MOTIONS TO DISMISS FOR UNTIMELINESS AND FOR FAILURE TO STATE A VALID BASIS OF PROTEST GRANTED IN PART: October 6, 1992 GSBCA 12011-P, 12012-P CENTEL FEDERAL SYSTEMS, INC., and FEDERAL COMPUTER CORPORATION, Protesters/Intervenors, v. DEPARTMENT OF THE NAVY, Respondent, and INTERGRAPH CORPORATION, Intervenor. William A. Roberts, III, J. Eric Andr , Kathleen C. Little, Lucy Gies, Patricia G. Butler, M. Lee Doane, and Peder A. Garske of Howrey & Simon, Washington, DC, and Stephannie A. Wood of Centel Federal Systems, Inc., Reston, VA, counsel for Protester/ Intervenor Centel Federal Systems, Inc. Gerard F. Doyle and Scott A. Ford of Doyle & Bachman, Washington, DC, counsel for Protester/Intervenor Federal Computer Corporation. Ellen D. Washington, David P. Andross, and Thomas L. Frankfurt, Information Technology Acquisition Center, Department of the Navy, Washington, DC, counsel for Respondent. Rand L. Allen, Philip J. Davis, Christopher D. Cerf, Paul F. Khoury, and James J. Gildea of Wiley, Rein & Fielding, Washington, DC, counsel for Intervenor Intergraph Corporation. Before Board Judges LaBELLA, Acting Chief Judge, DANIELS, and PARKER. DANIELS, Board Judge. Centel Federal Systems, Inc. (Centel), and Federal Computer Corporation (FCC) both challenge actions taken by the Department of the Navy (Navy) in the conduct of a procurement for computer- aided design and computer-aided engineering hardware, software, and services. The items are being acquired in support of facilities engineering applications of the Navy and other defense agencies. A contract has been awarded to Intergraph Corporation (Intergraph). In protests filed on September 11, 1992, Centel and FCC maintain that the Navy failed to conduct meaningful discussions; misevaluated offerors' proposals and live test demonstration (LTD) results; departed from what was specified in the solicitation in conducting LTDs and weighing scores of various parts of technical proposals and LTDs; erred in concluding that all Intergraph products met a "commercial off-the-shelf" (COTS) standard; and failed to conduct properly the price-technical tradeoff necessary to select an awardee. Each of these allegations is explained in considerable detail in the protesters' complaints. The Navy and Intergraph, an intervenor of right, have both moved to dismiss some of the counts of the consolidated protests. According to the Navy, three counts are untimely and one is without valid basis. The allegations of incomplete discussions, contained in both protests, are said to be untimely because they were not raised within ten days of the date on which discussions ended. Two counts pled only by FCC (though subscribed to by Centel through that firm's intervention in FCC's protest) are also said to have been raised too late. Count III alleges in part that a "productivity analysis" made by the agency in its price-technical tradeoff was defective because it did not consider that the greater machine speed of FCC's technical solution would enhance productivity. According to the motion, this allegation is untimely because it was raised well after a solicitation amendment "deleted machine speed as a discriminator." Count IV maintains that some products offered by Intergraph did not meet the COTS standard imposed by the solicitation and by the General Services Administration's delegation to the Navy of authority to conduct the procurement (DPA). The Navy asserts that the solicitation does not contain such a standard, and that any protest as to this matter would have been timely only if filed before the closing date for receipt of initial proposals. The Navy finally attacks FCC's Count VII, "The Navy Committed Other Violations of Its Delegation of Procurement Authority," as being so vague as not to state a valid basis of protest. Intergraph agrees with the Navy as to FCC's Count VII. It also agrees that the machine speed allegation is untimely, and suggests as an alternative that the charge does not state a valid basis of protest. Intergraph urges that the COTS allegation does not state a valid basis of protest either. The awardee focuses additionally, in its motion to dismiss, on three other issues. Centel's Count VI and FCC's Count V both contend that the Navy's evaluation of technical proposals and LTDs was skewed by an undisclosed preference for a unitary, integrated system. Intergraph maintains that this allegation is without basis because the solicitation clearly indicated that integration was valued by the agency. Intergraph urges that another FCC allegation, that being scheduled first for LTD and last for discussions was prejudicial to FCC, is untimely -- and also without merit because the scheduling did not violate a statute or regulation. FCC's Count III contends in part that the evaluation of pricing proposals was flawed because FCC did not receive credit for having offered a "CADDS 4X Direct Translator"1 as an Evaluated Optional Product. Intergraph's final assertion is that this allegation is without basis; because Intergraph also offered a "CADDS 4X Direct Translator," any failure to factor that product into price evaluations would have had equal impact on FCC and the awardee. The protesters, not surprisingly, oppose the motions. In so doing, they have clarified some of their allegations. We deny the motions except insofar as they pertain to two portions of FCC's protest, the general Count VII and the allegations about scheduling. The former count is dismissed for failure to state a valid basis, and the latter as untimely. Discussion We consider the counts implicated by the Navy's and Intergraph's motions in the order recited above. Incomplete discussions. The Federal Acquisition Regulation (FAR) directs that in discussions, the contracting officer shall "[a]dvise the offeror of deficiencies in its proposal so that the offeror is given an opportunity to satisfy the Government's requirements." 48 CFR 15.610(c)(2) (1991). The solicitation expanded the mandatory scope of discussions: those sessions also "will . . . inform each offeror of any weaknesses found in [its] written technical or management proposal or during [its] LTD." Protest File, Exhibit 4B at L-22 ( L25.2). ____________________ 1 This item is described more fully as a data base translator to "read and convert Computervision CADDS 4X revision 2.0 [through] revision 6.0 part files." Protest File, Exhibit 4B at C-49, C-155 (Table C1-2, C8.4.4.b). Each protester acknowledges that the Navy informed it of some deficiencies and weaknesses during discussions. The complainants have no quarrel with what they were told there. The problem, to them, is what they were not told. Each of them alleges that at a debriefing -- which occurred after award -- the agency for the first time revealed that other, previously unmentioned deficiencies and weaknesses in their proposals had affected the award decision. If the protesters had been informed of these difficulties during the procurement, they maintain, they could have modified their proposals appropriately. Centel's protest was filed three days after its debriefing, and FCC's was filed two days after its session. Each protest was thus made within ten days after the date on which the protester learned of the alleged violation of law. This ground of protest is timely. Rule 5(b)(3)(ii). "Productivity analysis." The LTD in this procurement included two tests, one of which was called the "production test." Protest File, Exhibit 4B at M-4 to M-6 ( M3.1, M3.1.1, M3.1.2). Initially, "the offeror's actual time of test completion" was one of the factors on which the production test would be judged. Id., Exhibit 4A at M-4 ( M3.1.1). In solicitation amendment 11, the Navy replaced this factor with "productivity enhancement," which itself was composed of subfactors called "man-machine interaction," "graphics/text manipulation," and "data exchange and integrity." Id., Exhibit 4M at M-4a ( M3.1.1). The Navy and Intergraph maintain that if FCC objected to this change, it was obliged to protest before the closing date for receipt of initial proposals, Rule 5(b)(i); now the complaint is without basis. This objection is misfocused. FCC's complaint regarding lack of consideration of machine speed goes not to the "production test," but to a "productivity analysis" made by the Navy. The solicitation provides that award will be made based on an evaluation in which technical merit is worth three times as much as management capabilities and price is worth less than technical and more than management. Protest File, Exhibit 4B at M-4 ( M3). Implicit in this arrangement is the understanding that if none of the proposals is best in all three areas, the Navy will make some sort of assessment, so as to arrive at an appropriate weight for price and to make a consequent award decision. Because price and technical portions of the proposals are the two parts most heavily weighted, this assessment is frequently called a "price-technical tradeoff." According to the protest, the productivity analysis was performed by the Navy not for evaluating LTD results, but as a part of the price-technical tradeoff in which Intergraph's supposedly superior technical proposal was determined to be worth its extra cost. The movants do not challenge the protest's statement that the agency did not describe the productivity analysis to FCC until the debriefing. Because the protest was filed within ten days of the debriefing, this allegation is timely. Rule 5(b)(ii). The reasonableness of the price- technical tradeoff is a principal issue in the protests, and the productivity analysis was apparently a part of that tradeoff. At this point, we have no information other than protest allegations as to the content of the analysis. We thus have no justification for finding that this part of FCC's challenge to it is not a valid basis for complaint. "Commercial off-the-shelf" standard. The General Services Administration gave the Navy a DPA for this procurement on the basis of a Navy representation that "only off-the-shelf, commercially available, non-developmental items will be included in the . . . solicitation[]." Protest File, Exhibits 1 at 1, 2A; see 40 U.S.C. 759(b)(2) (1988). The solicitation is not so restrictive of products that may be offered, however. It says that "[t]he Government will accept any specially engineered changes to a commercial product if such change enables the offered product" either to meet the other requirements of the solicitation or to successfully complete the LTD. Id., Exhibit 4B at L-4 ( L8.1(a), (b)). The Navy and Intergraph urge that any protest as to the divergence between the DPA and the solicitation is untimely because it was not raised before the closing date for receipt of initial proposals, Rule 5(b)(3)(i), and that any allegation that Intergraph products were not COTS is without valid basis because the solicitation did not demand that all offered products meet a COTS standard. FCC responds that it "does not allege an inconsistency between the DPA and the solicitation, but rather a failure to apply the terms of the solicitation consistent with the DPA." FCC's Opposition to Respondent's Motion at 3. The protest specifically contends that in accepting Intergraph's proposal, the Navy has agreed to take delivery of some products that do not meet the solicitation's standard, as reasonably interpreted. The apparent breadth of the standard makes the allegation difficult to prove, but that does not mean that FCC may not pursue its charge. This ground of protest is valid, and because it does not challenge the unreasonableness of a solicitation provision, the premise for finding it untimely is baseless. General count. The final count of FCC's protest is captioned "The Navy Committed Other Violations of Its Delegation of Procurement Authority." This count maintains that because the DPA under which the Navy conducted this procurement required compliance with all applicable statutes and regulations, the actions described elsewhere in the protest -- which are themselves alleged to be violative of statutes and regulations -- constitute violations of the terms of the DPA. This is of course true, but it is no more than a tautology. The charge is incapable of standing alone; it adds nothing to the scope of the case or to the range of forms of relief which might result from a grant of the protest. Consequently, we hold that it is not a valid basis of protest. This count is dismissed. Integrated system. As Intergraph details, the solicitation indicates a strong preference for a system which integrates hardware and software components. Integration was described as one of the three "fundamental and interrelated concepts" on which specifications were based; "a paramount issue during the development of this specification;" and "a critical issue in this acquisition." Protest File, Exhibit 4B at C-16 ( C0.6), C-19 ( C.06.c.1), C-109 ( C6.1). Integration was defined to include the elements of coexistence, data interchange, and interaction,2 each of which contains numerous specifications. Id. at C-110 to C-128 ( C6.1). Integration was to be evaluated through the LTD and the management portion of the proposal. An offeror's score on the LTD counted as eighty percent of its technical score, and two of the elements of integration -- data exchange and interaction -- were to be evaluated in both of the LTD's tests. Id. at M-4a, M-4b ( M3.1.1.d, M3.1.2.b). Integration was to be the most important factor in evaluation of management plans. Id. at M-10a ( M3.2.3). Intergraph maintains, in light of these provisions, that the solicitation put all offerors on notice as to the importance of integration, so that the protesters' allegation that the Navy had an undisclosed preference for a unitary, integrated system is nonsense. The protesters do not dispute that integration was significantly featured in the solicitation and that offerors should have expected to be evaluated in part on how well their proposals incorporated this concept. Each complainant has clarified its allegation, however, in a way which preserves a valid basis of protest even while recognizing Intergraph's point. Centel says that although it expected integration to be given some weight in evaluation, the Navy has given this factor more weight than the solicitation anticipates. FCC explains that its complaint is with the Navy's having given extra points to a proposal based on a single product line, something that offerors were not told about in advance. Both of these allegations are valid bases of protest. Indeed, FCC's gains comfort from the solicitation's explicit statement that "[t]he integration concept used in this specification is designed to permit application software products from various manufacturers to comprise the completed system." Protest File, Exhibit 4B at C-20 ( C0.6.c.3) (emphasis added). Scheduling. FCC raises two allegations as to unfairness in scheduling during the procurement. First, it contends that Intergraph's LTD was "delayed considerably, relative to the time ____________________ 2 Elsewhere in the solicitation, this last element is called "man-machine interface" or "man-machine interaction." Protest File, Exhibit 4B at C-111 ( C6.1.c), M-4a, M-4b ( M3.1.1.d, M3.1.2.b). in which FCC had to prepare [for its LTD], and this had the effect of allowing the awardee to offer newer technology than would have been available had the LTD occurred earlier." First Amended Protest Complaint, 34. Second, FCC says that the Navy held discussions with it last, thereby giving it the shortest amount of time in which to prepare price submissions, even though an unnamed Navy official had promised that because FCC had the first LTD, it would also have the first discussions. Intergraph maintains the first allegation is without merit and would have been timely only if raised before the closing date for receipt of initial proposals, since the Navy advised offerors in the solicitation that it would hold a lottery to determine the order in which LTDs would be conducted. See Rule 5(b)(3)(i); Protest File, Exhibits 4A at cover letter, 4B at AT2-2. The awardee urges that the second allegation is untimely because it was raised more than ten days after FCC knew that it would have a purportedly limited amount of time in which to prepare the pricing part of its proposal. Rule 5(b)(3)(ii). FCC's response is only to note that these allegations are not "the essence of FCC's Count V," as Intergraph characterizes them. The first allegation is not entirely clear to us. To the extent that it objects simply to the fact that Intergraph's LTD occurred later than FCC's, we agree with Intergraph that at this late date, the complaint has no basis because the solicitation contemplated that LTDs would be performed in a random order. The allegation may be, however, that Intergraph's LTD was not just later than FCC's, but much later, such that FCC was harmed competitively by the delay. Such a charge involves the equity of an action that occurred during the procurement, after initial proposals had been submitted. Its timeliness is measured against the standard of Rule 5(b)(3)(ii), under which we will consider an allegation which is "filed no later than 10 days after the basis for the protest is known or should have been known, whichever is earlier." FCC has not met its burden of providing evidence that it learned of the timing of Intergraph's LTD within ten days of the filing of the case. Rule 7(b)(2)(vi). We consequently find the allegation untimely. As to the allegation regarding insufficient time to prepare the pricing proposal, we note that a request for proposals that results from discussions is, in effect if not in form, an amendment to the solicitation. 48 CFR 15.410, 15.610(b)(5) (1991). Any complaint regarding that time would therefore have been timely only if filed before the closing date for receipt of the pricing proposals. Rule 5(b)(3)(i). This allegation was plainly made far later than that. Evaluation of pricing proposals. Under the solicitation, an offeror had the option of proposing to supply a CADDS 4X Direct Translator. Protest File, Exhibit 4B at C-21, C-49 ( C1.3, Table C1-2). If a firm did not offer this item and associated software support, however, a specified assessment would be made in evaluating the firm's pricing proposal. Id. at M-21 ( M4.3). FCC contends that its price was incorrectly evaluated because it did not receive credit for offering the translator in question. It also says that neither of the other competitors offered the item. Intergraph maintains that the allegation has no valid basis because the awardee's proposal includes the translator. Intergraph misses the mark as to the principal focus of FCC's complaint. The relationship between the two pricing proposals is in part dependent on whether either firm offered the translator. If FCC actually proposed to supply the translator, but was assessed a penalty for not proposing it, the Navy's evaluation of prices was in error. This is true regardless of the merits of the subsidiary matter, whether Intergraph proposed to supply the item. As to this question, the two parties are in dispute. The Board will consequently hear evidence on whether either firm actually offered the translator and the extent of adjustment relative to this item made to both companies' pricing proposals. Decision The Navy's and Intergraph's motions to dismiss FCC's general Count VII for failure to state a valid basis of protest are GRANTED. This count is DISMISSED WITH PREJUDICE. Intergraph's motion to dismiss paragraph 34 of FCC's protest, regarding inequities in scheduling, is GRANTED. The allegations of this paragraph are DISMISSED AS UNTIMELY FILED. To the extent that the motions to dismiss raise other matters, they are DENIED. _________________________ STEPHEN M. DANIELS Board Judge We concur: _________________________ _________________________ VINCENT A. LaBELLA ROBERT W. PARKER Acting Chief Board Judge Board Judge