_________________________________________________________________ DENIED: January 4, 1999 __ _________________________________________________________________ GSBCA 12586-P CLEVELAND TELECOMMUNICATIONS CORPORATION AND METRICA, INC., Protester, v. NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, Respondent, and RECOM TECHNOLOGIES, INC., Intervenor. Carl E. Anderson of Arter & Hadden, Cleveland, OH; and David R. Smith and Bridnetta D. Edwards of Alexander, Gebhardt, Aponte & Marks, Washington, DC, counsel for Protester. Sumara M. Thompson-King, Office of the General Counsel, National Aeronautics and Space Administration, Washington, DC; and Laura Henry, Office of the General Counsel, National Aeronautics and Space Administration, Cleveland, OH, counsel for Respondent. John J. Fausti and Kathryn Adah Stackhouse of Law Office of John J. Fausti, Washington, DC, counsel for Intervenor. Before Board Judges PARKER, HENDLEY, and BORWICK. BORWICK, Board Judge. Background Protester, the joint venture of Cleveland Telecommunications Corporation & Metrica (CTC), alleges that the National Aeronautics and Space Administration (NASA) deprived CTC of an opportunity to submit a revised cost proposal in a second best and final offer (BAFO) for the computational, administrative, professional, engineering services (CAPES) procurement. CTC alleges that NASA's notice to CTC violated the Federal Acquisition Regulation (FAR) at 48 CFR 15.611 (a), (b) (1992) and the NASA FAR Supplement (NASA FAR Supp.) at 48 CFR 1815.613-71 (1992) because the notice did not explicitly request a second BAFO. CTC also alleges that in a phone conversation, after CTC's receipt of the notice, NASA's contracting specialist told CTC's president that it would not accept a completely revised second BAFO cost proposal, but only change sheets to the first BAFO. Protester argues that the contracting specialist wrongfully limited protester's options. We conclude that the written notice NASA issued to CTC was sufficient to put CTC on notice that NASA desired a second BAFO. We conclude that the contract specialist told CTC's president, in the subsequent conversation, that NASA did not expect a completely revised proposal from CTC in a second BAFO, but that the contract specialist did not prevent CTC from submitting a completely revised cost proposal as a second BAFO. Therefore, we deny the protest. Findings of Fact The Procurement On March 22, 1993, NASA issued a request for proposals (RFP) for the CAPES procurement. Protest File, Exhibit 4. The CAPES procurement was for on-site support services in the computer arena to be performed for the Computer Services Division of the Lewis Research Center at NASA and covered a wide range in services within nine work areas. Transcript at 196. On May 19, 1993, CTC submitted its initial proposal in response to the RFP. Protest File, Exhibit 12. The source evaluation committee (SEC) consisted of the committee chairman and five other voting members. Transcript at 258. The SEC made a presentation to the source selection officer (SSO) regarding the method and schedule for proceeding with the SEC's function in evaluating proposals. Id. at 259. The contracting specialist's responsibilities included procurement of software and services for the NASA-Lewis Research Center, assisting requesters with development of their specifications, developing solicitations, and evaluating bids. Id. at 195. The contracting specialist was also the contracting officer for the CAPES procurement. Id. First Round of Best and Final Offers By letter, CTC was informed that after evaluation of its initial proposal, it remained in the competitive range. Protest File, Exhibit 15. CTC, as well as each of the other vendors, was instructed to submit its first BAFO by August 11, 1993. Id. CTC submitted its BAFO on August 11, 1993. Transcript at 40. Decision to Reopen Discussions After submission of the first round of BAFOs the SEC decided to reopen discussions with the offerors in the competitive range and to request a second round of BAFOs. Transcript at 263, 275. The SEC decided to reopen discussions because some vendors had misconstrued a round of discussions with NASA to require proposals based on incumbent wage rates. Protest File, Exhibit 15. It was the contracting specialist's responsibility to notify offerors that discussions were reopened and that there was a request for a second BAFO. Transcript at 264. The SEC chairman prepared a letter to the record which stated: A Second BAFO for CAPES. . . . . It was never the SEC[']s intention to direct the offerors to use incumbent rates. Therefore, after consultation with the LeRC Office of Chief Counsel, the SEC determined that it is essential to conduct another round of written discussions clarifying this potential misunderstanding. This will require that the SEC request all offerors to resubmit their BAFOs. . . . . No questions will be asked of [CTC] . . . but they will be given the opportunity to submit a new BAFO if desired. Protest File, Exhibit 15. The SEC chairman informed the contracting specialist that discussions were to be reopened and a second round of BAFOs was to be implemented for the offerors remaining in the competitive range. Transcript at 282-83. Contracting Specialist's Notice of Reopening of Discussions On August 20, 1993, the contracting specialist mailed a letter to CTC to signify that discussions were being reopened in the CAPES procurement. The letter stated: Based on the responses received from some offerors to the questions sent out by the Government during oral and written discussions, the Government has determined a need to conduct a second round of discussions. Therefore, while the Government has no further questions or need for clarification concerning your referenced proposal, you are hereby given the opportunity to submit any amendments you may have to your referenced proposal. The final cut-off for receipt of any amendments is 4:30 p.m., local time, August 25, 1993. Protest File, Exhibit 17. A similar letter was sent to all offerors in the competitive range. Id., Exhibits 16, 18, 19. Shortly after the letters were mailed, the contract specialist called all offerors in the competitive range to inform them that discussions were to be reopened. Transcript at 378-79. However, the contracting specialist could not reach protester's president by phone on the day she called the other vendors. Id. at 230-31. Protester's Response to the Notice Reopening Discussions Upon receipt of the letter that reopened discussions, CTC's president and CEO, attempted to contact the contract specialist by phone, because "[he] was unsure whether this [the letter] meant that we were able to submit a new BAFO. . . ." Transcript at 42. Being unable to reach the contracting specialist, the president left a message on the contracting specialist's voice- mail in-box. Id. at 42-43. Since the president could not reach the contracting specialist, he contacted one the engineering manager for a subcontractor to discuss the August 20 letter. The engineering manager testified that "it was not clear what was really required . . . as to what we should do." Id. at 150. CTC's president decided to table discussion regarding the August 20 letter until more personnel could be contacted. On August 21, 1993, CTC's president arranged a telephonic conference in order to further explore the meaning of the August 20, 1993, letter. It was decided that CTC and its subcontractors would begin reevaluating the proposal. Transcript at 46. On August 22, 1993, CTC's president conducted another telephonic conference to discuss the contents of the August 20 letter. Id. at 47. The conference had seven or eight individuals participating, including representatives from CTC, Metrica, and a subcontractor. Id. at 47-48. At the conference, the participants discussed whether or not to submit a new cost proposal in response to the August 20 letter. Id. at 48. The consensus was that CTC was to begin work on the new cost proposal and associated technical modifications. Id. at 49. On August 23, 1993, the contracting specialist returned CTC's president's phone call regarding the reopening of discussions. Protest File, Exhibit 23. There is a dispute of fact as to precisely what the contracting specialist told CTC's president during the conversation. The contemporaneous written phone record of the conversation prepared by the contracting specialist records her as telling CTC's president that it was not the Government's intent to make the offerors submit entirely new proposals because "it would be too much to expect of the offerors." Id. Instead, she advised CTC to submit "those pages which were [to be] amended, in three copies." Id. She gave similar advice to another vendor: I told him that we were not requiring, nor necessarily expecting, an entirely new BAFO, but that we were offering an opportunity to make changes. Id., Exhibit 21. The contracting specialist testified at the hearing that the purpose of the August 20 letter was to "provide all offerors with the same opportunity to amend their BAFO." Transcript at 414. Further, the contracting specialist stated that "I said it was not the intent of the Government through this letter to require them [CTC] to submit a whole new proposal." The contracting specialist indicated that the Government does not dictate what form the changes to a BAFO will take or how the vendors will submit a BAFO. Id. at 370-71. However, the Government tried not to be onerous and require vendors to submit more than what was required in view of the short turn-around time--five calendar days--between the notice and the cut-off date for submission of the second BAFO. Id. at 370, 374. Protester's president testified that the contracting specialist stated that "[w]e [NASA] are not really accepting new proposals. . . ." Transcript at 56. The president informed the contracting specialist that there were some changes to its proposal that could be made to cut costs to the Government. Id. Protester's president testified that the contracting specialist stated, "if there are some change pages, maybe, but we are not accepting new proposals." Id. In resolving the dispute of fact, we have examined the contact record of the telephone conversation between CTC's president and the contracting specialist and considered the other evidence in the record, including the contracting specialist's testimony and the contemporaneous contact records of her telephone conversations with other vendors. Based on this evidence, we find as fact that the contracting specialist told CTC that because the Government reopened discussions, it had to afford each offeror the same opportunity to revise its BAFO. We find as fact that the contracting specialist told CTC that the Government did not expect new BAFOs from each offeror, but that any amendments CTC wanted to make to its proposal could be submitted and would be accepted. This is consistent with what she told another offeror. The contracting specialist never told CTC that NASA would not accept a completely new cost proposal from CTC. In response to the phone conversation with the contracting specialist, CTC did not submit a new proposal. Transcript at 57- 58. Selection for Final Negotiations and Debriefing On September 14, 1993, Recom Technologies was selected for negotiations in the CAPES procurement. Debriefing On September 14, 1993, CTC requested a debriefing. At the debriefing the SEC chairman stated that NASA had sought two BAFOs. Transcript at 64. Protester and Government officials exchanged words regarding the acceptance of new BAFOs. Protester's Exhibit 1. Protester: Michelle [the contracting specialist] conveyed to me [that NASA was] not looking for new proposals. . . . . . . . We never read into the memo [of August 20] a request for a second BAFO. Attorney for the Government: At this point (you were given the opportunity) and if done, you should have submitted [a second BAFO]. I know we did not give you the impression we would not be accept anything from you. Contracting Specialist: I agree we were not seeking an entirely new proposal. We did not want to mislead you into thinking we were requesting one. You indicated you had some changes. At no time will my record show I would not accept your changes. Id. Discussion Protester argues that the August 20, 1993, letter which reopened discussions does not comply with the FAR and NASA FAR Supplement. Protester maintains that the defects in the letter were not rectified, but instead exacerbated, by the contracting specialist's subsequent telephone discussion with its president. Section 15.611 of the FAR states: Best and final offers. (a) Upon completion of discussions, the contracting officer shall issue to all offerors still within the competitive range a request for best and final offers. Oral request shall be confirmed in writing. (b) The request shall include-- (1) Notice that discussions are concluded; (2) Notice that this is the opportunity to submit a best and final offer; (3) A common cutoff date and time that allows an opportunity for submission of written best and final offers; and (4) Notice that if any modification is submitted, it must be received by the date and time specified and is subject to the Late Submissions, Modification, and Withdrawals of Proposals provision of the solicitation. (c) After receipt of final offers, the contracting officer should not reopen discussions unless it is clearly in the Government's interest to do so. . . . If discussions are reopened, the contracting officer shall issue an additional request for best and final offers to all offerors still within the competitive range. NASA FAR Supp. 1815.613-71(b)(5)(ii)(E) states that: The contracting officer shall give each offeror a reasonable opportunity (with a common cut-off date for all) to support and clarify its proposal in a best and final offer which shall be submitted at the conclusion of discussions. An offeror may, on its own initiative, revise its proposal and make corrections or improvements until the established cut-off date. This case is similar to Israel Aircraft Industries, Ltd., B-239211, 90-2 CPD 84 (July 30, 1990). In that case, the Army issued an amendment to a solicitation, requesting a reply, but conceded that it failed to make a "formal request" for BAFOs. The Army argued that the language of its amendment was sufficient to indicate that BAFOs were being requested; particularly since it provided clear notice of a common cutoff date for the submission of revisions to initial proposals to reflect changes made by the amendment. Therefore, the Army argued, the offeror could not reasonably assume that it would be given another opportunity to submit its best price. The Comptroller General agreed with the Army, holding: Where, as here, an amendment to a solicitation does not specifically request offerors to submit their BAFOs, language giving notice to all offerors of a common cutoff date for receipt of offers has the intent and effect of a request for BAFOs. Id. at 4 (citations omitted). Further, the Comptroller General held that merely advising offerors of a deadline (as opposed to a common cutoff date) for receipt of offerors is sufficient notice. Id. Thus, Israel Aircraft Ltd. was on notice that the Army would not be holding discussions, and that the amendment therefore was a request for BAFOs. Id. at 5. This Board has also noted that the words "BAFO" are not necessarily required for compliance with the FAR's notice requirements. Integrated Systems Analysts, Inc., GSBCA 10750-P, 91-1 BCA 23,383, 1990 BPD 298. In Integrated Systems, the agency issued a letter after the first round of BAFOs, calling for offerors to submit an "update [to] your proposal to address the changes . . . enclosed herewith." Id. at 117,344, 1990 BPD 298, at 7. The letter did not use the words "BAFO." Integrated Systems claimed that the Navy had not solicited a BAFO. The Board stated that "[w]hile the Navy should have expressly stated that it was requesting a second round of BAFOs, [the] conclusion that negotiations were still open was unreasonable given the statement that the Navy did not intend to hold further discussions." Id. at 117,349, 1990 BPD 298, at 18. In this case, the first round of BAFOs in the CAPES procurement closed August 11, 1993. On August 20, 1993, the contracting specialist reopened discussions with all offerors in the competitive range. As part of the newly reopened discussions, the contracting specialist had questions for two of the four offerors in the competitive range. Further, as part of the discussions, the August 20 letter gave all offerors the opportunity to submit any amendments to their proposals by a cut- off date of August 25, 1993. The letter respondent's contracting specialist sent to CTC stated that the cutoff time for receipt of any amendments was 4:30 p.m., local time, August 25, 1993. The letter stated that ". . . the Government has no further questions or need for clarification concerning your referenced proposal. . . ." As in Israel Aircraft, the protester was provided a cutoff date for submission of its amendments to its proposal. The letter of August 20, 1993, with its date for receipt of proposals thus and notification that there were no further discussions needed with CTC had the same effect as a request for a BAFO. Israel Aircraft. This is a stronger case than Israel Aircraft, because here, NASA also told CTC that discussions with CTC were at an end. Thus, the only logical conclusion is that August 25 was the last opportunity to submit a BAFO. Thus, NASA's letter of August 20, 1993, to CTC substantially, if not literally, complied with FAR 15.611 (a), (b) and the NASA FAR Supp. 1815.613-71. CTC could have then submitted a new cost proposal had it chosen to do so. Protester argued that the contracting specialist communicated to CTC's president that a second BAFO would not be accepted. Therefore, the protester argued that it reasonably relied upon those statements in not submitting another BAFO. We have found as fact that the contracting specialist told CTC that because the Government reopened discussions, it had to offer everyone the same opportunity to revise its BAFO; and that the Government did not expect completely new BAFOs from each offeror, but that any amendments protester wanted to make to its proposal could be submitted and would be accepted. Protester's president may well have misunderstood the contracting specialist's statement in the phone conversation "we do not expect" completely new proposals as "we will not accept" such proposals. But that misunderstanding is not grounds for relief. Protester has not established a violation of statute or regulation. The protest must be denied. Decision The protest is DENIED. _________________________ ANTHONY S. BORWICK Board Judge We concur: _________________________ _________________________ ROBERT W. PARKER JAMES W. HENDLEY Board Judge Board Judge