THIS OPINION, INITIALLY ISSUED UNDER PROTECTIVE ORDER, IS RELEASED TO THE PUBLIC IN ITS ENTIRETY ON JUNE 6, 1994 ____________________ DENIED: June 2, 1994 ____________________ GSBCA 12804-P INTERNATIONAL DATA PRODUCTS, CORPORATION, Protester, v. DEPARTMENT OF THE TREASURY, Respondent, and GOVERNMENT TECHNOLOGY SERVICES, INC., and ZENITH DATA SYSTEMS CORPORATION, and FALCON MICROSYSTEMS, INC., Intervenors. Gerald K. Gimmel and Steven T. Blomberg of Gimmel, Weiman, Ersek & Blomberg, Gaithersburg, MD; and Maria F. Glinsmann, General Counsel of International Data Products, Corporation, Gaithersburg, MD, counsel for Protester. Donald M. Suica, Mark A. Allen, Harold G. Mosher, and Corlyss M. Drinkard, Office of Chief Counsel, Department of the Treasury, Internal Revenue Service, Washington, DC, counsel for Respondent. Richard J. Conway and Leticia E. Flores of Dickstein, Shapiro & Morin, Washington, DC; and William S. Dawson III, Government Technology Services, Inc. (GTSI), Chantilly, VA, counsel for Intervenor GTSI. Laura K. Kennedy and Trisa J. Thompson of Seyfarth, Shaw, Fairweather & Geraldson, Washington, DC, counsel for Intervenor Zenith Data Systems Corporation. Carl J. Peckinpaugh of Akin, Gump, Strauss, Hauer & Feld, Washington, DC, counsel for Intervenor Falcon Microsystems, Inc. Before Board Judges BORWICK, HYATT, and VERGILIO. VERGILIO, Board Judge. On April 6, 1994, International Data Products, Corporation, filed this pre-award protest involving a procurement conducted by the respondent, the Department of the Treasury, Internal Revenue Service. The protester contests the agency determination, after review of initial proposals, to not place the protester within the competitive range. Opposing the protest are three intervenors of right: Government Technology Services, Inc., Zenith Data Systems Corporation, and Falcon Microsystems, Inc. The record fails to demonstrate any impropriety in the underlying evaluations or conclusions by the agency in ascertaining the relative strengths, weaknesses, deficiencies and risks of the protester's initial proposal in comparison to others placed within the competitive range. The record reveals that the protester has no reasonable chance of obtaining the award. The Board finds no violation by the agency in not placing the protester within the competitive range. Accordingly, the Board denies the protest. Findings of Fact The solicitation 1. The agency issued a solicitation to obtain proposals for an indefinite delivery, indefinite quantity contract for microcomputers, notebooks, peripherals, software, documentation, warranties, and services. Protest File, Exhibit 6 at 262-63 ( C.1, C.2, C.3), 316-17 ( I.7). The solicitation anticipates the contract term lasting through the end of the twelfth month after award, with a twelve-month option. Id. at 259 ( B.1), 319 ( I.12), 516. The contract is to satisfy certain requirements of all departmental offices within the Treasury Department and all of the twelve named bureaus within its jurisdiction, with possible delivery sites identified throughout the United States, Canada, and other areas. Id. at 262 ( C.1), 435-42 (Attachment 7). 2. Proposals are to consist of four volumes: I--business proposal; II--price proposal; III--technical proposal; and IV-- technical information. Protest File, Exhibit 6 at 346 ( L.14.1). 3. Proposal preparation instructions advise: "Clarity and completeness are of utmost importance." Protest File, Exhibit 6 at 347 ( L.14.4(3)). Further, "The relevance, clarity and conciseness of the proposal will be important. Key points must be easily found, or will be presumed to be lacking. Maintain careful organization throughout the proposal. Follow the numbering and titling instructions contained herein." Id. ( L.14.4(4)). And further, "Efforts should be directed to submission of a complete and comprehensive initial proposal." Id. ( L.14.4(5)). 4. The solicitation dictates the required content and format for volume III, technical proposal: The Offeror is reminded that the information included in Volume III shall be used as the primary basis in determining whether the Offeror's proposal meets the mandatory requirements as well as the subjective evaluation. The Offeror should carefully consider all of the evaluation factors in Section M when preparing its response. Protest File, Exhibit 6 at 360 ( L.14.7). The solicitation specifies the contents of the eight tabs to be included in the volume. For example, three tabs are program management; production, order processing and delivery capabilities; and quality control plan. Id. Seven of the tabs relate to specific evaluation sub-criteria stated in section M. Id. and id. at 381- 83 ( M.6.1.1 to M.6.3.2). 5. The detailed instructions regarding the program management tab state, in part: The Offeror shall provide a description of how the Offeror intends to provide and manage the full range of activities necessary to successfully perform this contract. Identify the program management structure and the individuals who will be assigned to manage the program, administer subcontracts and the prime contract, and represent the prime contractor's organization in all communications with the Government's Administrative Contracting Officer (ACO), Contracting Officer's Technical Representative (COTR), Inspectors, and Program Managers. Indicate the estimated time commitment to this program/contract for the individuals who will be assigned, the scope of their authority in the offeror's organization and in dealing with the Government, and their management experience in contracts of this scope and magnitude. If specific individual(s) can not be identified for management roles at this time, identify the positions that will be filled if the offeror is awarded the contract, the qualification requirements, scope of authority, estimated time commitment to this program/contract for each unfilled position, and the offeror's plan for assigning individuals immediately upon contract award. Protest File, Exhibit 6 at 361 ( L.14.7.2). 6. The solicitation provides direction regarding source selection and contract award: Offerors who fail to provide in their initial proposal all information required by Section L may be found unacceptable and rejected if the Contracting Officer determines that a significant revision or addendum to their proposal would be required to permit further evaluation. The Offeror's proposal must delineate how the hardware and software offered already meet, or will meet as of the Operational Compliance Demonstration (OCD), each of the relevant mandatory specifications in Section C. The products delivered to the Government for the OCD (see L.16 and M.7) must be identical to those proposed as of the Best and Final Offer. Protest File, Exhibit 6 at 376 ( M.4). 7. The solicitation contains additional guidance: The Government is more concerned with obtaining superior management, technical, and other non-price- related features than with making a contract award at the lowest price. The Government will not make a contract award at a significantly higher price to acquire slightly superior management, technical, and other non-price-related features. However, the Government may make an award at a significantly higher price to acquire significantly superior management, technical, and other non-price-related features if the value of these features is found by the Source Selection Authority (SSA) to be worth the significantly higher price. Protest File, Exhibit 6 at 377 ( M.4.1). 8. And further: The integrated comparison of each proposal's features will include not only those management and technical features which have been numerically-scored as a result of the evaluation addressed in Section M.6, but also other non-price-related features that may not be addressed in Section M.6. Non-price-related features include all preferences stated in the solicitation except for those related to energy-efficiency which will be scored under M.6.3.1. Protest File, Exhibit 6 at 377-78 ( M.4.2). 9. The solicitation identifies the specific evaluation criteria for management and technical areas; the criteria are associated with specific volumes and tabs in proposals: 40 Contract management 30 Past and present performance 20 Technical 10 Subcontracting plan Protest File, Exhibit 6 at 380-84 ( M.6). For each criterion, the solicitation specifies sub-criteria and elements, and the relative ranking thereof; for each sub-criterion, the solicitation also references a tab in the appropriate volume of the proposal. Id. For example, under the contract management criterion, the stated sub-criteria are program management; production, order processing and delivery capabilities; quality control plan; and customer technical assistance and warranty support plan. Id. at 381-82 ( M.6.1.1 to M.6.1.4). Under the technical criterion, the stated sub-criteria are environment; installation and configuration; and documentation. Id. at 383 ( 6.3.1 to 6.3.3). 10. As to price evaluation, the solicitation provides: Although price will not be scored, it will be evaluated for all supplies and services assigned a Contract Line Item Number (CLIN) identified in Section B and described in Section C. These prices will be evaluated through the use of price analysis which will be conducted in accordance with FAR 15.805-2 which may include one or more of the following techniques: (a) Comparison of proposed prices received in response to the Solicitation; (b) Comparison of prior proposed prices and contract prices with current proposed prices for the same or similar end items; (c) Application of rough yardstick to highlight significant inconsistencies that warrant additional pricing inquiry; (d) Comparison with competitive published and market prices; and (e) Comparison of proposed prices with independent Government estimates. Protest File, Exhibit 6 at 385 ( M.8). The evaluation of the protester's initial proposal 11. The protester submitted an initial proposal, as did others. Protest File, Exhibits 7-10. A technical evaluation panel (TEP) evaluated proposals relating to the contract management and technical criteria. Id., Exhibits 13, 16. A business management evaluation panel (BEP) evaluated proposals relating to the past and present performance criterion. Id., Exhibits 13, 17. In evaluating proposals, the evaluators utilized the solicitation and a source selection evaluation guide (SSEG) which contains scoring guidelines. Id., Exhibit 13 at 1886-87. 12. The protester takes issue with the agency's scoring of the contract management and technical criteria. For example, under contract management, the first sub-criterion is program management. Section M of the solicitation states: The Government will evaluate the Offeror's overall management approach to implementing this contract in terms of the following separate elements: (1) clarity of the program management structure, the comprehensiveness of the functions included, and the scope of authority of the individuals/positions assigned to manage, and (2) the management experience and time commitment of the individuals/positions assigned to manage. Protest File, Exhibit 6 at 381 ( M.6.1.1). Section L guidance is found in Finding 5. 13. The protester's proposal specifies that a "management team will be organized along a matrix organization designed specifically to support the complex logistics needs of the contract." Protest File, Exhibit 9 at 896. The proposal identifies the position of program manager as the head of the management team and the individual who would assume that position. The proposal specifies a variety of manager positions to report to the program manager but does not indicate the functions or scope of authority associated with those positions. Although the proposal specifies the management experience of the program manager, it identifies no time commitments of that individual. Further, the proposal neither identifies individuals nor specifies minimum levels of experience or time commitments for the other identified management positions. The proposal contains generalities, but few specifics, addressing the particular evaluation elements identified in the solicitation. Id. at 895-99. 14. Although the protester's vice-president testified in a deposition that the term "matrix management" is a common term used in the business world that connotes a structure and organization, Protest File, Exhibit 28 at 2413, the record contains no credible support for this self-serving testimony which fails to appreciate the solicitation elements. Even assuming the meaning the protester attributes to the terminology, the proposal remains deficient in each element for the reasons addressed by the evaluators. The proposal lacks the very specifics which the solicitation seeks. The protester has not demonstrated that its proposal, which identifies a program manager without specifying his time commitments and which loosely describes the entire management structure and functions associated with subordinate positions, merits more than the minimal score it received for this sub-criterion. 15. For this sub-criterion, the evaluation report recites in a neutral manner the contents of the proposal, and identifies as weaknesses the various elements which the proposal fails to address. Protest File, Exhibit 16 at 1970-72. The comments and point scoring are fully supported by a review of the proposal and the specified evaluation elements. 16. For the contract management and technical criteria, a review of each of the remaining evaluation sub-criteria and elements, the protester's initial proposal, and the evaluation report reveals parallels to the above-described sub-criterion. For each criterion and sub-element, the evaluation comments reflect a reasoned and justifiable appraisal of the protester's submission. The scoring is faithful to the terms of the solicitation, the evaluation standards and guidelines, and the proposal.[foot #] 1 Protest File, Exhibits 5 at 170- 221, 6 at 381-83, 9, 10, 16. 17. The protester objects to having received a score of 1 for some elements when the gradations in the scoring are 4, 2, or 0 points. The protester has not demonstrated that its proposal merits two points in any of the instances. Also, it has not established how the agency arrived at the final scoring. For example, if the scores represent averages of the evaluators, a score of one would be fully consistent with the scoring plan. 18. The record fully supports the agency's scoring of the protester's initial proposal. The protester has not suggested any impropriety in the scoring of other proposals or in the price evaluations. ----------- FOOTNOTE BEGINS --------- [foot #] 1 After the record closed and without timely amending its responses to interrogatories seeking specific bases of support for the protest grounds, the protester belatedly asserts that the agency violated provisions of the SSEG in that members of the TEP were not qualified to evaluate contract management functions, and that the incorrect panel and an incorrect mix of panel members performed the evaluations. The record does not suggest that evaluators were unqualified; to the contrary, regardless of the panel assignments, the record fully supports the evaluations of and conclusions regarding the protester's initial proposal. ----------- FOOTNOTE ENDS ----------- Competitive range determination 19. In a meeting held on March 22, the contracting officer presented his competitive range determination to the source selection advisory council. After considering the price and non- price related factors as well as the relative standing of offerors, the contracting officer concluded that there is no reasonable chance that the protester would be selected for contract award. Hence, the protester was not placed within the competitive range. Protest File, Exhibit 13. By memorandum dated April 8 (subsequent to the filing of the protest on April 6), the contracting officer specifically documented his competitive range determination. Protest File, Exhibit 20. 20. By letter to the protester dated March 23, the contracting officer explained why the protester's proposal had not been placed within the competitive range: The proposal has been found to have significant weaknesses, risks, and omissions in the elements of the evaluation criterion given the most weight. As stated in Section M.6 of the Request for Proposals (RFP) document, this criterion is M.6.1, Contract Management. There are also proposal weaknesses that offset the strengths in the evaluation criterion at M.6.3, Technical. In addition, there are numerous omissions and deficiencies in your proposal such that compliance with the RFP's mandatory specifications and requirements is not shown in all cases. Although the proposal has strengths in the evaluation criterion given the second greatest weight, namely, M.6.2., Experience and Past and Present Performance, these are overcome by the weaknesses, risks, and omissions in the other areas. Your proposal's relative standing among the competing proposals, based on both non-price-related and price-related factors stated in the solicitation, is such that there is no reasonable chance of it being selected; therefore, a revision to the proposal will not be considered. Protest File, Exhibit 14. 21. The protester's proposal received an overall score considerably lower than those within the competitive range. The price of the protester's proposal does not suggest any particular overall advantage in the competitive process. The contracting officer was aware of the point and price differentials, as well as the non-scored differences, between the protester's initial proposal and those of other offerors. Protest File, Exhibits 13, 20, 29 at 4-5 ( 15, 16). A subsequent insignificant increase in the protester's contract management and, hence, overall, score does not affect the analysis. Id., Exhibit 16 at 1997-A to 1997- D. 22. The protester's initial proposal contains significant deficiencies and weaknesses, and reflects risks to the agency. The contracting officer recognizes that the protester could have raised its overall score through a round of negotiations followed by the submission of a best and final offer. However, the contracting officer credibly declares that through discussions and best and final offers other offers also were likely to improve. Other offers have numerous strengths which the protester's initial offer lacks, and which the protester can attain only through the submission of significant additional information and improvement. Protest File, Exhibit 29 at 2549. Given the protester's approach revealed in its initial proposal, the record suggests that the protester would have had to alter its approach or substantially revise its initial proposal in order to submit an acceptable proposal, which is not to be equated with a proposal competitive to obtain the award. In light of the significant deficiencies, weaknesses and risks, and the comparative standing (in terms of price and non-price related factors) to the highest ranked offeror, the protester lacks a reasonable chance to obtain the award. Considering other offerors within the competitive range only makes that much more unreasonable the protester's chance for obtaining the award. 23. In summary, the initial proposal of the protester is deficient when compared to other proposals placed within the competitive range. The relative position of the protester's offer in terms of non-price related and price factors, and the solicitation's selection scheme, fully support the agency's determination that the protester has no reasonable chance of obtaining the award. Discussion The protester challenges the agency determination to not place the protester within the competitive range. The protest states two substantive grounds. One, the determination is clearly erroneous and in violation of Federal Acquisition Regulation (FAR) 15.609(a); the protester's "proposal in response to the Solicitation substantially meets the requirements of the Solicitation and does not require substantial revision to become eligible for award." Two, the contracting officer applied criteria other than those defined in the solicitation, applicable statutes and regulation, in making his determination. "The Contracting Officer determined that [it] would not be fair to [protester] to allow [protester] to continue in the procurement process because of the monetary expense involved in pursuing a solicitation of this nature." Protest at 2 ( 6) (Apr. 6, 1994). In a submission styled "first protest amendment" filed on April 14, the tenth day after it was debriefed, the protester amends its protest grounds, by adding to the first ground: "The Contracting Officer's determination of the relative standing of [protester]'s proposal in relation to other offeror's proposals was flawed." The agency moves to dismiss this amendment as untimely filed. It maintains that by letter dated March 23, Finding 20, the protester was informed of the role of relative standing in the contacting officer's determination. The agency has not suggested that prior to the debriefing the protester knew or should have known of a substantive basis to challenge its relative standing. This amendment was timely filed. Rule 5(b)(3)(ii). The protester focuses its protest upon alleged violations of FAR 15.608(a) and 15.609(a). The first regulation relates to proposal evaluation: Proposal evaluation is an assessment of both the proposal and the offeror's ability (as conveyed by the proposal) to successfully accomplish the prospective contract. An agency shall evaluate competitive proposals solely on the factors specified in the solicitation. 48 CFR 15.608(a) (1993) (emphasis added). The second regulation relates to the competitive range determination: The contracting officer shall determine which proposals are in the competitive range for the purpose of conducting written or oral discussion (see 15.610(b)). The competitive range shall be determined on the basis of cost or price and other factors that were stated in the solicitation and shall include all proposals that have a reasonable chance of being selected for award. When there is doubt as to whether a proposal is in the competitive range, the proposal should be included. 48 CFR 15.609(a) (1993). The evaluation of the protester's initial proposal is faithful to the terms of the solicitation, the evaluation standards and guidelines, and the proposal. The record does not demonstrate any impropriety in the scoring of the proposals or in the price evaluations. Findings 15, 16, 18. In light of the information conveyed by the proposals, the relative position of the protester in comparison to the highest ranked offeror (as well as others within the competitive range), and the justifiable expectations of the results of discussions and best and final offers, the record demonstrates that protester lacks a reasonable chance of obtaining the award. This is what the contracting officer concluded. Appropriately, the agency did not place the protester within the competitive range. The protester misperceives what is to underlie the competitive range determination. Neither statute, 41 U.S.C. 253b(d) (1988), nor the protester-referenced regulations dictate that the contracting officer must place or retain within the competitive range every offeror who may be capable of submitting a best and final offer which is acceptable. Fully acceptable offers, and offers which are capable of being made acceptable, may well have no reasonable chance for award in light of the other offers. The submission of an initial proposal should not be viewed as a guaranteed opportunity to submit a best and final offer. This protester's initial proposal deservedly received the scores it did. It was not in a competitive position reasonably to obtain the award. The protester maintains that, as conveyed by the contracting officer during the debriefing, it was excluded from the competitive range because the contracting officer concluded that it would not be fair to the protester to allow it to continue in the procurement process because of the monetary expense involved in pursuing a solicitation of this nature. The Board does not find that the contracting officer relayed this information. The conversation, or lack thereof, is not relevant. The record demonstrates that the protester lacks a reasonable chance of obtaining the award; the determination to not place the protester in the competitive range is in accordance with statute and regulation. In its brief, the protester contends that the agency should have considered in the evaluation of the criteria and sub- criteria material dispersed throughout its proposal (outside of the specified tabs); an exhibit to the brief details cross- references which are not indicated in the proposal. The protester's belated attempt to bolster its initial proposal is contrary to and ignores the terms of the solicitation, Findings 3, 4. Also in its brief, the protester extrapolates from the scores it received under the contract management criteria the conclusion that the agency failed to disclose its dislike for a matrix management approach; hence, the agency harbored undisclosed evaluation factors which it used in scoring proposals. The protester's speculation is not supported by the record. The protester's initial proposal fails to address specific elements dictated in the solicitation. The evaluations and low scores are attributable to the often wanting contents of the protester's initial proposal; no impropriety on behalf of the evaluators has been demonstrated. Decision The Board DENIES the protest. The Board's previously entered suspension of the agency's procurement authority lapses by its very terms. Order (Apr. 20, 1994); 40 U.S.C. 759(f)(2) (1988). _________________________ JOSEPH A. VERGILIO Board Judge We concur: _________________________ _________________________ ANTHONY S. BORWICK CATHERINE B. HYATT Board Judge Board Judge