THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING RELEASED TO THE PUBLIC IN REDACTED FORM ON JANUARY 4, 1993 DENIED: December 16, 1992 GSBCA 12103-P INTEGRATED SYSTEMS GROUP, INC., Protester, v. DEPARTMENT OF THE AIR FORCE, Respondent, and MEMOREX-TELEX CORPORATION, Intervenor. Shelton H. Skolnick, Derwood, MD, counsel for Protester. Gregory Petkoff and Captain Dan Whitney, Office of the General Counsel, Department of the Air Force, Washington, DC, counsel for Respondent. William A. Roberts, Lee Curtis, and Brian Darst of Howrey & Simon, Washington, DC, counsel for Intervenor. Before Board Judges HENDLEY, WILLIAMS, and VERGILIO. WILLIAMS, Board Judge. In this protest, filed on October 9, 1992, Integrated Systems Group, Inc. (ISG) challenged the award of a contract for automatic data processing equipment and maintenance services by the Department of the Air Force (Air Force), claiming that the solicitation contained a requirement which the awardee's printer did not meet -- printing at a minimum of 340 characters per second (cps) measured as throughput speed. The awardee, Memorex- Telex Corporation (MTC), has intervened on the side of the Air Force. On October 28, 1992, intervenor MTC moved for dismissal of this protest on the ground that protester lacks standing. We deferred ruling on the motion pending further development of the record on this issue. The hearing on the merits was conducted on November 23, 1992. We deny the motion to dismiss, finding that the record does not contain sufficient evidence to enable the Board to conclude that ISG lacked a direct economic interest in the award: this was a best value procurement, ISG's proposal was acceptable, and no evidence was introduced regarding what analysis the selection official would make with the awardee eliminated from the competition. Further, we deny the protest, finding that the solicitation's printer speed requirement was not a throughput requirement as protester claimed, but rather was a rated speed requirement, which the awardee met. Findings of Fact The Solicitation On January 14, 1991, respondent, the Air Force, issued solicitation number F05600-91-R-A002 for the acquisition of controllers, printers, multiplexors, keyboard/video display units, training, and maintenance. Protest File, Exhibit 1. The solicitation was for an indefinite quantity contract which included a requirement for a basic year plus four option years. Id. The solicitation was amended sixteen times. Id., Exhibit 2. The original solicitation, paragraph C.5.f.2, provided: Character Printers Print a minimum of 340 characters per second (CPS) at 132 characters per print line, using DFAS-DE supplied on-line data. Protest File, Exhibit 1 at C-10. Protester submitted the following question regarding this requirement: 6. Reference: C.5.f.2 Please identify the "AFAFC supplied on-line data" which will be used to evaluate the effective speed of the required printer. Protest File, Exhibit 2, Amendment 2, Attachment 1 at 11. The Air Force responded: Normal production output will be used. (See Amendment 0002). Protest File, Exhibit 2, Amendment 2, at Attachment 1 at 11, 13. By Amendment 2, the Air Force amended paragraph C.5.f.2 to read as follows: 2. Print a minimum of 340 characters per second (CPS) at 132 characters per print line, using DFAS-DE supplied on-line data which will consist of normal production output (text as opposed to graphics and statistical data). Protest File, Exhibit 2, Amendment 2 at 4. Nowhere in the solicitation was the word "throughput" mentioned. Transcript at 125, 154; Protest File, Exhibit 1. Intervenor's systems engineer defined throughput as "the exact or the actual amount of data that you can get through a mechanism, whether it's any number of communications devices, including printers." Transcript at 34. Throughput is dependent upon various factors which affect the printer's speed, such as print quality, bolding, and multiple colors; throughput varies from job to job, depending on what is being printed. Id. at 35, 153-54, 157-58, 166. Rated speed is a constant measurement of the printer's speed which can be calculated by multiplying the printer head carriage velocity by the appropriate number of characters per inch. Id. at 31, 166. Intervenor's systems engineer testified that throughput would never be faster than the rated speed of a printer. Id. at 34-35. The solicitation had originally provided that the successful contractor be capable of a live test demonstration (LTD) to be conducted at the Government's option. Protest File, Exhibit 1 at C-15. Amendment 2 deleted this provision, thereby eliminating any LTD reference. Id., Exhibit 2, Amendment 2 at 4. The solicitation stated that the procedures in Air Force Regulation (AFR) 70-30 would be followed in this acquisition. Protest File, Exhibit 1 at M-5. Under AFR 70-30, the source selection authority had full authority to make the source selection decision. Air Force Federal Acquisition Regulation (FAR) Supplement, Appendix BB, Streamlined Source Selection Procedures, 6 CCH Government Contracts Reporter, 40,950.40 at 28,979. Proposals were to be rated using the following color codes: (1) Blue: Exceptional - exceeds specific performance or capability in a beneficial way to the Defense Finance and Accounting Service (DFAS); high probability of success; no significant weakness. (2) Green: Acceptable - meets standards; good probability of success; weakness can be readily corrected. (c) Yellow: Marginal - fails to meet standards; low probability of success; significant but correctable. (d) Red: Unacceptable - fails to meet minimum requirements; needs major revision to the proposal to make it correct. Protest File, Exhibit 6 at 2. Section M of the solicitation provided that award would be made to "that responsive, responsible offeror whose proposal offer[ed] the greatest value to the Government." Protest File, Exhibit 1 at M-5. The solicitation further advised offerors that "subjective judgment on the part of the Government is implicit in the entire process." Id. Although the technical excellence of the offer was stated to be of paramount importance, the Government reserved the right to award to other than the highest- ranked technical proposal if it did not provide the best value. Id. The solicitation's Basis for Award paragraph provided: The contract will be awarded to that responsible offeror whose proposal conforms to the solicitation requirements, who is determined to be responsible in accordance with the procedures and criteria set forth in the FAR Part 9, and all supplements thereto; Who demonstrates the management, financial, technical and facility capabilities necessary to award a contract for the basic and all option years; who is judged, by an overall assessment of criteria identified to be the most advantageous to the Government, price and other factors considered with TECHNICAL EVALUATION SUBSTANTIALLY MORE IMPORTANT THAN PRICE. Protest File, Exhibit 1 at M-10. The Protester's Proposal ISG proposed a Seikosha BP5460 dot matrix printer. Transcript at 45; Protest File, Exhibit 14 at 25. In its technical proposal, ISG stated that "[t]he BP5460 is rated at 462 characters per second and will provide the required 340 cps throughput." Id. The technical literature for this Seikosha printer submitted with the ISG proposal stated that the effective throughput of the machine is 166 lines per minute -- which protester calculated to be "380 - some - odd characters per second." Protest File, Exhibit 14, "Operation Manual" at 5. Based upon the revised language of Amendment 2 to the solicitation, ISG interpreted the requirement of 340 cps to be a throughput requirement and not a 340 cps rated speed requirement. Transcript at 42-44. Protester's vice president of marketing explained his interpretation of Amendment 2: [A] number of characteristics in that sentence individually would have led me to that conclusion, and they reinforce each other because they are all in the same sentence. First, because they say 340 characters per second at 132 characters per print line. If you were simply measuring the maximum burst speed, that interlying speed, then it would be irrelevant whether it was 80 or 132 or 27 or whatever characters per line. The burst mode of a printer is whatever it is. It's not related at all to the length of the line. So when they say 132 characters per print line, that already puts me on notice that they are measuring it in a throughput environment. But they go on to say that . . . it has to print that using DFAS-DE supplied on-line data, so we're talking about printing not just a subset of characters or seven characters or 27 characters or 100 characters, but we're going to print on-line data, and it goes on to say that it consists of normal production output, and normal production output is not a small section of the text, but it's multiple lines or pages. Then they go on to say that it's text as opposed to graphics and statistical data, so I know that I don't need to worry about printing those special characters that would cause the printer to otherwise slow down, that I can look at whatever the throughput requirement is of the printer using normal production output text. Transcript at 73-74. The Awardee's Proposal Intervenor offered the Memorex Telex 1324CO2 printer, which had a rated speed of 400 cps in the draft mode. Transcript at 29, 149. To substantiate its compliance with the print speed requirement, intervenor included a brochure on the printer as well as a consultant's guide, both of which quoted 400 cps as the rated speed. Id. at 159-60.[foot #] 1 MTC's systems engineer for this proposal testified that he interpreted paragraph C.5.f.2 as requiring only a rated speed of 340 cps and not as requiring any particular "throughput" speed. In the view of intervenor's systems engineer, if the solicitation had contained a throughput requirement, it would have specified a ----------- FOOTNOTE BEGINS --------- [foot #] 1 Intervenor's systems engineer believed that the draft mode complied with the requirements of the solicitation because there was no requirement for print quality. Id. at 29. ___ ----------- FOOTNOTE ENDS ----------- test requiring that printing of a sample text be accomplished in a certain amount of time to qualify as being 340 cps. Transcript at 156, 168. Intervenor interpreted the agency's statement that normal output production would be used to mean that there would not be any printing of graphics, only text. Transcript at 37. The Air Force's chairman of the technical evaluation team testified that paragraph C.5.f.2 was not intended to state a throughput requirement; the printer speed was evaluated as rated speed. Transcript at 125-26. Evaluation and Award Seven offerors submitted proposals. Protest File, Exhibit 6 at 4. After clarification and deficiency reports were issued, best and final offers were received and evaluated. Id. at 7. The Government did not conduct a test to determine the printer speed on any of the offered printers. Transcript at 23, 128. Nor did the Air Force conduct an independent "paper analysis" to ascertain the various speeds of the printers offered. Id. at 23. Rather, the Air Force accepted the vendors' representations. Id. at 23, 128. Six of the printers offered were rated at 400 cps and one, protester's, at 462 cps. Transcript at 24, 126-27. No offeror except ISG offered a printer with a throughput speed of 340 cps or more. Id. at 128; Protest File, Exhibit 6. Of the four vendors the agency ranked higher than protester and lower than the awardee, three offered different printers than the awardee. Protest File, Exhibit 6 at 4-6.[foot #] 2 None of these offerors interpreted the solicitation as requiring a printer whose throughput was 340 cps; they all read the solicitation as requiring a 340 cps rated speed. Transcript at 138; Protest File, Exhibit 23. According to the Proposal Analysis Report (PAR), the overall technical rating and risk assessment of the proposals was as follows: ----------- FOOTNOTE BEGINS --------- [foot #] 2 ----------- FOOTNOTE ENDS ----------- Protest File, Exhibit 6 at 15. The Air Force official responsible for determining which proposal was most advantageous to the Government was not called as a witness. Transcript at 142-43. The sole Air Force witness who did testify, the technical evaluation team chief, said that it was possible that the technical ranking of offerors in the PAR "could be an error." Transcript at 136. This testimony was elicited when protester's counsel asked the witness whether ISG's color rating of "green with low risk" was better than a rating of "green minus with moderate risk" and "green with moderate risk" - - because the two proposals ranked above ISG were so rated. The witness admitted that a green with low risk was in fact a higher rating than a green with moderate risk or a green minus with moderate risk. Id. In the cost evaluation, protester's overall evaluated price was ranked sixth because it was evaluated to be higher than those of five offerors, including the three offerors who offered different printers. Protest File, Exhibit 6 at 13. Specifically, the PAR included the following price evaluation totals: Present Evaluated Contractors BAFOs Value Totals Totals Memorex Telex $ 7,303,004.10 Protest File, Exhibit 6 at 13. On October 2, 1992, ISG received notice that the contract had been awarded to MTC. The notice of award received by ISG did not provide MTC's unit prices. Protest File, Exhibit 8. On October 9, 1992, ISG filed a protest alleging two violations. First, protester claimed that the respondent failed to meet the notice requirement of FAR 15.1001(c)(iv), 48 CFR 15.1001(c)(iv) (1991), which provides: Promptly after award of contracts resulting from solicitations exceeding the small purchases limitation in Part 13, the contracting officer shall notify unsuccessful offerors in writing, unless preaward notice was given under paragraph (b) of this section. The notice shall include --- . . . (iv) The items, quantities, and unit price of each award (if the number of items or other factors makes listing unit prices impracticable, only the total contract price need be furnished). Second, protester contended that the printers proposed by MTC do not meet the throughput requirement of the solicitation. Complaint; Protest File, Exhibit 9. Discussion Is Protester an Interested Party? On October 28, 1992, MTC moved to dismiss the protest for lack of standing, claiming that protester is not an "interested party" within the meaning of the Brooks Act. Citing United States v. International Business Machines Corp., 892 F.2d 1006 (Fed. Cir. 1989), intervenor argued that: "the Brooks Act restricts the status of an `interested party' to only those offerors that stand in line to receive the contract in lieu of the challenged awardee." Memorandum in Support of Intervenor, Memorex-Telex Corporation's Motion to Dismiss at 2-3. Intervenor, joined by respondent,[foot #] 3 argues that protester lacks a viable chance for award, relying exclusively on the Proposal Analysis Report and the rankings therein. Intervenor's Posthearing Brief at 12-15; Respondent's Posthearing Brief at 3-6. They argue that because other offerors which proposed different printers than the awardee were ranked above ISG in both technical and cost, it would be unreasonable to award to ISG. Intervenor concludes that even if ISG were to prevail on this allegation regarding the printer, Federal Systems Group would be in line for award. Intervenor's Posthearing Brief at 13-14. In urging dismissal on this ground, these parties are asking us to venture into the arena of speculation. The record does not suggest what the analysis of the selection official would be were the awardee eliminated from the competition. Without probing ----------- FOOTNOTE BEGINS --------- [foot #] 3 Respondent did not take a position on the motion during the briefing on the motion. However, at the hearing and in its posthearing brief, respondent argued that protester lacked standing. ----------- FOOTNOTE ENDS ----------- further, a review of only the final technical and risk scores and prices does not dictate an obvious "best value for the Government" decision. Accordingly, protester remains a viable awardee within the competitive range, as it retains a direct economic interest in the award of the contract. Unlike the selection in the sealed bid procurement at issue in International Business Machines, the selection in this negotiated procurement is driven by a variety of factors to be considered, in the first instance, by the agency. Under the circumstances, we will not presume to make a "subjective" judgment when the only person empowered to make such a judgment, the selection official, never did so.[foot #] 4 Does the Awardee's Printer Meet the Solicitation's Requirements? Protester contends that because paragraph C.5.f.2 of the solicitation indicated that the 340 cps would "use DFAS-DE supplied data" this meant that throughput and not merely the rated speed would be evaluated. Further, protester points out that the words "rated speed" do not appear in the RFP. Protester's Posthearing Brief at 8-9. Protester imposes upon the solicitation an interpretation which is more restrictive than the plain words impart. At the same time, protester has failed to establish a basis which makes its interpretation reasonable. The "requirement" for throughput appears to be simply spun from protester's imagination -- not tied to established industry practice. In concluding that the solicitation contained a "throughput" requirement, rather than a rated speed requirement, protester has interpreted the solicitation in a more restrictive way than the other offerors or the Government. Even assuming arguendo that the solicitation was reasonably capable of two interpretations, the Board will construe requirements in the least restrictive manner. E.g., Sysorex Information Systems, Inc., GSBCA 11151-P, 91-2 BCA 23,979; U.S. Sprint Comm. Co., GSBCA 10684-P, 91-1 BCA 23,333; Microsolve, Inc., GSBCA 8564-P, 88-1 BCA 20,321; Synercom Technology, Inc., GSBCA 8700-P, 87-1 BCA 19,477. Here, the solicitation did not distinguish between "rated speed" or "throughput." Thus, intervenor and the other offerors reasonably interpreted the print speed requirement in the least restrictive manner, as rated speed. There is no evidence to suggest that intervenor's printer failed to meet the 340 cps rated speed requirement. This ground of protest is denied. ----------- FOOTNOTE BEGINS --------- [foot #] 4 The selection official was not called as a witness and did not offer any testimony in the form of a declaration or affidavit in support of the motion to dismiss. ----------- FOOTNOTE ENDS ----------- Did Respondent's Notice Violate Regulation? Protester's other basis for protest is that respondent violated FAR 15.1001(c)(iv) by failing to include unit prices in its notice to unsuccessful offerors. Whether or not it was impracticable to release unit prices, protester has neither demonstrated nor claimed that it was prejudiced by this alleged violation. No relief would be warranted even if the Board found a technical violation. Andersen Consulting, GSBCA 10833-P, 91-1 BCA 23,474, aff'd, 959 F.2d 929, 932 (Fed. Cir. 1992). Decision Intervenor's motion to dismiss the protest is DENIED. The protest is DENIED. _____________________________ MARY ELLEN COSTER WILLIAMS Board Judge We concur: ____________________________ ____________________________ JAMES W. HENDLEY JOSEPH A. VERGILIO Board Judge Board Judge