THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING RELEASED TO THE PUBLIC IN REDACTED FORM ON MAY 4, 1993 _______________________ DENIED: April 19, 1993 _______________________ GSBCA 12302-P CBIS FEDERAL INC., Protester, v. DEPARTMENT OF LABOR, Respondent, and THE ORKAND CORPORATION, Intervenor. Gregory A. Smith, Richard P. Rector, and Nanci S. Redman of Pettit & Martin, Washington, DC; and Susan W. Ebner of Cincinnati Bell Information Systems, Inc., Fairfax, VA, counsel for Protester. Herman J. Narcho and Michele W. Curran, Office of the Solicitor, Department of Labor, Washington, DC, counsel for Respondent. Alex D. Tomaszczuk, Jonathan T. Cain, Devon E. Hewitt, Arnold R. Finlayson, and Paul M. Thomas of Shaw, Pittman, Potts & Trowbridge, Washington, DC, counsel for Intervenor. Before Board Judges DANIELS (Chairman), PARKER, and DeGRAFF. DeGRAFF, Board Judge. On February 12, 1993, CBIS Federal, Inc. (CBIS), filed this protest with the Board. CBIS challenges the decision of respondent, Department of Labor (DOL), to award an automatic data processing support services contract to The Orkand Corporation (Orkand). Orkand intervened as a matter of right and participated fully in these proceedings. CBIS contends that DOL failed to evaluate the relative technical quality of the offerors' proposals and, instead, awarded maximum points to offerors who met the minimum requirements of the request for proposals. CBIS asserts that DOL's evaluation method violates statute and regulation because it is contrary to the terms of the request for proposals and amounts to an evaluation based upon factors other than those specified in the request for proposals. Alternatively, CBIS contends that DOL's scoring of proposals is invalid because DOL failed to conduct meaningful discussions, failed to treat offerors equally, and improperly scored the proposals. Finally, CBIS contends that DOL improperly evaluated its transition costs. CBIS has not established that DOL's actions violate statute, regulation, or the conditions of any delegation of procurement authority. Therefore, the Board denies the protest. Findings of Fact On August 14, 1992, DOL issued request for proposals L/A 92- 23 (the RFP), which contemplates award of an indefinite quantity, labor-hour contract for one base year plus four option years. Protest File, Vol. 1 at 55, 92, 381A, 438.[foot #] 1 The RFP seeks to procure automatic data processing support services for DOL's Employment Standards Administration. Id. at 53, 369. CBIS was the incumbent contractor. The RFP summarizes the services to be provided as follows: The Contractor shall, in accordance with fully executed Task Orders, provide sufficient personnel, both in number and qualifications, to (i) perform computer operations; (ii) do data entry; (iii) code medical data from medical bills; (iv) prepare source data for data entry; (v) perform clerical tabulations and related source data validation services; and (vi) perform all related supervisory and project management/control activities. Protest File, Vol. 1 at 374. These services are to be performed at nineteen facilities located in eighteen cities across the United States. Id. at 486-502. Paragraph C.4 of the RFP explains that fourteen categories of labor are to be utilized by the successful offeror to provide the required services. The labor categories include, for ----------- FOOTNOTE BEGINS --------- [foot #] 1 The protest file consists of volumes 1 through 19. Citations are to volume number and page number. ----------- FOOTNOTE ENDS ----------- example, Project Manager, Local Area Network (LAN) Manager, Computer Operator, Data Entry Operator, Word Processing Operator, and General Clerk. Protest File, Vol. 1 at 375-87, 504-18. Paragraph C.4 contains a description of the duties, minimum qualifications, and minimum experience for the persons in each of the fourteen labor categories. Id. at 375-87, 504-18. Paragraph G.8 of the RFP provides that twenty-eight individuals within some of the fourteen labor categories are "key personnel and essential for the successful completion of all work assigned under the contract." For example, the project manager and the LAN managers at twelve locations are key personnel. Protest File, Vol. 1 at 520. Paragraph L.15 of the RFP provides that an offeror must submit a technical proposal, divided into four parts. Protest File, Vol. 1 at 319A, 357-59, 361, 363, 521-22. Paragraph L.15.b.(1) provides that, in part A of the technical proposal, Project Management, the offeror is to present a clear picture of the management plan to which it will adhere in accomplishing the contract work. Specifically, the offeror is to address eleven management issues, including the following: 1. How the initial contract staffing will be done (such as source of personnel, validation of qualifications, and timetables.) . . . . 3. How Contractor project management will relate to the [contracting officer's technical representative (COTR)] and the offeror's view of the COTR role. 4. How the performance of Contractor employees will be monitored, (i.e., what performance acceptability criteria will be used for the different labor categories and how performance will be measured against the criteria) and how instances of poor performance will be dealt with. . . . . 8. How Government complaints about Contractor service should be made and how they will be dealt with. 9. How and to whom the Contractor will raise problems being caused by the Government. Protest File, Vol. 1 at 391A, 357. Paragraph L.15.b.(2) of the RFP provides that the offeror, in part B of its technical proposal, Filling Vacant Positions, is to describe how it will expeditiously fill vacancies with competent and qualified personnel. Paragraph L.15.b.(2) explains that providing such personnel is "essential to the success of this contract," and requires that the offeror address nine specific issues concerning its plan for filling vacancies. Paragraph L.15.b.(2)1 provides that the offeror must plan to provide timely and appropriate resum s, must plan to pay damages if either the program manager or the deputy program manager were to be removed from the contract during the first year of performance, and must plan to provide certain key personnel and to notify DOL before removing any key personnel. Protest File, Vol. 1 at 358-59. Paragraph L.15.b.(3) of the RFP provides that in part C of its technical proposal, Offeror's Experience and Qualifications, the offeror is to describe its experience in performing work similar to that required by the RFP and is required to provide synopses of its past projects. Paragraph L.15.b.(3) states, "Highest point totals will be awarded to the offerors whose synopses demonstrate strong experience in the successful provision of the kinds of services" described in the RFP. Protest File, Vol. 1 at 359. Paragraph L.15.b.(4) of the RFP is titled "Part D - Qualifications and Experience of Key Personnel," and contains two subparagraphs. Subparagraph L.15.b.(4)(a), General, provides that the offeror is to include one resum for each of the twenty- eight key personnel listed in paragraph G.8 of the RFP. Protest File, Vol. 1 at 361, 521. Subparagraph L.15.b.(4)(b) is titled "Assignment of Points." Subparagraph L.15.b.(4)(b)(i) explains that "[e]valuation points will be awarded on the basis of the extent, and quality of, the experience and qualifications of the personnel proposed [as key personnel], as well as the availability of those persons." Section L.15.b.(4)(b)(i) then states that each key person's resum should include details concerning work experience, work duties, references, educational background, and information concerning whether the person is an employee of the offeror and committed to working on the proposed contract. Id. at 361. Subparagraph L.15.b.(4)(b)(iii) provides: The scoring of personnel qualifications will be commensurate with the quality of the candidates offered, and the meeting of the minimum qualifications shown in Section C.4. of The Schedule will not, necessarily, earn maximum points. Id. at 363. Paragraph M.1 of the RFP explains that in reviewing technical proposals, DOL will consider four technical evaluation factors. The four technical evaluation factors correspond to parts A, B, C, and D of the technical proposal. Protest File, Vol. 1 at 366. Each technical proposal will be "scored on the basis of 100 possible points," consisting of 30 points for Project Management, 20 points for Filling Vacant Positions, 20 points for Offeror's Experience and Qualifications, and 30 points for Qualifications and Experience of Key Personnel. Id. Paragraph M.1 of the RFP explains that, concerning the Project Management technical evaluation factor, the eleven management issues that offerors are required to address are listed in declining order of importance. Concerning the Filling Vacant Positions technical evaluation factor, the nine issues that offerors are required to address are also listed in declining order of importance. Concerning the Offeror's Experience and Qualifications technical evaluation factor, "[h]ighest point totals will be awarded to the offerors whose synopses demonstrate strong experience in the successful provision of the kinds of services" required by the RFP. Finally, concerning the Qualifications and Experience of Key Personnel technical evaluation factor, "the positions listed in the Key Personnel clause of The Schedule will be point-weighted in declining order of importance as follows: Project Manager, Deputy Project Manager, System Managers, LAN Managers, Lead Computer Operators, Senior Computer Operator." Protest File, Vol. 1 at 366. Paragraph M.3 of the RFP provides that DOL plans to make award to the responsive, responsible offeror that receives the greatest number of Total Award Points. Total Award Points are the sum of Technical Award Points and Price Award Points, which are calculated as follows: Technical Award Points = Offeror's Technical Score x 100 Highest Technical Score Price Award Points = Lowest Total Evaluated Price x 100 Offeror's Total Evaluated Price Technical merit and price are thus of equal weight in this procurement. Protest File, Vol. 1 at 481; Transcript at 164. Although some questions were posed to DOL by prospective offerors after the RFP was issued, no one asked any questions concerning the manner in which proposals would be evaluated and scored. Protest File, Vol. 1 at 330-32. On September 28, 1992, three offerors -- CBIS, Orkand, and ViaTech Systems, Inc. (ViaTech) -- submitted timely initial proposals to DOL in response to the RFP. Protest File, Vol. 2 at 524-1031 (CBIS), Vol. 4 at 1376-908, Vol. 5 at 1909-2162 (Orkand), Vol. 9 at 3130-368 (ViaTech). On October 1, 1992, the proposals were submitted to a technical evaluation panel (TEP) for review and point scoring. Protest File, Vol. 11 at 4032-33. In order to determine the number of points to award for each of the RFP's four evaluation factors, the TEP members used a fifteen-page scoring plan which, like the technical proposals, is divided into parts A, B, C, and D, which correspond to the RFP's four evaluation factors. The scoring plan contains one column of text that discusses the elements set forth in paragraph L.15.b. of the RFP and establishes a range of points for each of these elements. The scoring plan also contains four blank columns titled Points Awarded, References (In Proposal), Comments, and Questions (For Orals). Part B.1 of the scoring plan requires the TEP to evaluate whether the offeror specifically commits to providing the designated key personnel to initiate the contract. The introduction to part D of the scoring plan advises the TEP to "review resum s for logic, validity and especially for evidence of achievement as opposed to mere longevity of service." Part D requires the TEP to determine whether the proposed key personnel meet the requirements of RFP paragraph C and to determine whether each person's resum establishes probability of job knowledge, employment history stability, significant professional achievement, management experience, ability to supervise, and capability for leadership. Protest File, Vol. 11 at 4040-55. Each member of the TEP individually reviewed and scored each of the three proposals. Transcript at 87-89; Protest File, Vol. 11 at 4040-278. Each of the TEP members awarded CBIS more points than Orkand, and awarded Orkand more points than ViaTech. Protest File, Vol. 11 at 4038-278. Following their individual scoring, the TEP members met for four or five full days and discussed the proposals. Transcript at 88, 144-45. They reviewed each proposal and compared its content with the requirements of the RFP. Id. at 88. Instead of proceeding from the presumption that each offeror was entitled to zero points, the TEP proceeded by presuming that each offeror was entitled to the maximum possible number of points. If the TEP determined that a proposal failed to address one of the elements set forth in the scoring plan, the TEP deducted points or fractions of points from the maximum possible point score. Id. at 90-92, 97-98, 101. When the TEP scored part D, Qualifications and Experience of Key Personnel, it reviewed the resum s supplied by the offerors and, if a resum established that the key person met the criteria contained in the scoring plan, the TEP awarded the maximum number of points possible. When asked at the hearing whether the TEP awarded maximum points if a resum established that the proposed key person met the minimum requirements set forth in the RFP, the chairperson of the TEP responded that maximum points were awarded so long as the "other parts and subparts of that section were met." Read in context, "other parts and subparts" is a reference to the scoring plan. Transcript at 96-101. If an offeror proposed key personnel who exceeded the requirements established in the RFP, the TEP did not award any "bonus" points, or points in excess of the maximum number of points possible. Transcript at 97-101, 256. Similarly, if an offeror exceeded the requirements established in the RFP for part C, Offeror's Experience and Qualifications, the TEP awarded the maximum number of points possible and did not award any "bonus" points. Protest File, Vol. 11 at 4306. By October 28, 1992, the TEP members had agreed upon the number of points to award for each proposal and also agreed upon one set of references, comments, and questions, which they recorded in a consensus scoring plan for each proposal. Transcript at 88; Protest File, Vol. 11 at 4279-326. The TEP's consensus was to award CBIS ----- points, Orkand ----- points, and ViaTech ----- points. Protest File, Vol. 11 at 4038, 4279- 326. DOL conducted discussions with ViaTech on November 5, 1992, and with Orkand and CBIS on November 6, 1992. Protest File, Vol. 12 at 4658. During the DOL contract negotiator's introductory remarks to the offerors, he advised them to take notes, because DOL did not intend to provide a written summary of the discussions. Id. at 4658. In addition to the DOL contract negotiator, the TEP members participated in discussions on behalf of DOL. Id. at 4668. The purpose of the discussions was to permit DOL and the offerors to ask questions and to permit DOL to identify weaknesses concerning the offerors' proposals, so that the offerors could prepare their best and final offers (BAFOs). Id. at 4656, 4658. During discussions with CBIS, the TEP members read to CBIS the comments and questions contained in the TEP's consensus scoring plan, and these comments and questions formed the basis for the discussions. Transcript at 152-54. Several of DOL's comments and questions concerning Part A, Project Management, of CBIS's initial proposal are relevant to this protest. Protest File, Vol. 11 at 4297-98, 4300. Part A.3 of the scoring plan, which corresponds to RFP paragraph L.15.b.(1)3, requires the TEP to assess CBIS's plan for working with the COTR. Part A.3.e advises the TEP to look for an indication of CBIS's willingness to accept and act upon information conveyed to CBIS by the COTR, such as adding personnel or dealing with poor performance. The TEP could have awarded a maximum of 4-1/2 points for part A.3. The TEP awarded CBIS's initial proposal ------ points and noted that CBIS failed to mention part A.3.e and had not given enough weight to the COTR's role. Protest File, Vol. 11 at 4297. Part A.4 of the scoring plan, which corresponds to RFP paragraph L.15.b.(1)4, requires the TEP to assess whether CBIS's proposal describes an effective approach to monitoring and correcting employee performance. Part A.4.d advises the TEP to determine how CBIS will react to DOL complaints of ineffective performance. Part A.4.e advises the TEP to determine whether CBIS's employees are provided periodic performance reviews. The TEP could have awarded a maximum of 3-1/2 points for part A.4. The TEP awarded CBIS's initial proposal ----- points and noted that CBIS had not addressed parts A.4.d. or A.4.e. Protest File, Vol. 11 at 4298. Part A.8 of the scoring plan, which corresponds to RFP paragraph L.15.b.(1)8, requires the TEP to evaluate the probable effectiveness of CBIS's plan for dealing with DOL complaints about CBIS's services. Parts A.8.c and A.8.e advise the TEP to determine what CBIS will do if a DOL complaint is deemed valid and what CBIS will do if a DOL complaint is deemed to be invalid. The TEP could have awarded a maximum of 1-1/4 points for part A.8. The TEP awarded CBIS's initial proposal --- points and noted that CBIS's proposal contained a very general discussion and did not address parts A.8.c and A.8.e. Protest File, Vol. 11 at 4300. Part A.9 of the scoring plan, which corresponds to RFP paragraph L.15.b.(1)9, requires the TEP to evaluate the probable effectiveness of CBIS's plan for raising problems caused by DOL staff or DOL policies. The TEP could have awarded a maximum of 1 point for part A.9. The TEP awarded CBIS's initial proposal --- point and noted that CBIS's proposal included the COTR too late in the process, even if CBIS's program manager had been notified of a problem; did not discuss how to deal with conflicts as to the scope of the contract; and did not indicate that CBIS's program manager would be notified of problems, regardless of whether they are resolved at the local level. Protest File, Vol. 11 at 4300. According to the testimony of two DOL employees and one CBIS employee, the contract negotiator's memorandum of the discussions held November 6, 1992, and several CBIS employees' contemporaneous notes of these discussions, all of the comments and questions set forth in the preceding paragraphs were raised by DOL during the discussions. Transcript at 140-44, 152-54, 238-45, 323-27; Protest File, Vol. 12 at 4669-70, Vol. 19 at 1- 12. Based upon the statements made by DOL during discussions, CBIS's employees took notes and formulated questions which they believed DOL expected CBIS to address in its BAFO. Protest File, Vol. 19 at 1-12. CBIS's employees read these questions to DOL before the discussions concluded, and the TEP members thought that CBIS understood DOL's questions and comments and that CBIS's questions addressed DOL's questions and comments. Transcript at 105-06, 147, 152. The comments and questions contained in the TEP's consensus scoring plan for Orkand formed the basis for DOL's discussions with Orkand. Protest File Vol. 11 at 4311-26; Vol. 12 at 4672- 75. Several of DOL's comments and questions concerning Orkand's initial proposal are relevant to this protest. Protest File, Vol. 11 at 4312, 4318, 4324-26. In part A, Project Management, the TEP noted that employee commitment letters needed to be provided. The TEP awarded Orkand ----- points instead of the maximum 6 points for part A.1. Protest File, Vol. 11 at 4312. In part B, Filling Vacant Positions, the TEP noted that Orkand had not responded at all to part B.1, which requires the TEP to determine whether offerors had responded to the RFP's requirements concerning resum s, removal of the project manager and deputy project manager, and providing key personnel; had committed to providing the key personnel to initiate the contract; and had agreed to move key personnel only as permitted by the terms of the RFP. The TEP awarded Orkand ---- points instead of the maximum 5 points for part B.1. Protest File, Vol. 11 at 4318. In part D, Qualifications and Experience of Key Personnel, the TEP noted that Orkand had not provided commitment letters. The TEP deducted points from the maximum points available for parts D.2 through D.6. It is not clear precisely how many points were deducted for Orkand's failure to provide commitment letters, because these deductions are combined with deductions for other items, not relevant to this protest. Protest File, Vol. 11 at 4324-26. CBIS, Orkand, and ViaTech submitted their BAFOs to DOL on November 16, 1992. Protest File, Vol. 3 at 1032-234 (CBIS); Vol. 6 at 2177-526 (Orkand); Vol. 9 at 3369-533 (ViaTech). CBIS's BAFO contains a list of ten questions which, CBIS believed, accurately reflected the questions and comments that had been raised by DOL during the discussions held November 6, 1992. Protest File, Vol. 3 at 1035; Transcript at 278. CBIS's BAFO supplements its initial proposal by addressing these ten questions. Protest File, Vol. 3 at 1036-61. Orkand's BAFO supplements its initial proposal by supplying twenty-seven letters written from Orkand to Orkand's proposed key employees.[foot #] 2 Each letter confirms Orkand's offer of employment, states the employee's work location, states the salary the person will receive, and states that the offer is contingent upon Orkand being awarded the contract. Each proposed key employee was requested to indicate acceptance of Orkand's offer by signing the letter, and all of the letters are signed. Twenty-five of the letters state that Orkand's offer is contingent upon a final interview. Two of the letters are dated February 1992, two are dated April 1992, nine are dated May 1992, five are dated June 1992, one is dated August 1992, and eight are dated September 1992.[foot #] 3 Protest File, Vol. 6 at 2213-39. The BAFOs were submitted to the TEP, and the TEP members followed the same procedure as they followed when they reviewed the initial proposals.[foot #] 4 That is, each member of the TEP reviewed and evaluated each BAFO and then the TEP members met, discussed the BAFOs, and developed a consensus technical score for each proposal. Transcript at 107, 113-14; Protest File, Vol. 12 at 4411-653. The TEP did not compare one offeror's proposal to another offeror's proposal. Instead, the TEP compared the contents of each proposal to the RFP requirements. Transcript at 155. The TEP's consensus, documented on November 23, 1992, was to award CBIS ----- points, to award Orkand ----- points, and to award ViaTech ----- points. The TEP determined that all of the proposals were technically acceptable. Protest File, Vol. 12 at 4411, 4604, 4620, 4636. When evaluating the BAFOs, the TEP did not check either corporate or key personnel references. Transcript at 93, 98. The RFP does not require the TEP to check either corporate references or key personnel references. A senior DOL official with a great deal of government contracts experience, explained at the hearing that it is his understanding that the decision to check references is within the TEP's discretion. Protest File, Vol. 1 at 21; Transcript at 602. The DOL contract negotiator is ----------- FOOTNOTE BEGINS --------- [foot #] 2 Orkand's proposed program manager was then an Orkand employee, so only twenty-seven commitment letters were required. [foot #] 3 The fact that some of the letters pre-date the RFP is explained by Orkand in its initial proposal, which states that Orkand began to prepare its proposal in early 1992. Protest File Vol. 4 at 1391. [foot #] 4 After the TEP evaluated the initial technical proposals and before the TEP evaluated the BAFO technical proposals, one member of the TEP took a leave of absence from DOL. No one was added to the TEP in his place. Transcript at 80. ----------- FOOTNOTE ENDS ----------- a DOL procurement official with a great deal of government contracts experience. He explained at the hearing that the DOL procurement staff leaves the decision to check references to the TEP. Transcript at 229-30. CBIS's initial offer contains detailed information concerning its corporate experience, and this information was incorporated by reference in CBIS's BAFO. Protest File, Vol. 2 at 812-31, Vol. 3 at 1033. Similarly, Orkand's initial offer contains detailed information concerning its corporate experience, and this information is incorporated by reference in Orkand's BAFO. Protest File, Vol. 4 at 1475-98, Vol. 6 at 2178- 79. The TEP reviewed Orkand's key personnel commitment letters to check the names, labor categories, and locations of the proposed key personnel. Transcript at 117-18. A senior DOL official advised the TEP members that they needed to be satisfied that the key personnel intended to work for Orkand, if Orkand were awarded the contract. He told the TEP that words such as, "I'm considering . . ." or "I'm thinking about . . ." are not acceptable in a commitment letter. Id. at 565-66. Other than the commitment letters contained in its BAFO, Orkand did not provide DOL with any information concerning the availability of its proposed key personnel. Id. at 136. In evaluating Orkand's BAFO, the TEP deducted --- point from the 100 points that Orkand could have scored because, the TEP noted in part B of the scoring plan, Orkand's key personnel were not committed. Part B of the scoring plan directs the TEP to ensure that an offeror is committed to providing key personnel to initiate the contract. Protest File, Vol. 12 at 4611. The TEP's scoring plan notes that Orkand had obtained commitment letters from its prospective key employees and the scoring plan does not state that the deduction was made due to any deficiency in Orkand's commitment letters. Id. at 4604, 4611. The TEP deducted --- point from Orkand's score because only Orkand's proposed project manager was then an Orkand employee. Transcript at 117. In evaluating CBIS's BAFO, the TEP made four deductions of - ----------------- each from the 100 points that CBIS could have scored and noted in the scoring plan why the deductions were made. The TEP deducted ----------------- in part A.3. because CBIS's proposal did not assign a lot of weight to the COTR's role; -------------------- in part A.4 because CBIS had not addressed part A.4.d; ----------------- in part A.8 because CBIS's discussion continued to be too general; and -------------- --- in part A.9 because CBIS had not discussed how it planned to deal with conflicts as to the scope of the contract. Protest File, Vol. 12 at 4638-39, 4641. In evaluating ViaTech's BAFO, the TEP made several deductions for a total of ---- points from the 100 points that ViaTech could have scored. In part A, the TEP made four deductions for a total of ---- points. In part B, the TEP made no deductions. In part C, the TEP made ------------- deduction. In part D, the TEP deducted ---- points. Protest File, Vol. 12 at 4620-35. The offerors' Total Evaluated Prices each exceeded $90 million. Orkand's Total Evaluated Price was lower than either CBIS's or ViaTech's Total Evaluated Price. DOL computed Total Award Points in accordance with paragraph M.3 of the RFP and awarded --- points to Orkand, ------ points to CBIS, and ------ points to ViaTech. Protest File, Vol. 12 at 4681. Before a contract was awarded, DOL issued four amendments to the RFP which substantially reduce the maximum number of labor hours which can be ordered under the contract. The amendments do not otherwise affect the services to be supplied by the successful offeror. Protest File, Vol. 1 at 420-522. In response to these amendments, second BAFOs were due to be submitted by January 22, 1993. Id. at 484. On January 22, 1993, CBIS, Orkand, and ViaTech submitted their second BAFOs. The second BAFOs consist primarily of revised business proposals, which reflect the reduced maximum number of labor hours which can be ordered under the contract. The offerors did not provide revised technical proposals as part of their second BAFOs. Protest File, Vol. 3 at 1235-373 (CBIS), Vol. 7 at 2527-810, Vol. 8 at 2811-3129 (Orkand), Vol. 9 at 3534- 557 (ViaTech); Transcript at 118. DOL did not conduct any discussions with any of the offerors during the period between the submission of the first BAFOs and the submission of the second BAFOs. Transcript at 118. Because the offerors did not make any revisions to their technical proposals, the TEP awarded each offeror the same number of points for their second BAFOs as the TEP had awarded for the first BAFOs. That is, the TEP awarded CBIS ----- points, Orkand ------ points, and ViaTech ----- points. Protest File, Vol. 12 at 4678. The prices proposed by the offerors in their second BAFOs are approximately $30 million for the base year plus four option years. This is considerably less than the prices proposed in the first BAFOs, due to the reduction in the maximum number of labor hours which can be ordered under the contract. Protest File, Vol. 12 at 4681-82. Orkand's Total Evaluated Price is approximately $------ lower than CBIS's Total Evaluated Price and is also lower than ViaTech's Total Evaluated Price. DOL computed Total Award Points in accordance with paragraph M.3 of the RFP and awarded --- points to Orkand, ------ points to CBIS, and ---- -- points to ViaTech. Id. at 4682. In order to determine which offeror's proposal is most advantageous to the Government, the DOL contract negotiator performed an analysis that considered Total Award Points and the estimated cost to DOL of a transition from CBIS to Orkand. Transcript at 253. The RFP does not mention transition costs. A senior DOL official who has estimated transition costs for approximately twelve contracts, estimated that the transition costs for this contract would amount to no more than $------. Transcript at 254-55, 551; Protest File, Vol. 12 at 4679. The DOL contract negotiator determined that Orkand's proposal was most advantageous to the government because Orkand received a greater number of Total Award Points and because the transition costs were so little. Protest File, Vol. 12 at 4679. At the hearing, the senior DOL official who calculated transition costs explained that his estimate includes the cost of retaining CBIS's systems managers for one week after award. Transcript at 536. He calculated that the precise cost of retaining these employees for one week would be $--------. Id. at 538. This senior DOL official, who is extremely familiar with the work required by the RFP, the personnel required to perform that work, and the cost of performing the work, testified that most of a new contractor's employees would require virtually no transition time because there is very little that is unique about DOL's computer system. Many of the new employees will simply be required to keep the computer equipment running and to key in data from documents. Id. at 547, 551, 553-55. When he provided his estimate of transition costs, he did not know the offerors' proposed prices. Id. at 555, 592. The senior DOL official's estimate that one week would be a sufficient transition period is supported by the testimony of Dr. John D. Sinks, Director of Survey Processing, Bureau of Labor Statistics, Department of Labor. Dr. Sinks supervises approximately 330 DOL employees and 40 contractor employees. He is responsible for processing the statistical surveys of the bureau, including procuring hardware and software, programming, analysis, and documentation. Transcript at 632-39. Dr. Sinks has managed and participated in several transitions from one computer services contractor to another at DOL. Id. at 695-706. Dr. Sinks testified that $------ is "certainly a reasonable cost for a leisurely transition." Id. at 712. Dr. Sinks stated that, based upon his experience, a transition could be conducted in "far less than a week with far less than the number of key people that $------ will buy." Id. at 712. DOL awarded contract J-9-E-3-016 (the contract) to Orkand on February 2, 1993. Protest File, Vol. 15 at 5443. DOL notified CBIS of the award on February 2, 1993, and CBIS requested a debriefing from DOL. Id. at 5712. On February 8, 1993, DOL provided CBIS with a debriefing. Protest File, Vol. 16 at 5938, Vol. 19 at 21, 23, 25; Protester's Exhibit 1. During the debriefing, CBIS asked DOL whether it had taken transition costs into account. Although DOL stated that it had done so, it did not provide CBIS with any particulars concerning its calculation of those costs. Protest File, Vol. 19 at 32. At the hearing, Mr. Raymond Henry, a CBIS vice president who is very familiar with the RFP's requirements, testified that DOL would have achieved a transition cost savings in excess of $----- - if it had awarded the contract to CBIS. Transcript at 306. Mr. Henry stated that this savings would have occurred because, if CBIS had been awarded the contract, DOL could have terminated CBIS's existing contract and CBIS would have immediately begun to charge DOL the labor rates contained in CBIS's BAFO, which are lower than the labor rates CBIS was then charging DOL. Id. at 306-07, 364. Neither CBIS's initial proposal nor its BAFO contains any hint that CBIS would voluntarily begin charging lower labor rates immediately if it were awarded the contract. Mr. Henry acknowledged that CBIS was in no way contractually obligated to begin charging DOL the lower labor rates immediately if it had been awarded the contract. Transcript at 345. In fact, DOL was required to provide CBIS with two weeks' notice if DOL decided not to renew the task order under which CBIS was then performing. Protest File, Vol. 19 at 55B. Mr. Henry testified that he never discussed with anyone at DOL the possibility that CBIS would voluntarily begin charging DOL lower rates if CBIS were awarded the contract. Transcript at 347. Mr. Henry also testified that, pre-award, he never discussed such a possibility with anyone at CBIS and that, post-award, he never discussed such a possibility with anyone at CBIS who would have had the authority to approve CBIS's voluntarily lowering its charges. Id. at 348-49. During the debriefing, DOL also explained to CBIS that it could have improved the four areas within part A, Project Management, which had been the subject of the discussions held November 6, 1992. The TEP Chairperson then proceeded to discuss CBIS's responses to parts A.3, A.4, A.8, and A.9. Protest File, Vol. 16 at 5938, Vol. 19 at 29-31. Concerning part A.3, the TEP chairperson told CBIS that it still had not given enough weight to the COTR's role. Transcript at 140; Protest File, Vol. 16 at 5938, Vol. 19 at 29-29A. The TEP chairperson explained that CBIS's proposal does not contain sufficient details and examples concerning the COTR's role. CBIS asked what it could have said to improve its score and the TEP chairperson stated that CBIS could have said that the COTR has the authority to take action upon everything within the scope of the contract. The TEP chairperson stated that CBIS's proposal does not give the impression that the COTR had the power to control the contract as he should. Protest File, Vol. 19 at 29A. At the hearing, the TEP chairperson explained that she was not attempting to tell CBIS how to revise its proposal. Instead, she was attempting to provide CBIS with an example of what it could have said in order to have achieved a higher score. Transcript at 123-24. Concerning part A.4, the TEP chairperson told CBIS that it had not addressed how it would respond to DOL's complaints of ineffective performance. The TEP chairperson explained that the TEP was looking for details and expected to see more than a statement that CBIS would take action in accordance with company policy. She explained that the TEP expected to see some mention of employee training, for example, and not just a discussion of discipline. Protest File, Vol. 16 at 5938; Transcript at 141-42. Concerning part A.8, the TEP chairperson told CBIS that its discussion of how it would respond to DOL complaints continued to be too general. Transcript at 128; Protest File, Vol. 16 at 5939, Vol. 19 at 29A-31. CBIS stated that, based upon the discussions held November 6, 1992, it believed that if its BAFO explained how CBIS would deal with valid and invalid DOL complaints, this would satisfy DOL's concern that CBIS's initial proposal was too general. Protest File, Vol. 19 at 30. According to CBIS's notes of the debriefing, the TEP chairperson stated that, when she reviewed CBIS's BAFO, she realized that CBIS had not understood DOL's concern about the general nature of CBIS's initial proposal. Id. at 30. Mr. Henry testified at the hearing that CBIS's notes of the debriefing are accurate concerning the TEP Chairperson's statement. Transcript at 293, 295. Also concerning part A.8, during the course of the debriefing, CBIS asked DOL to clarify what it means by complaints about "service" as opposed to complaints about "performance." The TEP chairperson explained that complaints about "service" refer to complaints about corporate performance and that complaints about "performance" refer to complaints about individual performance. Protest File, Vol. 19 at 31; Transcript at 130. It appears that this topic arose because the section of CBIS's BAFO that responds to DOL's questions concerning how CBIS intended to deal with valid and invalid DOL complaints concerning "contractor service" contains a discussion concerning how CBIS intends to deal with complaints concerning the performance of individual employees. Protest File, Vol. 3 at 1052-53. The TEP chairperson testified that she realized at the debriefing, for the first time, that CBIS misunderstood the distinction between "service" and "performance." Transcript at 129-30, 142-43. Concerning part A.9, the TEP chairperson told CBIS that it had not discussed how it planned to deal with conflicts as to the scope of the contract. The TEP chairperson explained that CBIS had not stated, for example, whether it would continue to work if a conflict arose. CBIS stated that it considered this a contract administration issue which did not have to be addressed in CBIS's technical proposal. Protest File, Vol. 16 at 5939, Vol. 19 at 31; Transcript at 132. At the hearing, CBIS and DOL each called an expert witness to testify concerning the propriety of DOL's scoring of the technical proposals. Although the testimony of both experts was helpful to the Board, the Board affords less weight to the opinion of CBIS's expert, Mr. Richard Dennis Green, than to the opinion of DOL's expert, Dr. Sinks. The quality of Dr. Sinks's work experience, education, and level of responsibility all exceed those of Mr. Green. In addition, Dr. Sinks was an articulate and persuasive witness. In Mr. Green's opinion, CBIS should have received more points than Orkand in part D, Qualifications and Experience of Key Personnel, of the technical proposal. Mr. Green's opinion is based upon the fact that all of CBIS's proposed key personnel have current experience performing the work required by the RFP. Mr. Green's opinion is also based upon the fact that more of CBIS's employees have UNIX experience.[foot #] 5 Mr. Green believes that CBIS's commitment letters are better than Orkand's commitment letters because, in his view, Orkand's commitment letters are "stale." Transcript at 447-49. In Mr. Green's opinion, DOL should not have deducted ------- --------------- from CBIS's score for part A.3. His opinion is based upon his view that the TEP chairperson's statement that CBIS could have stated that the COTR has the authority to take action upon everything within the scope of the contract, is in conflict with the terms of the RFP which limits the role of the COTR. Mr. Green also believes that the TEP treated Orkand and CBIS differently because Orkand's proposal does not state that the COTR has the authority to take action upon everything within the scope of the contract. Also, Mr. Green believes that the TEP treated Orkand and CBIS differently because, when the TEP reviewed the initial proposals, it noted that both CBIS and Orkand needed to address timely invoicing. Although CBIS addressed this point in its BAFO, Orkand did not.[foot #] 6 Transcript at 453-60. In Mr. Green's opinion, DOL should not have deducted ------- --------------- from CBIS's score for part A.4. or part A.8. His opinion is based upon the fact that, in his view, DOL did not communicate its concerns effectively during discussions with CBIS. Mr. Green also believes that the TEP treated Orkand and ----------- FOOTNOTE BEGINS --------- [foot #] 5 The RFP mentions UNIX experience as one of the minimum experience requirements for only one labor category, the LAN manager. Protest File, Vol. 1 at 518. The TEP viewed UNIX experience as a strength for other labor categories. But, the TEP did not award any "bonus" points for UNIX experience. Transcript at 233-34. All of Orkand's proposed LAN managers have UNIX experience. Protest File, Vol. 4 at 1553-94. [foot #] 6 DOL did not deduct any points from either CBIS's or Orkand's score when reviewing either the initial proposals or the BAFOs, based upon the need to address timely invoicing. ----------- FOOTNOTE ENDS ----------- CBIS differently because Orkand's initial proposal does not, in Mr. Green's view, address part A.4 or part A.8 any more effectively than does CBIS's initial proposal. Transcript at 460-71. In Mr. Green's opinion, DOL should not have deducted ------- --------------- from CBIS's score for part A.9. Mr. Green believes that the TEP was looking for something more than the RFP requires CBIS to provide and that CBIS's perception of what occurred during the discussions is different from DOL's perception. He also believes that the TEP treated Orkand and CBIS differently because Orkand's initial proposal does not, in Mr. Green's view, address part A.9 any more effectively than does CBIS's initial proposal. Transcript at 471-77. Mr. Green's method of review and analysis consisted largely of comparing CBIS's proposal to Orkand's proposal. In contrast, Dr. Sinks did not compare one proposal to another. Instead, Dr. Sinks compared each initial proposal to the RFP. Then, he considered the comments made by the TEP in the scoring plan and conveyed to CBIS during discussions, and determined whether the TEP's concerns were valid. Then, he reviewed CBIS's BAFO in order to determine whether CBIS had addressed the TEP's concerns. Transcript at 667-78. Dr. Sinks's methodology more closely resembles the manner in which the TEP conducted its review. Id. at 113-14, 155. Concerning part A.3, Dr. Sinks stated that CBIS's initial proposal does not contain any discussion of the technical role of the COTR and that this omission would have led the TEP to wonder about CBIS's insight and understanding concerning the COTR's role. In Dr. Sinks' view, the TEP provided CBIS with an opportunity to establish that it has some insight into the RFP's requirements. Dr. Sinks concluded that CBIS's BAFO is no better than its initial proposal, in that CBIS is simply "regurgitating" the RFP. He also reviewed Orkand's initial proposal and determined that it briefly mentions the COTR's technical role twice which, in Dr. Sinks' view, is sufficient. Transcript at 670-77. Dr. Sinks' testimony is fully supported by the initial proposals of Orkand and CBIS, and by CBIS's BAFO. Protest File, Vol. 2 at 759-60, Vol. 3 at 1036-38, Vol. 4 at 1416-18. Concerning part A.4, Dr. Sinks stated that CBIS's initial proposal only addresses employee discipline. Dr. Sinks explained that, quite often, performance problems need to be addressed by coaching, training, or agreeing upon a method for communication. For this reason, the TEP was justified in discussing part A.4 with CBIS. CBIS's BAFO does not, in Dr. Sinks' view, address the issue identified as a concern by the TEP. Although Orkand's initial proposal does not mention training specifically, it does address performance improvement measures that fall short of disciplinary action. Transcript at 677-84. Dr. Sinks' testimony is supported by the initial proposals of Orkand and CBIS, and by CBIS's BAFO. Protest File, Vol. 2 at 763-68, Vol. 3 at 1039-51, Vol. 4 at 1420-21. Concerning part A.8, Dr. Sinks stated that CBIS's initial proposal contains no real insight into the different types of complaints that might arise and the need to resolve complaints at different levels. CBIS's BAFO, in Dr. Sinks' view, continues to show no insight into the fact that different problems of different complexity will need to be resolved at different levels. Orkand's initial proposal, however, does recognize that there are different levels of problems. Transcript at 685-89. Dr. Sinks' testimony is supported by the initial proposals of Orkand and CBIS, and by CBIS's BAFO. Protest File, Vol. 2 at 780, Vol. 3 at 1052-57, Vol. 4 at 1439-40. Concerning part A.9, Dr. Sinks stated that CBIS's initial proposal is somewhat mechanical and, again, shows no real insight into how to respond to different types of problems. CBIS's BAFO, in Dr. Sinks' view, does not completely address the TEP's comments. Orkand's initial proposal, however, recognizes that there can be different types of problems which call for different types of resolution. Transcript at 689-92. Dr. Sinks' testimony is supported by the initial proposals of Orkand and CBIS, and by CBIS's BAFO. Protest File, Vol. 2 at 781, Vol. 3 at 1058, Vol. 4 at 1440-41. Dr. Sinks stated that the TEP should not have deducted ----- ----- from Orkand's BAFO score. He based his opinion upon his reading of the scoring plan and the RFP. In Dr. Sinks' view, part B, Filling Vacant Positions, as described in paragraph L.15 of the RFP, does not require offerors to establish any kind of commitment of their employees. But, the TEP's --------- deduction from Orkand's score in part B was due to the TEP's assessment that Orkand's key personnel were not committed. Transcript at 660-62; Protest File, Vol. 1 at 358-59, Vol. 12 at 4611. In Dr. Sinks' opinion, both CBIS and Orkand submitted very good resum s and offered outstanding key personnel who well exceed the minimum requirements for the contract. Transcript at 664. In his view, the TEP's scoring of key personnel was reasonable because both CBIS and Orkand proposed personnel who exceeded the RFP's qualifications. Id. at 665. Also, he determined that there are no significant differences between Orkand's commitment letters and CBIS's commitment letters, and no differences which should have made a difference in scoring. The commitment letters from both CBIS and Orkand are adequate, in Dr. Sinks' opinion. Id. at 666. In Dr. Sinks' opinion, CBIS and Orkand were treated equally and fairly. He concluded that both proposals are very strong and that it was reasonable for the TEP to conclude that the technical merit of the proposals is equal. Dr. Sinks was satisfied that the TEP did an excellent job. Transcript at 692-95. Mr. Green and Dr. Sinks also testified concerning the proper reading of RFP paragraph L.15.b.(4)(b)(iii) which, as stated earlier, provides: The scoring of personnel qualifications will be commensurate with the quality of the candidates offered, and the meeting of the minimum qualifications shown in Section C.4. of The Schedule will not, necessarily, earn maximum points. Protest File, Vol. 1 at 363. Mr. Henry testified that CBIS interpreted paragraph L.15.b.(4)(b)(iii) as stating that DOL wanted offerors to provide the most qualified key personnel, personnel who exceeded the minimum RFP requirements, in order to achieve the maximum possible score. Transcript at 301-03, 332. Mr. Henry testified that CBIS would have submitted a different proposal if it had realized how DOL read paragraph L.15.b.(4)(b)(iii). He stated that CBIS would have proposed less costly key personnel who did not exceed the minimum requirements stated in the RFP. Transcript at 303-04, 332-33, 358-60. Mr. Henry also testified that CBIS attempts to supply personnel who - ----------------------------------------------------------------- -------------------------------------------. Id. at 269-70. Discussion CBIS alleges that DOL failed to evaluate the relative technical quality of the offerors' proposals and, instead, awarded maximum points to offerors who met the minimum requirements of the RFP. CBIS asserts that DOL's evaluation method violates statute and regulation because it is contrary to the terms of the request for proposals and amounts to an evaluation based upon factors other than those specified in the RFP. Alternatively, CBIS alleges, if DOL evaluated the relative technical quality of the proposals, DOL violated statute and regulation because it improperly scored the technical proposals. Specifically, CBIS alleges that DOL failed to conduct meaningful discussions, failed to treat offerors equally, and improperly scored the proposals. Also, CBIS alleges, if DOL evaluated the relative technical quality of the proposals, DOL improperly evaluated its transition costs and, thus, failed to determine which proposal is most advantageous to the Government. The competition for this contract was especially sharp. Both CBIS and Orkand submitted outstanding technical proposals, and their proposed prices are ----------------. DOL carefully evaluated the technical proposals and determined that they are of equal quality. CBIS has not established, by a preponderance of the evidence, that DOL's technical evaluation is improper. The method that DOL utilized to score proposals is in keeping with the terms of the RFP. DOL held meaningful discussions, made appropriate deductions to CBIS's score, and treated all offerors equally. In addition, DOL properly calculated transition costs. For these reasons, we deny the protest. Is DOL's Technical Evaluation Based Upon Factors Outside The RFP? The RFP states that DOL will weigh cost and technical merit equally in order to determine which offeror's proposal is most advantageous to the Government, and the RFP's formula for calculating Total Award Points establishes that DOL is willing to pay more for a technically superior proposal. The RFP provides that proposals will be evaluated and scored, and sets out weighted evaluation criteria. Clearly, DOL intends to make qualitative distinctions among offerors and it is not seeking the lowest cost, technically acceptable offer. CBIS alleges that the TEP violated the terms of the RFP by adopting a "max for min" approach to scoring the technical proposals. That is, instead of discriminating among the offerors based upon a qualitative evaluation of their technical merit, the TEP awarded the maximum number of possible points if an offeror met the minimum requirements set forth in the RFP. CBIS alleges that the "max for min" approach was followed by the TEP in evaluating all four parts of the offerors' technical proposals, and that this violates the provisions of the RFP. CBIS Posthearing Reply Brief at 14. CBIS has not established, by a preponderance of the evidence, facts which support its allegations.[foot #] 7 Concerning parts A and B of the technical proposals, we have carefully examined the record, paying particular attention to the citations contained in CBIS's brief, and we find no documentary or testimonial evidence to establish that the TEP always awarded maximum points if an offeror met the minimum requirements set forth in the RFP. To the contrary, it is clear that the TEP did not invariably award the maximum number of points to offerors whose proposals met the minimum RFP requirements. For example, although CBIS's BAFO meets the minimum RFP requirements for part A, Project Management, CBIS did not receive the maximum number of points possible for part A. Similarly, although Orkand's BAFO meets the minimum RFP requirements for part B, Filling Vacant Positions, Orkand did not receive the maximum number of points possible for part B. If the TEP had awarded maximum points to offerors who met the minimum RFP requirements, both CBIS and Orkand would have received perfect scores for parts A and B of their technical proposals. Similarly, we find no documentary or testimonial evidence to establish that the TEP adopted a "max for min" scoring approach concerning part C of the technical proposals, Offeror's Experience and Qualifications. Paragraph L.15.b.(3) of the RFP provides that, for part C, the highest points will be awarded to the offerors who demonstrate strong experience in providing the services required. The proposals contain detailed information concerning each offeror's corporate experience. The TEP evaluated this information and decided that CBIS and Orkand were entitled to be awarded the maximum number of possible points, and that ViaTech was entitled to an award of fewer points. Clearly, the TEP did discriminate among the offerors. There is some evidence in the record to indicate that, if an offeror exceeded the requirements established in the RFP, the TEP awarded the maximum number of points possible and did not award any "bonus" points. The TEP's actions were entirely appropriate, given that the RFP sets out the maximum number of points that could be earned for part C. The fact that "bonus" points were not awarded ----------- FOOTNOTE BEGINS --------- [foot #] 7 Throughout its posthearing briefs, CBIS suggests that the TEP members were unqualified to perform their duties. There is no evidence to support such a suggestion. ----------- FOOTNOTE ENDS ----------- for exceeding the RFP's requirements does not establish that the TEP awarded maximum points for minimum qualifications for part C of the technical proposals. It is likely that the absence of evidence concerning the manner in which the TEP scored parts A, B, and C of the technical proposals is due to the fact that CBIS's protest is directed almost entirely at the manner in which the TEP scored part D, Qualifications and Experience of Key Personnel. Part D of the scoring plan requires the TEP to consider the quantitative elements set forth in the RFP, such as number of years of experience, and it also required the TEP to consider several qualitative elements, including whether the resum s established a probability of job knowledge, a stable employment history, significant professional achievement, management experience, the ability to supervise, and the capability for leadership. When the TEP scored part D, it reviewed the resum s supplied by the offerors and, if a resum established that the proposed key person met the criteria contained in the scoring plan, the TEP awarded the maximum number of points possible for that person. Dr. Sinks' unrebutted testimony is that the proposed key personnel for both CBIS and Orkand exceed the minimum qualifications set forth in the RFP. DOL does not argue that the TEP adopted anything other than a "max for min" approach to scoring key personnel. Instead, DOL concedes that the TEP awarded the maximum number of points for proposed key personnel who met the minimum requirements of the RFP. DOL's Posthearing Brief at 4-5. DOL asserts that this was permitted by RFP paragraph L.15.b.(4)(b)(iii), which provides: The scoring of personnel qualifications will be commensurate with the quality of the candidates offered, and the meeting of the minimum qualifications shown in Section C.4. of The Schedule will not, necessarily, earn maximum points. According to DOL, the second clause of this sentence establishes that DOL could choose either to award maximum points for meeting the minimum qualifications for part D, or to award something less than maximum points for meeting minimum qualifications. In other words, the second clause of this sentence provides it with flexibility in scoring proposals. Because CBIS did not protest the terms of the RFP before proposals were submitted, it is bound by any reasonable interpretation or application of those terms by DOL which is not restrictive of competition, and DOL's interpretation of the terms in question meets this test. Data Switch Corp. v. Department of Health and Human Services, GSBCA 11582-P, 92-2 BCA 24,766, 1992 BPD 23. It seems clear that the second clause of the sentence quoted above provides DOL with an option: It can either award maximum points or award something less than maximum points to persons who meet the minimum requirements of the RFP. DOL's reading of the clause is perfectly reasonable. If DOL had meant to say that meeting minimum qualifications will not earn maximum points, there would have been no need for DOL to insert the word "necessarily" into the clause. Reading the clause plainly and giving meaning to all of the words in the clause, DOL's interpretation is reasonable and is not restrictive of competition. CBIS puts forward six reasons why DOL's reading of the second clause of the sentence is unreasonable. First, CBIS asserts that DOL's reading is contrary to accepted rules of grammatical construction. According to CBIS, because the word "necessarily" is set off by two commas, the clause can be read with or without the word and the meaning of the clause will not change. CBIS argues that properly read, "the word 'necessarily' simply emphasizes the fact that meeting minimum qualifications will not result in maximum points." CBIS Posthearing Opening Brief at 33. Second, CBIS asserts that DOL's reading of the second clause of the sentence conflicts with the first clause of the sentence, which provides that scoring will be commensurate with quality. Third, CBIS asserts that DOL's reading of the second clause conflicts with the fact that DOL did not intend to make award to the lowest priced, technically acceptable offeror. Fourth, CBIS asserts that DOL's interpretation is contrary to the intent of the drafters, DOL's desire to obtain the best personnel at the lowest cost, the offerors' interpretations of the sentence, and typical government practice. Fifth, CBIS asserts that DOL's interpretation is inconsistent with the manner in which the evaluation was actually conducted, because the TEP did not utilize any flexibility in scoring proposals. Finally, CBIS asserts that DOL's interpretation is unreasonable because it prevents offerors from knowing the basis upon which their proposals will be evaluated. The fact that DOL's interpretation might possibly offend a rule of grammar does not render DOL's interpretation unreasonable. Offerors are not required to resort to grammar texts in order to understand the terms of solicitations. Instead of applying a rule of grammatical construction that permits us to read a sentence as if particular words are irrelevant, we will apply the rule of solicitation construction that requires us to give meaning to all of the words contained in a sentence. Data Switch Corp., 92-2 24,766, 1992 BPD 23. Doing so, DOL's interpretation is reasonable. CBIS's interpretation, that maximum points would not be awarded to proposed key personnel who met the minimum requirements, is not reasonable because it permits us to ignore the word "necessarily." Although the Government's typical practice might not be to award maximum points for proposed key personnel who meet the minimum RFP requirements, there is no evidence in the record to suggest how the Government evaluates proposals when a provision such as paragraph L.15.b.(4)(b)(iii) is included in a solicitation. DOL's interpretation of the second clause of the sentence is not inconsistent with the manner in which the evaluation was actually conducted. DOL interpreted the second clause as providing it with a choice of options, and DOL conducted its evaluation by choosing one option and applying it uniformly. If, as CBIS asserts, DOL's reading of the second clause of the sentence contained in paragraph L.15.b.(4)(b)(iii) is inconsistent with the first clause of the sentence, if it conflicts with DOL's intent to consider technical merit and to obtain the best personnel for the lowest cost, or if it prevents offerors from knowing the basis upon which their proposals will be evaluated, these defects should have been obvious to offerors who read the RFP. CBIS should have asked DOL to clarify its interpretation and if DOL failed to do so, CBIS should have protested the terms of the RFP before proposals were submitted. Finally, CBIS calls our attention to the decision in CBIS Federal, Inc. v. Department of the Interior, GSBCA 12092-P, 1992 BPD 386 (Dec. 4, 1992), which CBIS asserts is "directly on point." CBIS Posthearing Reply Brief at 2. There, we granted CBIS's protest because CBIS established that Interior evaluated technical proposals in a manner inconsistent with the terms of the solicitation. CBIS established that the solicitation required Interior to qualitatively score the resum s of key personnel and that Interior had, instead, awarded maximum points for personnel who met minimum requirements. CBIS also established that Interior's technical evaluators applied their own subjective standards, and not the solicitation's standards, in evaluating the experience of key personnel, and demonstrated that several of the proposed awardee's key personnel did not meet the experience requirements set out in the solicitation. In the present protest, the RFP permitted DOL to award maximum points to proposed key personnel who met the minimum RFP requirements. The TEP in this protest applied the standards contained in the RFP when it performed its evaluations. In addition, there is no evidence to suggest that any of Orkand's proposed key personnel do not meet any of the RFP's minimum requirements. In fact, the evidence of record concerning this point indicates that Orkand's proposed key personnel exceed the minimum requirements. For these reasons, our previous CBIS decision is not persuasive precedent in this protest. In summary, the RFP requires DOL to make qualitative distinctions among offerors. Concerning parts A, B, and C of the technical proposals, the record does not establish that DOL failed to assess the quality of the offerors and to make distinctions among them. Concerning part D of the technical proposals, DOL concedes that the TEP awarded maximum points for proposed key personnel who meet the minimum requirements of the RFP. But, the TEP's actions are permitted by a reasonable reading of paragraph L.15.b.(4)(b)(iii) of the RFP. If CBIS had any questions concerning DOL's interpretation of this paragraph, CBIS was obligated to raise those questions before proposals were submitted. If CBIS had no questions concerning DOL's interpretation of this paragraph, it is because CBIS's interpretation of this paragraph is not reasonable. DOL's technical evaluation is not based upon factors outside the RFP. Did DOL Improperly Score CBIS's Technical Proposal? CBIS alleges that the TEP should not have made four -------- --------------- deductions in part A of CBIS's technical proposal. CBIS alleges that some of the deductions were made due to DOL's failure to conduct meaningful discussions that some of the deductions are unreasonable per se. CBIS also alleges that DOL failed to treat all offerors equally. Concerning meaningful discussions, the content and extent of discussions is a matter left to the agency's discretion, and the agency's judgment must be respected unless clearly defective. 48 CFR 15.610 (1992) (FAR 15.610); Health Systems Technology Corp., GSBCA 10920-P, 91-2 BCA 23,692, 1991 BPD 20. There is no evidence to support a conclusion that DOL's judgment concerning the discussions that occurred here was defective. The TEP advised CBIS of weaknesses in its initial proposal and provided CBIS with a reasonable opportunity to revise its technical proposal, just as the regulation requires. FAR 15.610. CBIS suggests that the discussions were not meaningful because DOL did not reduce its comments to writing. There is no requirement, however, that an agency reduce its discussion comments to writing. In addition, the DOL contract negotiator stated at the beginning of the discussions that DOL would not provide a written summary of the discussions and the CBIS employees took copious notes. CBIS suggests that the discussions were not meaningful because, during the discussions, it was misled by DOL into believing that it correctly understood DOL's concerns. There is no evidence to suggest that DOL misled CBIS. CBIS suggests that the discussions were not meaningful because DOL did not schedule further discussions when it realized that CBIS had misunderstood the TEP's comments concerning part A.8 of the scoring plan. DOL was not obligated, however, to schedule successive rounds of discussion in order to provide CBIS with successive opportunities to improve its score. FAR 15.611(c); Planning Research Corp., GSBCA 10694-P, 91-2 BCA 23,882, 1991 BPD 74. Turning to the deductions from CBIS's score, we have previously recognized that the Federal Acquisition Regulation provides the Government's technical evaluators broad discretion in evaluating gradations of quality of proposals. Computer Sciences Corp., GSBCA 11497-P, 92-1 BCA 24,703, 1992 BPD 6 (1991). We are satisfied that the deductions are appropriate. The TEP deducted ----------------- from part A.3 of the scoring plan based upon the TEP's determination that CBIS's proposal does not give enough weight to the COTR's role. CBIS asserts that the TEP made this deduction because, as the TEP explained during the debriefing, it expected CBIS's proposal to state that the COTR "controls all aspects" of the contract. CBIS Posthearing Brief at 38. CBIS argues that such a statement would have been unreasonable, given that the COTR does not control all aspects of the contract. CBIS does not dispute that, during discussions, it was advised that its proposal did not give enough weight to the role of the COTR. We do not agree that the TEP deducted ----------------- because CBIS's proposal omitted a particular phrase. According to CBIS's notes of the debriefing, the TEP explained that it deducted ----------------- because CBIS's proposal does not contain enough details concerning the COTR's role and does not give the impression that the COTR has the power to control the contract as he should. The TEP chairperson told CBIS that it could have improved its score by stating that the COTR has the authority to take action upon everything within the scope of the contract. At the hearing, the TEP chairperson explained that the purpose of the debriefing was to provide examples to CBIS of how it could have achieved a higher score. She stated that she was not attempting to tell CBIS how to revise its proposal and there is no evidence to suggest that the TEP scored the proposals by looking for any particular words. The TEP's ----------------- deduction is appropriate. The TEP deducted ----------------- from part A.4 of the scoring plan because CBIS does not address how it will react to DOL complaints of ineffective performance. According to the notes taken by several CBIS employees during the discussions, the TEP mentioned that CBIS's proposal needed to address ineffective performance. During the debriefing, the TEP chairperson told CBIS that the TEP expected to see something more than a statement that CBIS will take action in accordance with company policy. She explained that the TEP expected to see some mention of training, for example, and not simply a discussion of discipline. The deduction is appropriate. The TEP deducted ----------------- from part A.8 of the scoring plan because CBIS's discussion of how it planned to respond to complaints concerning its performance continued to be too general. It is not disputed that, during discussions, the TEP stated that CBIS's discussion was too general. CBIS asserts that it misunderstood the TEP during discussions and argues that, when the TEP received CBIS's BAFO, it realized that CBIS had misunderstood the TEP.[foot #] 8 As we stated above, whatever obligation the TEP had to advise CBIS of this weakness in its proposal was fulfilled when the TEP told CBIS during discussions that its proposal was too general. DOL was not required to schedule succeeding discussions to call this weakness to CBIS's attention. The deduction is appropriate. The TEP also deducted ----------------- from part A.9 of the scoring plan because CBIS does not discuss how it planned to deal with conflicts as to the scope of the contract. This issue was raised with CBIS during discussions. CBIS asserts that the TEP made this deduction because it expected CBIS's proposal to state that CBIS would continue working if a conflict arose. CBIS argues that such a statement was unnecessary, given that CBIS's obligation to continue to work in the event of a dispute is controlled by the Disputes and the Changes clauses of the contract. The record reflects that the TEP raised its concern about conflicts within the scope of the contract in the context of discussing how CBIS planned to raise problems that are caused by DOL. The statement made at the debriefing does not provide a good example of how CBIS could have raised its score. But, it is obvious from reading CBIS's BAFO technical proposal that CBIS provided no response to the concern raised by the TEP during discussions. The ----------------- deduction is appropriate. Finally, CBIS makes four allegations of unequal treatment. CBIS alleges that it was treated unfairly because Orkand's proposal does not state that the COTR controls all aspects of the contract and the TEP did not deduct any points from part A.3 of Orkand's score. CBIS alleges that it was treated unfairly because Orkand's proposal does not make any mention of training in its discussion of Part A.4 and the TEP did not deduct any points from part A.4 of Orkand's score.[foot #] 9 CBIS alleges generally that the deduction made in part A.8 indicates that its proposal was treated unfairly. Finally, CBIS alleges that it was treated unfairly because Orkand's proposal does not state that it will continue to work in the event of a dispute and ----------- FOOTNOTE BEGINS --------- [foot #] 8 CBIS also argues that it misunderstood the distinction between "service" and "performance." CBIS Posthearing Brief at 40-41. This is immaterial, because the ---- ------------- deduction is not based upon CBIS's misunderstanding of this distinction. [foot #] 9 CBIS also argues that the discussions left it confused concerning part A.4. CBIS Brief at 39-40. CBIS's argument is supported only by record citations which concern the scoring of part A.8 of the proposal. Thus, CBIS's argument is baseless. ----------- FOOTNOTE ENDS ----------- the TEP did not deduct any points from part A.9 ofOrkand's score. We have thoroughly examined the initial proposals of Orkand and CBIS, and we agree with Dr. Sinks' conclusion that the TEP legitimately asked only CBIS to address certain elements more fully. Not surprisingly, the proposals are not identical. But, there is no indication that the offerors were treated unfairly. In summary, DOL did not improperly score CBIS's technical proposal. The discussions held with CBIS were appropriate, the offerors were treated equally, and DOL made appropriate deductions to CBIS's technical score. Did DOL Improperly Score Orkand's Technical Proposal? In addition to arguing that the TEP improperly scored its own proposal, CBIS also argues that the TEP improperly scored Orkand's proposal because it failed to evaluate Orkand's proposed staffing plan properly. CBIS alleges that Orkand's key personnel commitment letters were "stale" and that the language of the letters provides no commitment at all. CBIS also alleges that Orkand should have had points deducted in parts A.1 and D.2 - D.6 due to its failure to provide adequate commitment letters. CBIS does not suggest that any of Orkand's proposed key personnel are unavailable or unwilling to work for Orkand, or that Orkand does not intend to provide the same key personnel as it proposes. The fact that the letters pre-date the RFP is explained in Orkand's proposal, when it states that, several months before the RFP was issued, it began preparing to submit an offer. In addition, there is no evidence to suggest that the proposed key employees are any less committed today than they were when they signed the commitment letters. The fact that the letters are several months old does not, by itself, permit us to conclude that the letters are no longer effective. Concerning the language of the letters, it is true that the offers made in some of the letters are conditioned upon an interview by Orkand. But, the fact that Orkand reserves the right to interview a potential employee has no bearing upon the potential employee's commitment to work for Orkand. In the letters, the potential employees clearly commit to working for Orkand, assuming it receives award of the contract. CBIS also alleges that it was inconsistent for the TEP to deduct --------- from part B.1 of Orkand's proposal and to deduct no points from parts A.1 and D.2 - D.6 of Orkand's proposal. CBIS reasons, "[T]he fact that key personnel were 'not committed' is a key deficiency that should not have been selectively scored only under one subfactor of the evaluation." CBIS Posthearing Brief at 43-44. Parts A.1, B.1, and D.1 - D.6 of the technical proposals address different subjects and do not contain identical requirements. Part A.1 as contained in the scoring plan requires the offeror to establish that its plan for initial contract staffing is effective. The corresponding RFP section requires the offeror to present its plan for staffing the initial contract (such as source of personnel, validation of qualifications, and timetables). No mention is made of "commitment" of key personnel in either the scoring plan or the RFP. Part B.1 of the scoring plan and the corresponding RFP section require the offeror to establish that its plan for filling vacancies is practical and effective. The scoring plan and the RFP provide that the offeror must plan to provide timely and appropriate resum s, must plan to pay damages if either the program manager or the deputy program manager were to be removed from the contract during the first year of performance, and must plan to provide certain key personnel and to notify DOL before removing any key personnel. Although the scoring plan requires that the offeror specifically commit to providing the designated key personnel to initiate the contract, the RFP contains no corresponding requirement. The TEP states that it deducted ----- ---- from part B.1 because only one of Orkand's proposed key personnel was then an Orkand employee. Parts D.1 - D.6 of the scoring plan and the corresponding RFP section provide that the offeror must provide evidence of the commitment of its proposed key personnel. Orkand did so when it submitted commitment letters with its BAFO. We do not agree with CBIS's suggestion that it was inconsistent for the TEP to deduct points from part B.1, and not from parts A.1 and D.2 - D.6. Part A.1 contains no "commitment" requirement. It seems possible, as Dr. Sinks suggests, that the TEP's --------- deduction for part B.1 is not justified. No deduction was proper in part D because Orkand supplied commitment letters. Did DOL Properly Assess Transition Costs? In their briefs, the parties discuss whether DOL was required to take transition costs into account when it determined which offer was most advantageous to the Government. In this protest, we do not decide whether DOL was required to take such costs into account. The fact is, DOL did take such costs into account, and we find that DOL reasonably estimated them. Orkand challenges the timeliness of CBIS's request to amend its complaint to allege that DOL improperly assessed transition costs. Board Rule 5(b)(3)(ii) permits amendments to be made within ten days after a party knows or should have known the basis for the protest. When CBIS requested leave to amend its complaint on March 11, 1993, it represented that it did not know of the basis for the amendment until it received the protest file on March 1, 1993. Neither Orkand nor DOL objected to CBIS's request for leave to amend its complaint. Orkand now argues that CBIS's request to amend was untimely because CBIS believed, as early as February 8, 1993, that DOL had improperly calculated transition costs. Orkand's argument is based upon the fact that, during the debriefing held February 8, 1993, in response to CBIS's questions, the TEP stated it had analyzed transition costs in order to determine which proposal is most advantageous to the Government, and that it determined that the transition will cost less than CBIS's estimated figure. The TEP did not state its estimated transition costs and did not state what factors it considered in determining transition costs. Until March 1, 1993, when CBIS received the protest file, it might have suspected that the agency improperly analyzed transition costs. But, until then, CBIS did not know and had no reason to know that the agency's analysis of transition costs provided it with a basis for protesting the award to Orkand. Accordingly, CBIS's motion for leave to amend its complaint was filed within the time permitted by Rule 5(b)(3)(ii). CBIS alleges that DOL improperly assessed transition costs and, therefore, improperly determined which proposal is "most advantageous" to the Government. CBIS asserts that DOL should have calculated "the additional cost to the Government of paying CBIS at its higher contract rates (rather than its lower proposed rates) for the transition period prior to Orkand assuming control of the contract." CBIS Posthearing Brief at 47. There is no evidence in the record to support CBIS's allegation. The contract was awarded to Orkand on February 2, 1993, and Orkand was to begin performing some time in the future. CBIS argues that, if it had been awarded the contract on February 2, it would have been willing to waive the two weeks' notice contained in its existing contract, to terminate its existing contract, and to give DOL the benefit of the rates contained in the new contract immediately, even though those rates were lower than the rates that CBIS was then charging pursuant to the existing contract. CBIS alleges that DOL should have taken this into account when it calculated transition costs. CBIS does not explain how it is that DOL should have known that CBIS would have voluntarily agreed to forego the higher rates that it was entitled to charge pursuant to the existing contract. CBIS never told this to DOL. In fact, CBIS did not develop this theory until after award. The evidence of record establishes that DOL's estimate of transition costs is reasonable and provides no support for CBIS's allegation that DOL improperly assessed transition costs. Decision CBIS has failed to meet its burden of proof. It has not demonstrated that DOL violated any statute, regulation, or the conditions of any delegation of procurement authority. Accordingly, the protest is DENIED. The suspension of procurement authority lapses by its terms. ___________________________ MARTHA H. DeGRAFF Board Judge We concur: _____________________________ ____________________________ STEPHEN M. DANIELS ROBERT W. PARKER Board Judge Board Judge