DENIED: February 9, 1994 GSBCA 12709-P TECHNOLOGY ADVANCEMENT GROUP, INC., Protester, v. DEPARTMENT OF THE NAVY, Respondent, and DULLES NETWORKING ASSOCIATES, INC., Intervenor. John A. McEwan, President of Technology Advancement Group, Inc., Chantilly, VA, appearing for Protester. Donald S. Safford, Office of General Counsel, Naval Regional Contracting Center Detachment, Long Beach, CA; and Anita M. LeBlanc, Office of General Counsel, Naval Supply Systems Command, Arlington, VA, counsel for Respondent. B. David Whitehead, Vice President of Dulles Networking Associates, Inc., Sterling, VA, appearing for Intervenor. Before Board Judges DANIELS (Chairman), NEILL, and GOODMAN. DANIELS, Board Judge. Technology Advancement Group, Inc. (TAG), protests that the Department of the Navy acted improperly in conducting a procurement for the supply of microcomputer systems. In a decision issued on January 24, 1994, we dismissed for failure to state a valid basis of protest those allegations which we could not discern as being linked to a violation of a statute or regulation. We now deny the remaining counts. Findings of Fact 1. On May 21, 1993, the Navy requested proposals to supply three Pentium processor computer systems to the Naval Postgraduate School in Monterey, California. Protest File, Exhibit 1. The agency said that it "intend[ed] to make a single award to the technically acceptable, responsible offeror proposing the lowest price for all items." Id. at 46. 2. The solicitation contained several specifications for system components, among which were the following: System Board: Intel Pentium 66 MHz [megahertz] CPU [central processing unit] (expandable to dual Pentium 66 MHz and 100 MHz processors). . . . . Video: . . . NEC5FG 17" Multisync Color Monitor with Lens (1024x768, .28 Dot Pitch); FCC [Federal Communications Commission] Class B certified. . . . . Additional Specifications: One year Parts and Labor Warranty with 24 hour telephone support. Protest File, Exhibit 1 at 3. The agency directed offerors to provide with their proposals descriptive literature "which allows a complete review and verification that all aspects of the specifications have been complied with." Id. at 4, 44. 3. The solicitation also stated that "[t]he Government requires delivery to be made 30 days after contract award." Protest File, Exhibit 1 at 9. 4. Each offeror was required to submit, as part of its proposal, a certificate of independent price determination, in which it certified that -- (1) The prices in this offer have been arrived at independently, without, for the purpose of restricting competition, any consultation, communication, or agreement with any other offeror or competitor relating to (i) those prices, (ii) the intention to submit an offer, or (iii) the methods or factors used to calculate the prices offered; (2) The prices in this offer have not been and will not be knowingly disclosed by the offeror, directly or indirectly, to any other offeror or competitor before . . . contract award . . . unless otherwise required by law; and (3) No attempt has been made or will be made by the offeror to induce any other concern to submit or not to submit an offer for the purpose of restricting competition. Protest File, Exhibit 1 at 26; 48 CFR 52.203-2 (1993) (Federal Acquisition Regulation (FAR) 52.203-2). 5. Both TAG and Dulles Networking Associates, Inc. (DNA), submitted proposals in response to this solicitation. Protest File, Exhibits 3, 4. 6. TAG's proposal contained this statement: Video: . . . 17" NEC 5FG Color Monitor and Lens (Non-Interlaced with a 74MHz Refresh 1280x1024, .28mm Dot Pitch) NOTE: The NEC 5FG IS NOT FCC Class B Certified but it is MPRII Certified. Protest File, Exhibit 4. DNA's proposal included the line: "NEC 5FG 17" Multisync Color Monitor with Lens (1024 x 768, .28 dot pitch." DNA made no reference to whether this monitor was FCC Class B certified. Id., Exhibit 3 at 1. 7. After evaluating all offerors' technical proposals, the Navy determined that TAG's proposal was technically acceptable. Protest File, Exhibit 5 at 6. The contracting officer did not conduct discussions with TAG as to that firm's technical proposal because he viewed the proposal as fully acceptable. Declaration of Robert Cengia (Jan. 26, 1994) (Cengia Declaration) at 1. 8. The Navy determined that DNA's proposal was technically unacceptable and did not have a reasonable chance of being selected for award. The absence of specification as to FCC Class B certification of the monitor was not among the reasons for this conclusion. Protest File, Exhibit 5 at 9-10. DNA was eliminated from the competitive range. Id., Exhibit 6. DNA protested this action to the contracting officer, however, and he subsequently reinstated the firm to the competition. Id., Exhibits 7, 8. The Navy then on October 7 discussed with DNA the perceived deficiencies in the proposal. Id., Exhibit 10 at 1. 9. TAG and DNA were both asked to submit best and final offers (BAFOs) no later than October 14. Protest File, Exhibit 10; Cengia Declaration, Attachment 1. There is no evidence in the record that TAG's BAFO is different in any way other than price from its initial proposal. 10. On October 21, the contracting officer concluded that both offers were technically acceptable and that DNA was in line for award because its price of $96,870 was lower than TAG's price of $115,270. He then checked DNA's commercial and Government references for the purpose of determining whether DNA was a responsible prospective contractor. The responses were "very positive;" he was convinced that DNA was responsible. Thus, on October 26, he decided that award should go to DNA. Protest File, Exhibit 13; Cengia Declaration at 2. 11. On October 29, the Navy's contract negotiator for this procurement informed TAG in a telephone conversation that the agency intended to award the contract to DNA. This was the first time she had mentioned the name of a competitor in this procurement to either TAG or DNA. Declaration of Carolyn Rizza (Jan. 26, 1994). The contracting officer did not reveal to DNA that TAG was a competitor until November 2 (see Finding 13). Cengia Declaration at 4; Affidavit of David N. Leibman (Jan. 26, 1994) (Second Leibman Affidavit) 3. 12. On November 1, TAG wrote to the contracting officer, objecting that DNA should be disqualified from the competition. TAG contended that DNA's proposal had been prepared by David N. Leibman, an individual who had formerly worked for TAG, where he "oversaw the development and preparation of the TAG quote submitted in response to the solicitation at issue. . . . This included the selection and integration of components specifically designed in response to the solicitation." TAG maintained that "[a]fter obtaining specific knowledge of the TAG quotation, Mr. Leibman unexpectedly resigned his position under circumstances less than desirable and yet unresolved. . . . [W]e suspect the DNA bid was calculated with full knowledge of TAG's bid." Protest File, Exhibit 14 at 1-2. TAG additionally urged that "it is most qualified to provide the specified products and services, and [is] most likely to perform with in [sic] the contract's delivery period" because of its "past documented performance and present verifiable capabilities." Id. at 2. Specifically, TAG asserted that it could meet the 24-hour technical support requirement and questioned whether DNA could; and further, that TAG "has already engineered and documented a NEC 5FG monitor that complies with that specification," whereas DNA could not do so. Id. at 2-3. 13. The contracting officer understood this letter as a protest making two allegations. The primary charge was that DNA was not a responsible prospective contractor. Cengia Declaration at 3. He responded to this allegation in two ways. First, he asked DNA's president and Mr. Leibman by telephone whether the allegations were true. The DNA officials denied them. Id. at 3, 4. Second, he asked the Defense Contract Management Area Office (DCMAO) in Baltimore, Maryland, to perform a pre-award survey of DNA. The survey was to "include a review/analysis of [the] company's ability to comply with all the terms and conditions set forth in the contract." Protest File, Exhibit 16. DCMAO Baltimore was expressly asked "to have an Intel representative (engineer) available when verifying contractor's ability to provide the required supplies in a timely manner." Id., Exhibit 20 at 5th unnumbered page. 14. The pre-award survey was performed in mid-November by DCMAO Baltimore. All capabilities examined -- technical, production, quality assurance, and financial -- were found satisfactory. By report dated November 19, the survey manager recommended award to DNA. Protest File, Exhibit 20. The survey team specifically found that DNA had an "estimated ship date" for the Pentium processors of the first week in December; DNA had provided a letter from its supplier confirming this. Id. at 8th- 9th unnumbered pages; see also id., Exhibit 19. In addition, the team learned that DNA had made prior deliveries of similar items to another Government agency, and to a commercial firm, on schedule. Id., Exhibit 20 at 13th-14th unnumbered pages. The team also found that DNA had arrangements for 24-hour technical support. Id. at 8th unnumbered page. 15. The contracting officer also considered TAG's November 1 letter to be protesting that DNA's monitor did not meet the solicitation's requirement that the monitor be FCC Class B certified. He paid scant attention to this charge because TAG had specifically proposed to offer a monitor which did not meet the requirement, so "it was clear to [him] that TAG had not been prejudiced." Cengia Declaration at 3-4. 16. The contracting officer considered the DCMAO pre-award survey, together with the information he had previously obtained regarding DNA, and reconfirmed his earlier determination that DNA was a responsible prospective contractor. Cengia Declaration at 4. He awarded the contract to DNA on November 23. Protest File, Exhibit 22 at 1. 17. On December 15, DNA told the contracting officer that it had learned that 5FG monitors "have been discontinued by NEC, and replaced by the superior NEC 5FGp." DNA asked for permission to substitute 5FGp monitors for the 5FGs. Protest File, Exhibit 24. The contracting officer authorized the modification on December 16, at no cost to the Government. In doing so, he stated, "The requirement for FCC Class B certification is hereby removed." Id., Exhibit 25. 18. The systems were actually shipped to the Navy on December 27. Protest File, Exhibit 27. They were received on or about December 29. Cengia Declaration at 5. 19. Mr. Leibman, DNA's director of business development, was director of operations at TAG until April 30 or May 1, 1993, when he resigned. Affidavit of David N. Leibman (Dec. 27, 1993) (First Leibman Affidavit) 2; Attachment to letter from TAG to Board (Jan. 12, 1994). He went to work for DNA about three weeks later. First Leibman Affidavit 2. He states: I emphatically deny having "overs[een] the development and preparation of the TAG quote submitted in response to the solicitation at issue." It is physically impossible to have developed and prepared a quote on behalf of TAG in response to a solicitation which was not released until more than 3 weeks after I left my employment there! Id. 8. Mr. Leibman also states that "[m]emory prices had risen dramatically from the time of the initial proposal to the time of the Best and Final Offer, [and] other component prices had fallen." Thus, he maintains, any knowledge he once had of TAG's pricing was outdated by the time of BAFOs. Id. 10. 20. Mr. Leibman "spent a great amount of time preparing [DNA's] response to the solicitation." First Leibman Affidavit 6. He states, however, that he had no knowledge of the products or prices in TAG's initial proposal and BAFO -- or of the prices charged to TAG for those products by TAG's suppliers -- prior to the submission of that proposal and BAFO. Second Leibman Affidavit 4. Further, he states that neither he, nor to his knowledge any DNA employee, had any contact with TAG regarding this procurement prior to submission of BAFOs. Id. Discussion TAG has alleged that in the course of this procurement, the Navy violated a statute or regulation in three different ways: its conduct of discussions was inadequate; its determination that DNA is a responsible prospective contractor was unjustified; and it disclosed to a competitor, prior to the call for BAFOs, the fact that TAG had submitted a proposal. In its brief, TAG devotes principal attention to the allegations that discussions were inadequate. Before turning to TAG's specific complaints, we note that protester appears to have a fundamentally flawed view of the procurement in which it competed. TAG seems to be under the impression that because it is (assertedly) a superior company to DNA, and has (assertedly) sold and serviced more of the sorts of computer systems that the Navy is buying here, in some unspecified way, it has a better claim to the contract. See Finding 12. This impression is inconsistent with the solicitation's express statement that the lowest-priced offeror which passed minimal standards of technical acceptability and responsibility would receive the contract. Finding 1. DNA won the competition because its price was less than TAG's and the Navy found that it met those standards. Discussions The Federal Acquisition Regulation requires that in a negotiated procurement, whenever the contracting officer holds discussions with offerors, he shall advise each firm of deficiencies in its proposal so that the company is given an opportunity to satisfy the Government's requirements. FAR 15.610(c)(2). As initially phrased, TAG's complaint was that the Navy's conduct of discussions was improper because DNA, but not TAG, was alerted by the Navy to deficiencies the agency saw in the initial technical proposals. The reason for the Navy's action is obvious: the agency perceived no deficiencies in TAG's proposal, so discussions with TAG would have been pointless. Finding 7. Given the Navy's analysis of the proposal, we cannot fault the failure to negotiate. TAG now argues that discussions with it should have been held because the firm's initial proposal clearly took exception to a mandatory specification -- that the monitor offered be FCC Class B certified. See Findings 2, 6. If the Navy had mentioned this deficiency, TAG says, the offeror could have modified its proposal to make clear two things: (1) that it was devoting considerable time and money to reengineering the monitor so that it would comply with the specification, and (2) that it would provide a Class B certified monitor if it were awarded the contract. See Affidavit of John A. McEwan (Jan. 26, 1994) & Attachment 2 thereto; Affidavit of Philip Beaulieu (Jan. 26, 1994) (Beaulieu Affidavit) & Attachments 2, 3 thereto. "The Navy" knew about these efforts and TAG's intent, according to a TAG employee. Beaulieu Affidavit at 1. The contracting officer thought that investigating any charges relating to the Class B certification issue was unnecessary because TAG suffered no prejudice from whatever (if anything) the Navy did wrong. He reached this conclusion because TAG explicitly promised -- in its BAFO as well as initial proposal -- to supply a monitor that did not have the requisite certification, and yet its proposal was adjudged technically acceptable. Finding 15; see also Findings 2, 7, 9. His reasoning is consistent with our rule that "[t]he integrity of the protest process does not permit a protester to argue the unreasonableness of an interpretation of a solicitation provision which the protester itself held during the procurement." Xerox Corp., GSBCA 9862-P, 89-2 BCA 21,652, at 108,923, 1989 BPD 68, at 21; see also Unit Data Service Corp., GSBCA 10775-P, 91- 1 BCA 23,501, at 117,853, 1990 BPD 374, at 10. Ultimately, TAG's position comes down to this: TAG had pledged to deviate from a specification, but it intended to comply with the same requirement and was making great efforts to do so. It informally told someone in the Navy about its intent and efforts, but it never changed its proposal to make a commitment that it would meet the specification. The Navy ignored the specification in evaluating proposals; it would have accepted a non-compliant monitor from TAG (had TAG offered the lowest price), and did accept such a monitor from DNA. Now, protester concludes, the Board should permit it to profit from having submitted a proposal that is admittedly ineligible for award by directing the Navy to reopen discussions for the purpose of mentioning this deficiency. We decline to accept this invitation. Protests are granted only where an agency's violation of law was prejudicial to the protester. Andersen Consulting v. United States, 959 F.2d 929 (Fed. Cir. 1992). The Navy apparently ignored compliance with the monitor certification specification in its evaluation of proposals. This did not harm TAG, however; it benefited the firm, because it permitted TAG to continue to offer a non- compliant monitor. TAG was free to amend its proposal when submitting a BAFO to say that it would supply a certified monitor. It chose not to do so. This does not establish a violation of law by the Navy. Advanced Management, Inc. v. General Services Administration, GSBCA 11851-P, 93-1 BCA 25,280, at 125,893, 1992 BPD 188, at 11 ("When an offeror violates the rules of a competition in a material way, it may not benefit from any determination that the Government, too, made a mistake in the conduct of the procurement."). Responsibility determination Whether the contracting officer acted permissibly in finding DNA a responsible prospective contractor is important because such a finding is a prerequisite to the award of any Government contract. FAR 9.103(a), (b). Before making this determination, the contracting officer "shall possess or obtain information sufficient to be satisfied that a prospective contractor currently meets the applicable standards in [FAR] 9.104-1." FAR 9.105-1(a). These standards are that to be determined responsible, a firm must (among other things) "[b]e able to comply with the required or proposed delivery or performance schedule," "[h]ave a satisfactory performance record," "[h]ave a satisfactory record of integrity and business ethics," and "[h]ave the necessary production, construction, and technical equipment and facilities, or the ability to obtain them." FAR 9.104-1. With regard to implementation of these provisions, we have held: [The FAR's] standards are sufficiently broad as to require the contracting officer to apply discretionary business judgments in determining the responsibility of a prospective contractor. Concomitantly, the protester's burden is quite substantial because our de novo review authority must be tempered in such a highly discretionary area. We will thus grant deference to those determinations regarding the responsibility of prospective contractors, without slavishly following them. National BioSystems, Inc., GSBCA 10823-P, 90-1 BCA 22,543, at 113,127, 1989 BPD 384, at 10-11 (quoting Del Net, Inc., GSBCA 9178-P, 88-1 BCA 20,342, at 102,870, 1987 BPD 259, at 12, aff'd, 861 F.2d 728 (table) (Fed. Cir. 1988)). TAG challenges the reasonableness of the contracting officer's responsibility determination in four respects. Protester maintains that DNA should not have been expected to meet the Navy's delivery schedule, supply the requisite monitor, or provide necessary technical support. In addition, protester contends that DNA's certificate of independent price determination was patently defective. TAG called the contracting officer's attention to each of these problems after a responsibility determination had been made. Findings 10, 12. The contracting officer took the allegations seriously; he decided to reconsider his determination, and in compliance with FAR 9.106-1, he requested a pre-award survey of DNA to verify the charges. Finding 13. We find that the contracting officer's redetermination that DNA is a responsible prospective contractor, based in large part on the results of the pre-award survey, was reasonable. See Findings 14, 16. Delivery of the computer systems in question was required to be made within thirty days after contract award. Finding 3. The pre-award survey team concluded in mid-November, based on a letter from DNA's supplier, that the supplier would ship system components to DNA by the first week of December. This should have been in time for delivery of the completed systems to the Navy by mid-December. The team also learned that DNA had shipped other orders of similar items on time. Finding 14. Based on this report and information he had previously compiled about DNA's timely deliveries, the contracting officer concluded that DNA should be able to meet the required shipping date. Finding 16. This conclusion appears reasonable. The fact that the actual shipment may have been slightly late, Finding 18, does not affect this judgment. TAG also cautioned the contracting officer that DNA could not supply monitors that met the solicitation requirement for FCC Class B certification. Finding 12. As stated earlier, we agree with the contracting officer's view that TAG suffered no prejudice with regard to the monitors. With reference to this specific charge, even if DNA may have been planning to supply non-certified monitors, that could not have harmed TAG, which expressly promised to supply non-certified monitors. See Finding 6. A proposal is what is contained on its pages; the "subjective unexpressed intent of one of the parties is irrelevant." Andersen Consulting, 959 F.2d at 934. Even if TAG meant to provide certified monitors, had it been awarded the contract, it would not have been obligated to do so. Any concern the contracting officer might have had about DNA's ability to provide the requisite technical support for the computer systems was resolved by the pre-award survey team's finding that DNA had made arrangements to provide that support. Finding 14. TAG's apprehension about the truthfulness of DNA's certificate of independent price determination is misplaced. As the Navy points out, this certificate by its words is addressed to concerns about collusion among offerors to fix prices to the Government's detriment. See Finding 4. TAG alleges that David Leibman, who resigned from his job with TAG and then worked on DNA's proposal, used specific information about TAG's proposal in writing DNA's response to the solicitation. Finding 12. Even if the allegation were true, it would not make DNA's certificate false, for it would not show collusion between the two firms "for the purpose of restricting competition." Further, Mr. Leibman has provided affidavits attesting to the falsity of the charge, Findings 19, 20, and TAG -- whose burden it is to show the allegation's validity -- has provided in support only a very general statement by one employee. Beaulieu Affidavit at 2. Whatever rights TAG may have against Mr. Leibman in court, it has not provided sufficient information to the Board for us to question the reasonableness of the contracting officer's determination that DNA's record of integrity and business ethics is sufficiently satisfactory that DNA may be considered a responsible prospective contractor.1 Disclosure of information ____________________ 1 In its record submission brief, TAG raised an additional allegation as to the contracting officer's determination of DNA's responsibility: DNA's certification regarding debarment, suspension, proposed debarment, and other responsibility matters, which was required by the solicitation to be submitted with the proposal, was false. See Protest File, ___ Exhibit 1 at 29-30; FAR 52.209-5. This allegation was not raised until February 2, 1994, though its basis was known at least as early as TAG's letter to the contracting officer dated November 1, 1993. See Finding 12. The allegation was raised many more ___ than ten working days after its basis was known, so it is untimely. Rule 5(b)(3)(ii). We therefore do not consider it. TAG's final count is that the Navy violated provisions of the Procurement Integrity Act, 41 U.S.C.A. 423(b)(3), (d) (West Supp. 1993), by informing DNA, prior to submission of best and final offers, that TAG was the other competing offeror in this procurement. The contracting officer and his contract negotiator have both sworn that this allegation is false. Finding 11. TAG has provided no evidence in support of it. The count is denied. Decision We find merit in none of TAG's allegations. The protest is DENIED. _________________________ STEPHEN M. DANIELS Board Judge We concur: _________________________ _________________________ EDWIN B. NEILL ALLAN H. GOODMAN Board Judge Board Judge