Envirodyne Systems Inc., B-279551; B-279551.2, June 29, 1998

Envirodyne Systems Inc., B-279551; B-279551.2, June 29, 1998 BNUMBER: B-279551; B-279551.2 DATE: June 29, 1998 TITLE: Envirodyne Systems Inc., B-279551; B-279551.2, June 29, 1998 ********************************************************************** Matter of:Envirodyne Systems Inc. File: B-279551; B-279551.2 Date:June 29, 1998 Robert E. Sheker for the protester. Alton E. Woods, Esq., and Justin P. Patterson, Esq., Department of the Interior, for the agency. Christina Sklarew, Esq., and Paul Lieberman, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST 1. Protest that solicitation is overly restrictive of competition is untimely when filed after award. 2. Protest that qualification in protester's quotation, taking exception to solicitation requirements, would not have affected performance and therefore should not have been considered material, is denied where the agency reasonably supports its conclusion that the exceptions taken would adversely affect performance. DECISION Envirodyne Systems Inc. protests the rejection of its quotation as technically unacceptable under request for quotations (RFQ) No. 1500-8-0003, issued by the Department of the Interior, National Park Service for a sludge dewatering solids bagging system for the water treatment facility at the Mount Rushmore National Memorial. Envirodyne contends that the agency improperly concluded that Envirodyne's quotation did not satisfy material solicitation specifications. Envirodyne also challenges the Park Service's selection of Aero-Mod/Waterlink, Inc., alleging that the firm's quotation took exception to the solicitation's performance requirements. We deny the protest. The Park Service posted a notice in the Commerce Business Daily (CBD) on February 19, 1998, described as a combined synopsis/solicitation.[1] The solicitation required vendors to submit complete assembly, foundation, and installation drawings, together with detailed specifications and data covering materials, parts, devices, and accessories forming a part of the equipment being furnished. The solicitation also advised vendors that, while the agency intended to evaluate quotations and award the contract without conducting discussions, it reserved the right to conduct discussions if they were later determined necessary by the contracting officer. The solicitation generally described the agency's requirement as: one self-contained wastewater solids dewatering system capable of automatically pumping a sludge stream, injecting it with solution polymer, discharging it into an enclosed pressure hood, funneling it into a series of porous filter bags, air charging the hood to enhance water removal, and then repeating the cycle until the bags are full and ready for changing. This type of equipment is manufactured by Aero-Mod Inc., Manhattan, Kansas. Interested vendors were required to submit quotations. Envirodyne and Aero-Mod were the only firms that responded. Envirodyne offered to supply its ALL-AMERICAN Bagger Model SBS-6 as an "alternative product," and included a "quotations submittal package" providing further details. In the cover letter to its quotation, Envirodyne described its product as an "equal" to the product specified in the solicitation, and stated that it would "meet or exceed the functional, performance and level-of-quality requirements of the Specifications." However, in its submittal package, Envirodyne reproduced the solicitation and inserted its "comments, deviations & exceptions" to the stated requirements, in effect qualifying its quotation. For example, next to the solicitation description of the dewatering equipment, Envirodyne noted that the required air pressurization feature is covered by a patent, and quoted the patent holder as stating that the bagger could "operate perfectly well" without the pressurization feature; in connection with a requirement that filter bags were to be nonwoven polypropylene, Envirodyne noted that its filter bags are woven polypropylene; in connection with a requirement for a static mixer to be located inside the tank, Envirodyne stated that its mixer is located outside its tank; and next to the requirement for air pressurization, the protester stated expressly that this feature is not used on the ALL-AMERICAN bagger being quoted by Envirodyne. The protester quoted a price of $25,160. Aero-Mod offered the pressurized, 6-bag DRAIMAD dewatering equipment described in the solicitation. Aero-Mod's quotation included technical literature that described performance features of the air pressurization system and nonwoven polypropylene filter bags and quoted a price of $34,700. The contracting officer forwarded the two quotations to an architect/engineering (A/E) firm that was to conduct the technical analysis for the Park Service.