MOTION TO DISMISS AS UNTIMELY FILED DENIED: March 8, 1993 GSBCA 12298-P, 12299-P, 12308-P GDE SYSTEMS, INC., and GRUMMAN DATA SYSTEMS, CORP., Protesters, and COMPUTER SCIENCES CORPORATION, Protester/ Intervenor in GSBCA 12298-P, v. DEPARTMENT OF THE AIR FORCE, Respondent, and BDM INTERNATIONAL, INC., Intervenor. Raymond S.E. Pushkar, Mark J. Meagher, and Brian Levey of McKenna & Cuneo, Washington, DC, and Grant L. Clark of McKenna & Cuneo, San Diego, CA, counsel for Protester GDE Systems, Inc. James J. Regan, George D. Ruttinger, Raymond F. Monroe, Cameron S. Hamrick, and Dolly B. Hauck of Crowell & Moring, Washington, DC, counsel for Protester Grumman Data Systems, Corp. Kenneth S. Kramer, P.C., Lynda Troutman O'Sullivan, Douglas W. Baruch, and Douglas E. Perry of Fried, Frank, Harris, Shriver & Jacobson, Washington, DC, and Helaine Grace Elderkin and Harvey N. Bernstein of Computer Sciences Corporation, Falls Church, VA, counsel for Protester/Intervenor Computer Sciences Corporation. Clarence D. Long, III, Office of the General Counsel, Department of the Air Force, Washington, DC, counsel for Respondent. Richard J. Conway, William F. Savarino, and Bruce H. Leshine of Dickstein, Shapiro & Morin, Vienna, VA; Richard J. Webber and John J. O'Brien of Arent Fox Kintner Plotkin & Kahn, Washington, DC; and John W. Polk and Noel H. Gordon of Baker & McKenzie, Washington, DC, counsel for Intervenor BDM International, Inc. Before Board Judges DANIELS (Chairman), HYATT, and GOODMAN. DANIELS, Board Judge. Respondent, the Department of the Air Force (Air Force), and the intervenor-awardee, BDM International, Inc. (BDM), move to dismiss as untimely filed most of the counts encompassed in consolidated protests filed by GDE Systems, Inc. (GDE) (GSBCA 12298-P), Computer Sciences Corporation (CSC) (GSBCA 12299-P), and Grumman Data Systems, Corp. (Grumman) (GSBCA 12308-P). We agree with the protesters that the motion proceeds from a fundamental misunderstanding of the protests. The motion is denied. Overview The protests concern a solicitation for proposals to provide the Air Force with "hardware and services to consolidate the IBM [International Business Machines Corporation] and IBM compatible hardware platforms of . . . the Air Force Material [sic] Command (AFMC)." Protest File, Exhibit 7, solicitation, executive summary, 1. More specifically, the awardee is to acquire and install the IBM-compatible mainframes, software, storage devices, and peripherals (otherwise known as the "Consolidated Equipment Configuration," or "CEC") necessary to consolidate the work involved. Answer, Complaint, 6, 7, GSBCA 12298-P. According to the agency -- This consolidation will result in a smaller number of more powerful, effective, and efficient systems to support the combined workload of numerous [AFMC] Logistics Management Systems Center (LMSC) software development programs. The new system is expected to utilize some combination of central processing units (CPUs), direct access storage devices (DASD), open reel tape drives, tape cartridges, and other items as proposed and accepted. Protest File, Exhibit 7, solicitation, executive summary, 1. An award of a five-year indefinite quantity, indefinite delivery contract is envisioned by the solicitation. Id., solicitation, part I, I-178(a), L-45; amend. 15, M, C(f)(9)(c).[foot #] 1 The Air Force awarded a contract under this solicitation to BDM on February 3, 1993. Complaint, Answer, 2, GSBCA 12299-P,[foot #] 2 GSBCA 12308-P. The announced maximum value of the contract is $362 million, of which $248,342,161 is attributable to one contract line item number (CLIN), number 11. Protest File, Exhibit 34 at 1, 41. The protests, each of which challenges this award, were all filed within ten working days of the date of award. The grounds of protest may be divided into two general groups. First, protesters allege that BDM's proposal was ineligible for award because it does not meet certain mandatory requirements of the solicitation. Specifically, the mainframe processor proposed by BDM is said not to meet specifications as to commerciality, ability to support a named architecture, and availability of supporting technical literature. The timeliness of these allegations is not in doubt. The second group of protest counts goes to actions taken by the Air Force in evaluating the competing proposals. The protesters complain that the Air Force did not follow the plan prescribed by the solicitation for weighing the various elements of the proposals; evaluated costs in a way which was at variance with what any reasonable offeror would have anticipated from reading the solicitation; evaluated technical merit in an arbitrary way; and converted the procurement from one for technical solutions to a specific problem to one for a shopping list of items of automatic data processing equipment. The Air Force and BDM contend that the solicitation advises offerors of the permissibility of the sorts of actions taken by the agency in evaluating proposals; thus, the allegations are really complaints about the solicitation provisions themselves. If the movants are correct, the allegations are untimely, for such complaints may only be filed prior to the closing time for the receipt of proposals. Rule 5(b)(3)(i). ----------- FOOTNOTE BEGINS --------- [foot #] 1 A reference in simpler form to any portion of the solicitation or any amendment thereto is made impossible by the chaotic way in which the Air Force "organized" this document and placed it in the protest file. Pagination is completely missing, for example, except for numbers within each portion of the solicitation, and each portion is itself identified only on its first page. Each offeror deserves some sort of award (perhaps a medal, if a contract is not appropriate) for its patience in coping with this mess. [foot #] 2 In discussing CSC's protest, GSBCA 12299-P, we refer to the amended complaint filed on February 23, 1993. ----------- FOOTNOTE ENDS ----------- The solicitation A recitation of relevant solicitation provisions is necessary to an understanding of the timeliness of the counts. The Air Force announced in issuing the solicitation that "[s]election of the winner will be in accordance with the conditions stated in the RFP [request for proposals, or solicitation]. In particular, the technical and management criteria will be weighed heavily." Protest File, Exhibit 7, solicitation, executive summary, 6. The agency said further, "The acquisition is basically a technical competition, but due to the importance of management the most advantageous proposal may be other than the technically superior." Id., M, 4.1. Additionally, "Although price and other factors will be considered, cost/price are secondary to the Technical, Management and LTD [Live Test Demonstration] Areas." Id., amend. 14, M, 4.4.4. Consistent with these statements, the evaluation criteria were, "in descending order of importance," technical, management, live test demonstration, and cost. Id., amend. 2, M, 4.3, 4.4.4.a. Each offeror had to "ensure that the [CEC] installed for the initial requirements is capable of expansion" over a period of time. That expansion was "to a capacity sufficient to process" the initial workload, plus (1) "[g]rowth at the compounded rate of 20% per year in communications-computer application workload requirements and 30% per year in on-line storage (DASD) requirements" and (2) "[a] surge of up to 50% in the transaction rate at any time from the initial installation through all growth stages." Protest File, Exhibit 7, solicitation, Statement of Work (SOW), 5.1.2.2.a. In amendment 11, the Air Force referred to this capacity for expansion as "projected growth." Id., amend. 11, SOW, 5.1.2.2.a. The solicitation also directed each offeror to "[p]rovide growth options, equipment, equipment configuration, capabilities, features, speeds, capacities, growth limitations, software support, [and] other relevant information as applicable for" numerous items of equipment, such as the central processing unit. Protest File, Exhibit 7, solicitation, SOW, 5.1.2.2.b. In amendment 10, this list of equipment was made longer and more detailed. Id., amend. 10, SOW, 5.1.2.2.b. In amendment 11, the list was made longer still; the prefatory language was changed to read, "Provide to AFMC for the life of the contract the equipment, features, speeds, capacities, and other relevant information as applicable for, but not limited to"; and this requirement was called "potential growth." Id., amend. 11, SOW, 5.1.2.2.b. The Air Force cautioned, "The actual amount of potential growth and the actual equipment required to support that growth (both model and size) are impossible to predict at this time." Id. amend. 11 at 2 of 5 (answer 2). The pricing tables included in proposals were to include CLIN 11, entitled "Additional Equipment." In amendment 11, the Air Force directed offerors to place in CLIN 11 -- firm-fixed-price fully burdened prices, by item and by FY [fiscal year], for hardware specified by the Offeror to satisfy the requirements of the proposed [CEC] and the growth path . . . , which includes the projected growth required by SOW Paragraph 5.1.2.2.a and potential growth required by SOW Paragraph 5.1.2.2.b. Protest File, Exhibit 7, amend. 11, J, Attachment L-1, 7.2.3.1.11. The agency said that "[f]or the growth requirements of the LCC [Life Cycle Cost], include only those items required to satisfy the projected growth requirements of SOW Paragraph 5.1.2.2a and the specific equipment items provided to satisfy the potential growth requirements of SOW Paragraph 5.1.2.2b that are mandated by your unique solution." Id., amend. 11 at 3 of 5 (answer 4). In discussions at the end of October, 1992, subsequent to issuance of amendment 11, the Air Force told offerors that prices "contained on the B-Tables supporting CLIN 11 will be evaluated and considered in the Source Selection decision." Specifically, "[t]hese prices will not be included in the Life Cycle Cost evaluation but will be presented to the SSA [source selection authority] as 'other cost' considerations." The Air Force also said that "potential growth items" would be subject to "a quantitative and qualitative assessment." The quantitative assessment would "be made using the prices proposed against a scenario developed by the Air Force." The qualitative assessment would "be provided to the SSA under the Technical portion of the proposal evaluation." Motion to Dismiss, Exhibit 3; see also GDE's Opposition, Exhibit 1. On December 3, 1992, the Air Force issued amendment 15, which contained information about evaluation of the costs of the proposals. The agency said that this information was being provided for clarification, and that the "Government does not anticipate that the Offerors will need to make any changes to their proposals based on this revision." Protest File, Exhibit 7, amend. 15, at 2 of 5. The Air Force stated in this amendment that it would make independent estimates of each cost element. It would use various scenarios, including a Basic Life Cycle Cost Scenario, which would not include CLIN 11; an Expanded Life Cycle Cost Scenario, which would include the projected growth part of CLIN 11; and a Total Life Cycle Cost estimate, which would include "[a] combination of Government and Offeror estimates for CLIN[] 0011." The potential growth part of CLIN 11, the Air Force said, "will be evaluated using separate scenarios prepared by the Government." Reiterating statements made in discussions, the agency said that these costs "will not be included in the Life Cycle Cost evaluation but will be presented to the SSA as 'Other Cost' considerations," and that quantitative and qualitative assessments would be made, with the former "using the prices proposed against a scenario developed by the Air Force." Id., M, at 15a-15c. Two weeks after issuing amendment 15, on December 17, 1992, the Air Force closed discussions and solicited best and final offers from the offerors. The offers were due one week later. Complaint, Answer, 22, GSBCA 12299-P, 20, GSBCA 12308-P. The protests The motion to dismiss contends that specific counts of all three protests are untimely filed. We list them here: -- Count I of GDE's protest alleges that the Air Force improperly evaluated the Total Life Cycle Cost of the proposals using an undisclosed growth path which is substantially different from the path established in the solicitation. Count I of each of the CSC and Grumman protests also maintains that the Air Force improperly evaluated Life Cycle Costs and other costs, with the result of artificially inflating the apparent costs of the protesters' proposals. -- Count II of the GDE protest complains that the improper evaluation affected technical as well as cost ratings, because the agency scored hardware that was listed in pricing tables, rather than what was proposed by the offerors in their technical solutions for the Consolidated Equipment Configuration. Count V of each of the CSC and Grumman protests makes a similar complaint, asserting that the technical evaluations of potential growth hardware bore no rational relationship to stated evaluation factors. -- GDE count VI and CSC count VI both allege that the Air Force not only made arbitrary evaluations of the technical and cost aspects of the proposals, but also gave cost far more weight than permitted by the solicitation. -- CSC count II and Grumman count II each maintains that the Air Force, without notice to the offerors, changed the fundamental purpose of the procurement: it converted the procurement from a need for consolidation of computing resources to a shopping list for the acquisition of vast quantities of computer hardware. CSC count III and Grumman count III each alleges that the Air Force did not obtain full and open competition to fill its true requirements because the vast potential growth portion of CLIN 11 provided the offerors with no standard or specifications on which to make their proposals. CSC count IV and Grumman count IV each asserts that by making a massive change in the nature of the procurement, the Air Force violated the constraints of the delegation of authority it had received from the General Services Administrator to conduct the acquisition. Timeliness The Air Force and BDM contend in their motion that solicitation amendment 10 "provide[d] a very detailed potential growth path" which the agency might use for evaluation purposes, and that amendment 11 "indicated that the B-1 tables should include proposed CECs on which CECs would include the projected growth path and the potential growth path set forth in the SOW." Motion to Dismiss at 13. Amendment 15, the argument continues, advised offerors that "the total life cycle cost estimate would include the sum of contract costs and other government contract costs," "including . . . estimates for CLIN[] 11." Id. at 14. Thus, according to the movants, everyone was on notice that the Air Force would evaluate hardware and costs involved in potential growth, using undisclosed scenarios. Everyone was also on notice, as stated in amendment 11, that the agency might well buy, against this contract, hardware for potential growth beyond what was contemplated elsewhere in the solicitation. As the protesters say in opposition, the motion is baseless. Amendment 10 did not provide any growth path whatsoever; the only path ever projected by the Air Force was the one in the solicitation as issued. Amendment 11 did not mention anything about "proposed CECs" or any "potential growth path;" it simply asked for a priced list of items that the Air Force might wish to purchase in addition to the items that were the core of an offeror's proposal for meeting initial requirements and projected growth. The agency was clear, both in discussions and in amending the solicitation, that items included in a proposal to meet projected growth requirements would be considered in evaluating the proposal's Expanded Life Cycle Cost. Although the Air Force said that costs for CLIN 11, which included both projected and potential growth items, were to be included in a Total Life Cycle Cost estimate, the agency's statements, taken as a whole, indicate that only the costs of the projected growth items should have been considered in this estimate. The costs of items proposed for the nonspecific potential growth were to be evaluated as "other costs." Further, as the protesters contend, although the solicitation did say that undisclosed scenarios would be used in evaluating potential growth costs, and that equipment proposed for potential growth would be evaluated in scoring the technical aspects of the proposals, none of this modified the essential nature of the procurement. The solicitation requested proposals to solve specified problems and stated that technical merit of those proposals was of paramount importance, with cost being worth less than one-fourth of the total evaluation. The protesters express astonishment that CLIN 11, which included such hardware, has a maximum value of $248 million, or sixty-nine percent of the maximum value of the entire contract, $362 million. It is the considerable amount of CLIN 11, rather than the fact that some sort of contractual vehicle for potential growth purchases would be awarded, that has triggered several of the counts. CSC notes that in responding to protesters' interrogatories, the Air Force concedes that "[r]espondent does not contend that the offerors knew or should have known that the value of the 'potential growth' portion of CLIN 0011 of the Contract would exceed the combined value of all other CLINs in the Contract." CSC's Opposition at 21; Air Force's Answers to Protesters' First Joint Set of Interrogatories at 53 (answer 146). Protesters' allegations are not complaints about the solicitation provisions themselves. Rather, protesters' premise is that the contract was awarded to BDM as a direct consequence of specified deviations from those provisions. By making the allegations within ten working days of the date on which they learned of that award, the protesters have brought these counts to us on time. Rule 5(b)(3)(ii). Decision The motion to dismiss various counts of the protests as untimely filed is DENIED. _________________________ STEPHEN M. DANIELS Board Judge We concur: _________________________ _________________________ CATHERINE B. HYATT ALLAN H. GOODMAN Board Judge Board Judge