B-225161.2, MAR 5, 1987, 87-1 CPD 252

B-225161.2, MAR 5, 1987, 87-1 CPD 252

PROCUREMENT - SPECIFICATIONS - MINIMUM NEEDS STANDARDS - COMPETITIVE RESTRICTIONS - DESIGN SPECIFICATIONS - BURDEN OF PROOF DIGEST: 1. PROTEST THAT DESIGN SPECIFICATION (REQUIRING A COMPUTER INTERFACE ON X-RAY EQUIPMENT USED TO DETECT CONTRABAND) IS UNDULY RESTRICTIVE, BECAUSE PROTESTER'S EQUIPMENT ENHANCES X-RAY IMAGES WITHOUT THE AID OF A COMPUTER, IS DENIED WHERE AGENCY ESTABLISHES THAT THE INTERFACE IS ALSO REQUIRED, EVEN BY THE PROTESTER'S EQUIPMENT, FOR IMAGE STORAGE, TRANSMISSION AND RETRIEVAL AND THE PROTESTER HAS NOT SHOWN THAT THE AGENCY'S JUSTIFICATION FOR THE INTERFACE IS UNREASONABLE. PROCUREMENT - SEALED BIDDING - INVITATIONS FOR BIDS - EVALUATION CRITERIA - GOVERNMENT PROPERTY - COST EVALUATION 2. PROTEST THAT SOLICITATION IMPROPERLY FAILS TO PROVIDE FOR EVALUATION OF THE COST TO THE GOVERNMENT OF PROVIDING A COMPUTER TO ENHANCE THE X-RAY IMAGES OF COMPETITORS' EQUIPMENT IS DENIED WHERE ALL BIDDERS, INCLUDING THE PROTESTER, WILL HAVE TO USE THE GOVERNMENT FURNISHED COMPUTER FOR X-RAY IMAGE STORAGE TRANSMISSION AND RETRIEVAL.

AMERICAN SCIENCE AND ENGINEERING, INC.:

AMERICAN SCIENCE AND ENGINEERING, INC. (ASE), PROTESTS THAT THE SPECIFICATIONS IN INVITATION FOR BIDS (IFB) NO. BO/DO-D-00637-1, ISSUED BY THE GENERAL SERVICES ADMINISTRATION (GSA) FOR 17 X-RAY SCREENING SYSTEMS, ARE UNDULY RESTRICTIVE, AND THAT THE METHOD PRESCRIBED FOR BID EVALUATION IS IMPROPER. WE DENY THE PROTEST.

GSA IS PROCURING THE X-RAY SCREENING SYSTEMS ON BEHALF OF THE DEPARTMENT OF AGRICULTURE, USING AGRICULTURE'S SPECIFICATIONS. AGRICULTURE NEEDS THE X-RAY SCREENING SYSTEMS TO DETECT AGRICULTURAL CONTRABAND (FRUIT, VEGETABLES, MEAT PRODUCTS, PLANTS AND ANIMALS) SMUGGLED IN INCOMING PASSENGER BAGGAGE. AGRICULTURE ALSO NEEDS TO SAVE AND TRANSMIT EVIDENCE OF THE DETECTION. THE CONTRABAND CONSISTS OF LOW DENSITY (LOW Z (ATOMIC NUMBER) MATERIALS, THROUGH WHICH X-RAYS PASS WITH LITTLE OR NO ABSORPTION. CONSEQUENTLY, THE CONTRABAND IS DIFFICULT TO DETECT USING THE STANDARD AIRPORT X-RAY EQUIPMENT EMPLOYED TO DETECT HIGH DENSITY (HIGH Z) ITEMS SUCH AS WEAPONS (WHICH APPEAR AS IMAGES BECAUSE THEIR HIGH Z MATERIAL ABSORBS THE X-RAYS). THE RECORD INDICATES THERE ARE TWO APPROACHES TO THE PROBLEM OF DETECTING LOW Z MATERIALS: COMPUTER IMAGE ENHANCEMENT OF STANDARD X-RAY IMAGES, WHICH REQUIRES AN INTERFACE BETWEEN THE X-RAY MACHINE AND A GOVERNMENT FURNISHED COMPUTER, AND USE OF ASE'S APPARENTLY PATENTED IMAGING TECHNOLOGY, WHICH PROVIDES BETTER-THAN- STANDARD IMAGES OF LOW DENSITY MATERIAL WITHOUT COMPUTER ENHANCEMENT.

ASE COMPLAINS ABOUT THE REQUIREMENT FOR A COMPUTER INTERFACE ON THE BASIS THAT ASE'S SYSTEM DOES NOT NEED COMPUTER ENHANCEMENT, AND PROTESTS THAT THE EVALUATION OF BIDS SHOULD CONSIDER THE COST OF THE GOVERNMENT- FURNISHED EQUIPMENT NECESSARY FOR ASE'S COMPETITORS' SYSTEMS, BUT NOT ASE'S, TO PERFORM THE CONTRACT WORK.

WHEN A PROTESTER CHALLENGES SPECIFICATIONS AS BEING UNDULY RESTRICTIVE, THE CONTRACTING AGENCY MUST MAKE A PRIMA FACIE SHOWING THAT THE AGENCY REQUIRES THE RESTRICTION TO MEET ITS ACTUAL NEEDS. IF THE AGENCY MAKES THE REQUIRED SHOWING, THE BURDEN SHIFTS TO THE PROTESTER TO SHOW THAT THE REQUIREMENT IS CLEARLY UNREASONABLE. SUPERIOR BOILER WORKS, INC., B-216472, MAR. 25, 1985, 85-1 CPD PARA. 342. THE AGENCY'S BURDEN REFLECTS ITS STATUTORY OBLIGATION TO CREATE SPECIFICATIONS PERMITTING SUCH FULL AND OPEN COMPETITION AS IS CONSISTENT WITH ACTUAL AGENCY NEEDS, 41 U.S.C. SEC. 253(A)(1) (SUPP. III 1985), WHILE THE PROTESTER'S BURDEN OF PROOF STEMS FROM THE FACT THAT THE DETERMINATION OF THE GOVERNMENT'S MINIMUM NEEDS AND THE BEST METHOD OF ACCOMMODATING THOSE NEEDS ARE PRIMARILY MATTERS WITHIN THE AGENCY'S DISCRETION. MORSE BOULGER, INC., B-224305, DEC. 24, 1986, 66 COMP.GEN. ***, 86-2 CPD PARA. 715.

WE FIND THAT GSA HAS MADE A PRIMA FACIE SHOWING THAT THE SOLICITATION'S SPECIFICATIONS ARE NECESSARY TO MEET THE GOVERNMENT'S ACTUAL NEEDS. THE REASON IS THAT, AS GSA POINTS OUT IN ITS PROTEST REPORT (PREPARED IN CONCERT WITH AGRICULTURE), ASE'S COMPLAINT ONLY ADDRESSES ONE OF THE TWO FUNCTIONS OF THE COMPUTER INTERFACE (THE IMAGE ENHANCEMENT FUNCTION) WHILE IGNORING THE SECOND FUNCTION, X-RAY IMAGE STORAGE, TRANSMISSION AND RETRIEVAL. GSA REPORTS THAT PASSENGER BAGGAGE INITIALLY IS SCREENED AS IT LEAVES THE AIRCRAFT. SUSPICIOUS BAGGAGE IS TAGGED FOR IDENTIFICATION, AND THE X-RAY PICTURE OF THE SUSPECTED CONTRABAND IS TRANSMITTED TO AND STORED IN A COMPUTER. WHEN THE BAGGAGE ARRIVES AT THE AIRPORT CUSTOMS STATION, THE CUSTOMS AGENT RECALLS THE STORED IMAGE FROM THE COMPUTER AND COMPARES IT TO THE ACTUAL CONTENTS OF THE BAGGAGE.

ASE, ALTHOUGH CLEARLY AWARE THAT THE COMPUTER INTERFACE IS NEEDED FOR IMAGE STORAGE, TRANSMISSION AND RETRIEVAL AS WELL AS FOR IMAGE ENHANCEMENT, HAS NOT ATTEMPTED TO REBUT GSA'S ASSERTION THAT THIS SECOND FUNCTION IS AN ACTUAL AND MATERIAL GOVERNMENT NEED, NOR HAS THE FIRM SUGGESTED AN ALTERNATIVE WAY TO MEET THAT NEED. CONSEQUENTLY, EVEN IF ASE'S EQUIPMENT PROVIDES A LOW Z IMAGE EQUAL TO A COMPUTER ENHANCED IMAGE, SO THAT THERE IS NO NEED FOR ASE'S EQUIPMENT TO INTERFACE WITH THE GOVERNMENT'S COMPUTER IN THAT RESPECT, THE FIRM SIMPLY HAS NOT ESTABLISHED THAT THE SPECIFICATION IN ISSUE IS UNREASONABLE.

IT FOLLOWS THAT ASE'S CONTENTION THAT THE SOLICITATION IS DEFECTIVE BECAUSE IT DOES NOT PROVIDE FOR ADDING THE COST OF THE GOVERNMENT COMPUTER TO THE PRICES BID BY COMPETITORS WHO REQUIRE THE COMPUTER FOR IMAGE ENHANCEMENT ALSO LACKS MERIT. THE REASON IS THAT ALL RESPONSIVE BIDDERS, INCLUDING ASE, MUST PROVIDE EQUIPMENT THAT INTERFACES WITH THE GOVERNMENT'S COMPUTER FOR X-RAY IMAGE STORAGE, TRANSMISSION AND RETRIEVAL. CONSEQUENTLY, THE PRICE TO THE GOVERNMENT REMAINS THE SAME REGARDLESS OF THE SOURCE OF THE EQUIPMENT, SINCE ALL SOURCES WILL REQUIRE THE GOVERNMENT-FURNISHED COMPUTER TO FUNCTION PROPERLY. THEREFORE, WE SEE NO REASON WHY THE COST OF THE COMPUTER SHOULD BE ADDED TO ANY OF THE BIDS.

FINALLY, ASE FOLLOWING ITS RECEIPT OF THE AGENCY REPORT, RAISED FOR THE FIRST TIME NUMEROUS ADDITIONAL DETAILED OBJECTIONS TO THE SOLICITATION. ASE'S INITIAL SUBMISSION, HOWEVER, SPECIFIED ONLY TWO SPECIFIC ISSUES AS THE BASES OF ITS PROTEST. BECAUSE OUR BID PROTEST REGULATIONS DO NOT PERMIT THE PIECEMEAL DEVELOPMENT OF PROTESTS, AND BECAUSE ASE OBVIOUSLY KNEW THESE OTHER BASES IN NOVEMBER 1986 WHEN IT FILED ITS PROTEST, WE WILL NOT CONSIDER THEM. CHI CORP., B-224019, DEC. 3, 1986, 86-2 CPD PARA. 634.

THE PROTEST IS DENIED.