[B-288466; B-288466.2; B-28846] Sun Chemical Corporation, B-288466; B-288466.2; B-288466.3, October 17, 2001
in...@www.gao.gov
TITLE: Sun Chemical Corporation, B-288466; B-288466.2; B-288466.3, October 17,
2001
BNUMBER: B-288466; B-288466.2; B-288466.3
DATE: October 17, 2001
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Decision
Matter of: Sun Chemical Corporation
File: B-288466; B-288466.2; B-288466.3
Date: October 17, 2001
David D. DiBari, Esq., Carlos E. Provencio, Esq., and Timothy P. Peterson,
Esq., Clifford Chance Rogers & Wells, for the protester.
Scott Arnold, Esq., Harvey G. Sherzer, Esq., and Alan Sutton, Esq., Howrey
Simon Arnold & White, for SICPA Securink Corporation, an intervenor.
Marvin Kent Gibbs, Esq., Department of the Treasury, Bureau of Engraving and
Printing, for the agency.
Tania Calhoun, Esq., and Christine S. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Protest that contracting agency improperly determined that protester's
product
failed to meet a mandatory technical evaluation criterion and rejected its
proposal as technically unacceptable is denied where the record shows that
the agency's determination was reasonable and consistent with the
solicitation's stated evaluation criteria.
2. Protest that contracting agency improperly failed to subject awardee's
product to the testing required to evaluate that product under all of the
solicitation's technical evaluation criteria is academic where the agency,
during the pendency of the protest, proposes to take corrective action by
completing the testing and evaluation of the awardee's product in accordance
with the express terms of the solicitation.
DECISION
Sun Chemical Corporation protests the award of a contract to SICPA Securink
Corporation under request for proposals (RFP) No. BEP-01-04, issued by the
Department of the Treasury, Bureau of Engraving and Printing (BEP), to
obtain black and green intaglio ink and varnish for application to new
United States paper currency. Sun contends that the BEP improperly
determined that its green ink failed to meet a mandatory health and safety
technical evaluation criterion and rejected its proposal as technically
unacceptable. Sun also contends that the BEP improperly failed to subject
SICPA's inks and varnish to the testing required to evaluate its products
against all of the solicitation's technical evaluation criteria.
We deny the protests.
The BEP produces paper currency using intaglio printing, a process that
involves the creation of engraved designs that are made into dies and
transferred to printing plates; the printing plates are used to print the
currency on high-speed, sheet-fed rotary presses. Each sheet of currency
paper is forced, under extremely heavy pressure, into the recessed lines of
the printing plate to pick up the ink. The backs of the notes are printed
with green ink and allowed to dry for 24-48 hours before the faces are
printed with black ink. See <www.bep.treas.gov/document.cfm/18/121>, BEP
Money Facts.
The BEP issued this solicitation on December 22, 2000, to procure the black
and green intaglio ink and varnish [1] used to print paper currency at the
BEP's Western Currency Facility in Fort Worth, Texas, and at its Washington,
D.C. Facility. The RFP contemplated the award of a fixed-price,
indefinite-delivery/indefinite-quantity contract for one base year, with up
to four 1-year option periods, to the firm whose proposal was most
advantageous to the government, considering price and other factors.
These other factors included three mandatory technical evaluation criteria
against which offerors' samples were to be evaluated, on a pass/fail basis,
to determine whether the inks and varnish had adverse health effects on BEP
employees and to determine the volatile organic compounds (VOC) content of
the inks. Samples that passed all of the mandatory criteria were to be
evaluated against two "gradable" criteria to determine performance with
respect to both the printing and processing and the printed work
requirements set forth in the specification. [2] Under these gradable
criteria, each offeror's samples were to be evaluated relative to other
offerors' samples.
Each offeror was required to submit samples of ink and varnish identical to
the materials it proposed to furnish if awarded the contract. These samples
were to be fully compliant with all of the requirements of the
specification, including numerous physical and chemical requirements. For
each technical proposal, each offeror was required to submit one 20-drum
sample each of black ink and green ink and one
400-pound sample of varnish to BEP's Washington, D.C. Facility for
evaluation. Each offeror was also required to submit batch samples for
laboratory testing and Material Safety Data Sheets (MSDS) disclosing any
hazardous materials contained in its products.
Samples were to be evaluated using the BEP's sheet-fed intaglio currency
presses at current normal production settings at the Washington, D.C.
Facility. The BEP was to have the ultimate decision regarding press
settings, conditions and adjustments necessary to optimize print quality and
press performance. "Printing and processing of the material samples [were
to] be terminated if and when the BEP determine[d] that the material sample
jeopardize[d] the safety and health of Bureau employees or damage[d] the
equipment." RFP sect. M.1.(a)(3)A.
If a sample failed to meet any of the mandatory technical evaluation
criteria, the technical evaluation was to "cease immediately" and "further
evaluation [would] not be considered." RFP sect. M.1.(a)(3)A.I. One of the two
mandatory criteria applicable to inks, "Health and Safety," stated:
During printing, storage of printed sheets, examining and trimming of
printed sheets, overprinting and any other production process, the ink shall
not emit substances that are hazardous. The ink shall not emit substances
that are hazardous in the press fountain, during printing, and when cured on
printed sheets. During the storage of full or partial drums, the ink shall
not emit substances or fumes that are hazardous. Ink samples that cause any
adverse effect upon BEP employees shall be considered technically
unacceptable and will be rejected. The BEP retains the right to reject any
ink which has an adverse effect upon its employees, such as but not limited
to headache; eye, dermal, nasal or throat irritation; sensitization; nausea;
and dizziness.
RFP sect. M.1.(a)(3)A.I.A.1. (emphasis added), citing RFP Specification para.pa
ra.
3.7.2. and 3.7.3. [3]
On February 9, 2001, the BEP received three offers in response to the
solicitation. Sun submitted one offer and SICPA, the incumbent supplier of
these inks, submitted two separate offers, one of which was for "the same
high quality Aqua ink system used today in BEP production." [4] SICPA
Proposal Cover Letter at 1. In addition to their written proposals, both
offerors submitted samples and the appropriate MSDSs. The agency reviewed
and approved the MSDSs, and its laboratory tests of both offerors' batch
samples demonstrated that they complied with applicable specification
requirements, including the mandatory technical evaluation criteria for VOC
content of the inks. The BEP subsequently scheduled press trials of
offerors' ink samples to evaluate the inks against the remaining technical
evaluation criteria. Press trials were to be conducted on both an I-8 press,
an intaglio press that runs at speeds of 8,000 sheets per hour, and an I-10
press, a new generation intaglio press that runs at speeds of 10,000 sheets
per hour. RFP Specification para.para. 3.5.4. and 6.2.
On February 27, the BEP conducted a preliminary press trial of Sun's green
ink on an I-8 press to evaluate an aspect of the gradable criteria. The
trial was monitored by the project manager, a chemist who serves as the
contracting officer's technical representative for currency intaglio inks
and varnishes, and who served here as the chair of the technical evaluation
panel (TEP). Also present were one other TEP member, two printers operating
the press, and two other printers in the vicinity.
The project manager states that the press was properly cleaned to ensure
that no contaminants that might affect Sun's ink would be present. This
process included purging the ink pumps of any residues that might be present
from the BEP's production ink, and cleaning the press itself to ensure that
any residual production ink was removed from the press and the press
fountain. Press personnel cleaned the press with cloths soaked in the
solvent VARSOL and discarded the used cloths into a covered trashcan. The
project manager states that when the lid of the drum containing the ink was
removed, "a solvent-like odor permeated the atmosphere . . . Since the only
other solution in the area was VARSOL, and since the containers of VARSOL
were closed, the odor was attributed to the presence of Sun's ink." Project
Manager's Statement at 2. The project manager states that the two printers
operating the press, and he and the other TEP member, began to suffer
symptoms of nausea, dizziness, and light-headedness but did not report to
the agency's health unit. Statements submitted by all of these individuals
are consistent with the project manager's account. The press trial log sheet
does not refer to the symptoms now reported but does note that the "ink is
significantly odoriferous." The project manager states that Sun's ink passed
the preliminary evaluation and that an extended evaluation to assess
printing characteristics was to be conducted later. The trial log for the
subsequent press trial of Sun's black ink on an I-8 press shows no evidence
that BEP employees suffered adverse effects.
The BEP also conducted press trials of SICPA's green and black inks on I-8
presses. The press trial log sheets for both press trials show that the inks
performed satisfactorily and mention no adverse effects on BEP employees.
On March 28, the BEP conducted a press trial of Sun's green ink on an I-10
press. The project manager monitored the trial and the contract specialist,
the acting foreperson for the press section, a division manager, and three
printers who were to operate the press were also present. The press trial
began at approximately 9:10 a.m. The project manager states that the press
was cleaned in a similar fashion as that described above but that press
personnel used a different cleaning solution, Z-45 Experimental Ink Blaster,
which the acting foreperson states has virtually no odor.
The project manager states that when the drum containing Sun's ink was
opened, "a solvent-like odor immediately permeated the air. The odor became
progressively worse as the evaluation continued. Virtually everyone in the
area began to suffer symptoms of nausea, dizziness, light-headedness, skin
irritation, or headache." Project Manager's Statement at 2. At about 9:30
a.m., one of the printers summoned the Occupational Safety and Health
Coordinator for the Operations Directorate regarding these complaints. The
safety coordinator states that, when he arrived, employees were complaining
of headaches, nausea, and dizziness, and that he noticed a "pungent odor" in
the air that was not one he had experienced. Safety Coordinator's Statement
at 1. He states it was apparent to him that the employees were in "some
distress" and that, acting strictly on health concerns of the employees and
according to BEP practice, he terminated the testing of the ink sample. Id.
The contract specialist telephoned the contracting officer to relay these
events and to advise her that the safety coordinator had terminated the
press trial due to employee health concerns. The project manager and
contracting officer concurred with this decision. All three printers and the
division manager sought medical attention at the agency's health unit; the
project manager and the contract specialist report that they also
experienced symptoms but did not seek medical attention. The daily
production equipment operational summary sheet notes that the printing crew
went to the health unit because the test ink was "making printers sick."
The TEP report for Sun's offer states that Sun's green ink emitted an
"offensive solvent-like odor," and that, "[u]pon exposure to this odor,
press personnel began suffering from symptoms such as nausea, dizziness,
headache, and drowsiness. Press personnel were sent to the Health Unit for
immediate medical attention." Sun's TEP Report at 1. The report concluded
that since the green ink caused adverse effects on employees, the proposal
was deemed technically unacceptable and Sun's black ink and varnish were not
considered for further evaluation. The TEP report attached the medical
reports for the employees who reported to the health unit. These reports
document their complaints of nausea, skin sensitivity, headaches,
lightheadedness, and drowsiness.
The contracting officer states that her decision to reject Sun's proposal as
technically unacceptable was based upon the TEP report and the medical
reports attached thereto, as well as on her conversations with the project
manager and contract specialist the day of the I-10 press trial. The
contracting officer states she ascertained that no other contaminants were
introduced into the press room and that the BEP had used a standard cleaning
solution to clean the press for which there had never been any reports of
adverse effects. Since Sun's ink was the only ink in the pressroom and no
other contaminants were present, since she had eliminated the cleaning
solution from consideration as the cause, and since the symptoms reported
were consistent with those listed in Sun's MSDS, [5] she believed the only
rational conclusion she could draw was that Sun's ink caused the adverse
effects experienced and reported by the BEP employees. Contracting Officer's
Aug. 30, 2001 Statement at 7-8. As Sun's green ink caused adverse effects on
BEP employees, its black ink and varnish were not tested and its proposal
was not considered for further evaluation in accordance with the
solicitation's terms. Memorandum of Pre-Negotiation Objectives at 5.
The TEP report for SICPA's offer states that the technical evaluation of
SICPA's inks and varnish was waived because the firm's samples were
"identical" to the current production materials in use, and those materials
had not presented any adverse health effects on employees. SICPA TEP Report
at 1. SICPA's inks, which were found technically acceptable, did not undergo
evaluation under the gradable technical evaluation criteria and did not
undergo press trials on an I-10 press. [6]
In her memorandum of pre-negotiation objectives, the contracting officer
stated that SICPA's inks and varnish met all of the mandatory criteria and
performance requirements in the initial phase of the press trials and,
therefore, the project manager asked that laboratory tests be performed on
SICPA's samples. The contracting officer stated that the test results
established that SICPA's samples had the identical physical and chemical
properties and VOC content of the current production inks and varnish
supplied to BEP under the prior contract, which were fully compliant with
the specification requirements, and she waived further press evaluations of
SICPA's proposal. Memorandum of Pre-Negotiation Objectives at 3. The
contracting officer states that her decision to waive further press
evaluations was based on the fact that SICPA's ink was the only technically
acceptable ink; SICPA's ink was "identical" to the BEP production ink;
forgoing the I-10 press trials would not adversely affect any offeror; and
forgoing the I-10 press trials would conserve BEP resources. She also
considered the fact that the gradable evaluation criteria were only to
provide a basis for evaluating competing proposals; here there were no
competing proposals. Contracting Officer's Aug. 30, 2001 Statement at 5-6.
The contracting officer established a competitive range comprised of SICPA's
offer and requested a final proposal revision from the firm. Sun was
informed that its offer was technically unacceptable because it failed to
meet the mandatory health and safety technical evaluation criterion and the
firm filed its initial protest after its debriefing. The BEP subsequently
determined that "[u]rgent and compelling circumstances that will
significantly affect the interests of the United States" would not permit it
to wait for a decision and executed an override of the statutory stay of
performance of the contract; the BEP anticipated awarding the contract
within
30 days. See 31 U.S.C. sect. 3553(d)(3)(C)(i)(II) (1994).
In its initial protests, Sun argues that its ink could not have caused the
alleged adverse effects suffered by BEP employees and that the BEP's
conclusion that it did is both unreasonable and unsupported by an adequate
documentary record. In a supplemental protest filed in response to the
agency report, Sun argues that the BEP improperly failed to subject SICPA's
inks to the testing required to evaluate those inks against all of the
solicitation's technical evaluation criteria.
Sun's Proposal
Our Office will review an allegedly improper technical evaluation of product
samples to determine whether the evaluation was fair and reasonable and
consistent with the evaluation criteria. Design Contempo, Inc., B-252589.2,
Aug. 11, 1993, 93-2 CPD para. 90 at 4. We will not make an independent
determination of the merits of an offeror's proposal or, in the case of a
product demonstration, the performance of the offeror's product; rather, we
will review the evaluation record, including the results of any test
demonstration, to ensure that the agency's technical judgment has a rational
basis and is consistent with the stated evaluation criteria. Exploration
Prods.,
B-279251.2, B-279251.3, June 1, 1998, 98-2 CPD para. 15 at 5. Our review of the
record here shows that the BEP's decision to reject Sun's proposal as
technically unacceptable meets that standard.
At the outset, Sun argues that its ink could not have "caused" the adverse
effects "allegedly" suffered by the BEP employees. Protester's Sept. 13,
2001 Comments at 2. In support of its position, Sun cites the
"uncontroverted" opinion of its consultant that its ink "could not have
emitted any potentially hazardous substances in concentrations that even
approached, let alone exceeded, acceptable limits" given the expansive
dimensions of the pressroom and the excellent ventilation. Id.
While the question whether Sun's ink emitted hazardous substances in excess
of acceptable limits might be answered by an objective and scientific
methodology, as referenced in RFP Specification para. 3.7.2., the RFP imposes n
o
such methodology for answering the question whether Sun's ink could cause
adverse effects on BEP's employees. RFP Specification para. 3.7.3. The RFP did
not establish an objective or scientific process for determining that an ink
sample "caused" adverse effects, did not limit the definition of adverse
effects, did not require that the adverse effects suffered meet a particular
level of severity or be uniformly suffered, and did not establish a minimum
number of BEP employees that must be affected before a sample could be
rejected. The solicitation's broad grant of discretion to the BEP to
terminate the testing of ink samples that caused "any adverse effect upon
BEP employees," and to reject them as technically unacceptable, does not
give the contracting officer unfettered discretion here, but that discretion
is subject only to the test of reasonableness.
Sun contends that the contracting officer's determination that its ink
caused adverse effects on BEP employees, and her resulting decision that the
firm's proposal was technically unacceptable, is both unreasonable and
inadequately documented.
It is true that the TEP report and the post-negotiations memorandum could
have included more detail regarding the basis for rejecting Sun's proposal.
It is equally true that the BEP personnel involved could have been more
diligent in memorializing contemporaneous events, given their importance to
this procurement. We nonetheless find that the contracting officer's
statement containing post-protest explanations of her decision, and the
other statements in the record, [7] are credible and consistent with the
contemporaneous record and support the reasonableness of her decision. See
NWT, Inc.; PharmChem Lab., Inc., B-280988, B-280988.2, Dec. 17, 1998, 98-2
CPD para. 158 at 16 (post-protest explanations that provide a detailed rational
e
for contemporaneous conclusions will generally be considered in review of
the rationality of agency decisions, so long as those explanations are
credible and consistent with the contemporaneous record).
In making her decision, the contracting officer relied on the TEP's account
that BEP employees had suffered adverse effects from Sun's ink and the
medical reports describing these adverse effects. Citing internal BEP
memoranda generated several years ago, Sun asserts that the BEP did not
follow its internal procedures for rejecting test materials on the basis of
employee health and safety concerns and that, as a result, the medical
reports are insufficient to support the decision to reject its proposal.
We do not agree. These internal memoranda were not a part of the
solicitation and do not have the force and effect of law; they do not
establish legal rights and responsibilities such that actions taken contrary
to such guidance are subject to objection. [8] See Talon Mfg. Co., Inc.,
B-261687, B-261687.2, Oct. 19, 1995,
95-2 CPD para. 184 at 3; Litton Sys., Inc., B-239123, Aug. 7, 1990, 90-2 CPD pa
ra.
114 at 8 n.7. Rather, the relevant inquiry is whether the agency adhered to
law and regulation by evaluating proposals in accordance with the evaluation
scheme announced in the RFP, Reflectone Training Sys., Inc.; Hernandez
Eng'g, Inc., B-261224; B-261224.2, Aug. 30, 1995, 95-2 CPD para. 95 at 6, and
whether the agency's decision was reasonable.
Sun asserts that the BEP has significantly overstated the symptoms reported
by the BEP employees at the I-10 press trial. Citing portions of the
statements submitted by these individuals in the agency report, Sun contends
that two of the four members of the press crew were "unaffected," one more
"only claimed a skin sensitivity that may have been caused by his admittedly
low blood pressure that day," and the final pressman only stated that he
"started" to experience lightheadedness and headache at the time the trial
was stopped. Protester's Sept. 13, 2001 Comments at 3. Sun also contends
that, of the four observers, one reported no effects and three claimed a
lightheadedness that, "under the circumstances, could not reasonably be
deemed an 'adverse health effect.'" Id. An objective review of the
contemporaneous medical reports and the statements provided by these
individuals undermines Sun's position.
One printer reported that the vapor from the ink made him nauseous. Sun's
contention that he was "unaffected" ignores this contemporaneous report and
fails to fully quote from his statement, which reads, "During [the
evaluation] I noticed that the ink produced a strong odor when applied to
the hot printing plates; however, the odor did not affect me. One of the
Bureau's safety officers halted the evaluation because the other plate
printers and other personnel in the area of the press experienced dizziness
and headaches, and I experienced slight feelings of nausea." The second
printer reported that exposure to the ink caused him to have an allergic
reaction and sensitivity in his facial skin. Sun's contention that his skin
sensitivity "may have been caused by his admittedly low blood pressure that
day" distorts his statement, which says that he had "an allergic reaction
because [his] face became very sensitive. [He] . . . went to the health
unit, where it was determined that [his] blood pressure had dropped very
low. I was fine after about an hour of no exposure to Sun's ink." We do not
read this statement to mean that this individual's skin sensitivity was
caused by his low blood pressure but, rather, that his exposure to the ink
may have caused his blood pressure to drop. The third printer reported that
exposure to the ink caused him to have headaches, and to be lightheaded and
drowsy. Sun focuses on his statement that he was only "starting" to
experience lightheadedness and dizziness in an effort to minimize his
symptoms. At the very
least, Sun's apparent position that BEP employees should be severely ill
before tests of ink samples can be halted and proposals rejected is not
required by the solicitation.
Sun's characterization of the acting foreperson as "unaffected" is literally
true but omits the fact that she left the area before Sun's ink was
introduced into the press and the safety coordinator had stopped the
evaluation by the time she returned. Acting Foreperson's Statement at 1. In
any event, the RFP did not require that all BEP employees in contact with
the ink suffer adverse effects before an ink could be rejected. [9] Sun's
attempt to diminish the symptoms reported by the remaining observers as not
adverse "under the circumstances" is equally unpersuasive, given the
inclusion of their symptoms in the RFP's definition of "adverse effects" and
the lack of any requirement that the symptoms meet a severity threshold.
Sun also contends that the contracting officer unreasonably failed to
consider Sun's prior press trials, during which no adverse effects were
contemporaneously reported. Even if we set aside the fact that the RFP
required only one instance of adverse effects, and not a pattern, Sun's
contention is unpersuasive. With respect to the February 27 press trial of
its green ink, Sun correctly asserts that there is no contemporaneous
evidence of adverse effects. The record does, however, contain credible
evidence that symptoms included within the definition of "adverse effects"
were suffered by some but apparently deemed insufficiently severe to stop
the press trial. There is no reason to believe that the contracting
officer's decision would have changed had she considered this information.
With respect to the press trials of Sun's black ink, whether or not the
black ink is "substantially the same as the green ink in terms of volatile
chemical content," as argued by Sun in its Sept. 13 Comments at 7, has no
bearing on whether the green ink caused adverse effects on BEP employees
since the solicitation divided these matters into separate questions.
Sun finally contends that the contracting officer unreasonably failed to
consider whether there were any other potential causes for the alleged
adverse affects and relied upon a subjective standard that would permit
rejection of a proposal based upon the "whims of a single employee." Sun's
Sept. 10, 2001 Comments at 7. Sun's contention is not supported by the
record.
Again, the solicitation did not impose an objective methodology for
answering the question whether an offeror's ink caused adverse effects on
BEP employees but, instead, granted broad discretion to the contracting
officer to make such a determination subject only to the test of
reasonableness. The contracting officer states that she learned from the
contract specialist and the project manager that no other contaminants were
introduced into the pressroom and that employees had used a standard
cleaning solution to properly clean the press. She explains that she would
have been notified if BEP employees had experienced adverse effects from the
cleaning solution but, to date, the cleaning solution had never caused any
adverse effects. As a result, she had no basis to believe that the cleaning
solution was the cause of the reported adverse effects. Contracting
Officer's Aug. 30 Statement at 7-8. In this regard, we note that the list of
symptoms that might be caused by this cleaning solution does not include
dizziness, headache, or lightheadedness, and nausea would result only if the
solution were ingested. In contrast, the list of symptoms that might be
caused by Sun's ink does include these symptoms. Id. at 8. It is also
undisputed that the pressroom was of adequate size and properly ventilated.
The record shows that when the contracting officer was presented with
credible reports that BEP employees suffered adverse effects when testing
Sun's green ink, she engaged in a logical process of elimination that led
her to eliminate any other potential cause save Sun's green ink. Sun has not
persuaded us that her decision, which led to the rejection of its proposal
as technically unacceptable, was unreasonable.
SICPA's Proposal
As discussed above, after Sun's ink was found technically unacceptable, the
BEP waived further testing and evaluation on SICPA's inks and found its
proposal technically acceptable. According to the TEP report, the basis for
this finding was the conclusion that SICPA's proposed inks were identical to
those SICPA was currently providing BEP as production inks for both presses,
for which there had been no reports of adverse effects. The contracting
officer elaborated on this finding in her pre-negotiation objectives
memorandum. She explained that Sun's inks and varnish met all of the
mandatory criteria and performance requirements in the initial phase of the
press trials and that, as a result, the project manager asked that
laboratory tests be performed on SICPA's samples. The contracting officer
states that the results of these tests established that SICPA's samples had
the identical physical and chemical properties and VOC content of the
current production inks and varnish supplied by SICPA, which were fully
compliant with the specification requirements. Memorandum of Pre-Negotiation
Objectives at 3.
In its supplemental protest, Sun argued that the BEP improperly failed to
subject SICPA's inks to the testing required to evaluate the inks against
all of the solicitation's technical evaluation criteria. In responding to
that allegation, the agency's position that SICPA's proposed inks were
"identical" to the production inks appeared to change. In her supplemental
statement, the contracting officer stated that she relied on SICPA's
statement that it was offering "the same high quality Aqua ink system used
today in BEP production," SICPA Proposal Cover Letter at 1, and that
analytical tests confirmed that SICPA's proposed ink met the physical
characteristics outlined in the specification and was technically
acceptable. Contracting Officer's Sept. 21, 2001 Statement at 2.
In response to our request to explain this apparent change in position, the
agency stated that the project manager concluded SICPA's proposed inks were
the same as the production inks SICPA was providing under the prior contract
for both presses based on a variety of factors, including the fact that the
formulation numbers for the samples and the production inks were the same,
the fact that the evaluations conducted on the I-8 press showed that the
sample inks performed consistently with SICPA's production inks, and various
laboratory tests. The BEP nonetheless stated that it had decided to take
corrective action by completing the testing and evaluation of SICPA's ink
samples in accordance with the solicitation's terms. The BEP explained that,
while the program manager stood behind his belief that SICPA's sample ink
was the same as its production ink, the analytical tests conducted by the
agency to confirm this belief were inconclusive and reasonable experts could
differ as to what the results showed.
This Office will not consider a protest allegation where the issue presented
has no practical consequences with regard to an existing federal government
procurement, and thus is of purely academic interest. Since this allegation
challenges the original evaluation of SICPA's proposal, and since that
original evaluation is no longer valid in light of the BEP's proposed
corrective action--which will necessitate a new evaluation based on
completed testing of SICPA's samples and a new source selection decision
based upon that new evaluation--there no longer is any current basis for
Sun's allegation; the allegation has been rendered academic by the
corrective action. See VSE Corp.--Recon. and Entitlement to Costs,
B-258204.3,
B-258204.4, Dec. 28, 1994, 94-2 CPD para. 260 at 2.
Sun does not dispute that its allegation has been rendered academic but
contends that the BEP has made intentional misrepresentations that amount to
bad faith and have tainted the evaluation process. We do not agree.
The record shows that the project manager believed SICPA's inks were
identical to the production inks based on their identical formulation
numbers and the fact that their performance on the I-8 press was consistent
with the performance of the production inks. When it became apparent that
SICPA's proposal was the only offer remaining in the competition, the
project manager asked that laboratory tests be performed to confirm his
belief. [10] While we agree with Sun that the agency has not clearly
articulated the basis for its contemporaneous claim that the inks are
identical, we see no evidence that the agency has intentionally
misrepresented its position in this regard.
To the extent Sun argues that the BEP's completion of the testing and
evaluation of SICPA's inks will not be fairly and impartially performed, its
argument merely anticipates improper agency action and, as a result, is
speculative and premature. We will not question agency action on the basis
of such speculation. Ervin and Assocs., Inc., B-279161 et al., Apr. 20,
1998, 98-1 CPD para. 115 at 5; VSE Corp.--Recon. and Entitlement to Costs,
supra. Sun has produced no evidence that the BEP acted in bad faith in
ordering the completion of the testing and evaluation of SICPA's inks, or
that the decision was motivated by the specific intent of ensuring an award
to SICPA. See PRC, Inc., B-233561.8, B-233561.9, Sept. 29, 1992, 92-2 CPD para.
215 at 4.
The protests are denied.
Anthony H. Gamboa
General Counsel
Notes
1. The varnish, used to manufacture the inks, might be used by the BEP to
recycle or reconstitute the inks. RFP Specification para. 3.1.
2. The BEP was also to evaluate offerors' past performance. SICPA's past
performance was favorably evaluated and is not at issue here.
3. RFP Specification para. 3.7.2., "Hazardous Substance Emissions," describes
the requirements for hazardous substance emissions and provides sources to
assist in determining the levels at which emissions are deemed hazardous.
RFP Specification para. 3.7.3., "Health and Safety," states that the BEP
"retains the right to reject any ink and varnish that causes an adverse
effect upon its employees. Adverse effects include, but are not limited to,
headache; eye, dermal, nasal, or throat irritation; nausea and dizziness.
The ink shall not contain any ingredients that are skin or respiratory
sensitizers."
4. SICPA's other offer was rejected for reasons not relevant here.
5. The MSDS states that "exposure to high concentrations of vapor may cause
headache, nausea, dizziness, loss of coordination and fatigue," and skin
contact may cause mild to moderate skin irritation.
6. The record does show that SICPA's inks were tested for and passed the
RFP's mandatory VOC content technical evaluation criterion, and that the
inks were tested for and met various physical and chemical requirements.
7. Sun is correct that the events described in several post-protest
statements with respect to the February 27 press trial of its green ink are
not reflected in the contemporaneous record. Although this diminishes the
weight of the statements in this regard, see Boeing Sikorsky Aircraft
Support, B-277263.2, B-277263.3, Sept. 29, 1997, 97-2 CPD para. 91 at 15, it
does not compel us to ignore them altogether. In any event, the decision to
reject Sun's ink was made on the basis of the March 28 press trial, not the
February 27 press trial.
8. Sun's objection to the forms on which the medical reports were filed is
similarly misplaced. Absent any solicitation requirement for the use of
particular forms, our overriding concern is with their substance.
9. For this reason, Sun's contention that there is no evidence that the
printers who cleaned the green ink out of the I-10 press after the press
trial had adverse effects is not dispositive. In addition, the daily
production equipment operational summary, which states that Sun's ink was
taken out after the trial and the production ink put back in, lists only
three operating personnel for that day, the three printers who filed medical
reports here.
10. The agency provided copies of all laboratory results in its agency
report. Agency's Aug. 30, 2001 Index of Documents at 3-4.