee is a responsible contractor will only be disturbed upon a showing that the contracting officer acted in bad faith or failed to properly apply definitive responsibility criteria in the request for proposals. That the awardee is not capable of performing the contract successfully. Offerors were required to submit technical literature with their proposals to show that their systems conformed to the specifications.

Matter of: Ionsep Corporation, Inc. File: B-255122 Date: February 10, 1994

1. General Accounting Office review of an agency's technical evaluation is limited to ensuring that the evaluation is fair, reasonable, and consistent with the evaluation criteria; mere disagreement with the agency does not itself render the evaluation unreasonable. 2. Allegation that awardee will violate another firm's patents in performing a contract is dismissed because the matter is for consideration by the courts, not the General Accounting Office. 3. Contracting officer's determination that awardee is a responsible contractor will only be disturbed upon a showing that the contracting officer acted in bad faith or failed to properly apply definitive responsibility criteria in the request for proposals.

Attorneys

DECISION

Ionsep Corporation, Inc. protests the rejection of its proposal to supply four portable electrodialysis systems for the Anniston Army Depot under a Department of the Army solicitation. Ionsep alleges that the system of the awardee, Ionic Industries International, cannot meet several of the technical requirements of the solicitation, and that the awardee is not capable of performing the contract successfully.

We deny the protest in part and dismiss it in part.

On July 8, 1993, the Department of the Army issued request for proposals (RFP) No. DAAC01-93-R-0026, seeking proposals for four portable electrodialysis systems for the Anniston Army Depot. Offerors were required to submit technical literature with their proposals to show that their systems conformed to the specifications. The systems will be used to eliminate metal impurities from chromic acid hazardous waste generated by depot operations.

Three offers were received and evaluated but none was found technically acceptable. Following discussions with the three companies, all three submitted proposals that were found acceptable. Following the determination of the competitive range, one of the companies was eliminated because of price. Best and final offers were received from the remaining two companies, Ionsep and Ionic. After checking Ionic's references, the Army concluded that Ionic was responsible and it made award to that firm. Ionsep then timely protested the award.

Concerning the technical requirements, the protester initially assumed that the process proposed by the awardee is an electrodialysis technology using an acid catholyte, as opposed to an alkaline catholyte, and could not meet the solicitation requirements for purification, cross contamina- tion, and automation. Alternatively, the protester alleged that if the awardee's system uses an alkaline catholyte, then the awardee would infringe patents held by Ionsep.

The type of base being offered by Ionic apparently was not known by the protester when it initially protested because the RFP did not require that offerors go into detail as to the solutions and chemical mixture that would be utilized in their systems; it merely required submission of technical information to show that the product offered conformed to the specifications in the RFP. During the course of the protest the protester learned that the awardee in fact proposed to use an alkaline base. The protester then stated that "it is now a fact that the process Ionic Industries proposed to sell to ANAD is a patented IONSEP Process" which will be infringed if the Army allows Ionic to proceed with the contract.

In addition to its allegation regarding the violation of its alkaline patent, the protester also alleges several bases of protest involving specific components of the awardee's system. The protester questioned the awardee's purification process, maintaining that it did not provide a rectifier that could operate at 500 amperes, as required by the speci- fications. Also, the protester contends the awardee's proposed system lacked an adequate fume hood and thus could not meet the solicitation requirement that the system not emit any substances into the work place that exceeded the limits set out in an Occupational Safety and Health Administration (OSHA) regulation, 29 C.F.R. Sec. 1910.1000 (1993) According to the protester, the awardee's process would emit a chromic acid mist into the workplace in excess of the limits set out in the OSHA regulation.

It is not the function of our Office to evaluate technical proposals. Rather, we will examine the agency's evaluation to insure that it was fair, reasonable and consistent with the evaluation criteria set out in the RFP. Realty Executives, B-237537, Feb. 16, 1990, 90-1 CPD Para. 288. The determination of the merits of the proposals, particularly with regard to technical considerations, is primarily a matter of administrative discretion which we will not disturb unless it is shown to be arbitrary. Id. A protestor's disagreement, standing alone, with the agency's judgment is itself not sufficient to establish that the agency acted arbitrarily. Id.

As noted above, when the protester learned that the awardee's system would be using an alkaline base, it abandoned its arguments relative to the unsuitability of an acid base system. The remaining issue concerning use of an alkaline base is whether the awardee's system will violate the protester' s patent.

This issue is not for our consideration. Lab Prods.-Inc., B-252452, Mar. 19, 1993, 93-1 CPD Para. 250. The exclusive remedy for a patent holder who claims patent infringement by the government or by a government contractor who acts with the authorization or consent of the government is a suit against the government in United States Court of Federal Claims. See 28 U.S.C. Sec. 1498(a) (1988); MRCA, Inc., B-194275, Aug. 8, 1979, 79-2 CPD Para. 96. We therefore dismiss this ground of protest.

The protester further alleges that the awardee's system, which uses 500 amperes, is not adequate to meet the performance requirement for the purification process as set out in paragraph 3.2.1 of the solicitation, which reads:

"Purification Process. The purification system shall be capable of operating at 500 amperes; processing a chromic acid solution consisting of 4 to 5 grams per liter of metal impurities and 8 to 10 grams per liter trivalent chromium; and removing 340 grams of metal and oxidizing 2400 grams of trivalent chrome back to hexava- lent chromium per 24 hours of operation by electrodialysis."

The protester acknowledges that Ionic's system uses a 500 ampere rectifier but contends that the awardee has failed to state that its "system would operate or was capable of operating at 500 amperes." The protester states that just because a system has a 500 ampere rectifier does not mean it is capable of operating at 500 amperes. According to the protester, in order to meet the purification standards in the specifications, "a system rated for continuous operation above 500 amperes is required," such as the 750 ampere system that Ionsep has proposed.

As the Army noted, the awardee included preprinted literature showing that its system has a digital rectifier rated at 500 amperes with a maximum current of 500 amperes. More importantly, the awardee's proposal explained that its system, when operating at 350 amperes, would meet or exceed all the above stated requirements for the purification process.

The Army's technical evaluators considered whether Ionic's 500 ampere rectifier would meet the specified requirements and concluded that it would do so. Although the protester insists that a higher-rated rectifier is needed, we are not persuaded that the Army's contrary conclusion is unreasonable.

The protester also argues that the equipment of the awardee will not be mounted consistent with section 3.1.3 of the solicitation, which requires that any part of the system that processes the chromic acid outside the plating tank be located inside a chemical containment area. The protester concedes that the equipment is mounted inside a chemical containment area but is done in such a way so that failure of the outside wall of the electrolyzer container would cause chromic acid to spill out into the environment or even on an operator.

In response to this ground of protest, the Army reexamined the awardee's proposal and accompanying illustrations. This reexamination confirmed that the awardee's equipment is mounted inside a containment area, as required by the specifications. Also, the Army notes that even if the outside wall of the main tank failed, this would not cause a spill unless there was also a failure of an internal wall which is contained within the main tank.

Next, the protester alleges that the awardee's process will violate OSHA regulations that the Army listed in the solicitation. The protester basically argues that the chemical process involved in the electrolysis will result in a release of a chromic acid mist into the work place, contrary to the limits in the regulation, unless there is an adequate fume hood over the chemical containment area. The protester recognized that the awardee has a lid covering the anode gas and acid plating solution, but states that it "is a very questionable fume hood."

In its proposal, the awardee indicates it will be supplying fume hoods to ensure that there will be no emissions into the workplace in excess of the OSHA limits. In any event, the Army points out that any tight fitting lid is sufficient to contain an acid mist within the system sufficiently to meet OSHA requirements. The Army further notes that chlorine gas is only a concern if hydrochloric acid or some other type of chlorine containing compound is used. Nothing in the awardee's proposal indicates that any such compounds will be used.

The protester initially asserted that the awardee's process will result in a mixture of gases that is dangerous. The Army responded to this allegation, and the protester did not address the issue in its final comments. We therefore consider that the issue has been abandoned.

Finally, the protester alleges that Ionic, which has the same address as another company, Chemical Etching and Supply Company, is not a separate legal entity; rather, it is controlled by Chemical Etching. The protester further alleges that Chemical Etching is presently furnishing the Army with a similar type product that is unsatisfactory. Therefore, the protester concludes that the awardee was not a responsible contractor. In response, the Army reports that its pre-award survey includes information that Ionic is an independent company that has successfully performed work for several customers.

This ground of protest concerns the ability of the awardee to perform in accordance with the specifications, and thus concerns the contractor's responsibility. See Holiday Inn Lakeside City Center, B-248040, June 17, 1992, 92-1 CPD Para. 527. An agency's affirmative determination of a contractor's responsibility will not be reviewed by our Office absent a showing of possible fraud or bad faith on the part of procurement officials, or that definitive responsibility criteria in the solicitation may have been misapplied. 4 C.F.R. Sec. 21.3(m) (5) (1993); Coast Waste Mgmt., Inc., B-251167.3, June 10, 1993, 93-1 CPD Para. 460. None of these exceptions apply here. We dismiss this ground of protest.

Accordingly, the protest is denied in part and dismissed in part.

1. The electrodialysis process involves, among other things, the use of a cathode to remove impurities. A catholyte is the portion of an electrolyte (acid or alkaline base) in the vicinity of the cathode. In electrodialysis, either an acid or alkaline electrolyte may be used.