THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING RELEASED TO THE PUBLIC IN ITS ENTIRETY ON JUNE 7, 1993 ____________________ DENIED: June 3, 1993 ____________________ GSBCA 12353-P DPSC SOFTWARE, INC., Protester, v. DEPARTMENT OF THE TREASURY, Respondent, and SHESHUNOFF INFORMATION SERVICES, INC., Intervenor. Richard A. Lebby of Encino, CA, counsel for Protester. Jerome M. Drummond, Office of Thrift Supervision, Washington, DC, counsel for Respondent. Kenneth B. Weckstein of Epstein, Becker & Green, Washington, DC, counsel for Intervenor. Before Board Judges BORWICK, HYATT, and VERGILIO. VERGILIO, Board Judge. On March 31, 1993, DPSC Software, Inc. filed a protest with this Board contesting various actions of the respondent, the Department of the Treasury, Office of Thrift Supervision (OTS), in awarding a contract to Sheshunoff Information Services, Inc., an intervenor of right. This was the second award determination made in this procurement. Initially, the agency selected the intervenor as the awardee. In response to an earlier protest by DPSC, the agency reopened the procurement while not suspending or terminating the underlying award to the intervenor. The agency conducted negotiations, requested multiple rounds of best and final offers, and again selected the intervenor. The protester asserts that the agency improperly conducted evaluations by failing to adhere to the terms of the solicitation. The protester also maintains that the intervenor improperly benefitted from its initial award, and as a result, the agency failed to obtain full and open competition. Further, the protester objects to the selection determination; it contends that it submitted an acceptable offer which should have been selected. The Board denies the protest. Although the evaluators made errors in the evaluation process (none of which were prejudicial to the protester), the contracting officer made the determination that the protester's best and final offer was unacceptable. That conclusion was consistent with the terms of the solicitation and the protester's final offer. The protester also has failed to demonstrate that the initial award to the intervenor tainted the procurement process or adversely affected the protester. Findings of Fact The solicitation and initial proposals 1. The agency issued a request for proposals (RFP) to satisfy a requirement for software packages, software support and modifications, manuals and publications, and training. Savings associations will utilize the electronic filing software packages in generating reports for the agency. Protest File, Exhibit 1 at 7-8 ( C). A firm, fixed-price contract was to result. Id. at 69 ( L.6). 2. In particular, four specific software packages are to be developed, identified by task number and a related report(s): Task 1 - Cost of Funds/Thrift Financial Report (COF/TFR); Task 2 - Consolidated Maturity and Rate (CMR); Task 3 - Branch Office Survey System (BOSS); and Task 4 - Home Mortgage Disclosure Act (HMDA). Protest File, Exhibit 1 at 17 ( F.6) and Addendum 1 (Statement of Work). The statement of work details particular attributes required of each software package, for example, involving data entry, editing, transmission, and uploading, as well as the format for the printed reports to be generated. Id. 3. The instructions to offerors clause requires a two-part proposal--a technical proposal and a cost proposal. Protest File, Exhibit 1 at 71 ( L.11.1(a)(1)). Moreover, The technical proposal must address all of the provisions described in Section C - Description/Specification/Work Statement, which is physically located as Addendum 1 under Section J of this solicitation. FU[R]THER, EACH OFF[ER]OR MUST PROVIDE DISKETTES TO DEMONSTRATE THE REQUIREMENTS OF EACH TASK (COF/TFR, CMR, BOSS AND HMDA) WITH THEIR PROPOSAL. FAILURE TO PROVIDE THE DISKETTES WILL BE GROUNDS FOR DISQUALIFICATION AS UNRESPONSIVE. Id. at 71-72 ( L.11.1(b)). 4. This latter message is emphasized in the evaluation scheme of section M. A paragraph captioned "TECHNICAL PROPOSAL EVALUATION CRITERIA" states: IMPORTANT NOTICE: A DISKETTE DEMONSTRATING EACH REQUESTED SOFTWARE PACKAGE (COF/TFR, CMR, BOSS AND HMDA) MUST BE RECEIVED WITH YOUR PROPOSAL. FAILURE TO PROVIDE THESE DISKETTES WILL DISQUALIFY BIDDERS AS UNRESPONSIVE. Protest File, Exhibit 1 at 76 ( M.4.I.(2)). 5. The solicitation specifies various deliverables and due dates under the contract. The first itemized deliverable is for each of the software packages (tasks 1 through 4). The due date specified for each of these items is "Proposal's Due Date." Protest File, Exhibit 1 at 17 ( F.6). However, for tasks one, two, and three, the statement of work elaborates on this requirement: The vendor shall, by "proposal due date, provide a copy of the input software package . . . for evaluation purposes. Also included should be cost breakdowns and technical descriptions sufficient to evidence functionality and compatibility with OTS systems and the IBM Information Network." Id., Addendum 1, Task One at 2 ( 1), Task Two at 2 ( 1), Task Three at 2 ( 1). For task four, the statement of work contains substantively identical language. Id., Task Four at 2 ( 1). 6. Amendment 1 of the solicitation, with an effective date of August 10, 1992, states that the solicitation "is hereby amended to incorporate the following": a. All "sample" diskettes, at a minimum, should demonstrate each of the following features: o Print feature - software must be able to print an output similar to each form; o Edit feature - software must provide sample edits (choose a few from those provided in each task of the statement of work); o Screen feature - screens on the software should look reasonably like the forms provided; and o IBM InfoNet Upload feature - software must create a test file and demonstrate an upload to the IBM Information Network. Further, you need to demonstrate the ability to handle the functionality of all applications but that demonstrating it in one application would be considered responsive and would be all that is necessary. Protest File, Exhibit 2 at 1-2. The amendment does not reference or identify any particular page or clause as being altered. Id. 7. The agency received initial proposals and awarded a contract to the intervenor in mid-October 1992. The protester filed a protest with the Board alleging impropriety in the evaluation process and objecting to the selection determination. The agency reopened the procurement. DPSC Software, Inc. v. Department of the Treasury, GSBCA 12315-P(12241-P), 1993 BPD 112 (Apr. 14, 1993). The agency informed the protester in a letter dated November 2: "Your company's proposal will be examined and scored based on the current submission in [the agency's] possession. Accordingly, no amended or supplemental materials will be accepted or considered by [the agency] during the evaluation process, which will be concluded by December 18, 1992." Protest File, Exhibit 24. By letter dated December 17, the agency informed the protester that its "decision to continue developing software . . . . is being done voluntarily and at DPSC's own risk. OTS has not requested that DPSC continue developing software, especially since the date for proposals has closed, and OTS accepts no responsibilities for any costs incurred by DPSC in so developing the software." Id., Exhibit 26. Deficiencies and solicitation amendments 8. By letter dated December 18, 1992, the agency informed the protester of deficiencies in its proposal. The agency initially requested a response addressing the deficiencies to be submitted by December 22. One specific deficiency identified as an item the "amended software needs to address" states: All four tasks should be demonstrated as well as all four features for each task. The four tasks are: ONE - COF/TFR; TWO - CMR; THREE - BOSS; and FOUR - HMDA. The four features which should be demonstrated in each task are: Print, Edit, Screen and IBM InfoNet Upload. All screens and edit steps noted in the RFP need not be evidenced. A sampling of each is sufficient to evidence appropriate operation. Protest File, Exhibit 4. 9. By letter dated December 21, the protester responded to the stated deficiencies. The protester states that the above- quoted paragraph, Finding 8: greatly changes what was requested in the RFP, and which was further clarified in the Amendment. It is now the understanding of DPSC that for each of the four tasks, the OTS is requesting that four features should be demonstrated in each task. Previously, based on the Amendment, it was the understanding of DPSC that the four features only needed to be demonstrated in one task. The four features that you are asking to be demonstrated are Print, Edit, Screen and IBM InfoNet Upload. In using the terminology "demonstrate" these four features in each of the tasks, you mean that sample screens or what is commonly referred to as a "mock up" screen will be sufficient for purposes of demonstrating the four features. That is to say that DPSC will create sample screens with fictitious data that is utilized solely for the purpose of demonstrating how the various computer screens will look, how a user will be able to edit and print, and what type of keystrokes and other processes will be required to make use of the IBM InfoNet Network. This does not mean that actual or live data will be utilized and it is not necessary that the program be fully functional or even that it actually works. Rather, it is sample data that is used for demonstration purposes only so that the evaluators will be able to see how the program will operate once it is completed. This is what we understand you to mean by the phrase "all screens and edit steps noted in the RFP need not be evidenced. A sampling of each is sufficient to evidence appropriate operation." Again, this means that actual or live data will not be used and the program need not actually operate with actual data. The only data that will be utilized will be for sample purposes as a demonstration of how the system will ultimately operate. Protest File, Exhibit 5. 10. Amendment 3 of the solicitation, with an effective date of December 22, states that its purposes "are detailed below." In addition to extending the due date for revised proposals, the amendment states: -B. The Government hereby defin[e]s the following word(s) and the software submissions requirements of the RFP. 1. Wherever the words "demonstrating" and "demonstrate" are used to refer to the requirements set forth in the RFP, for the diskettes to be submitted, they shall mean: All requirements as specified in the RFP are operational. 2. All screens and edit steps specified in the RFP must be addressed in your proposal. Further, all screens and edit steps MUST be operational. 3. Separate diskettes for each of the four tasks . . . . demonstrating all requirements specified in the RFP's statement of work, must be provided. 4. All screens on the software should look reasonably like the forms provided in the RFP. Protest File, Exhibit 7 at 3. The amendment does not reference or identify any particular page or clause as being altered. Id. 11. Thereafter, before the protester responded to the deficiency letter, the agency issued amendment 4, with an effective date of January 7, 1993. The amendment extends the date for receipt of revised proposals and notes: -B. The Government's definition of the following word(s) and software submission requirements of the RFP follows: 1. The phrase "to demonstrate the ability to handle the functionality of all applications" as used in Amendment No. 01 to RFPTOT 92-0025, dated August 10, 1992, means and refers to the requirement that there are four different tasks identified in the RFP. The "Four Tasks" are: Task 1 - Cost of Funds/Thrift Financial Report (COF/TFR); Task 2 - Consolidated Maturity and Rate (CMR); Task 3 - Branch Office Survey System (BOSS); and Task 4 - Home Mortgage Disclosure Act (HMDA). At a minimum, the offeror must be able to show the format of the input screens (i.e., how they will look on the video display terminal ["VDT"][)], the keystrokes necessary to input data, print, edit and use the IBM InfoNet Network, and the format of the reports as they should appear. The software must accept data and make calculations and edits when the OTS enters test data within the sample screens provided. 2. Separate diskettes for each of the Four Tasks (COF/TFR, CMR, BOSS and HMDA) must be provided by all offerors. 3. The term "demonstrate" shall mean that the VDT will show, once the software is loaded, the format of sample screens and sample reports for each task. Actual calculations and edits of the samples provided for each task are required and they must be operational. 4. All screens on the software must look like the forms provided in the RFP for each task. Protest File, Exhibit 8 at 3. The amendment does not reference or identify any particular page or clause as being altered. Id. 12. The protester submitted a response dated January 13, 1993. Protest File, Exhibit 9. Regarding the four tasks and four features referenced in the agency's deficiency letter, Finding 8, the protester stated that it has delivered software which demonstrates all four features of all four tasks. These four tasks may be operated separately or as menu selections from a single central menu. DPSC has included a sampling of CMR edits and CMR screens. The other three tasks are complete, to the degree that they can be without direct consultation with the OTS. Protest File, Exhibit 9 at 9. 13. The agency requested and received best and final offers at the end of January. Protest File, Exhibits 11, 12. 14. By letter dated February 22, the agency informed the protester of deficiencies and weaknesses in its revised technical proposal. For example, "The software, while addressing all four tasks, did not fully conform to the specifications in the RFP. Screens, edits, generated line items, print and upload functions for TFR did not reflect the 1993 version of the report." The letter identified specific weaknesses in each of the four tasks. It also stated that a specific function in the software for tasks one and two did not function. Protest File, Exhibit 14. 15. Under cover letter dated March 4, the protester responded to the deficiency letter. Protest File, Exhibit 15. 16. By letter dated March 11, the agency requested a best and final offer due on March 12 at noon, eastern time. Protest File, Exhibit 16. The protester submitted a timely best and final offer. Id., Exhibit 17. Final evaluations and selection 17. The solicitation contains the following paragraph regarding selection: Contract award shall be made to the responsible offeror/bidder whose offer/bid, conforming to this RFP, is most advantageous to the Government, technical evaluation factors, cost and other factors considered. The Government's objective is to obtain the highest technical quality necessary to achieve the objectives within a realistic and reasonable cost. Technical evaluation factors as a whole are more important than cost; however, between proposals that are evaluated as SUBSTANTIALLY TECHNICALLY EQUAL in quality, then the cost to the Government will be a major selection factor. Protest File, Exhibit 1 at 78 ( M.4.II). 18. Regarding the evaluation of technical proposals, the solicitation provides: "The technical criteria is listed in the descending order of the weight to be allocated to it." Protest File, Exhibit 1 at 76 ( M.4.I). Additionally, "The factors are listed in descending order of importance." Id. ( M.4.I.(1)(A)). There follows three listed factors, each with subfactors: (A) management plan; (B) technical capabilities; and (C) related corporate experience and resources. Id. at 76-78. 19. Under the "technical capabilities" factor, the solicitation groups subfactors into two categories. Under the first, five subfactors are listed under the caption "Offeror's must show." The second listed subfactor states: "Demonstrated ability to provide electronic filing software, with extensive validation criteria, for the MS-DOS, PC-DOS, or compatible operating system environment, on a large scale and remote basis." Under the second category, four subfactors are listed under the caption "Software related." The first subfactor states: "Demonstrated ability to input general ledger (G/L) data downloaded directly to a PC and converted to report filings." The third subfactor states: "Demonstrated ability to edit and print data properly once it has been entered through data entry screens." Protest File, Exhibit 1 at 76-78 ( M.4.I.B). 20. In evaluating the protester's ultimate best and final offer, the evaluators examined the capabilities of the software submitted with that offer. That software did not perform various of the required edit and print functions. In terms of scoring, the deficiencies in the software adversely affected the scores protester received for the three subfactors noted in Finding 19; that is, the evaluators did not treat as distinct the requirements a proposal was to satisfy through writing or description as opposed to through the operation of software. Protest File, Exhibits 18.A at 1, 6-9; 18.B at 1-2, 9-10, 14, 16; 18.C at 1, 10-11, 15, 18-19. The recommendations and comments of the evaluators contain mini-diatribes regarding risk assessment and the importance of the tasks at hand, although the gratuitous language is not attributed to any factor or subfactor. These considerations do not appear to have influenced the scoring of the itemized criteria. 21. In scoring the technical proposals, the agency did not weight the factors or the criteria in descending order of importance. Protest File, Exhibit 18.D at 5-7. Moreover, one solicitation-listed subfactor for technical capabilities was not scored by the evaluators. Id. Fourteen subfactors were scored by each of three evaluators. The intervenor's ultimate best and final offer scored lower than the protester's on only one subfactor (by one of the three evaluators and in the average score for that subfactor). Id. Given the actual scoring on each item, even if corrections are made such that the proposals are not down-graded for software under the "offerors must show" criterion noted in Findings 19 and 20, the relative ranking (percentage difference) would not be substantially altered if the weighting were consistent with the solicitation-stated order of importance (whether subfactors are weighted equally or in descending order of importance). 22. Regarding the protester's ultimate best and final offer, the technical proposal evaluation committee (TPEC) opined, in its summary report to the contracting officer, that the protester's "technical proposal was sufficient to meet the minimum standards for consideration"; however, it also noted that, while [the protester] provided the four tasks as required in the RFP, there were major technical deficiencies in two of the four tasks (COF/TFR and CMR). Critical features such as screens, data entry, edits, and transmission were either incomplete or did not work. Protest File, Exhibit 18.D at 2. The report also states that the protester "failed to provide demonstration software that operated properly, and was representative of the requirements in the RFP," and that the "demonstration software was not developed so that all tasks could be fully evaluated." Id. at 2-3. The record supports these conclusions of the technical evaluators. Transcript at 88-89, 92-93, 98-99, 102-03, 112-13, 145; Finding 20. 23. In a memorandum to the file, dated March 25, 1993, regarding contract award, the contracting officer observes: -[The protester] did finally provide the four tasks as required by the RFP, as amended, but, there remained technical deficiencies in two of the four tasks (COF/TFR and CMR), i.e., they provided only a few minor balance and months edits for CMR (even after OTS noted that this was an insufficient response in a deficiency letter); did not address Optional CMR schedule; COF screens were not correct (screen brought up quarterly data and made computations based on this data). Using quarterly data as monthly data led to incorrect COF results; in their final technical response to deficiencies, some features that previously worked were broken and thus no longer worked, e.g., Ledger Link upload feature. Protest File, Exhibit 19 at 3.[foot #] 1 The memorandum also specifies: the technical proposal submitted by DPSC failed noticeably in one of the most critical elements of the requirement, that of the actual software performance. With the technical deficiencies that remain, as identified by the TPEC in their written analysis, DPSC's proposal is determined to be "technically unacceptable" to the Government because it does not meet the mandatory requirements of the RFP. DPSC's proposal, after discussions (verbal and written), remains deficient because it: -Failed to prove, through the submissions of their demonstration software, that they can perform the mandatory requirements as stipulated in the RFP. Throughout the evaluation process, DPSC was notified of their proposal deficiencies by letters, ----------- FOOTNOTE BEGINS --------- [foot #] 1 The reference to an optional CMR schedule concerns a required attribute of the CMR software package; that is, the schedule was optional with respect to potential use, it was not optional for an offeror to satisfy or not. Protest File, Exhibit 1, Addendum 1, Task Two, at 3 ( B.5 through B.9) and Attachment 11 at 11-1. ----------- FOOTNOTE ENDS ----------- conference calls and clarifying amendments to the RFP. For whatever reason (for example see DPSC's March 4, 1993 written technical response, page 9), DPSC failed/refused to provide demonstration software that operated properly, and was representative of the mandatory requirements in the RFP. Due to these remaining flaws, as spelled out in the TPEC's written analysis, DPSC's proposal is considered technically unacceptable. Id. at 4. The record fully supports the conclusions regarding the technical shortcomings of the software the protester ultimately submitted. 24. The agency awarded a contract to the intervenor on or about March 25, 1993--the award underlying this protest action. The contracting officer did not expressly make a technical-cost comparison between the intervenor's and the protester's offers, because she viewed the protester's offer to be technically unacceptable. The contracting officer was aware of the intervenor's price, however, and concluded that its price was reasonable. Protest File, Exhibit 19; Transcript at 391-92, 393- 94. 25. The record does not enable the Board to conclude that any communications occurred between the intervenor and the agency during the negotiation process which were significantly different from those that occurred between the protester and the agency or which were inconsistent with negotiations permitted by statute and regulation. Moreover, the record does not suggest that the agency has paid the intervenor for any software development under the initially awarded contract, although the protester has made allusions to actual payments. Discussion As noted in its pre-hearing brief, Pre-Hearing Brief at 2, and clarified during the hearing on the merits, Merits Transcript at 433-45, 449-53, the protester pursues three general issues of protest. One alleges that the agency failed to evaluate the proposals in accordance with the terms of the solicitation. Another alleges that full and open competition could not take place, based upon advantages accruing to the awardee from the initial award. A third alleges that the protester demonstrated the operational capability of its software such that it submitted an acceptable offer, and should have received the award under the solicitation's selection criteria. Solicitation requirements Underlying a substantial portion of the protest is the protester's contention that its final offer was acceptable and fully compliant with the requirements of the solicitation, as amended. The protester construes the solicitation as largely requiring developmental (as opposed to more fully developed) software with the proposal; the protester asserts that the solicitation did not permit down-grading an offer for various shortcomings of the proposal software. The protester maintains that the agency should have recognized that it could and would accomplish all tasks, even if the final offer software did not so demonstrate, such that the agency improperly deemed the protester's final offer to be unacceptable, and improperly undervalued and underrated its capabilities. Although the solicitation, with its amendments, does not constitute a model request for proposals, the amended solicitation establishes a requirement that the best and final offer include separate diskettes, for each of the four tasks, able to demonstrate particular features. That software must be capable of showing the format of sample screens and sample reports. Further, "the software must accept data and make calculations and edits when the OTS enters test data within the sample screens provided." Findings 3, 4, 6, 10, 11. Moreover, the final deficiency notice to the protester underscores this interpretation, as the agency highlighted as deficiencies in the protester's software the lack of conformity to the requirements. Finding 14. The interpretation should not have come as a surprise to the protester, particularly in light of its correspondence with the agency, which suggests that the protester shared this interpretation. Finding 9. The Board concludes that the protester's interpretation of the solicitation's requirements is unreasonable and incorrect. The solicitation established minimum criteria for the demonstration software to satisfy. The software packages submitted with the protester's final offer did not demonstrate some of the required features. For example, some calculations were incorrect; other features were disabled. The conclusion of the contracting officer that the final offer is unacceptable, Finding 23, is amply supported in the record. The determination is fully consistent with the solicitation-stated evaluation criteria and the final offer. This conclusion is not dependent upon the actual weighting of the evaluation criteria or the actual scoring by the evaluators. Rather, the contracting officer looked to the characteristics of the proposed software and concluded that the final proposal was unacceptable. The protester had the opportunity to correct deficiencies in its software packages; it failed to do so. The contracting officer made a reasoned and reasonable determination. Having resolved this fundamental question involving the requirements of the solicitation, the particular issues raised by the protester may be addressed. Evaluations The protester maintains that the weights of the technical proposal criteria were inconsistent with those described in the solicitation. The protester is correct; factors and subfactors were given weights contrary to the terms of the solicitation. Findings 18, 21. However, this impropriety by the evaluators does not establish a basis to grant the protest. The agency reasonably concluded that the protester's final offer was unacceptable. Rescoring the proposal would not have made the offer acceptable; the deficiencies were attributable to the software, not the weighting. That is, the contracting officer's ultimate determination was not dependent upon the scoring. Instead, the attributes (or lack thereof) of the protester's final offer were considered against the requirements of the solicitation. Even had the contracting officer relied upon the scores, the protester has not demonstrated how it was prejudiced by the weighting utilized. Reweighting the factors would not have improved the relative standing of the protester--protester's final offer would remain substantially inferior to that of the intervenor. A similar analysis is equally applicable to the allegation that the evaluations were inconsistent with the stated criteria. The evaluators scored software capabilities under technical criteria identified as relating to other than the software. Findings 19, 20. As a result, some of the scoring was inconsistent with the terms of the solicitation. However, the record supports the conclusion that the final offer submitted by the protester was not acceptable. The software failed to perform properly various tasks required under the solicitation. Although protester's score should have been greater for some of the subfactors, a change in the scoring would not have affected the acceptability determination and would not have made protester's final offer substantially technically equal to that of the intervenor. Full and open competition Protester maintains that full and open competition could not, and did not, occur because of the initial award to the intervenor. In particular, the protester contends that it was at a distinct and improper disadvantage because the intervenor continued to develop the software packages while the procurement process continued toward the ultimate selection determination. The agency and intervenor contend that this basis of protest is untimely. This basis of protest is untimely to the extent that it alleges that impermissible procurement practices arose from the simple actions of conducting negotiations and of accepting revised proposals as the bases for the selection determination. By letter dated December 18, the protester was aware that the agency was not going to make an award based upon initial proposals. The protester knew that the agency was conducting negotiations and sought (multiple rounds of) best and final offers. The protester did not protest prior to the due date for revised proposals. Additionally, by resolving its initial and subsequent protests without pursuing any objection to the agency's conduct, the protester acquiesced in the basic agency actions. Rule 5(b)(3)(ii); DPSC, 1993 BPD 112. The allegation does encompass the notion that the agency's actual actions resulted in an impermissibly inequitable competition. However, the record fails to support such a conclusion. There is no indication that there existed improper or inappropriate communications between the intervenor and the agency under the initial contract. Further, the record does not demonstrate that the intervenor benefitted, monetarily or otherwise, under the initial contract. The protester has not met its burden of proof regarding this basis of protest. Innuendo and suspicion are insufficient to support credible findings of fact. Selection and price The protester faults the agency for failing to consider price in the selection determination. Much of this allegation is premised upon testimony of a technical evaluator that price was not considered in the recommendation of the TPEC to the contracting officer that the final offer of the intervenor was superior to that of the protester. The protester misapplies facts in its assertion. The technical panel considered the technical proposals, not the cost proposals. The protester has not suggested a statute, regulation, or any term of the solicitation which would be violated by the technical panel not considering price. Viewed from another angle, the protester has not suggested why it would have been appropriate for the technical panel to consider price in reaching conclusions regarding the technical attributes of the offers. The contracting officer was cognizant of the price of the intervenor's final offer. Having reached the conclusion that the protester's final offer was unacceptable, there was no longer a technical-cost trade-off to make. Opportunity to fairly compete The protester asserts that it lacked a reasonable opportunity to satisfy the solicitation requirements or to correct any alleged technical weaknesses or deficiencies. Prior to the award determination and this protest, the protester did not pursue any basis of protest alleging that it had insufficient time to prepare a response to a deficiency letter or to submit best and final offers. By the date of award and by the later date of this protest, the time for submission of proposals long had passed; it was untimely to assert that the time periods for submissions were improperly short. Rule 5(b)(3)(i). The protester uses the request for final offers as an example of how the agency frustrated its abilities to respond to the procurement. The agency did allow scant time for the final offer. Finding 16. However, the protester had recently submitted a response to a deficiency letter, and did not seek more time to submit its final offer. The negotiation process, with deficiency letters and responses, had extended over a period of several weeks, such that the protester did have time to prepare the software for submission with its final offer. Given these factors, without a compelling demonstration by the protester, the Board finds no impropriety in the fast-paced turnaround from the request for final offers to their due date. Contrary to the protester's assertions, it was not prevented from demonstrating its ability to comply with the solicitation requirements. The agency did inform the protester by letter dated December 17, 1992, that it was not requesting the protester to continue developing software. That statement, however, also noted that the date for receipt of proposals had closed. The implication was that a selection determination would be made without further submissions by offerors. Finding 7. Thereafter, the agency commenced negotiations, issued deficiency letters, and requested best and final offers (multiple rounds). The amendments to the solicitation and the information in the deficiency letters put the protester on notice of what it was expected to demonstrate in its final offer. Findings 8, 10, 11, 14. Decision The protester has alleged and demonstrated two violations by the evaluators--technical criteria were not weighted in accordance with the terms of the solicitation, and the evaluators misapplied some of the evaluation criteria. However, the record reveals that if the technical criteria were appropriately weighted and scored, the protester would not have improved its position relative to the intervenor. Thus, the actions of the evaluators did not prejudice the protester's competitive position. More importantly, the protester has not demonstrated any impropriety in the conclusion of the contracting officer that its final offer was unacceptable. The record supports the reasonableness of that determination. Despite the improprieties by the evaluators, the protester has not demonstrated any violation in the ultimate agency actions. Accordingly, the Board DENIES the protest. The previously-entered partial suspension of the agency's procurement authority (which prohibited the agency from effectuating acceptance while this protest is pending at the Board) lapses by its terms. DPSC Software, Inc. v. Department of the Treasury, GSBCA 12353-P, 1993 BPD 114 (Apr. 16, 1993). _________________________ JOSEPH A. VERGILIO Board Judge We concur: _________________________ _________________________ ANTHONY S. BORWICK CATHERINE B. HYATT Board Judge Board Judge