ABCD THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING RELEASED TO THE PUBLIC IN REDACTED FORM ON JULY 23, 1992 DENIED: July 15, 1992 GSBCA 11851-P ADVANCED MANAGEMENT, INC., Protester, v. GENERAL SERVICES ADMINISTRATION, Respondent, and COMPUTER DATA SYSTEMS, INC., Intervenor. James S. Kurz, Daniel S. Koch, Marie N. Doland, and James J. Tierney of Kurz Koch Doland & Dembling, Washington, DC, counsel for Protester. John C. Sawyer, Personal Property Division, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Mary Ann Mayhew, Cathy Briskie Teleky, and Suzanne Ferrara of Computer Data Systems, Inc., Rockville, MD, and Thomas F. Williamson and Mark J. Beutler of Morgan, Lewis & Bockius, Washington, DC, counsel for Intervenor. Before Board Judges HENDLEY, BORWICK, and DANIELS. DANIELS, Board Judge. On May 19, 1992, Advanced Management, Inc. (AMI) filed a protest against the General Services Administration's (GSA's) award to Computer Data Systems, Inc. (CDSI) of a contract for automatic data processing (ADP) technical support services. The solicitation required offerors to submit staffing proposals in response to five hypothetical task orders. AMI's response to two of these situations, benchmark tasks 1 and 5, was deemed unacceptable, and as a result, AMI was denied evaluation points which if granted might have given AMI's technical proposal a higher score than CDSI's. AMI complains that GSA's evaluation of these responses was inconsistent with criteria stated in the solicitation, and therefore in violation of 10 U.S.C. 2305(b)(1) (1988). At hearing and in posthearing briefs, AMI focused exclusively on GSA's evaluation of AMI's solution to benchmark task 1. We conclude that AMI has not pursued the protest insofar as it relates to the evaluation of task 5, and consequently do not address that subject. We find that AMI's solution to task 1 was correctly deemed unacceptable. The protest is therefore denied. Findings of Fact 1. This protest concerns a request for proposals to provide ADP technical support services for facilities management services in the Central Zone of GSA's Information Resources Management Service. Protest File, Exhibit 1 at cover sheet. "ADP support services" are "ADP facilities management, computer operations and operating system services that are adjunct and essential to agency ADP activities." "ADP facilities management" is "the function involved in managing, operating, and supporting computer systems and networks, including the planning, organizing, directing and controlling of all functions involved in the system." Id. at C2. The solicitation envisions the award of a requirements contract for a period of one year, with four one-year options to extend. Id. at cover sheet, B2, C1. 2. Under this contract, the awardee will perform such services as are ordered by the Government "by means of Task Orders with specifically defined scopes and schedules as needed." Protest File, Exhibit 1 at C1. A task order is to be issued after the contracting officer makes a "task request" specifying technical requirements, desired deliverable products, and a performance schedule, and the contractor responds with a "task proposal." The task proposal must include a statement certifying "that the task proposal is compatible with the original contract proposal staffing guidelines, or explain any difference." Id. at C11-13. The task order represents a version of the task proposal which has been negotiated between the contractor and the contracting officer (except that if negotiations have been unsuccessful, the contracting officer may unilaterally establish the terms of the order). Id. at C13-14, C16. 3. The solicitation lists various categories of "skill levels" for personnel. Examples are program manager, network operations specialist, lead senior computer operator, and LAN (local area network) manager. Protest File, Exhibit 1 at C25-38. How these personnel would be used, and how much their services would cost the Government, were to be explained in technical and cost proposals. Id. at L4. 4. Each offeror's technical proposal was to include staffing guidelines. The guidelines were to -- [p]resent in clear detail the criteria, methodology and tools (e.g., software, procedures, algorithms, formulae, matrices, etc.) used to determine the skill levels and numbers of hours by skill level to be proposed for use on actual task orders. Protest File, Exhibit 1 at L6. Offerors were told that the guidelines "will be evaluated for their ability to produce staffing that will ensure competent performance in an effective and economic manner." Id. The guidelines, if accepted, "shall be considered as firm commitments for staffing tasks under the contract." Id. GSA inserts these provisions in solicitations to make sure that if an offeror is awarded a contract, "he performs the same [way that] he proposed to perform." Transcript at 35- 36. 5. Each offeror's technical proposal was also to include an explanation of how five separate benchmark tasks would be performed. For each benchmark, GSA specified a hypothetical organization, location, hardware, software, task description, deliverables, and administrative arrangements. Protest File, Exhibit 1 at Attachment J-2. The tasks "represent the types of service, complexity and deliverable products of tasks expected on the contract." Id. at L4; see also Transcript at 193-94. The staffing guidelines had to be used to prepare all benchmark task solutions. Protest File, Exhibit 1 at L6. For each task, the proposal had to -- [d]emonstrate in detail how the guidelines were used to develop the solution, and certify that the guidelines were used and adhered to. . . . If skill levels or hours produced by the guidelines were adjusted, explain what adjustments were made and the basis for making them. Id. at L5. The proposal also had to contain a "[c]lear identification of any assumptions used in developing the proposal." Id. 6. Each cost proposal was to consist principally of labor rates for various skill levels of personnel; cost proposals were to be evaluated on the basis of hours of each skill level estimated to be ordered at various locations in each of the various contract years. Protest File, Exhibits 1 at L14-19, 2 (amdt. 3) at B. 7. Proposals were to be evaluated on the basis of both technical and cost factors, with the former "more significant" than the latter. Protest File, Exhibit 1 at M1. Among six technical factors, responses to benchmark tasks were most important and staffing guidelines were second. Id. Among the benchmarks, number one was most heavily weighted. Id. at L4. Benchmark solutions were "to be evaluated for their merit in providing the skills and labor hours required for competent and economical performance." Id. at L5. 8. Benchmark 1 was described by the technical evaluation panel (TEP) established by the contracting officer as -- a multi-shift, multi-function benchmark task which provides facilities management, computer operations, systems software analysis and change, telecommunications management and maintenance, tape library support, and production control functions for a large FAA [Federal Aviation Administration] computer installation with four mainframes and four micros running integrated applications accessing themselves and other FAA regional offices through local and wide area networks. Protest File, Exhibit 4 at 1. The statement of work detailing this situation was published in solicitation amendment 3. Protest File, Exhibit 2 (amdt. 3) at 58-69. 9. Before evaluating proposals, the TEP determined what it believed to be an appropriate staffing pattern for responding to each benchmark situation. The members of the panel had considerable experience in developing task requests and Government estimates for them with regard to the kind of work envisioned to be ordered in this procurement. Transcript at 33- 35, 242-52. They determined for each situation the number of hours required to perform the task, by skill level and shift. The panel calculated "primary," "low range," and "high range" solutions, with a total number of hours for each. Id. at 35-43; Protest File, Exhibit 4. The TEP did not articulate the assumptions it used in drafting these solutions; it simply "exercised judgments based on our experience." Transcript at 50- 51. 10. The contracting officer's instructions to the TEP included these statements with regard to evaluating offerors' solutions to benchmark tasks: Skill Level and Hours - If the proposed solution falls within the ranges specified in the Government solution, it is acceptable. If it is beyond the range limits, it is unacceptable, unless the offeror uses an assumption that the panel finds justifies the difference, even though it was not in the Government solution. In such a case, the proposed solution may be found acceptable. . . . Staffing Guidelines - To be acceptable, staffing guidelines are used and their application (to include any adjustments and their basis) to the specific benchmark is well described. . . . . If the solution falls outside the range of the Government solution, and is not properly justified or found to be innovative, then it is unacceptable. Protest File, Exhibit 3 at 4. 11. AMI prepared staffing guidelines, which it included in its proposal. Protest File, Exhibit 21. AMI stated that in preparing these guidelines, it -- customized its methodology to respond precisely to the GSA requirements. _ _ _ _ _ _ _ _ _ _ ----------- FOOTNOTE BEGINS --------- _ ----------- FOOTNOTE BEGINS --------- _ ----------- FOOTNOTE BEGINS --------- _ ----------- FOOTNOTE BEGINS --------- _ ----------- FOOTNOTE BEGINS --------- _____________. Id. at 1. The firm explained further: Our method is proprietary to AMI. Its goal is to estimate, with a high degree of certainty, acceptable levels of staffing for any GSA task order requirement. The approach is clear, specific, concise, consistent, and in an unambiguous manner. We are confident that our methodology accurately estimates cost-effective staffing requirements for the range of task orders anticipated under this solicitation. We believe GSA will find that our Benchmark proposals verify the methodolog[y's] accuracy and usefulness. ----------- FOOTNOTE ENDS ----------- Id. at 1-2. 12. AMI also prepared a solution to benchmark task 1 and included that in its proposal. Protest File, Exhibit 5. AMI maintained that in writing this solution, it had followed its s t a f f i n g g u i d e l i n e s _______________________________________________ ----------- FOOTNOTE BEGINS --------- __ _________. Id. at 17-18. One network operations specialist was proposed for this benchmark task. Id. at 15-16. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ----------- FOOTNOTE BEGINS --------- __ ___________________. Id. at 18. One LAN manager was p r o p o s e d , ----------- FOOTNOTE BEGINS --------- __ ________________________________________. Id. at 15-16, 20. At hearing, AMI's president testified that in preparing this solution, the firm followed its staffing guidelines "every step of the way." Transcript at 122; see also id. at 172. 13. The TEP evaluated AMI's solution to benchmark task 1 as unacceptable. Protest File, Exhibit 9 at 3; Transcript at 77. (This determination did not render the entire proposal unacceptable, however; AMI was rated as acceptable for the benchmarks as a whole. Protest File, Exhibit 9 at 2.) One of the deficiencies noted was that "[t]he proposed hours are 19% below the Independent Government Estimate (IGE) low range." Id. at 3; Transcript at 77. The contracting officer told AMI during negotiations that for benchmark task 1, "The staffing and hours proposed seem inappropriate for the Benchmark task requirements." Protest File, Exhibit 12 at 4; Transcript at 122-23. AMI asked whether its hours were considered too high or too low. Protest File, Exhibit 13 at 4 of 15; Transcript at 123. The contracting officer responded, "I can't tell you that." She explained that divulging further information might result in technical leveling. Protest File, Exhibit 13 at 4 of 15; Transcript at 123-24. 14. AMI then submitted a best and final offer (BAFO) which did not alter the staffing guidelines but proposed fewer hours for benchmark task 1. Protest File, Exhibit 15; compare id. at 15-16 with id., Exhibit 5 at 15-16. This offer uses words identical to those of the initial offer in claiming that the staffing for the task was consistent with the proposed guidelines. Id., Exhibit 15 at 18. The BAFO states, "The Network Operations Specialist will be responsible for all data communications, with the LAN Manager having responsibility for all LAN and PC systems and reporting independently to the Facilities Manager." Id. at 5. The BAFO states further, "AMI will provide experienced . . . [an] Network Operations Specialist." Id. at 9. Provision of such an individual would be consistent with AMI's staffing guidelines, _______________ ----------- FOOTNOTE BEGINS --------- _ _ ----------- FOOTNOTE BEGINS --------- ----------- FOOTNOTE ENDS ----------- _ _ ----------- FOOTNOTE BEGINS --------- ----------- FOOTNOTE BEGINS --------- Exhibits 2 (amdt. 3) at 59, 21 at 15; Transcript at 163. 15. Neither a network operations specialist nor a LAN manager is actually proposed in this offer, however. Protest File, Exhibit 15 at 15-16, 17. Indeed, the BAFO admits as much. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ----------- FOOTNOTE BEGINS --------- _ _ ----------- FOOTNOTE BEGINS --------- _ _ ----------- FOOTNOTE BEGINS --------- _ _ ----------- FOOTNOTE BEGINS --------- __ ___________________________________. Id. at 19. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ----------- FOOTNOTE BEGINS --------- __ ____________________________. Id. at 20a. At hearing, AMI's president admitted that this solution is not in accordance with the staffing guidelines contained in the firm's proposal. Transcript at 156, 172; see also id. at 143-44. Nowhere in the offer does AMI explain the basis for making these adjustments from the guidelines. Although the BAFO does state that it is predicated on numerous assumptions, Protest File, Exhibit 15 at 12-13, the relationship between any or all of the assumptions and the absence of a network operations specialist and a LAN manager is not explained. In the posthearing brief, AMI states that it "made six reasonable assumptions in [its] Benchmark 1 solution" and describes the impact of those assumptions. Protester Advanced Management, Inc.'s Posthearing Brief (AMI Brief) at 16- 17. Even there, AMI is unable to identify any effect of any assumption on the need for a network operations specialist. 16. The TEP determined that AMI's BAFO solution to benchmark task 1 was unacceptable for two reasons: "The revision did not correct the deficient hours and did not include Network Operations or Microcomputer functions. The estimated hours contained in the revision is [sic] 25% below the Government estimated low range." Protest File, Exhibit 16 at 3. 17. Contract award was made to CDSI on April 27, 1992. Protest File, Exhibit 18. Discussion When an agency is purchasing computer hardware or software, or even systems, it can specify known requirements in its solicitation. Offerors can then design proposals to meet these requirements, and when the agency evaluates those proposals, it can make judgments based on its analysis of offers to provide certain, tangible items. When an agency is purchasing services, proposals are of necessity less concrete, for actual performance ----------- FOOTNOTE ENDS ----------- involves human beings, with all their quirks and foibles. Nevertheless, if requirements are known and specified, proposals can be drawn against them, and evaluations can relate to actual needs. The procurement involved in this protest is quite different. It is for computer-related services which will be provided at unknown times, at unknown locations, in response to whatever agency needs occur in the future. In this sort of acquisition, offerors can only tell the agency their plans for meeting such needs as might arise. Determining the relative non-cost merit among proposals is a difficult proposition. GSA directed that offerors in this procurement tell the agency their plans in several ways, of which two were most important. First, each offeror had to provide guidelines which would be used to determine staffing for each task that might be ordered. These guidelines had to "[p]resent in clear detail the criteria, methodology and tools . . . used to determine the skill levels and numbers of hours by skill level to be proposed for use on actual task orders." Finding 4. The guidelines were to be "considered as firm commitments for staffing tasks under the contract," so that the agency could be sure that the awardee performs in the same way that it promises to perform. Id. Second, the offeror had to give the agency a detailed explanation of how it would respond to five separate hypothetical tasks, each of which was representative of the sort of task that might arise under an awarded contract. Finding 5. In providing solutions to these "benchmark" tasks, an offeror was required to adhere to its staffing guidelines, unless it "explain[ed] what adjustments were made and the basis for making them." Id. The purpose of this requirement was obviously to test the offeror's ability to apply the guidelines in appropriate, responsible ways. GSA alerted prospective offerors that the merit of technical proposals would rest heavily on the evaluation of the guidelines and benchmark solutions. Finding 7. AMI's protest is concisely summarized in the firm's posthearing brief: First, GSA's evaluation of AMI's Benchmark 1 solution was unreasonable, because GSA's yardstick, its internal solution for Benchmark 1, was irrational and arbitrary. Second, GSA didn't evaluate AMI's Benchmark 1 solution in accordance with the evaluation criteria in the Solicitation and the TEP's internal guidelines. As a result, GSA could not have rationally determined whether in fact CDSI's or AMI's proposal was "more advantageous to the Government," as Section M of the Solicitation requires. AMI Brief at 12.1 The protest raises some interesting questions. If the stated hypothetical situations could be interpreted in different ways, was the offeror obliged to propose solutions in response to the agency's assumptions, and to learn those assumptions by asking questions which could be answers in solicitation amendments? Alternatively, was the agency compelled to accept whatever reasonable assumptions the offeror made as to these matters? Were the solutions that GSA's TEP designed for benchmark task 1 based on reasonable interpretations of the stated situations, and were those solutions sound? Did AMI make reasonable assumptions as to the aspects of the situation it considered unclear? If AMI's assumptions were logical, did GSA evaluate the firm's proposal against the situation as understood by AMI, as was appropriate? We need not determine whether AMI's allegations are true, or address any of these questions. The reason is that AMI's solution to this benchmark task contains a material defect that makes ultimately correct GSA's conclusion that the solution is unacceptable. The defect is that AMI did not draft its BAFO, insofar as it relates to benchmark 1, in accordance with the rules prescribed by the solicitation. It did not follow its own staffing guidelines, surely with regard to work to be performed by a network operations specialist and likely with regard to work to be performed by a LAN manager, and it did not explain why it was departing from the guidelines. Finding 15. This violation of the rules is important because adherence to the guidelines is a contractual obligation; unexplained deviations call into question whether AMI, if selected as the awardee, would ever give GSA the kind of staffing for which the agency had bargained. We know for two reasons that AMI did not follow the guidelines in preparing its BAFO benchmark 1 solution: first, the firm's BAFO is different from its initial proposal as to this matter, and the initial proposal followed the guidelines; second, AMI's president admitted at hearing that the BAFO solution is not consistent with what the guidelines prescribe.2 Findings 12, 15. The BAFO solution is actually internally inconsistent in stating that a network operations specialist and LAN manager are both included and excluded, Findings 14, 15; at best, therefore, it could be considered unacceptable because it is ambiguous. We ____________________ 1 At one time, the protest also included an allegation that the discussions GSA had held with AMI were misleading. See ___ Finding 13. This count was dismissed as untimely filed. Advanced Management, Inc. v. General Services Administration, ----------- FOOTNOTE BEGINS --------- GSBCA 11851-P, 1992 BPD 161 (June 16, 1992). 2 The president's later, contrary testimony, in response to a general question from his attorney, is not credible. See ___ Transcript at 175. ----------- FOOTNOTE ENDS ----------- are convinced, however, that AMI's solution is to have the functions of these personnel provided by other people, even though the guidelines specify that in the given situation, the personnel themselves should be provided. Finding 15. The proposal does not explain why the guidelines were not followed, and AMI is unable to link any of the assumptions it made regarding the situation to the deviations from the guidelines. Id. AMI attempts to excuse the deviations by characterizing the guidelines as flexible. It points to two statements in support of this interpretation: The guidelines include "work load indicators" and say that "[t]hese indicators may, depending on the specific requirement of the task request, necessitate adjustment to the standard staffing criteria." Protest File, Exhibit 21 at 14. At hearing, AMI's president called the guidelines "rule[s] of thumb," which apparently may be adapted as desired. Transcript at 107, 174-75. ----------- FOOTNOTE BEGINS --------- ----------- FOOTNOTE BEGINS --------- _ _ ----------- FOOTNOTE BEGINS --------- _ _ ----------- FOOTNOTE BEGINS --------- _ _ ----------- FOOTNOTE BEGINS --------- ____________________. AMI Brief at 21; see Protest File, Exhibit 21 at 15. These contentions are unconvincing. The guidelines are, in AMI's own words, "customized . . . to respond precisely to the GSA requirements." They are designed "to estimate, with a high degree of certainty, acceptable levels of staffing for any GSA task order requirement." The benchmark solutions are supposed to "verify the methodolog[y's] accuracy and usefulness." Finding 11. The guidelines, in other words, are precise and should be applied as written; they are far from mere rules of thumb. If any "work load indicators" changed between initial proposal and BAFO, they are not explained in the BAFO. AMI's brief is misleading in suggesting that a network operations specialist need not be provided, in response to benchmark task 1, _____________________________________ ----------- FOOTNOTE BEGINS --------- _ _ ----------- FOOTNOTE BEGINS --------- __ _______________________. See Finding 14. AMI's unexplained deviation from its staffing guidelines is a matter entirely independent of the number of hours necessary to perform the benchmark 1 task. Both the solicitation and the evaluation instructions make clear that the offeror's justification of its solution is a critical part of the solution itself. Findings 4, 10. In response to GSA's advice that the staffing and hours initially proposed for the task "seemed ----------- FOOTNOTE ENDS ----------- inappropriate," Finding 13, AMI had three choices: it could have retained its original proposal but improved its explanation of why it assigned certain hours to each skill level; altered the staffing and hours; or changed the staffing and hours and improved the explanation. AMI unwisely selected the second choice. Whether the first or third would have been better we do not know; what is sure in retrospect, however, is that the lack of explanation for the hours and staffing proposed was fatal to the solution. Because AMI's solution to benchmark task 1 was reasonably found unacceptable, we will not change the scoring of that solution. Thus, protester does not persuade us to affect the analysis upon which GSA relied in awarding the contract to CDSI. When an offeror violates the rules of a competition in a material way, it may not benefit from any determination that the Government, too, made a mistake in the conduct of the procurement. We consequently do not examine AMI's allegations that GSA's evaluation was otherwise improper. Citizens & Southern National Bank, GSBCA 9721-P, 89-1 BCA 21,354, at 107,650, 1988 BPD 291, at 8, rev'd on other grounds, 889 F.2d 1067 (Fed. Cir. 1989).3 Decision The protest is DENIED. Because the protest was filed more than ten days after contract award, AMI did not request, and we did not grant, a suspension of procurement authority while the protest was pending. 40 U.S.C. 759(f)(3) (1988). CDSI has been performing the contract; as a result of this decision, it may continue to do so. _________________________ STEPHEN M. DANIELS Board Judge ____________________ 3 Cf. RGI, Inc., GSBCA 11752-P, 1992 BPD 156 (June 2, ___ _________ 1992); Integrated Systems Analysts, Inc., GSBCA 10750-P, 91-1 BCA _________________________________ 23,383, at 117,348, 1990 BPD 298, at 18-19; Datasouth _________ Computer Corp., GSBCA 10536-P, 90-2 BCA 22,794, 1990 BPD 74; _______________ Micro Star, Inc., GSBCA 9824-P, 89-1 BCA 21,511, 1989 BPD 33; ________________ North American Automated Systems, Inc., GSBCA 9824-P, 89-1 BCA ________________________________________ 21,511, 1989 BPD 33 (where a protester's bid or proposal is ineligible for award, we will not hear the substance of its complaint). We concur: _________________________ _________________________ JAMES W. HENDLEY ANTHONY S. BORWICK Board Judge Board Judge