_______________________________________________ DENIED: March 9, 1994 _______________________________________________ GSBCA 12735-P MAD RIVER ELECTRIC, Protester, v. DEPARTMENT OF AGRICULTURE, Respondent. John Lewis, Owner, Mad River Electric, Arcata, CA, appearing for Appellant. Kenneth E. Cohen and Alan Groesbeck, Office of General Counsel, Department of Agriculture, Washington, DC, counsel for Respondent. Before Board Judges BORWICK, HYATT, and GOODMAN. BORWICK, Board Judge. Background Protester, Mad River Electric (Mad River), challenges the placing of a purchase order with Westech Communications Inc. (Westech) for a high speed (level five) local area network (LAN) by the United States Forest Service of the Department of Agriculture (Forest Service). The procurement was a small business, small purchase set aside. The Forest Service issued a request for quotations (RFQ), which it later changed to a negotiated procurement through issuance of an amendment which added evaluation criteria. Mad River alleges that the contracting officer improperly placed an order with Westech because Westech did not propose to test the LAN cabling at 100 megahertz (MHz) bandwidth. Mad River also complains about respondent's late notification of its placing of the purchase order. We deny the protest. Westech was technically acceptable; the RFQ did not require testing of the LAN cabling at 100 MHz. The Forest Service conducted a proper technical evaluation. The contracting officer did violate the duty of prompt notification, but Mad River has not been prejudiced; we deny relief on this issue. Findings of Fact The procurement 1. On July 22, 1993, the Redwood Sciences Laboratory of the Forest Service forwarded a request for procurement action to the contracting officer for a LAN. Protest File, Exhibit Request for Contract Action.[foot #] 1 2. The LAN can operate at a speed of no greater than 10 MHz because of the type of the equipment connected to the LAN. Declaration of United States Forest Service Computer Specialist Linda Bondelos (Bondelos Declaration) (March 1, 1994) 10. The Forest Service specified level five cable in the RFQ because the Forest Service might later purchase equipment capable of transmitting data at 100 MHz. Id. 3. On August 18, 1993, the contracting officer issued a request for quotations for the LAN. The procurement was a small business and small purchase set aside. Protest File, Original RFQ. The RFQ called for installation of thirty-nine Mod Tap receptacles and jacks, with twenty-three locations having single Mod Tap receptacles with two RJ45 termination locations, eight locations having single Mod Tap receptacles with four RJ45 termination locations for data, and eight locations having single Mod Tap receptacles with six RJ45 termination locations for data. Wire to each RJ45 was to be four pair twisted pair cable with category level five gauge wire. Id. C-1.2.2. The RFQ also provided that "[t]he Contractor shall test and verify that the wire runs comply with EIA/TIA [Electronic Industries Association/Telecommunications Industry Association] TBS36 standards for Level 5 gauge wire." Id. C-5.4. 4. The EIA/TIA TBS36 Bulletin (Nov. 1991) specifies standards for unshielded twisted pair cables. Protester's Record Submission, First Exhibit. Level five cable can be used for data transmission at data transmission rates up to and including 100 MHz. Id. For level five cable, the bulletin sets standards for maximum attenuation at a range of 0.064 to 100 MHz and standards for near end crosstalk loss at a range of 0.150 to 100 MHz. Id. 5. Five firms, including Westech, Computers Plus Office World, and Mad River submitted quotations. Mad River was the initial low priced vendor, having quoted $16,752 to perform the work. Protest File, Exhibit Bid Abstract, Exhibit Mad River Quote. 6. Shortly before the quotations were due, a user expressed ----------- FOOTNOTE BEGINS --------- [foot #] 1 Respondent named the protest file exhibits, rather than numbering them. We follow respondent's naming convention. ----------- FOOTNOTE ENDS ----------- concern to the procurement officials about awarding a contract solely on the basis of price without factoring experience and quality into the selection process. Protest File, Exhibit Internal Communications Prior to Award at 132. The user then forwarded to those officials a list of suggested questions to evaluate experience and quality. Id. at 131. Two of the questions involved the vendors' experience in level five testing and whether the vendors had level five testing equipment. Id. at 129. 7. After receipt of the initial quotations, the procurement official contacted Mad River and discussed its experience with installing and testing level five LANs. Protest File, Exhibit Internal Communications Prior to Award at 124. Mad River identified a subcontractor, Computers & Communications, which represented it was a Novell reseller in business for three and one- half years, and had performed forty installations of LANs. Computers & Communications represented it would rent a level five scanner to perform respondent's LAN installation. Protest File, Exhibit Mad River Quote. 8. On the day the procurement official spoke to Mad River, he was informed that the procurement was being moved to another contracting unit for completion of award. Protest File, Exhibit Internal Communications Prior to Award at 124. The new contracting unit decided to amend the request for quotations to add evaluation criteria, advise the vendors of those criteria, and request best and final offers (BAFOs). Id. at 114. 9. By letter of October 22, 1993, the contracting officer issued Amendment One to the RFQ. The amendment made certain changes to Section C of the RFQ, added a brand-name-or-equal provision found in Agriculture Acquisition Regulation (AGAR) 452.210.70, and changed the estimated start date of the contract to November 29, 1993. Protest File, Exhibit Amendment Request for BAFO at 88. The contracting officer asked four clarification questions, the first of which requested a description of demonstrated experience dealing with level five cable. He requested the vendors supply a BAFO by November 18. Finally, he told the vendors of the evaluation criteria applicable to the procurement "with number one being the most important and number [three] being less important." Id. The three criteria were: (1) Demonstrated experience and testing of installation and testing of level five wiring and LAN equipment; (2) Technical methods and approach that will be used to complete this project; and (3) Demonstrated ability to provide and install all the specified items in C-1.3.2. Id. 10. On November 11, 1993, Mad River submitted its BAFO for $19,220. Mad River had retained Computers & Communications for technical support and maintained that it "was trained in the use of the WAVETEK LANTech 100, the only certified category five tester on the market." To satisfy the first criteria, Mad River listed its recabling of Computers & Communication's Offices to level five and testing of the recabling with the WAVETEK tester. Mad River employees also terminated and tested three different UTP Plenum cables, each over 100 feet in length, used Mod Tap category five jacks, created failures and corrected them. Mad River did not list work done by Computers & Communications to establish its qualifications under the first criterion. Protest File, Exhibit Mad River BAFO. 11. On November 2, 1993, Westech submitted its BAFO. To meet the first criterion, Westech listed five level five LANs it had installed, three at the University of California at Berkeley (with 600 data locations, 223 data locations and 180 data locations, respectively), one at Stanford University (165 data locations), and one at Fisher Development in San Francisco (100 data locations). Westech's price was $23,583. 12. The Government rated all the vendors and evaluated proposals on the basis that "award will be made to that offer (1) whose proposal is technically acceptable and (2) whose technical/cost relationship is the most advantageous to the Government. The Government reserves the right to make cost/technical trade-offs that are in the best interest and to the advantage of the Government." Protest File, Exhibit Negotiation Memorandum. The evaluators were impressed with Westech's experience in installation of level five LANs. Computers Plus Office World had lesser experience and was rated marginal. Mad River was rated poor due to its lack of experience, i.e. "no practical experience, other than 8 ports in cooperators office, . . . no primary contractor experience indicated" and "no concurrent telecommunications jobs." Id. 13. Respondent established a competitive range of Westech and Computers Plus Office World, selecting Westech for award as its price was only $385 more expensive than Computers Plus Office World. 14. Respondent sent the purchase order to Westech, which accepted it on December 28. The notice to proceed was issued January 11, 1994. Protest File, Exhibit Award Package. Work was completed on January 19, 1994. Id., Exhibit C.O.R. Log. Westech tested the cable at level five with a LanCat tester. Id. That tester measures near end crosstalk and attenuation at 5-10 MHz in 100 Kilo-hertz increments. Protester's Record Submission, Second Exhibit. Notification of award 15. On December 22, the owner of Mad River called the Forest Service inquiring about the status of the award. The contracting officer could not give him information at that time. Protest File, Exhibit External Communications. The next communication between respondent and Mad River occurred on January 11, when the contracting officer orally notified Mad River's owner of the award to Westech. Id. Discussion Respondent argues that Mad River is not an interested party as Computers Plus Office World is ahead of it in the technical ranking of offerors. We cannot agree. For a protester to be an interested party, it must be an "actual or prospective . . . offeror whose direct economic interest would be affected by the award of the contract or by failure to award the contract." 40 U.S.C. 759(f)(9)(B) (1988); United States v. International Business Machines Corp., 892 F.2d 1006 (Fed. Cir. 1989). The central issue raised by Mad River is that the contracting officer violated statute and regulation by awarding to Westech because that offeror could not test level five cable at 100 MHz. Mad River asserts that it is in line for award because only it had the necessary equipment to test the cable at a 100 MHz bandwidth to meet the solicitation's testing requirements. That the contract was performed before the filing of the protest does not make Mad River any less of an interested party because it might recover its proposal preparation costs if it prevailed. 40 U.S.C. 759(f)(5)(C) (1988). Mad River asserts that Westech did not propose testing level five cable at 100 MHz, making Westech ineligible for award. Therefore, the contracting officer could not issue an order for supplies against Westech's quotation without relaxing the requirements of C-5.4 of the RFQ. Mad River is simply wrong about the meaning of the requirement C-5.4 of the RFQ. The requirement did not require testing the cable at 100 MHz. Instead, it required testing in accordance with EIA/TIA TBS36 standards. Finding 3. Those standards allow level five testing across a range of bandwidths. Finding 4. We will not interpret the requirement in a manner more stringent than that suggested by the reasonable reading of the requirement. Microsolve, Inc., GSBCA 8564-P, 88-1 BCA 20,321, 1988 BPD 244, aff'd, 856 F.2d 202 (1988) (table). Mad River also argues that the establishment of the evaluation criteria after the issuance of the RFQ is illegal. Mad River says that: they wanted a big company that had done a lot of jobs of any kind. A company that would not be found in the economically depressed area of Northern California. This . . . attitude if unprotested will potentially monopolize the telecommunications market and hurt North Coast vendors such as Mad River Electric. Record Submission at 2. Mad River is challenging the propriety of a solicitation amendment. Pursuant to Board Rules, a challenge to a solicitation amendment must be protested no later than the next closing time for receipt of BAFOs, that is, November 18, 1993. Rule 5(b)(3)(i).[foot #] 2 This protest was filed on January 24, 1994; therefore, this count of the protest is untimely.[foot #] 3 Mad River complains that the Forest Service evaluators did not consider Computers & Communications' experience in evaluating Mad River's proposal against the first criteria--experience with level five cable. However, Mad River did not mention Computers & Communications' experience with level five cable in its BAFO. Finding 10. The Forest Service evaluators cannot reasonably be expected to evaluate Computer & Communications' experience if Mad River did not submit information concerning Computer & Communications' experience. Mad River's argument is insupportable. Mad River alleged late notification of award in the pre- hearing conference, but did not address the issue in its record submission. The FAR requires that "notification [of an order placed against a vendor's quotation] to unsuccessful suppliers shall be given only if requested." 48 CFR 13.106(b)(9) (1992). We have construed this requirement as mandating prompt notification to allow disgruntled vendors to pursue meaningful relief. The Computer Center, GSBCA 9729-P, 89-1 BCA 21,412, at 107,921, 1988 BPD 297 at 5, aff'd on reconsideration, 1989 BPD 29. Here, on December 22, 1993, Mad River requested notification, which established its eligibility under the FAR for prompt notification. Finding 15. As Westech accepted the purchase order on December 28, Finding 14, Mad River should have been notified promptly after that date. Notification on January 11, 1994, (Finding 15), fourteen days later, was a violation of that duty. However, given the lack of merit to the substantive allegations, we do not grant relief on this issue. The Computer Center. Decision The protest is DENIED. ----------- FOOTNOTE BEGINS --------- [foot #] 2 58 Fed. Reg. 69246, 69254 (Dec. 30, 1993). [foot #] 3 Even if it were timely, Mad River's allegation lacks merit. We know of no statute or regulation, and Mad River has not identified a statute or regulation, which prohibits the Government from using experience as an evaluation criteria. Without a basis for its alleged violation, Mad River's challenge to the solicitation lacks merit. See 40 U.S.C. 759(f)(5)(B) ___ (1988); Lockheed Missiles & Space Co. Inc. v. Bentsen, 4 F.3d 955 ----------- FOOTNOTE BEGINS --------- (Fed. Cir. 1993). Evaluation on the basis of experience does not necessarily lead to a monopolization of Government business by large firms as alleged by Mad River. Mad River forgets that this procurement was a small business and small purchase set aside, Finding 3, which by its nature, excludes large firms. ----------- FOOTNOTE ENDS ----------- _________________________ ANTHONY S. BORWICK Board Judge We concur: _________________________ CATHERINE B. HYATT Board Judge _________________________ ALLAN H. GOODMAN Board Judge