THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING RELEASED TO THE PUBLIC IN REDACTED FORM ON FEBRUARY 8, 1993. ________________________________________________ DENIED: November 24, 1992 ________________________________________________ GSBCA 12010-P HFS INC., Protester, v. NATIONAL ARCHIVES AND RECORDS ADMINISTRATION, Respondent, and SYSCON CORPORATION, Intervenor. Garry R. Boehlert and Shelly L. Ewald of Watt, Tieder, Killian & Hoffar, McLean, VA, counsel for Protester. Christopher M. Runkel and Luis A. Vidal, Legal Services Staff (NXL), National Archives and Records Administration, Washington, DC, counsel for Respondent. Michael W. Clancy and Lee A. Fennell of Pettit & Martin, Washington, DC, counsel for Intervenor. Before Board Judges DANIELS, PARKER, and HYATT. HYATT, Board Judge. This protest concerns a procurement by the National Archives and Records Administration (NARA) of an Integrated Communications and Administrative Support System (ICASS). The contract was awarded to SYSCON Corporation on September 2, 1992. HFS Inc. (HFSI) protested the award on September 11, 1992. Lockheed Sanders, Inc. also protested the award, in a filing received on September 18, 1992. The protests were consolidated. Amended protests were filed by HFSI on September 18, 1992, and October 5, 1992. On October 28, the Lockheed Sanders protest was dismissed with prejudice at that protester's request. HFSI protests the agency's evaluation of proposals and its conduct of a cost/technical tradeoff in support of the award decision and challenges the compliance of SYSCON's proposal with certain requirements of the solicitation. For the reasons stated herein, the protest is denied. Findings of Fact 1. In late 1993, NARA is slated to occupy a new building (Archives II), which is currently under construction in College Park, Maryland. The protested procurement is for the acquisition of the "engineering, supply, installation, testing and cutover of an Integrated Communications and Administrative Support System (ICASS)" for the purpose of developing a "unified, nationwide system, capable of linking all program offices and providing a single point of access to all reference data bases created and maintained by NARA which will include records service programs, record preservation programs, and NARA administrative activities." The ICASS will be installed in the Archives II building and is expected to support NARA's nationwide archival and records management services into the next century. Protest File, Exhibits 2, 3, 16. 2. The request for proposals (RFP) contemplated award on a firm fixed price basis for the ICASS core components and on an indefinite delivery indefinite quantity basis for variable quantity components. With respect to variable components, the RFP provided that NARA would be under no obligation to purchase any stated quantity or configuration. Estimated quantities were stated in the solicitation for cost evaluation purposes only. Protest File, Exhibit 16. Functional Requirements in Issue POSIX Requirements 3. POSIX (Portable Operating System Interface for Computer Environments) is a standard interface which promotes portability of computer applications at the source code level between unlike platforms. Transcript at 83, 456; Protester's Hearing Exhibit 110, 8. 4. The standard for POSIX is established in a publication of the National Institute of Standards and Technology (NIST), Federal Information Processing Standards Publication (FIPS PUB) 151-1. This publication provides that POSIX is required to be used for "operating systems that are either developed or acquired for Government use where POSIX-like interfaces are required." The primary objectives of this FIPS publication include the promotion of portability of computer applications programs at the source code level; the reduction of staff hours needed to port computer programs to different vendor systems and architectures; and the maximization of return on investment in generating or purchasing computer programs by insuring operating system compatibility. Protest File, Exhibit 110. 5. FIPS PUB 151-1 also announces that NIST, in conjunction with industry, has developed a validation test suite for measuring conformance to the standard, and that this suite "will be required for testing conformance of POSIX implementations." Protest File, Exhibit 110. NIST maintains a registry of validated products that have been tested and certified for POSIX compliance on the basis of the official test suite. Protest File, Exhibit 112. 6. Section C.5.2.1 of the solicitation initially required that the ICASS operating system be POSIX compliant. This specification was subsequently relaxed in amendment three, which modified this provision to require only that the operating system support POSIX compliance: The ICASS shall have a multi-tasking, multi-user operating system that facilitates interoperability and compatibility between ICASS functional components and remote systems. The operating system shall support POSIX (FIPS PUB 151-1) compliance and shall fully conform to all appropriate FIPS PUBS and ANSI standards. Protest File, Exhibits 16, 19; Transcript at 457. There was no express requirement that an offeror's operating system be certified POSIX compliant by NIST. Protest File, Exhibit 16; Transcript at 251, 292, 457. 7. During the preproposal conference, NARA advised offerors that: Components need not be POSIX-compliant, but the system must have a POSIX appearance to the outside world. Thus, a vendor could bid the file server running Novell Netware if the gateway would allow a POSIX-compliant non-Netware connection. Protest File, Exhibit 17; Transcript at 457-58. Both the Source Selection Authority (SSA) and the systems engineer responsible for designing SYSCON's technical proposal testified to their understanding that this meant that an offeror's operating system had to be designed to enable a POSIX compliant outsider to access ICASS even though ICASS itself may not be technically POSIX compliant. Transcript at 252-53, 460. 8. HFSI offered an operating system that was certified by NIST under FIPS PUB 151-1. Transcript at 90. The product proposed by SYSCON is marketed by a vendor that repackages a NIST-certified product under its own name. SYSCON's vendor licenses the POSIX-compliant code from an accredited source, but has not itself obtained NIST-certification for the product marketed under its name. Id. at 460. GOSIP Requirements 9. GOSIP (the United States Government Open Systems Interconnection Profile), which is also established by a NIST publication, defines a common set of data communications protocols which enable different computer systems to interoperate and communicate with each other. SYSCON Hearing Exhibit 1; Transcript at 108, 448. The solicitation clauses providing for GOSIP compliance are set forth generally in paragraphs H-7 through H-9 of the RFP. Paragraph H-7 states that communications products claimed to be GOSIP compliant shall conform to GOSIP protocols as defined in FIPS PUB 146-1. Protest File, Exhibit 16. 10. Paragraph H-7, in subparagraphs D and E, specifically provides that message handling services (MHS), also referred to as X.400 or E-Mail, and file transfer access and management services (FTAM) must be compliant with applicable standards set forth in FIPS PUB 146. Protest File, Exhibit 16. 11. Paragraph H-8 of the RFP provides that MHS and FTAM, as well as other products for which GOSIP compliance is claimed, shall be certified or accredited as compliant and listed on the "Register of Conformance Tested Products" maintained by NIST or be tested and approved "prior to delivery." Protest File, Exhibit 16. Delivery of the ICASS is scheduled for November 1993. Id.; Transcript at 449. 12. Paragraph H-9 provided the following with respect to GOSIP interoperability testing: A. The contractor shall provide proof that all products proposed for GOSIP compliant Message Handling, File Transfer Access and Management, and Virtual Terminal services represent successful interoperability testing by 1. using test data supplied by NARA, and/or by 2. using test suites identified by NARA from the NIST register, "Interoperability test Suites." B. Interoperability test results may be obtained from an interoperability Testing Service that has been registered by NIST. 13. Paragraph H-10 contained a general requirement for commercial off-the-shelf (COTS) products: All hardware and software, with the exception of GOSIP-compliant products, proposed in response to this solicitation, shall be formally announced, commercially available, "off the shelf" products, shall be the latest in design and in current production, shall have previously been successfully installed and operated, and shall meet the following requirements prior to receipt of best and final offers (BAFOs). 1. Be commercially available as an "off-the-shelf" item requiring no further development; 2. Be successfully tested or demonstrated in the commercial or Government marketplace meeting the intended usage as required in the solicitation document; 3. GOSIP-compliant products shall be tested and certified in accordance with paragraphs H-7 through H-9, above. Protest File, Exhibit 16. 14. HFSI met the requirement for GOSIP compliance by offering a fully NIST-certified GOSIP compliant suite of products. Transcript at 116; Protest File, Exhibit 37. HFSI furnished evidence of such compliance in its BAFO. Id. at 117. The Chairman of the Source Evaluation Board (SEB) testified, however, that NARA interpreted Paragraphs H-8, H-9, and H-10 as a whole to require that evidence of testing and certification of GOSIP-compliance "had to be delivered by the time of delivery of the system, so we did not request that information as part of discussions of BAFO." Id. at 295. 15. SYSCON proposed FTAM, manufactured by , to meet the file transfer services requirement. Protest File, Exhibit 36; Transcript at 449. This product in fact was NIST- certified as conforming to the GOSIP requirements enumerated in the RFP prior to submission of best and final offers (BAFOs). Transcript at 450-51; SYSCON Hearing Exhibits 2, 14. 16. For the MHS requirement, SYSCON proposed a product known as the . Protest File, Exhibit 36; Transcript at 452. This product conforms with GOSIP requirements but is not yet NIST-certified. It is currently scheduled for testing in late 1992. Transcript at 452. 17. Both SYSCON's FTAM and [MHS] products successfully completed GOSIP interoperability testing prior to submission of BAFOs. The testing was conducted by OSINET, a NIST-approved independent testing service, using NIST- approved test suites. Protester's Hearing Exhibit 120; Transcript at 454-56. FCC Class B Certification 18. The solicitation called for three configurations of personal computer (PC) workstations, identified in the RFP as class 1, class 2, and class 3. Protest File, Exhibit 16. Offerors were also required to propose a tower case option for class 2 and 3 workstations, and a mini tower case option for class 2 workstations. All three classes of personal computer workstations were required to be Class B certified by the Federal Communications Commission (FCC). Id. 19. FCC Class B certification establishes that a personal computer has passed a test to determine that it does not project electromagnetic emissions that would interfere with other electronic devices such as radios and televisions. Such certification must be obtained before the equipment may be offered for sale. 47 CFR 2.803, 15.1, 15.3 (1991). To the extent a change is thereafter made that would affect certain components of the computer, such as the motherboard, power supply case, manufacturing procedures, or clock speed, recertification would be required. Transcript at 166-68; 441. 20. HFSI proposed FCC Class B certified workstations, Transcript at 168-69, and listed the numbers of the certifications in its BAFO proposal. Transcript at 168-69; Protest File, Exhibit 37. SYSCON did not list the actual certification numbers in its proposal but did state that each of the three workstations proposed met the requirement. Protest File, Exhibit 36. Neither HFSI nor SYSCON included actual copies of the certifications in its proposal. Transcript at 180. 21. SYSCON's Class 1, 2, and 3 workstations, as well as the tower configurations for classes 2 and 3, were properly FCC Class B certified. SYSCON Hearing Exhibits 7-13; Transcript at 427-41. These workstations were also commercially available, as demonstrated by the product literature submitted with SYSCON's proposal. SYSCON's ICASS proposal manager explained that the FCC Class B certifications were not readily discovered by HFSI because the certifications for the units proposed by SYSCON were filed under the name of an original manufacturer that resold the units to SYSCON's supplier. SYSCON's supplier resells those units under its own brand name without altering the motherboard, power supply, or case. Transcript at 441-42.[foot #] 1 This is a common business practice, which is acknowledged by laboratories performing FCC certification testing as a legitimate way to maintain a valid Class B certification. Id. at 432. Source Selection Criteria 22. Section M of the solicitation provided that award would be made to the offeror whose proposal was most advantageous to the Government, price and other factors considered. Among the other factors to be considered was technical merit, which was to be determined through the conduct of a "scored technical evaluation of all technical and business proposals submitted in accordance with the instructions in Section L that meet minimum standards." Protest File, Exhibit 16. The offerors were also informed that "[p]roposals will be evaluated using the evaluation factors and subfactors in subsection (C), both o[f] which are listed in decreasing order of weight." Protest File, Exhibit 16, M-1. The solicitation further stated that a proposal may be rejected if it failed to meet all the functional requirements. Id.; Transcript at 48-49. 23. Paragraph M-2 of the solicitation provided for award to other than the lowest cost offeror: A. The Government may award this contract to other than the lowest priced technically acceptable proposal if another proposal's technical merit justifies the additional cost. B. The significance of the cost will increase to the extent that proposals approach equality with regard to the technical factors: Between substantially equal technical proposals, the proposal total price will be the determining factor for award. ----------- FOOTNOTE BEGINS --------- [foot #] 1 Counsel for HFSI objected strenuously to this testimony, which was based on certificates and vendor correspondence confirming that the units proposed by SYSCON were FCC compliant. Essentially these objections were based on the hearsay nature of the correspondence and the SYSCON witness's lack of first hand knowledge. HFSI also objected that certain documents had not been supplied to it until the Friday evening before the commencement of the hearing, which began on a Wednesday. Most of the documents to which objection was made were provided to HFSI shortly after they were obtained by SYSCON, however. In addition, the Board deduced that the discovery requests pertinent to the subject matter of these documents were ambiguous at best. Thus it was not willing to exclude the exhibits on the basis of surprise alone. The hearsay objection was also overruled. Rule 22. After hearing the witness, the Board concluded that his testimony was credible, despite the hearsay nature of some of the conversations that were related. ----------- FOOTNOTE ENDS ----------- C. Between acceptable proposals with significantly different technical scores, weights, and/or merit, a determination will be made as to whether the value to the Government of a proposal from other than the least costly acceptable offeror warrants payment of a premium in price. The term "premium", as used herein, means the difference in price between the least costly acceptable offer and that offer deemed superior from a technical standpoint. D. In determining whether a premium is warranted, the weight given to price will be substantially less than the weight given to technical factors. E. Notwithstanding this price/technical ratio, for determining whether a premium is warranted, the Government will only award a contract to other than the low acceptable offeror if specific technical advantages can be identified and the Contracting Officer determines that those specific technical advantages are worth the amount of any premium in price. Protest File, Exhibit 16. Technical Evaluation 24. Under the Source Evaluation Plan (SEP), the three main technical areas to be evaluated -- (1) integrated system architecture, design, interface, and hardware and software components; (2) network management, reliability, and system security control; and (3) business management plans, corporate resources and accomplishments and key personnel -- were assigned, respectively, 50, 30 and 20 points. Protest File, Exhibit 14. The fifty points allotted to the first factor were split among six subfactors -- (a) through (f). Subfactor (a) was allotted 15 points, (b) and (c) were worth ten points each, and (d) through (f) received five points each. Id. The thirty points for the second factor were divided among eight subfactors, with the first three receiving six points apiece, the fourth receiving four points, the fifth, three points, the sixth and seventh each getting two points, and the last one point. Id. Finally the five subfactors under the third factor each were allotted four points. Id. 25. In scoring the subfactors, the source evaluation board (SEB) employed a rating scale ranging from zero to nine. A score of zero represented a total failure to address a particular subfactor; a score of seven indicated a response met the requirement; and a score of eight or nine represented a response which exceeded the agency's requirement. Protest File, Exhibit 14; Transcript at 329-31. 26. Each evaluator individually scored each proposal and then met with other evaluators to develop a consensus score for each subfactor. Protest File, Exhibit 14. The consensus scores were developed through discussion and agreement among the team members, rather than by averaging of individual scores. The consensus scores were multiplied by the weight assigned to the relevant subfactor, see finding 24, to determine a weighted score for that requirement. Protest File, Exhibit 14; Transcript at 319. The weighted scores were totalled to yield the numerical technical score for each proposal. Protest File, Exhibit 14. In addition to calculating a numerical score, the SEB prepared a detailed narrative describing the strengths and weaknesses of each offeror's proposal. Id. 27. SYSCON's technical proposal received a numerical score of versus a score of for HFSI. The SEB evaluated SYSCON's proposal as exceeding RFP requirements for all nineteen subfactors. Protest File, Exhibit 40. Although HFSI received an overall score that exceeded the RFP's requirements, it individually [was] scored [as exceeding RFP requirements] with respect to only eleven of the nineteen subfactors. Id. 28. For each of the subfactors assigned the same weight as one or more other subfactors, SYSCON's consensus scores were either greater than or equal to HFSI's consensus scores. Protest File, Exhibit 40. As a result, even if the assigned scores were modified to reflect a strict descending order of weight, with no subfactor being assigned the same weight as another subfactor within that category, it is extremely unlikely that the relative ranking of the two proposals would change. SYSCON's total weighted score would remain higher than that of HFSI. Transcript at 396. Cost Evaluation 29. Paragraph L-11 of the RFP provided the following instructions to offerors in submitting price proposals: (4) Offers may be submitted that because of technical approach or innovation do not exactly match the price tables provided in Section B. Offerors may substitute price tables that reflect their particular technical approach and/or innovations. This clause also cautioned that, among other things, price tables must be sufficiently detailed to support a price reasonableness analysis and the conclusion that the technical proposal is responsive. Protest File, Exhibit 16. 30. The SEB submitted a preliminary price report to the SSA, containing "raw" prices calculated for each proposal received after the request for BAFOs. These prices were derived by multiplying the price associated with each line item by the estimated quantity and adding up the total. HFSI's "raw" price [was less than] SYSCON's "raw" price . Protest File, Exhibit 40; Transcript at 395. 31. In its report, the SEB identified three areas in which it considered that the "raw" price totals offered an inaccurate picture of the cost that the Government would actually incur in purchasing the system: (1) installation charges associated with ordering optional items for PCs, such as hard drives; (2) WordPerfect conversion; and (3) spare parts. Protest File, Exhibit 40, Transcript at 383-86. NARA reviewed these items and made adjustments to SYSCON's, and other offerors', evaluated prices in order to derive a more accurate cost evaluation of the costs it could expect to incur under the awarded contract. Transcript at 375, 394. Installation Charges 32. The price tables in Section B of the RFP provided for separate pricing of PCs and optional variable component items associated with the PCs, such as hard drives and printers. Protest File, Exhibit 16. SYSCON indicated in its proposals that installation charges for certain optional CLIN items would be waived if the items were purchased along with and at the same time as the personal computers for which the items were designated. These CLINs were denoted with an asterisk in SYSCON's proposal. Protest File, Exhibit 36. SYSCON offered to waive these charges in order to pass along to NARA the savings it would realize from suppliers when these items were factory installed and did not have to be separately installed at a later time. Transcript at 416. Another offeror offered similar waivers of installation charges when these options were purchased together with the actual PC unit. Protest File, Exhibit 43. 33. In evaluating SYSCON's overall cost, the Government recognized that at least ninety percent of the options would in fact be purchased with the personal computers themselves. Transcript at 326, 384-85. This was a conservative assumption, given that NARA was ordering workstations for a new building and would be ordering based on actual requirements of the individual program offices. Id. at 385. Based on this assumption, NARA adjusted the raw prices of SYSCON and the other offeror to reflect the expected costs it would incur. SYSCON's price was reduced by to reflect this adjustment. Protest File, Exhibit 43. 34. One of the discussion issues that NARA raised with HFSI concerned the ordering of optional hard drives. In a letter sent to HFSI prior to the conduct of oral discussions, NARA stated that "Offeror's attention is drawn to the fact that the Government does not intend to purchase optional disk drives . . . for all basic PCs. . . ." Protest File, Exhibit 31; Transcript at 66. HFSI conceded that this statement could refer simply to the fact that the Government's estimated quantities were for fewer hard drives than for the associated PCs. Transcript at 76. Nonetheless, in contrast to SYSCON, HFSI did not break out installation charges for the optional items, but rather built installation costs for these items into the basic unit with which they were associated. In allocating installation costs among the workstation unit prices HFSI assumed that a large percentage of hard drives would in fact be ordered at the same time as the PC, and would thus be factory installed. Transcript at 70-75. WordPerfect Conversion 35. The solicitation called for the conversion, if necessary, of 500 NARA files from WordPerfect 5.x to the offeror's proposed word processing system. SYSCON, like HFSI, proposed WordPerfect for its word processing software package. In its proposal, SYSCON noted that conversion to a newer version of WordPerfect occurs automatically when the file is accessed, thus making conversion to WordPerfect unnecessary. Protest File, Exhibit 36; Transcript at 412-13. Nonetheless, as a cautionary measure, SYSCON included a price for WordPerfect conversion in the unlikely event it should be required by NARA to convert existing files to the newer version. Transcript at 413-14. In contrast, HFSI simply left the CLIN associated with WordPerfect conversion blank, including no cost figure for that effort. Protest File, Exhibit 37. 36. Reasoning that in no event would it pay for an unnecessary conversion effort, NARA did not consider the cost of conversion from WordPerfect to WordPerfect for any offeror. To the extent prices were quoted for this effort, the agency disregarded that cost figure in evaluating the offeror's price. Transcript at 386. Thus, the amount quoted by SYSCON for this effort, was subtracted from its "raw" price. Protest File, Exhibit 43. Other Feature 37. The RFP called for a one-year warranty period during which each offeror would be obligated to effect repairs at no additional cost to the Government. Protest File, Exhibit 16; Transcript at 350, 373. As part of its technical solution, SYSCON proposed [another feature] This was not required by the RFP, and no other offeror offered such an option to the Government. Transcript at 374. 38. The Government regarded the availability of [this feature] as an advantage for several reasons. First, in the event of a failure, thus decreasing the mean time to repair and increasing system availability. Transcript at 408. In addition, since SYSCON was obligated under the warranty to repair or replace any broken parts, and return them to the Government, Id. at 373-74; 411. 39. The SEB concluded, and the SSA agreed, that the inclusion of the [other feature] contributed not only to the high technical merit of the technical solution proposed by SYSCON, but also, by enhancing the availability of equipment necessary to operation of the network, provided a "clear additional value" to the Government in terms of future cost avoidance. In addition, since NARA would take it would not necessarily be restricted to the ICASS, but might also benefit from the to repair, as necessary, other equipment owned by the agency. Protest File, Exhibits 40, 43; Transcript at 382-83. 40. NARA determined that the appropriate way to reflect the "added value" to the Government of the [other feature] would be to deduct one-third of the cost of the [feature] the amount that the SSA considered to represent the added value, from SYSCON's raw price. This resulted in a reduction in the amount of . The Adjusted Prices 41. After adjusting for the above-referenced factors, NARA arrived at evaluated prices for SYSCON and HFSI of $6,437,185 and $6,439,909, respectively. Had the SSA adjusted solely for the costs that the Government would not incur, SYSCON's evaluated price would have been , or higher than HFSI's evaluated price. Protest File, Exhibit 43. The contract awarded to SYSCON was in the amount of $6,437,185. Id., Exhibit 44. This is a firm price, but, given the indefinite delivery, indefinite quantity aspect of purchases of variable components of the system, actually reflects a not-to-exceed ceiling, not the amount the Government is obligated to pay to SYSCON. Transcript at 261. The Source Selection Decision 42. After the conduct of a single round of written and oral discussions, the four offerors in the competitive range submitted BAFOs on July 6, 1992. Protest File, Exhibit 40. The SEB evaluated the technical proposals based on the three factors listed in Section M. See Finding 6. The numerical technical score for each of the four proposals was transmitted to the SSA along with the SEB's report and "raw" price information. Protest File, Exhibit 40. 43. The SSA considered a number of factors in reaching his decision to award the contract to SYSCON. First, after adjusting SYSCON's price to eliminate costs that the Government would not incur, and to reflect the added value that, in the Government's judgment, was offered by the [other feature] the SSA determined that the HFSI and SYSCON prices were substantially equal. Second, the SSA concluded that the SYSCON proposal and that of a third offeror were substantially equal in technical merit, and that both of these proposals were significantly superior in technical merit to the proposal submitted by HFSI. Third, the SSA found that the price of the third offeror was higher than SYSCON's price. In light of these findings, the SSA determined that the award should be made to SYSCON. Protest File, Exhibit 43. 44. In comparing the technical merits of HFSI, SYSCON, and the third offeror, the SSA regarded the solutions proposed by SYSCON and the third offeror to be excellent, in contrast to the offer submitted by HFSI, which was deemed to be generally strong, but not excellent. He noted that two factors in particular distinguished the SYSCON proposal from that of HFSI. The first factor was the availability of a full-time, on-site maintenance technician during the warranty period, in contrast to HFSI's on- call maintenance program. In addition, the SSA noted that the laser printers offered by HFSI did not, so far as NARA could determine on the face of HFSI's proposal, offer HP LaserJet III emulation, in contrast to the laser printers offered by SYSCON. Although not a requirement, the availability of this feature was deemed an additional strength by the SSA. Protest File, Exhibit 43. Finally, SYSCON offered a allowance on used equipment to be credited toward the purchase of new workstations and equipment under the ICASS contract. Although the SSA recognized that this feature had value, he could not quantify it and thus did not adjust SYSCON's price to reflect it. Id. Discussion HFSI maintains that the award to SYSCON is flawed for several reasons. According to HFSI, NARA should have rejected the SYSCON proposal outright for failure to satisfy three requirements of the solicitation -- those concerning GOSIP compliance, POSIX compliance and FCC Class B certification. In addition, HFSI asserts that the agency's evaluation of proposals was conducted improperly, with respect to both the scoring of technical proposals and the computation of offerors' prices. Compliance with RFP Requirements POSIX Requirements Prior to addressing the merits of HFSI's contentions regarding POSIX compliance, we note that both NARA and SYSCON have moved for the dismissal of this aspect of HFSI's protest on the basis that it is untimely. HFSI, in its second amended protest, filed on October 5, 1992, raised the specific claim that the SYSCON proposal included neither a FIPS-PUB 151-1 compliant operating system nor a NIST-certified POSIX-compliant operating system. SYSCON and NARA assert that this ground of protest is untimely because HFSI received its debriefing on September 11, at which time it already was aware of the product information contained in NARA's press release announcing the award. Accordingly, these parties believe that HFSI should be charged with knowledge of sufficient facts to formulate this ground of protest as of no later than September 11. As such, the new count was required to asserted no later than September 25, ten working days later. HFSI defends the timeliness of its POSIX-compliance allegation on the ground that its first amended protest, filed on September 18, in fact asserted failure to meet material requirements for conformance testing and alleged violation of the agency's delegation of procurement authority (DPA). HFSI did not have possession of the documents in the protest file until September 25, and maintains that it was the review of the agency procurement request (APR) and the DPA, together with the SYSCON proposal, which provided sufficient information to amplify this ground of protest. Since HFSI's first amended protest raised, at least minimally, the matter of conformance testing, an issue which arises with respect to both GOSIP and POSIX requirements, we find the claim to have been timely raised. See SofTech, Inc. v. Department of the Air Force, GSBCA 11708-P, 92-3 BCA 25,080, at 125,015, 1992 BPD 116, at 14. We thus deny the motions to dismiss for untimeliness and proceed to reach the merits of this issue, which have been fully litigated by the parties. HFSI premises its claim that the SYSCON operating system does not meet the solicitation's POSIX requirement on its reading of FIPS PUB 151-1 and on NARA's representations in its agency procurement request (APR)[foot #] 2, which constituted ----------- FOOTNOTE BEGINS --------- [foot #] 2 NARA stated in its APR that the administrative processing component of the ICASS "will have a multi-user, multi- tasking operating system that facilitates compatibility and interoperability between ICASS functional components and future government systems. The operating system will be POSIX (FIPS PUB 151-1) compliant, and fully conform to all appropriate FIPS PUB and ANSI [American National Standards Institute] standards." Protest File, Exhibit 4. The DPA was issued by the General Services Administration (GSA) based on the information provided in the APR. Id., Exhibit 6. In issuing the DPA, GSA noted: __ This DPA does not specifically approve or disapprove the planned acquisition strategy. It does require compliance with all applicable Federal statutes, policies, standards and regulations governing the acquisition, management and utilization of Federal Information Processing (FIP) resources. With respect to competition, the basic procurement objective in satisfying FIP requirements is to obtain full and open competition through the use of competitive procedures which permit all responsible sources that can satisfy the needs of the agency to submit offers. This requires an acquisition strategy, suitable to the circumstances, in which the statement of the user's requirement is set forth in the least (continued...) ----------- FOOTNOTE ENDS ----------- the basis for the General Services Administration's (GSA's) issuance of a DPA. Specifically, HFSI claims that the operating system proposed by SYSCON was not NIST-certified in accordance with FIPS PUB 151-1. As such, HFSI insists that the SYSCON did not meet a mandatory requirement of the solicitation -- i.e., FIPS PUB 151-1 certification by NIST. The solicitation as amended called for an operating system that would support POSIX compliance and fully conform to all appropriate FIPS PUB requirements. Clearly, the pertinent term of the solicitation was relaxed by amendment three, in which NARA modified the initial specification that the operating system itself be POSIX compliant to require merely that it support such compliance. Finding 4. NARA further manifested its intent in the preproposal conference when it advised potential offerors that components need not be POSIX-compliant but that the system must have a POSIX-appearance to the outside world and be able to allow a POSIX-compliant connection. Finding 5. NARA procurement officials attested to their understanding that ICASS would be designed to support access to POSIX external systems and, correspondingly, access by external users to ICASS in lieu of a requirement that the operating system itself be POSIX-compliant and NIST-certified. Transcript at 252-57, 460. The interpretation advanced by HFSI seeks to restore the original requirement by restrictively construing FIPS PUB 151-1 to mandate such compliance. In essence, HFSI would have the Board hold that the agency's amendment to the solicitation, relaxing the requirement, could be given no effect because POSIX- compliance and NIST-certifications are compulsory under FIPS PUB 151-1. HFSI's reading of the solicitation turns the "plain" meaning of the relaxed language on its head. The solution proposed by SYSCON clearly supports POSIX compliance and provides the technical functionality required by NARA. We are not persuaded that under a fair reading of the FIPS PUB provision for NIST-certification of operating systems that such certification is in fact mandatory to achieve the objectives articulated in the standard. HFSI's rigid reading of the solicitation and the FIPS PUB 151-1 standard at best appears to overstate the requirement. Moreover, HFSI never sought clarification from NARA in spite of what should have been recognized by HFSI to be an inconsistency on the face of the RFP. In such circumstances, the Board has consistently held that an agency's application of a reasonable and less restrictive interpretation of the requirements of a solicitation is proper. E.g., Racal Information Systems, Inc., GSBCA 10264-P, 90-1 BCA 22,495, 1989 BPD 368; Hughes Advanced Systems Co., GSBCA 9601-P, 89-1 BCA 21,276, 1988 BPD 253. ----------- FOOTNOTE BEGINS --------- [foot #] 2 (...continued) restrictive terms possible to satisfy the needs of the agency without compromising economy and efficiency. Id. __ ----------- FOOTNOTE ENDS ----------- Given the DPA's admonition to seek the least restrictive means of satisfying the ICASS requirements, we are not convinced that the approach adopted by NARA is inconsistent with that document either.[foot #] 3 The Government's interpretation fully comports with Board precedent construing the term "support" in the context of a solicitation provision requiring a technical solution to "support" certain GOSIP standards. Andersen Consulting, GSBCA 10833-P, 91-1 BCA 23,474, 1990 BPD 396, aff'd, 959 F.2d 929 (Fed. Cir. 1992). The Board pointed out that the plain meaning of this term was not that the function be provided itself but that the proposed software be capable of working with the specified GOSIP functions. Finally, we note that it appears from testimony offered at the hearing that in fact the operating system proposed by SYSCON is POSIX-compliant, and that the system itself, although repackaged and marketed under a different name, was NIST- certified as to the original licensor of the software. Thus, even under the restrictive reading advocated by HFSI, this ground of protest would not suffice to overturn the award. GOSIP Requirements HFSI also asserts that SYSCON failed to certify GOSIP compliance or to satisfy the interoperability testing requirements set forth in the RFP for the message handling services and file transfer services as of the time of submission of BAFOs. This contention is, like HFSI's POSIX argument, based on an overly restrictive reading by HFSI of the terms of the solicitation. Again, HFSI must abide by any reasonable, less restrictive, interpretation that is applied by the agency. A fair reading of the solicitation's provisions relevant to GOSIP compliance, see Findings 10-13, leads to the conclusion that offerors need only have proposed products capable of being certified as GOSIP compliant, or otherwise tested and approved, prior to delivery of ICASS to NARA in November of 1993. By its plain meaning, when read as a whole, the solicitation simply does not require NIST accreditation or certification by the date of BAFO submission. ----------- FOOTNOTE BEGINS --------- [foot #] 3 Even if we deem NARA's representation that the operating system would itself be POSIX compliant to be a representation that was relied upon by GSA and incorporated into the DPA, this departure from an implied term of the DPA is at worst the type of infraction that may readily be cured administratively even after award. CACI, INC.-Federal, GSBCA __________________ 11523-P, 92-1 BCA 24,590, 1991 BPD 309; Computervision Corp., ____________________ GSBCA 8709-P, 87-1 BCA 19,518, at 98,651-52, 1986 BPD 217, at 14. ----------- FOOTNOTE ENDS ----------- HFSI's position that the RFP, in paragraph H-9, required completion of interoperability testing prior to the date of BAFO submissions is unreasonable. Paragraph H-10 expressly exempted GOSIP products from the solicitation's requirement that hardware and software meet the COTS requirement prior to submission of BAFOs. Finding 13. Instead, this paragraph provided that all GOSIP-compliant products be tested in accordance with paragraphs H-7 through H-9 of the RFP. A reasonable reading of the RFP, then, and the one adopted by NARA, is that all GOSIP testing would be required to be completed at the same time -- at the delivery of the system under the contract. This also comports with the provision in paragraph H-9, which permits the contractor to conduct interoperability testing itself using data supplied by NARA. Such testing could only be accomplished by the contractor once the system itself is installed. See Transcript at 483-84. This too supports a post-award testing requirement for interoperability. FCC Class B Certification HFSI also contends that SYSCON's workstations and tower configurations were not FCC Class B certified and thus should have been rejected for failing to meet a mandatory requirement of the RFP. HFSI arrives at this requirement by arguing that Section J-8 of the RFP modifies section H-10's requirement that all hardware and software be commercially available at the time of BAFO submissions. It is HFSI's position that Class B certification was required to meet the definition of commercial availability. Intervenor points out that it produced product literature demonstrating the commercial availability of its equipment as part of its proposal, thus demonstrating the lack of validity of this contention. In addition, SYSCON's proposal confirmed that all of its proposed workstations were certified as required. HFSI argues, however, that SYSCON's equipment does not meet this requirement because HFSI was unable, in an independent effort, to locate the certifications. This inability was satisfactorily explained by SYSCON, whose witness attested that the equipment it proposed was certified by the original manufacturer and remarketed under a different label by another seller. This seller, SYSCON's supplier, informed SYSCON that no modifications were made to the equipment that would invalidate the certification. Thus, this asserted ground for overturning the award is similarly invalid. The Technical and Price Evaluations The Numerical Scoring Process HFSI challenges the validity of the technical evaluation on the ground that the agency failed to follow a strict order of descending importance with respect to the subfactors listed in section M. In essence, HFSI asserts that the agency violated the terms of the solicitation, as well as statute and regulation, in deviating from its stated evaluation criteria. See Government Technology Services, Inc., GSBCA 10389-P, 90-2 BCA 22,673, 1990 BPD 37. HFSI states that had it known that the agency intended to place equal value on certain of the subfactors, it would have altered its proposal strategy. HFSI's argument begs the question, however. It must demonstrate that it was actually prejudiced by the deviation which occurred in the evaluation process, and not merely that it might have offered a different technical solution had it surmised that some of the subfactors would be given equal weight. As intervenor and NARA point out, the relative numerical scores would remain the same even if the agency were to recompute the technical scores to adopt a strict descending order of value for the subfactors. See Corporate Jets, Inc., GSBCA 11049-P, 91-2 BCA 23,998, 1991 BPD 111. This is because, with respect to the relevant subfactors, SYSCON consistently scored higher than did HFSI. Finding 28. HFSI has not been prejudiced by this minor deviation from the application of a strict descending order of importance with respect to these criteria. The Price Evaluation and Cost/Technical Tradeoff HFSI also challenges the propriety of NARA's adjustments to SYSCON's price. In particular, HFSI objects that the modifications to raw prices, intended to insure that the Government was performing its price comparisons on the basis of what each proposal would actually cost, were somehow improper. That is, HFSI objects to the deletions of amounts representing the cost of installation of specified workstation and printer options if ordered with the basic component. Additionally, HFSI objects to the agency's decision to reduce SYSCON's price by the amount quoted for WordPerfect conversion. Both of these contentions are meritless. The agency is obligated to perform a realistic cost assessment that will enable it to derive the likely cost of the system. See AT&T Communications, Inc., GSBCA 9252-P, 88-2 BCA 20,805, 1988 BPD 96, aff'd sub nom. Pacific Bell v. United States, 865 F.2d 269 (Fed. Cir. 1988) (table). Credible testimony established that NARA is able to forecast with considerable accuracy that it will order many of the workstation and printer options at the time of initial installation of the system, thus permitting it accurately to conclude that some 90 percent of SYSCON's proposed installation costs will not in fact be incurred. Similarly, testimony at the hearing conclusively established that the WordPerfect conversion costs will not be incurred. There is, moreover, no evidence that HFSI was unduly prejudiced by either of these adjustments. HFSI itself did not include a cost for WordPerfect conversion, surmising that the Government would not need this function. It has no cause to complain about the subtraction of this amount from other offerors' proposals. As to the installation costs, HFSI also recognized that the cost would be substantially reduced if hard drives were ordered with the PC unit, and factored this into its own pricing. Finally, the Government's reduction of SYSCON's price by some , representing the value of the [additional feature it offered] although perhaps unorthodox, does not serve to invalidate the technical/cost tradeoff that was actually performed. The Board recognizes that agencies possess considerable discretion in the conduct of price/technical tradeoff analyses. E.g., Lockheed Missiles & Space Co. v. Department of the Treasury, GSBCA 11776-P, et al., 1992 BPD 155, at 20 (June 2, 1992); TRW, Inc., GSBCA 11309, 92-1 BCA 24,389, at 121,789, 1991 BPD 205, at 13. Whether this amount is subtracted from the evaluated cost or is simply regarded as an additional value and, in that manner, considered as part of the cost/technical tradeoff, the selection decision made by NARA was reasoned and consonant with the criteria set forth in Section M. See Computer Sciences Corp., GSBCA 11497-P, 92-1 BCA 24,703, at 123,297, 1992 BPD 6, at 34 (1991). The SSA's decision was based on the technical superiority of SYSCON's proposal and the fact that its price was not significantly higher than that of HFSI. To the extent SYSCON's price was slightly higher than HFSI's, the technical advantages offered by such factors as the ability to acquire [the special feature] the availability of on- site maintenance, and the HP Laserjet III emulation feature on the printers, were properly deemed to offset that higher cost. Regardless of whether the extra cost of [the other feature] might more appropriately be treated as a price premium, rather than as a cost adjustment, the award to SYSCON was amply justified. Violation of the DPA Finally, HFSI asserted in its second amended protest that the award to SYSCON in the amount of $6,437,185, materially exceeded the estimate of $5.34 million stated in the APR. One of the terms of the DPA requires that the agency obtain an amendment in the event of a significant increase in price. First, this alleged violation in no way prejudices HFSI, whose price similarly exceeded the estimate set forth in the APR. In addition, as the SSA pointed out in the hearing, the contract ceiling is a not-to-exceed price, not a firm commitment by NARA to spend that amount. We have no basis to conclude, at this point, that NARA's purchases will necessarily exceed the estimate in the DPA. Last, but not least, NARA has already requested an amendment to the DPA to increase the estimated price of the procurement. Under these circumstances, this final ground of protest must be rejected. Decision The protest is DENIED. The suspension of respondent's delegation of procurement authority expires by its terms. __________________________ CATHERINE B. HYATT Board Judge We concur: ____________________________ ___________________________ STEPHEN M. DANIELS ROBERT W. PARKER Board Judge Board Judge