THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING RELEASED TO THE PUBLIC IN REDACTED FORM ON JUNE 28, 1993 RESPONDENT'S MOTION FOR PARTIAL SUMMARY RELIEF GRANTED: June 9, 1993 GSBCA 12417-P INTEGRATED SYSTEMS GROUP, INC., Protester, v. DEPARTMENT OF THE ARMY, Respondent, and SYSCON CORPORATION, and INTERMEC CORPORATION, and FEDERAL COMPUTER CORPORATION, Intervenors. Shelton H. Skolnick, Judy D. Leishman, and Amy M. Hall of Skolnick & Leishman, P.C., Derwood, MD, counsel for Protester. COL Riggs L. Wilks, Jr., MAJ Charles R. Marvin, Jr., MAJ Karl M. Ellcessor, III, MAJ Roger D. Washington, and MAJ Rose J. Anderson, Office of the Chief Trial Attorney, Department of the Army, Arlington, VA, counsel for Respondent. Arthur M. Rayman of SYSCON Corporation, Washington, DC, counsel for Intervenor. John W. Sobba of Intermec Corporation, Everett, WA, counsel for Intervenor. David S. Kovach of Federal Computer Corporation, Falls Church, VA, counsel for Intervenor. Before Board Judges BORWICK, HYATT, and GOODMAN. GOODMAN, Board Judge. Protester, Integrated Systems Group, Inc. (protester or ISG), has protested the terms of a Department of the Army (respondent or Army) solicitation for the purchase of a bar coding system. Protester filed its protest on May 5, 1993, before the time established in the solicitation for receipt of proposals that same day. Three offerors - SYSCON Corporation, Intermec Corporation, and Federal Computer Corporation - have intervened in the instant protest. Respondent has filed a motion for partial summary relief pursuant to Board Rule 8(c) with respect to count 2 of the protest, specifically, the part of count 2 which challenges the Army's evaluation methodology as being "unclear" and any similar issue incorporated by reference from protester's agency protest.[foot #] 1 For the reasons set forth below, respondent's motion for partial summary relief is granted. Findings of Fact 1. Solicitation no. DAHC94-93-R-0002 was issued on March 5, 1993, for Automatic Identification Technology (AIT) identification equipment, software, and services, with proposals due to the Army not later than May 5, 1993. Award of the contract is scheduled to occur in November 1993. The objectives of the AIT program are to provide a common, integrated structure for the automatic collection, storage, retrieval, processing, transmission, and receipt of data; standardization and interoperability among Government users of AIT equipment; and flexible systems and equipment that can grow in size and capability, adapting to the needs of the Government. Protest File, Exhibit 1. 2. The solicitation calls for prospective offerors to provide all necessary AIT hardware, software, firmware, cables, connectors, accessories, maintenance, training, and documentation, as well as the technical engineering services necessary to configure, operate, and maintain the appropriate AIT hardware and software. The Army seeks equipment that represents ----------- FOOTNOTE BEGINS --------- [foot #] 1 In particular, that portion of protester's complaint which states: 2. . . . The solicitation remains . . . unclear (evaluation methodology). ----------- FOOTNOTE ENDS ----------- "state-of-the-art" technology. Protest File, Exhibit 1 at C-3, Section C.3.1.7.a. 3. Section M.3 of the solicitation requires that the Army award the contract to the offeror who provides the "best value" to the Government. Section M.3 of the solicitation provides in part: M.3 BASIS FOR AWARD ("BEST VALUE" EVALUATION) An award will be made to that responsible acceptable offeror based on all evaluation criteria described in this section and is deemed to be in the best interest of the government considering technical, management and logistics, and cost, whose prices are otherwise determined to be fair and reasonable. . . . . M.4.3 Evaluation Areas of Consideration. Consideration shall be given to the areas below. Evaluation shall be based upon the criteria stated in Section M as well as the requirements stated in Section C. All mandatory requirements set forth in the specification shall be met. The results of the evaluation shall be based on an integrated assessment of each Offeror's proposal using both external and Offeror-provided data as well as the demonstration. The Offerors' proposals shall be evaluated and rated by the Government. The assessment shall address the following areas: (1) Technical; (2) Cost; and (3) Management and Logistics. Technical and Cost are comparatively equal and are significantly more important than Management and Logistics. Comparatively equal is defined as criterion that is the same in value as another criterion; any difference is very slight and unimportant. Significantly more important is defined as criterion that is two times or greater in value than another criterion. Protest File, Exhibit 1 at M-2 to M-3. 4. The three areas to be evaluated by the Government are described in detail in the solicitation. Section M.4.3.1, Technical, sets forth the items, elements, and sub-elements comprising the technical area. The technical area consists of three items, listed in descending order of importance: (1) Hardware, (2) Software, and (3) Technical Engineering Services. The hardware item contains thirty-seven individual elements, and each of these thirty-seven elements is further subdivided into various sub-elements that the Government would utilize in the evaluation of hardware performance and capacity. The software item consists of three individual elements, and each of these three individual elements is further subdivided into various sub- elements that the Government would utilize in the evaluation of software performance and capacity. The technical engineering services item contains seven individual elements, and each of these seven individual elements is further subdivided into various sub-elements that the Government would utilize in the evaluation of the offeror's ability to provide the required services. Protest File, Exhibit 1 at M-3 to M-12. Section M.4.3.2, Cost, sets forth the items, elements, and sub-elements contained in the cost area. The cost area consists of eight items: (1) Hardware, (2) Software, (3) Maintenance, (4) Documentation, (5) Training, (6) Technical Engineering Services, (7) Reasonableness, and (8) Risk. The Government is to evaluate these eight items by utilizing a cost evaluation model that is specified in Section M.5 together with other instructions contained in Section M.4.3.2. of the solicitation. The end result is to arrive at the most probable total cost evaluation of all offers. The relative importance of the subfactors of the cost area is a function of the cost model. Protest File, Exhibit 1 at M-12 to M-13, M-15 to M-27. Section M.4.3.3, Management and Logistics, sets forth the items, elements, and sub-elements included in the management and logistics area. The management and logistics area consists of seven items, listed in descending order of importance: (1) Life Cycle Support, (2) Maintenance, (3) Performance and Experience, (4) Training, (5) Documentation/Data, (6) Plans, and (7) Small and Small Disadvantaged Business Utilization. The life cycle support item is subdivided into various sub-elements that the Government would utilize in the evaluation of the offeror's proposed life cycle support solution. The maintenance item contains two individual elements, and each of these two elements is further subdivided into various sub-elements that the Government would utilize in the evaluation of the offeror's methodology for providing maintenance and its proposed warranty support solution. The performance and experience item does not contain any individual elements that the Government would utilize in the evaluation of the offeror's past and present performance and experience with programs of similar size and complexity to that of AIT. The training item contains four individual elements, and each of these four elements is further subdivided into various sub-elements that the Government would utilize in the evaluation of the offeror's methodology for providing the required training courses, documentation, training materials, video capability, and the Software Developer Course. The documentation/data item contains two individual elements, and each of these two elements is further subdivided into various sub-elements that the Government would utilize in the evaluation of the offeror's performance and capabilities stated in the offeror's MANPRINT Program Plan. The plans item contains two individual elements, and each of these two elements is further subdivided into various sub-elements that the Government would utilize in the evaluation of the offeror's configuration management plan and management plan. The small and small disadvantaged business utilization item contains three individual elements, and each of these three elements is further subdivided into various sub-elements that the Government would utilize in the evaluation of the offeror's goals for subcontracting with small and small disadvantaged businesses. Protest File, Exhibit 1 at M-13 to M-14. Section M was revised by amendments subsequent to the date designated for receipt of offers. Protest File, Exhibits 2-5. 5. Specific minimum requirements for the area and items listed in Section M were contained in Section C of the solicitation. The areas and items of Section M are cross- referenced to the corresponding requirements in Section C. The solicitation reads, in pertinent part: C.3.1.2. Mandatory Requirements. The Contractor shallsatisfy all stated technical requirements of this Specification and the referenced Attachments and Exhibit. Requirements are a stated minimum, unless specified otherwise. Protest File, Exhibit 1 at C-2 to C-3. 6. To assist vendors in responding to the subject solicitation, the Army established an electronic bulletin board that it would use to update vendors on questions and modifications concerning the solicitation. Protest File, Exhibit 1. 7. During the period April 7-29, 1993, protester submitted several questions to the Government. Protest File, Exhibit 27; Respondent's Motion for Partial Summary Relief, Exhibit G-2. 8. On April 22, 1993, protester submitted Question 172, which sought clarification of certain evaluation "criteria" stated in sections M.4.3.1.b.(1)(a), M.4.3.1.b.(1)(c), and C.4.14. Protest File, Exhibit 24; Respondent's Motion for Partial Summary Relief, Exhibit G-2. 9. On April 27, 1993, the Army answered Question 172. The Army's response provided further explanation of its evaluation methodology as required by Part 15 of the Federal Acquisition Regulations (FAR). The Army also stated: RESPONSE: The evaluation of the solicitation will be performed in three 'areas' as described in M.4.3. These areas are comparable to the evaluation factors discussed in the FAR, Part 15.605(e), which requires that factors and significant subfactors be identified together with their relative importance. These areas are Technical, Cost and Management and Logistics. The solicitation further states that Technical and Cost are comparatively equal and are significantly more important than Management and Logistics. Subordinate to each 'area' there are 'items' (subfactors in the FAR) which will be evaluated. Pertinent to your question, under the area of Technical there are three items which will be evaluated. As stated in M.4.3.1.b they are Hardware, Software, and Technical Engineering Services. These were listed in descending order of importance. Subordinate to each 'item', there are a number of 'factors' which will be evaluated. This is at an even finer granularity than discussed/required in the FAR. Pertinent to your question, under the item of Hardware, 37 separate factors will be evaluated. They are identified in each of 37 paragraphs, M.4.3.1.b(1)(a), Portable Data Collection Device (PDCDs), through M.4.3.1.b(1)(ak), Magnetic Stripe Reader. In each of these paragraphs, at an even finer granularity, those attributes of particular emphasis are identified. If a product takes advantage of some technological innovation which does not contribute to any functionality identified by the Government in Section M, then the offeror will not be provided any competitive advantage for that particular innovation. In many cases, at this very low level of granularity the Government considers it unreasonable to identify specific approaches which are 'preferred'. Further, if that were done it would tend to influence a solution. Where the Government had specific minimum requirements, they were identified in Section C, and those will be evaluated. The Government has attempted to keep specific technical requirements to a minimum and describe the equipment in functional terms where possible to allow offerors to propose what they believe provides a solution with the greatest value to the Government. Technical excellence has been identified as an area of significant interest to the Government. The Government considers that the evaluation criteria set forth in Section M meets the FAR requirement. The Government has identified subfactors within the technical area that will be considered, and indicated their relative importance. Within each of those subfactors, the Government has identified the components that comprise the subfactor and then the Government has expanded upon those characteristics that will be considered and may contribute to increased value to the Government. The Government considers that it is not required, nor reasonable to rank order and narrowly define each of a myriad of characteristics at so low an echelon below the primary concern of technical excellence. REQUIRED SOLICITATION CHANGE(S): NONE Respondent's Motion for Partial Summary Relief, Exhibit G-2. 10. On April 27, 1993, the Army also received question 173. Protester repeated its challenge of the Section M evaluation criteria by arguing that the criteria were characterized by "such a lack of specificity or direction that it is virtually impossible to accurately ascertain a clear idea of the systems sought by the government." Protester further objected to the use of terms like "user friendly" and "high performance." Protest File, Exhibit 25; Respondent's Motion for Partial Summary Relief, Exhibit G-2. 11. 12. On May 3, 1993, protester filed an agency protest with the U.S. Army Information Systems Selection and Acquisition Agency (ISSAA). Protest File, Exhibit 28. 13. On May 4, 1993, the contracting officer denied protester's agency protest. Protest File, Exhibit 31. 14. On May 5, 1993, protester filed the instant protest, which included as a ground of protest that the Army's "evaluation methodology" was unclear. The protest was filed before the time established in the solicitation for receipt of proposals. Protest Complaint. 15. Discussion Respondent moves for partial summary relief with respect to count 2 of the protest; specifically, that part of count 2 which challenges the Army's evaluation methodology as being "unclear" and any similar issue incorporated by reference from protester's agency protest. The basis of the motion is that the solicitation meets the statutory and regulatory requirements, in that it sets forth all significant factors and subfactors the Government will consider in evaluating the proposals, as well as the relative importance assigned to each factor. In response, protester asserts that there are material facts in dispute, including: (1) whether Section M of the solicitation sets forth the relative importance assigned to each factor; (2) whether the evaluation criteria in Section M are clear and unambiguous; and (3) whether the Section M evaluation methodology is clear and unambiguous. In support of its argument, protester states that: Solicitation Section M contains numerous factors and/or subfactors without any indication of their relative importance. Specifically, the 37 factors and/or subfactors in Sections M.4.3.1.b.(1)(a) through M.4.3.1.b.(1)(ak) have no indication of their relative importance for the Respondent's evaluation of the hardware proposed by the offerors. Also, the 3 factors and/or subfactors in Sections M.4.3.1.b.(2)(a) through M.4.3.1.b.(2)(c) have no indication of their relative importance for the Respondent's evaluation of the software proposed by the offerors. Thus, the Protestor vigorously disputes the Respondent's opinion that 'the solicitation details all significant factors and their relative weights.' Protester's Reply to Respondent's Motion for Partial Summary Relief at 2. Summary judgment is properly granted only where there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. All evidence must be viewed in a light most favorable to the opponent (or non-movant) and all reasonable inferences must be drawn in the non-moving party's favor. John C. Cruden, GSBCA 9331, 89-1 BCA 21,348. We must, therefore, review the language of the solicitation in light of the applicable statutory and regulatory requirements in order to ascertain if there are questions of material fact in dispute. The Competition in Contracting Act (CICA) requires that solicitations issued by procuring agencies contain information necessary to enable offerors to prepare their proposals, and requires disclosure by such agencies of all significant factors that will be considered in their respective evaluations of competitive proposals. 10 U.S.C. 2305(a)(2)(A) (Supp. IV 1992). This requirement was implemented by 48 CFR 15.406-5(c) (1992) (FAR 15.406-5(c)), which reads as follows: (c) Section M, Evaluation factors for award. Identify all factors, including cost or price, cost or price-related factors, and non-cost or non-price- related factors, and any significant subfactors that will be considered in awarding the contract (see 15.605(e) and (f) and the multiple award provision at 52.215-34) and state the relative importance the Government places on those evaluation factors and subfactors. FAR 15.605(e) also requires: (e) The solicitation shall clearly state the evaluation factors, including cost or price, cost or price-related factors, and non-cost or non-price- related factors, and any significant subfactors, that will be considered in making the source selection and their relative importance (see 15.406-5(c)). Numerical weights, which may be employed in the evaluation of proposals, need not be disclosed in solicitations. The solicitation shall inform offerors of minimum requirements that apply to particular evaluation factors and significant subfactors. Respondent contends that Section M as written meets the applicable statutory and regulatory requirements. We agree with respondent. Section M of the solicitation meets the statutory and regulatory requirements for setting forth the significant factors and subfactors that the Government will utilize in its evaluation of offerors' proposals and their relative importance. 1. The Evaluation Factors, Significant Subfactors, and Their Relative Importance are Clearly Stated The Army explained to protester in response to protester's inquiry that it was to perform its evaluation of the solicitation in three "areas": (1) Technical; (2) Cost; and (3) Management and Logistics, as described in Section M.4.3. These areas are comparable to the evaluation factors discussed in FAR 15.605(e), which requires that factors and significant subfactors be identified together with their relative importance. Finding 9. Section M.4.3 states the relative importance of these areas, in that the technical and cost areas (or factors) are to be "comparatively equal" and are to be "significantly more important" than the third area (or factor) of management and logistics. The terms "comparatively equal" and "significantly more important" are adequately defined. Finding 3. Subordinate to each "area" are "items," which the Army analogized to the "subfactors" identified in FAR 15.605(e), and the solicitation lists the relative importance of these items in relation to one another. Finding 9. Within the technical area, the three items that will be evaluated are: (1) Hardware, (2) Software, and (3) Technical Engineering Services, and the solicitation lists these three items in descending order of importance. Within the cost area, the eight items that will be evaluated are: (1) Hardware, (2) Software, (3) Maintenance, (4) Documentation, (5) Training, (6) Technical Engineering Services, (7) Reasonableness, and (8) Risk, and the solicitation states that these items will be evaluated through the use of a cost evaluation model whose characteristics are identified in Section M.5, together with other instructions contained in Section M.4.3.2. of the solicitation. The end result is to arrive at the most probable total cost evaluation of all offers. The relative importance of the subfactors of the cost area is a function of the cost model. Within the management and logistics area, the seven items that will be evaluated are: (1) Life Cycle Support, (2) Maintenance, (3) Performance and Experience, (4) Training, (5) Documentation/Data, (6) Plans, and (7) Small and Small Disadvantaged Business Utilization, and the solicitation lists these eight items in descending order of importance. Finding 4. In Advanced Technology, Inc., GSBCA 8878-P, 87-2 BCA 19,817, 1987 BPD 67, we found similar evaluation criteria adequate. Protester alleged that the procuring agency had failed to establish a common understanding of the relative importance of the evaluation criteria and thereby violated the aforementioned provisions of the FAR and the CICA. In that solicitation, the Government had listed the four evaluation factors in descending order of importance: (1) personnel resources, (2) management plan/technical approach, (3) corporate past experience, and (4) cost realism. The solicitation stated that the Government would evaluate proposals based on the ability of these proposals to satisfy these four factors, with the provision that the first two of these four factors were to be of greater importance than the other two factors. The Board found that the Government's description of its evaluation scheme, as contained in the solicitation, was of sufficient clarity to satisfy all the statutory and regulatory requirements of the FAR and the CICA. The fact that the Government had listed the evaluation criteria in descending order of importance, without having assigned such criteria either specific weights or point scores, constituted sufficient clarity of its evaluation scheme. The Government was under no requirement under either the FAR or the CICA to assign either numerical scores or precise weights to the evaluation factors, as it had sufficiently specified their importance in relation to one another in the solicitation. We find that the factors ("areas"), significant subfactors ("items"), and the relative importance of the evaluation factors are clearly stated in the instant solicitation. Section M.4.3 of the solicitation clearly identifies the three factors of technical, cost, and management and logistics and their relative importance to one another. Additionally, for two of the factors, technical and management and logistics, the subfactors are listed in descending order of importance, while for the cost factor the subfactors are to be evaluated by the Government's use of a cost model whose characteristics are described in Section M.5 of the solicitation. 2. Respondent was not Required to Indicate the Relative Importance of the Elements of the Significant Subfactors In direct response to protester's question 172, with regard to the technical area of evaluation, the Army addressed protester's allegation that "Solicitation Section M contains numerous factors and/or subfactors without any indication of their relative importance. Specifically, the 37 factors and/or subfactors in Sections M.4.3.1.b.(1)(a) through M.4.3.1.b.(1)(ak) have no indication of their relative importance for the Respondent's evaluation of the hardware proposed by the offerors." The Army explained that subordinate to each "item,", there are a number of "factors" which will be evaluated. In the Army's terms, this is at an even finer "granularity" than either discussed or required by FAR 15.605(e). The Army responded further that: Under the item of Hardware, 37 separate factors will be evaluated. They are identified in each of 37 paragraphs, M.4.3.1.b(1)(a), Portable Data Collection Device (PDCDs), through M.4.3.1.b(1)(ak), Magnetic Stripe Reader. In each of these paragraphs, at an even finer granularity, those attributes of particular emphasis are identified. If a product takes advantage of some technological innovation which does not contribute to any functionality identified by the Government in Section M, then the offeror will not be provided any competitive advantage for that particular innovation. Finding 9. The Army's explanation therefore was that it had met the requirements of FAR 15.605(e) to list the evaluation factors and subfactors and the relative importance of these factors to one another. To the extent that the subfactors contained additional elements and sub-elements (or "characteristics"), the Army responded that it believed there was no statutory or regulatory requirement for it to indicate the relative importance of such elements and sub-elements: The Government considers that it is not required, nor reasonable to rank order and narrowly define each of a myriad of characteristics at so low an echelon below the primary concern of technical excellence. Finding 9. We agree with respondent that it was not required to provide further detail in the evaluation criteria. FAR 15.605(e) requires that "[T]he solicitation shall inform offerors of minimum requirements that apply to particular evaluation factors and significant subfactors." Neither a statutory nor a regulatory basis therefore exists for the Government to specify the relative importance, including specifying the individual weights, of its evaluation criteria beyond the factor and significant subfactor level. As a practical matter, it would appear extremely difficult to do so. For example, the hardware item of the technical area contains thirty-seven separate elements of hardware listed in descending order of importance. Each of the thirty-seven elements contains sub-elements that will be emphasized in the evaluation. Some of these elements contain more than fifteen sub-elements for evaluation, and most of these elements contain more than five sub-elements for evaluation. To assign relative importance to each element would require numerical values in fractions of percents to be assigned to several hundred sub-elements. Even if the Army were to utilize such an extremely detailed evaluation scheme, under FAR 15.605(e), the Army would not be required to disclose the numerical weights that it had assigned at such a fine level of granularity.[foot #] 2 3. The Solicitation More Than Adequately Informed Offerors of the Minimum Requirements That Applied to Particular Evaluation Factors and Subfactors FAR 15.605(e) requires that "[T]he solicitation shall inform offerors of minimum requirements that apply to particular evaluation factors and significant subfactors." Section C of the solicitation, Description/Specification/Statement of Work, established the relevant requirements (i.e., general, functional, and performance) for each of the elements comprising the respective items (i.e., the "subfactors") in turn comprising the respective technical, cost, and management and logistics areas (i.e., the "factors") contained in the solicitation. The solicitation, by cross-referencing the requirements as stated in Section C at the sub-elemental level to the corresponding evaluation criteria contained in Section C, informed offerors of the "minimum requirements" applicable to its evaluation "factors" and "significant subfactors" at a level of detail adequate to satisfy the requirements of FAR 15.605(e). Finding 5. 4. Conclusion Viewing the evidence in the light most favorable to protester, and drawing all reasonable inferences in favor of protester, protester has failed to demonstrate the existence of ----------- FOOTNOTE BEGINS --------- [foot #] 2 Numerical weights, which may be employed in the evaluation of proposals, need not be disclosed in solicitations. FAR 15.605(e). ----------- FOOTNOTE ENDS ----------- issues of material fact. Section M.4.3 of the solicitation sets forth in a clear and unambiguous manner the evaluation areas of consideration, as well as the relative importance of each of the three evaluation factors to one another. The solicitation requirements meet the requirements of the FAR and the CICA by clearly setting forth the three evaluation factors of technical, cost, and management and logistics, all significant subfactors, and the relative importance of each of these three factors to one another. Decision Respondent's motion for partial summary relief is GRANTED. The part of count 2 of the protest that challenges the Army's evaluation methodology as being "unclear," and any similar issue incorporated by reference from protester's agency protest, is DENIED. ALLAN H. GOODMAN Board Judge We concur: ANTHONY S. BORWICK CATHERINE B. HYATT Board Judge Board Judge