THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING RELEASED TO THE PUBLIC IN REDACTED FORM ON JUNE 23, 1994 ___________________________________________ DENIED: June 7, 1994 ___________________________________________ GSBCA 12803-P, 12805-P SYSCON CORPORATION, Protester, FEDERAL COMPUTER CORPORATION, Protester/Intervenor, v. DEPARTMENT OF THE ARMY, Respondent, and INTERMEC CORPORATION, Intervenor. Michael R. Charness, Kathleen C. Little, William A. Roberts, III, Nancy L. Boughton, Eric M. Drattell, Ronald B. Vogt, John G. Horan, and Alice M. Crook of Howrey & Simon, Washington, DC; and Arthur M. Rayman of Syscon Corporation, Washington, DC, counsel for Protester. Edward Gross, Jeffrey S. Romanick, and Charles G. Hildebrandt of Gross & Wexell, Fairfax, VA; and David S. Kovach of Federal Computer Corporation, Falls Church, VA, counsel for Protester/Intervenor. Col. Riggs L. Wilks, Jr., Maj. Charles R. Marvin, Jr., Maj. Karl M. Ellcessor, III, Maj. Wendy A. Polk, Maj. Rose J. Anderson, Maj. Norman A. Weeden, and Capt. Gerald P. Kohns, Department of the Army, Arlington, VA, counsel for Respondent. Thomas J. Madden, John J. Pavlick, Jr., Fernand A. Lavallee, Jerome S. Gabig, Jr., and David W. Goewey of Venable, Baetjer, Howard & Civiletti, Washington, DC; and Daniel S. Bishop of Western Atlas, Inc., Beverly Hills, CA, counsel for Intervenor Intermec Corporation. Before Board Judges PARKER, DeGRAFF, and GOODMAN. PARKER, Board Judge. In these consolidated protests, Federal Computer Corporation (FCC), joined in part by Syscon Corporation, attempts to pick apart the Department of the Army's award of a contract to Intermec Corporation. Although many of the protesters' original grounds of protest have been withdrawn, sixteen issues remain for the Board to decide. As discussed in great (some would say excruciating) detail below, we find the allegations to be without merit. The facts show that Intermec maximized its natural advantage as a manufacturer of the solicited devices (as opposed to re-sellers like FCC and Syscon) to offer the Army an excellent technical solution at a very good price. Intermec's proposal met all of the solicitation requirements and the Army made a very reasonable decision to select Intermec. Finding no violation of statute or regulation, we deny the protests. Findings of Fact The Solicitation 1. The Army Information Systems Selection and Acquisition Agency (ISSAA) issued solicitation no. DAHC 94-93-R-0002 on March 5, 1993. The solicitation is for the acquisition of hardware, software, maintenance, training, program management, technical engineering services, and attendant documentation requirements to establish and utilize Automatic Identification Technology (AIT) systems throughout the Department of Defense (DoD) and certain civilian agencies. The solicitation contemplated a firm, fixed- price indefinite delivery/indefinite quantity contract structured to provide one base year and nine option periods, not to exceed 120 months. The guaranteed minimum amount is $4,000,000 and the maximum amount is $249,370,000. Protest File, Vol. I, Exhibit 1. 2. The Army initially received seven proposals, four of which progressed to best and final offers (BAFOs). The BAFOs were submitted by the following four offerors: Intermec, Syscon, FCC, and Eastern Computers, Inc. (ECI). Protest File, Vol. XVII, Exhibit 31 at 1-2. 3. Section C of the solicitation notifies offerors of the scope of equipment and services to be provided to Government agencies. C.1.1 DESCRIPTION AND SPECIFICATION a. This description and specification sets forth the requirements for the Automatic Identification Technology (AIT) Program. For the purposes of this contract, AIT equipment is that equipment necessary for automatic identification, data collection, keyless data entry and data processing, storage, and retrieval. The Automatic Identification Technology (AIT) Acquisition will provide a base line of bar code and associated automatic identification equipment, software and services shall be available to system designers and integrators throughout Department of Defense (DoD), Coast Guard (CG) and other Federal Agencies. Protest File, Vol. I, Exhibit 1C at C-1. 4. Paragraph C.3.1.1 of the solicitation summarizes the solicitation requirements for AIT equipment: C.3.1.1 General. The Contractor shall provide all necessary hardware, software, firmware, cables, connectors, accessories, maintenance, training, and documentation. Because of the diversity of applications, the Government requires the Contractor to provide the technical engineering services to configure, operate, and maintain the appropriate hardware and software to satisfy the specific application. AIT equipment shall be user-friendly, commercial-off-the-shelf (COTS) equipment capable of operating worldwide. . . . Protest File, Vol. I, Exhibit 1C at C-2. 5. Section B of the Solicitation consists of over twenty pages of contract line item numbers (CLINs) and sub-CLINs requiring prices for over three hundred fifty different types of supplies or services. Protest File, Vol. I, Exhibit 1B. Original Equipment Manufacturer (OEM) Engineering Changes 6. To accommodate equipment upgrades and modifications, the solicitation requires the incorporation of OEM engineering changes into proposals: C.3.1.3 Original Equipment Manufacturer (OEM) Engineering Changes (Ecs). The Government requires that all OEM-sponsored Ecs adopted prior to the date of contract award be incorporated into the equipment delivered under this contract. Protest File, Vol. II, Exhibit 6 at C-3. Of the four vendors submitting BAFOs, only Intermec provided evidence demonstrating it is an Original Equipment Manufacturer (OEM). Protest File, Vol. XVII, Exhibit 29. "Commercially Available," "In Current Production," and "State- Of-The-Art" -- As Those Terms Are Used In the Solicitation 7. Within Section C.3, the solicitation requires offerors to provide equipment and software that is "commercially available": C.3.1.6 Commercially Available Equipment. Commercially available equipment is required. a. An item is "available" if it meets the Terms and Conditions of this document and can be delivered in accordance with the delivery schedule in Section F, of this document. b. Equipment that must be developed to meet the requirement shall be considered unacceptable. Protest File, Vol. II, Exhibit 6 at C-3. 8. Additionally, the solicitation requires that all proffered equipment be "in current production" and "state-of-the- art" and defines these phrases accordingly: C.3.1.7 Current Production. All equipment shall be state-of-the-art technology and in current production at the time the Demonstration, C.16, is performed. a. "State-of-the-art" is defined as the most recently designed components that are in current production, marketed, available, maintained, and supported in accordance with the mandatory requirements specified elsewhere in this document. Prototype or development equipment is not acceptable. Out-of-date or discontinued equipment is not acceptable. b. To be in "current production", the equipment must meet the following criteria: (1) The equipment may contain components that are new or used, provided that the used components are warranted by the manufacturer as being equivalent to new in performance. (2) Equipment that is remanufactured, refurbished, or reconditioned in accordance with the New or Used Equipment Clause (contained elsewhere in this document), may be acceptable as long as it is an item of equipment of the latest technology and meets the requirements of this document. Protest File, Vol. II, Exhibit 6 at C-3. 9. Section C.2.3 of the solicitation states that the "[d]efinitions and meanings of data processing terms used in . . . Section C . . . shall be interpreted in accordance with FED- STD-1037, Glossary of Telecommunications Terms." Protest File, Vol. I, Exhibit 1 at C-2. The Glossary of Telecommunications Terms provides the following definition of the term "prototype": prototype 1. A pre-production, functioning specimen(s) that is the first of its type, typically used for the evaluation of design, performance, and/or production potential. 2. A model suitable for evaluation of design, performance, and production potential. . . . FCC Supplemental Protest File, Exhibit 9 (emphasis added). 10. Mr. Ronald Miller, a member of the technical evaluation team, testified that the purpose of paragraphs C.3.1.7 and C.16.1.1[foot #] 1 was to ensure that the proposed products were not developmental or prototype equipment. Transcript at 125, 132, 146-47. If we felt an item was a prototype item, we felt it was not commercially available. Our concern with that deficiency was that it would [not] be able to meet our production schedule. Id. at 150. According to Mr. Miller, the equipment "had to be commercially available as commercially available is defined in C.3.1.6.A. at the time of the demonstration." Id. at 129. He further testified that to be commercially available as defined in paragraph C.3.1.6.A meant "it can be delivered in accordance with the delivery schedule." Id. at 147. 11. Ms. Gloria McGee, the contracting officer, concurred with Mr. Miller's interpretation and testified that, at the time of demonstration, the Government wanted to be sure that the demonstrated equipment was commercially available in the sense that the vendor could meet the delivery schedule in Section F. Transcript at 161. She further testified that prior to the award of the contract, she was never required to render an official interpretation of the terms "commercial availability," "state-of- the-art," or "in current production." Id. at 166. 12. Ms. McGee also testified that Intermec was the only offeror that did not have deficiencies requiring a second demonstration. Transcript at 168. According to Ms. McGee, if the Government had required Intermec to perform a ----------- FOOTNOTE BEGINS --------- [foot #] 1 Paragraph C.16.1.1 addresses the requirement for offerors to demonstrate their COTS equipment. See Finding 27. ___ ----------- FOOTNOTE ENDS ----------- redemonstration, the contractor would have been permitted to correct any deficiencies in December 1993, an opportunity afforded the other offerors during their redemonstrations. Accordingly, Intermec would have been allowed to produce additional product literature and additional information regarding commercial availability after Intermec completed the demonstration in early October 1993. Id. at 172-73. Requirements For Battery-Powered Components 13. The solicitation recognizes that offerors will propose battery-powered AIT equipment as part of their suite of equipment. Consequently, the solicitation sets forth minimum requirements regarding the capabilities of the batteries used to power AIT components: C.4.1 BATTERY-OPERATED AIT EQUIPMENT. Battery- operated AIT equipment shall be delivered with two sets of rechargeable batteries. C.4.1.1 Rechargeable Batteries. Rechargeable batteries shall supply a minimum of eight hours continuous operation and shall require no more than ten hours to fully charge or discharge. Rechargeable batteries shall be capable of charge operations without removal from AIT equipment. Batteries or battery packs shall be user-replaceable in the field in less than five minutes, and without special tools. . . . . C.4.1.3 RAM Back-up Power. Each battery-operated AIT device with internal RAM shall have internal back-up power to preserve data stored in user RAM during periods of low-power operation and battery recharging. Back-up power shall provide sufficient time to allow the operator to replace or recharge the primary power source. Protest File, Vol. II, Exhibit 5 (emphasis added). Portable Data Collection Devices (PDCDs) 14. Among the items of equipment to be procured were the portable data collection devices (PDCDs): C.4.4.1 General Requirements. Portable data collection devices (PDCDs) are microprocessor-based, hand-held devices designed to gather source-entry data. The Government has a requirement for family of PDCDs that meets a variety of operational needs in widely varying environmental conditions. . . . Protest File, Volume II, Exhibit 5 at C-6. Video Display Unit (VDU) Terminals 15. The solicitation further requires offerors to provide video display unit (VDU) terminals as part of their suite of AIT equipment. Section C.4.15 of the solicitation provides in part: C.4.15. VIDEO DISPLAY UNIT TERMINAL. C.4.15.1 General Requirements. The Government requires amber-screen, Video Display Unit (VDU) terminals for use in AIT applications with fixed bar code readers, all printers (excepting the Type I, Portable, Bar Code Label Printer), etc. The Contractor shall provide VDU terminals that emulate the Lear- Siegler ADM31 and DEC VT-220 terminals. Protest File, Vol. II, Exhibit 7 at C-14. Radio Frequency Data Collection Devices/Terminals 16. The solicitation also requires the contractor to provide radio frequency (RF) data collection devices/terminals. In essence, these data collection devices have an integrated radio transceiver which allows the transmission and reception of data to and from a central point within a storage site. For purposes of the instant protest, two RF devices are at issue: the hand-held RF portable data collection terminal (PDCT) and the forklift-mounted PDCT. C.4.16.2 Functional Requirements. . . . a. RF Portable Data Collection Terminal. A PDCD with an RF capability, data display, alphanumeric keypad and a 256 Kbyte RAM memory that can be upgraded to at least 640 Kbyte RAM, if less than 640 Kbyte RAM is provided in the basic configuration. If less than 640 Kbyte RAM is provided in the basic configuration, memory modules shall be user replaceable. The terminal shall support connectivity with all provided bar code scanners, except for the Bar Code Slot Scanner and POS Scanner. b. Forklift-mounted RF Collection Terminal. The terminal shall be similar to and have the capabilities of the portable data collection terminal; however, the device shall be mounted on a forklift and powered by the vehicle's electrical system. The voltage of 12 to 48 VDC (Nominal) and 120 volts AC must be supported. With respect to the forklift-mounted terminals, the solicitation makes no mention of an industry standard, backlit screens, or enlarged keyboards. Protest File, Vol. II, Exhibit 7 at C-15. Portable Voice Data Collection Devices (PVDCDs) 17. At Section C.4.17, the solicitation requires the contractor to offer portable voice data collection devices (PVDCDs): C.4.17.1 General Requirements. The Government requires a commercial, off-the-shelf, Portable Voice Data Collection Device (PVDCD). C.4.17.2 Functional Requirements. The Contractor shall provide a PVDCD together with the necessary software to provide the following characteristics: capable of uploading and downloading data to a personal computer (286 technology or later); capable of operation in warehouse and outdoor bulk-storage environments; capable of supporting continuous speech recognition; speech dependence (the operator will be required to "teach" the device to recognize his or her speech pattern); capable of storing multiple speech patterns and allowing the operator to select his or her speech pattern from a menu; capable of storing at least a 1000-word vocabulary for at least two persons; capable of supporting text-to-speech synthesis; solid- state design; capable of supporting hands-free operation; user-programmable. Protest File, Vol. II, Exhibit 4 at C-16 (emphasis added). 18. Additionally, paragraphs C.16.2.8.a and b of the solicitation provide the following guidance for vendors when demonstrating their offered PVDCD: a. Demonstrate the procedure for "teaching" the device to recognize specific speech patterns, the ability to store a 1000-word vocabulary for at least two persons, continuous speech recognition, and the ability of the operator to select his or her speech pattern from a menu. b. Demonstrate voice data collection in conjunction with a PDCD with scanner, uploading and downloading data to a host computer, text-to-speech synthesis, and user programming. Protest File, Vol. II, Exhibit 6 at C-62. 19. During the proposal preparation phase of this procurement, the Army further elaborated upon this PVDCD demonstration requirement: The PVDCD will be used in conjunction with a PDCD . . . . For example, during an inventory a user may scan the identification of an item and then use voice to enter the quantity. The two devices must work in tandem. Protest File, Vol. II, Exhibit 2 (Question #79) (emphasis added). 20. With respect to the anticipated demand for these devices, the solicitation cost model indicates that the Government anticipates ordering only seven PVDCDs during the life of this contract.[foot #] 2 Protest File, Vol.II, Exhibit 6 at M-18. PCMCIA PC Memory Card Reader/Writers 21. In concert with its requirement for state-of-the-art equipment, the solicitation requires the contractor to provide Personal Computer Memory Card International Association (PCMCIA) PC memory card reader/writers for PC-host computers as well as the PDCDs/PDCTs. As its name connotes, the reader/writers are designed to load and read data onto and from PCMCIA memory cards. Among the requirements was the following: b. Internal PCMCIA PC Memory Card Reader/Writer. The Internal, PCMCIA PC Memory Card Reader/Writer is intended to be integrated into the host system as a half-height PC drive. . . . The controller and drive shall require no internal power sources nor upgrades to the host power supply. Protest File, Vol. II, Exhibit 7 at C-18 to -19 (emphasis added). Maintenance and Warranty Requirements 22. Section C.8 of the solicitation addresses the interrelationship between maintenance and warranty requirements for the AIT equipment offered by the contractor: C.8 MAINTENANCE The Contractor shall perform all maintenance to AIT components as ordered. Maintenance may be conducted at the Government site or at one of the Contractor's Maintenance Repair Centers (MRCs) for tactical and non- tactical provided AIT equipment. The Contractor shall provide a one-year warranty for all provided AIT equipment, in accordance with the warranty clause in Section I and in accordance with the Maintenance Section, C.8. If there is a conflict between the FAR Clause, 52.246-17, "Warranty of Supplies of a ----------- FOOTNOTE BEGINS --------- [foot #] 2 At the prices proposed by Intermec, the total cost for these seven units is , or a mere of the evaluated contract price . ----------- FOOTNOTE ENDS ----------- Noncomplex Nature," and this section, the FAR clause shall govern. Protest File, Vol. II, Exhibit 6 at C-25. 23. Further, paragraph M.4.3.3(2)(b) of the RFP expressly encourages the contractor to offer extended warranties: (b) Warranty Support. The Government shall evaluate the Offeror's proposed warranty support solution and the degree to which life cycle support is provided to customers in worldwide locations. Special emphasis shall be given to the type, mean-time to restore and return to the customer, and the location of the offered warranty service centers. The Government shall give additional credit for extended warranty support. Protest File, Vol. I, Exhibit 1M at M-13 (emphasis added). 24. In fact, the impact of extended warranties on the offeror's cost model was the subject of a pre-award query (Question #118), which was incorporated into the solicitation by amendment no. 0003. Responding to this query, the Army concurred that if extended warranties are offered, the evaluated maintenance quantities are shifted to the first option year in which the item of equipment is no longer covered by the warranty. Thus, the Army agreed with the following scenario: . . . For example, if a three year warranty is provided, the current option year 1 quantities should be moved to option year 3 (contract year 4) since that is the first year maintenance starts on base year quantities. Option year 2 quantities should be moved to option year 4 since only base year and option year 1 quantities are no longer covered under warranty and so on. No mention is made of the provision of maintenance services by the contractor. Protest File, Vol. II, Exhibit 4 (Question #118). 25. Intermec exceeded the minimum one year warranty requirement by offering extended warranties on numerous components within its suite of offered equipment: a five-year warranty on eleven separate CLINs, a three-year warranty on eight CLINs, and a two-year warranty on sixteen CLINs. Protest File, Vol. XVII, Exhibit 29E. 26. The extended warranties offered by Intermec did not specify any maintenance tasks required for the affected items of equipment. Mr. Steve Winter of Intermec testified at the hearing that none of these items had scheduled maintenance. Transcript at 757. Demonstration of AIT Equipment 27. The solicitation further requires offerors to demonstrate the hardware and software identified in their respective proposals. Section C.16 provides in part: C.16.1.1 Demonstration Objective. The Government shall inspect and observe all COTS AIT equipment proposed by the Offeror to satisfy the requirements of this contract. Using the scenarios in this plan, the Offeror shall demonstrate: interoperability of all AIT equipment; complete end-to-end connectivity; and, the minimum functional use of each piece of equipment. The demonstration shall occur in two parts: 1) the Offeror's presentation of the AIT equipment following the scenarios provided in this plan; and 2) the Government's independent observation and operation of the AIT equipment. All participating Offerors will be given equal opportunity to demonstrate Offeror-proposed AIT equipment and configurations during individually scheduled demonstration periods. The Government reserves the right to schedule additional demonstration periods to review deficiencies noted in any one demonstration. If this right is exercised for any Offeror, it will be exercised for all Offerors with demonstration deficiencies. Protest File, Vol. I, Exhibit 1C at C-56; Id., Vol. II, Exhibit 6 at C-57. 28. In accordance with this guidance, the Government required each contractor to demonstrate its proffered equipment. Demonstrations were held one each week beginning on October 5, 1993, in the following order: Intermec, SYSCON, FCC, and ECI. Of the four vendors, only Intermec satisfactorily demonstrated all of its proposed equipment during its first demonstration. Transcript at 168. 29. Intermec performed its demonstration on October 5-7, 1993. At the outset of its demonstration, Intermec provided the Government evaluators a comprehensive demonstration handbook for reference. Intermec then executed a thoroughly organized and successful demonstration of its offered equipment. Transcript at 1008. 30. The Government evaluators checked demonstrated equipment for model numbers and serial numbers to confirm the items being demonstrated were the actual items being offered in the offerors' CLIN list. A secondary purpose of this review was to alert evaluators to equipment which may not have been commercially available or in current production.[foot #] 3 The technical team saw no evidence of prototype equipment at the Intermec demonstration. Transcript at 1010. 31. FCC's first demonstration occurred in late October 1993, following the SYSCON demonstration. Unlike the Intermec demonstration, however, the FCC demonstration was not well organized nor did it adequately demonstrate that the FCC-offered equipment would comply with the solicitation's minimum requirements. In fact, FCC failed to position properly all of its proposed equipment at the demonstration site with the consequence that the demonstration could not be performed within the two days allotted it. Consequently, the Government allowed FCC to extend its demonstration a third day, the day otherwise reserved by the terms of the solicitation to afford evaluators an opportunity to study the equipment first-hand. Transcript at 1023-33. 32. Relevant to the technical score and cost risk given FCC's proposal was its offer of PDCDs manufactured by . During the demonstrations, a representative from informed the Government that it planned to introduce an upgraded PDCD within months, which would replace the devices offered by FCC. Protest File, Vol. XVII, Exhibit 29B. 33. During the hearing, the contracting officer testified Intermec was the only offeror that did not require a second demonstration. The contracting officer also noted that, in accordance with the terms of the solicitation, if Intermec had been required to re-demonstrate any of its equipment, the Government would have extended it the same latitude that was afforded FCC with respect to product compliance concerns. In other words, all offerors were to be treated similarly. Further, the contracting officer testified that FCC was allowed to substitute a product into its BAFO despite the fact that it had not been demonstrated at either of the two FCC live demonstrations.[foot #] 4 Finally, the contracting officer testified that offerors could introduce additional information to show product compliance with the solicitation requirements at any of their demonstrations or redemonstrations. Transcript at 170-73. The Procurement's Evaluation Methodology ----------- FOOTNOTE BEGINS --------- [foot #] 3 The evaluators performed similar reviews with all offerors at their respective demonstrations. [foot #] 4 FCC did not demonstrate its RF Data Communications System Gateway (Spread Spectrum). Transcript at 170. ----------- FOOTNOTE ENDS ----------- 34. Section M of the solicitation sets out the evaluation criteria the Government considered in making its award decision. Provided below are pertinent excerpts from Section M: M.2.3 Unbalanced Offers and Offers Not Complying With Funding Statutes and Regulations. An offer which is unbalanced as to prices for the basic or optional quantities, or optional periods, may be rejected. An unbalanced offer is one that is based on prices significantly lower than cost for some systems or items, and prices that are significantly overstated for other systems or items. There must be a direct and reasonable relationship between the consideration paid by the Government and the value in goods or services received by the Government on a contract-year basis. . . . . 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 [sic] 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, Vol. I, Exhibit 1M at M-3. 35. Sub-section M.4.3.1 of the solicitation provides additional guidance regarding the technical evaluation of submitted proposals: M.4.3.1 Technical a. The Government shall evaluate the quality and technical sufficiency of the offered products. The evaluation shall consider the offered products for characteristics that satisfy the Government's stated functional descriptions in Section C. The Government may use a variety of information sources including the Offeror's proposal, technical reports, magazine articles, and commercial literature, as well as contacts with present and past commercial and Government customers. b. The following items are listed in descending order of importance: Hardware, Software, and Technical Engineering Services. . . . Section M specifically states the "items" of Hardware, Software, and Technical Engineering Services (TES) are listed in descending order of importance. It does not state the elements ("factors") under these items are listed in descending order of importance. Protest File, Vol. I, Exhibit 1 at M-3. 36. Prior to the date for submission of initial proposals, the Army received a request seeking further elaboration on the guidance contained in Section M.3. The Army's response was documented as a response to Question #172, published in amendment 0004 to the solicitation: The evaluation 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. . . . 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 [sic] 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. Protest File, Volume II, Exhibit 5 (Question #172) (emphasis added). Following publication of the Board's Integrated Systems Group opinion (discussed below), amendment no. 0005 was published containing Question and Answer #180. The question reiterated Question #172 and asked for additional clarification. In its response, the Army reiterated its answer to Question #172, restated that the evaluation criteria were as stated in Section M of the solicitation, and expressly declined to confirm or deny the proffered interpretation in Question #180. Protest File, Volume II, Exhibit 6 (Question #180). 37. The Army used a color rating system to evaluate proposals for this acquisition. The Source Selection Evaluation Handbook (SSEH) for this acquisition sets out and defines this rating system in the following fashion: Color Rating Definition Blue Exceptional Significantly exceeds minimum requirements in a beneficial way to DoD, and has little or no risk. Green Acceptable Meets minimum requirements and has little or no risk. Yellow Acceptable At least meets minimum requirements, but has significant disadvantages or risks. Red Unacceptable Fails to meet the minimum requirements. The color rating assigned at the "area" and "item" levels for each proposal were based, in part, on the judgment of the Source Selection Evaluation Board (SSEB) technical team (reached by consensus), the members' first-hand observation of equipment as demonstrated, and any supporting technical literature. Protest File, Vol. XVII, Exhibit 28. 38. This procurement was the subject of a pre-award protest challenging, in part, the Army's evaluation system as set out in Section M of the solicitation. Pertinent to the instant case, the protest challenged the Army's refusal to identify what specific weights it would apply at the "factor" level. In response, the Army filed a summary relief motion, stating that there was no lawful requirement to rank order its rating at the "factor" level (as that term is used in this solicitation). 39. The Board granted Respondent's Motion on June 9, 1993 and held that "the factors (`areas'), significant subfactors (`items'), and the relative importance of the evaluation factors are clearly stated in the instant solicitation." Integrated Systems Group, Inc. v. Department of the Army, GSBCA 12417-P, 93- 3 BCA 26,225, at 130,506, 1993 BPD 178, at 11. The Board also held that Respondent was not required to provide further detail in the solicitation's evaluation criteria. "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 [the Technical, Cost, and Management and Logistic areas of paragraph M.4.3.] and significant subfactor [for example, the Technical items of Hardware, Software, and Technical Engineering Services of paragraph M.4.3.1.b.] level." Id. at 130,507, 1993 BPD 178, at 12. 40. The Board, in dicta, observed that the "hardware item of the technical area contains thirty-seven separate elements of hardware listed in descending order of importance." Integrated Systems Group, 93-3 BCA at 130,507, 1993 BPD 178, at 12. Despite this language, the phrase "listed in descending order of importance" as it appears in paragraph M.4.3.1.b. does not apply to the thirty-seven separate "elements" of hardware. Rather, it applies to the three listed "items", i.e. Hardware, Software, and Technical Engineering Services. Protest File, Vol. I, Exhibit 1M at M-3. 41. Offers had already been submitted by the time the ISG protest was filed. FCC's cost manager, Mr. Raymond Joseph Market, testified that prior to the Board's opinion in Integrated Systems Group, FCC had already interpreted Section M as requiring that the thirty-seven "factors" under the hardware "item" would be evaluated in descending order of importance. Mr. Market also testified that FCC held this view throughout the procurement. Transcript at 515-27. 42. The SSEB followed the language set forth in Section M, the Source Selection Plan (SSP), and the Source Selection Evaluation Handbook (SSEH) in evaluating the four proposals. With respect to the technical "area" category, the SSEB evaluated in descending order of importance the following three "items": (1) Hardware; (2) Software; and (3) Technical Engineering Services. The SSEB did not apply any descending order of importance to the 37 "factors" contained within the hardware "item." Rather, the SSEB weighed each "factor" equally. Transcript at 127, 975-77. The Evaluation Process 43. The SSEB technical team evaluated every proposal submitted in response to the AIT solicitation. With respect to the four BAFOs, the SSEB studied all descriptive and technical literature, participated in each offeror's demonstration(s), discussed their individual evaluations, and then entered into a consensus rating and narrative setting forth the team's evaluation of each "factor," "item," and "area." The technical team memorialized their consensus evaluation for each "factor" on "Factor Evaluation Worksheets." These worksheets document advantages, disadvantages, and risks associated with each specific "factor." At the "item" and "area" levels, the evaluators brought forward the findings they believed to be significant and, again by consensus, drafted narratives supporting the team's color rating assigned to that particular category. Transcript at 977-78. 44. In addition to the technical evaluation, the SSEB also performed a detailed price evaluation of each proposal. The cost team, which was composed of members not affiliated with and kept separate from the technical team, reviewed individual CLINs, items, and areas for price reasonableness and risk. Specifically, the cost team determined each offeror's most probable total contract cost, evaluated each CLIN's price for reasonableness, verified the costs with each offeror, and assigned cost risk where technical substitutions were expected to occur during the contract life. Protest File, Vol. XVII, Exhibit 29E. 45. The SSEB's final evaluation of each proposal is summarized in the table below: AREAS/COSTS EVALUATION TABLE ECI FCC INTERMEC SYSCON Tech YELLOW YELLOW BLUE GREEN Mgt & GREEN GREEN GREEN GREEN Log Cost Protest File, Vol. XVII, Exhibit 29. 46. The SSEB findings were then presented to the Source Selection Advisory Council (SSAC), which also performed a study of each proposal and the SSEB's work product. The SSAC's role with respect to the SSEB was principally one of oversight, i.e. ensuring that the SSEB conducted its evaluation in accordance with the terms of the solicitation, the SSP, and the SSEH. Additionally, the SSAC conducted a comparative analysis of all offers with the goal of making a final recommendation to the Source Selection Authority (SSA). Transcript at 79-80. 47. Of importance to the instant case were the final two SSAC meetings. During the SSAC meeting held in January 1994, prior to the submission of BAFOs, the SSAC reviewed all SSEB evaluation documents and studied every narrative generated by the SSEB. The SSEB team chiefs and selected representatives from the technical team also attended this meeting. During this eight hour session the SSAC studied, questioned, and discussed virtually every line of the SSEB evaluation documents. Additionally, the SSAC specifically discussed issues involving the cost reasonableness of proposals and such technical concerns as the type of forklift-mounted collection devices. Transcript at 76-80, 96-98, 103, 105-07. 48. In March 1994, following the submission of BAFOs, the SSAC reviewed the SSEB's final evaluation report. The SSAC again studied, questioned, and discussed the SSEB's findings. The SSAC then voted for the proposal they would recommend for selection by the SSA. Initially, all but two members of the SSAC voted for the Intermec solution. One member abstained and another SSAC member voted for FCC, because its offer was priced . This latter concern caused the SSAC to discuss the technical advantages of the Intermec proposal vis-a-vis that of FCC and why the technical excellence of the Intermec solution outweighed the cost difference ( ) separating the two proposals. Following this discussion, the SSAC conducted a second vote and this time all members recommended selection of the Intermec proposal. Transcript at 76-80. 49. Following this final SSAC meeting, the SSAC Comparative Analysis Report was prepared. Drafts of the report were provided to all SSAC members for their review and comment. Once all draft comments were reviewed and processed, the final report was provided to the SSAC Chair, Brigadier General James Wright. Transcript at 80-81. 50. The SSAC's Comparative Analysis Report memorializes the SSAC's findings and recommendations with regard to their review of the submitted proposals. The SSAC report addresses the evaluation methodology used by the SSEB and the SSAC, details the SSAC's comparative analyses of the proposals, sets out the SSAC's cost technical trade-off analysis, and recommends that the SSA select the Intermec proposal as offering the best value solution to the Government. Protest File, Vol. XVII, Exhibit 30. 51. Brigadier General Wright then briefed the SSA on the work by the SSEB and the SSAC. He provided the SSA with SSEB evaluation documentation, including the final SSEB report, the SSAC comparative analysis, and a copy of the Intermec demonstration book. General Wright also provided the SSA with the SSAC's recommendation that the SSA select Intermec as providing the Government the best value. On March 23, 1994, a few days after the SSAC briefing, the SSA issued his decision selecting Intermec for award. Transcript at 82-84. 52. Following the filing of the subject protests, Respondent arranged for an outside consultant to conduct an independent price technical trade-off (PTTO) analysis. This independent assessment was performed by Mr. Michael Watson, of KPMG Peat-Marwick. During the hearing, the Board recognized Mr. Watson as an expert in the field of economic analyses and PTTOs and allowed Mr. Watson to testify regarding his comparative analysis between the Intermec and FCC proposals. Transcript at 1055-57, 1060-64. 53. Mr. Watson's analysis was based upon an in-depth study of the documents in the voluminous protest file, all interrogatory responses and documents, economic analyses independently performed by the Army for the AIT acquisition, interviews with government personnel involved in the procurement, interviews of the Intermec project manager, and a review of deposition transcripts, including those taken of FCC personnel. Transcript at 1060-64. 54. Based upon this information, Mr. Watson independently confirmed the price technical trade-off analysis and recommendation made by the SSAC. Mr. Watson was able to quantify some of the discriminators identified by the SSAC and conclude that the technical superiority of the Intermec proposal more than accounted for the cost difference associated with the two offers. Specifically, without taking the non-quantifiable discriminators he had identified into account, Mr. Watson concluded that the adjusted price of the offer was actually greater than that of the Intermec solution. Transcript at 1065- 70; Respondent's Exhibit 4. 55. Following announcement of award to Intermec, SYSCON protested this decision to the Board on April 4, 1994. FCC then intervened and subsequently filed its own protest on April 12, 1994. Following a comprehensive exchange of information during the pre-hearing discovery process, SYSCON dropped the majority of its bases for protest and elected to proceed on the record, pursuant to GSBCA Rule 11, with the remaining counts. On May 10- 14, 1994, the hearing on the merits was conducted. Intermec's Proposal and Protester's Compliance Allegations Intermec's Proposed Portable Voice Data Collection Device (PVDCD) 56. Intermec offered the Verbex Portable Speech Commander, Model 7626-2,[foot #] 5 a commercial-off-the-shelf product, to satisfy the solicitation requirement for the portable voice data collection devices.[foot #] 6 Protest File, Vol. II, Exhibit 4. 57. Clin 0011AA of Intermec's proposal identifies the "Verbex 8556BP-110 PVDCD base unit" and the optical cable as the provided hardware. In the relevant descriptive literature for this item, Intermec states that the Verbex Voice Commander will always operate in tandem with a PDCD. The JANUS model PDCD serves as a data link for receiving serial input from a recognition device. Protest File, Volume IX, Exhibit 6 at I- 6.17-7. 58. Intermec demonstrated the Verbex unit operating in tandem with the JANUS J2010, per the guidance of the solicitation.[foot #] 7 Additionally, Intermec demonstrated the ability of the Verbex unit to meet all applicable solicitation requirements in operation by itself. Transcript at 714-26, 1018-21. 59. Intermec specifically demonstrated that using the Verbex unit, the operator could select his or her voice pattern from a menu. Intermec also demonstrated that menu selection could take place from the JANUS J2010 as well as from the Verbex unit and that additional 1000-word vocabularies could be stored on the JANUS unit and then downloaded quickly to the Verbex unit. Additionally, the Intermec demonstration showed that the device was capable of storing 1000-word vocabularies for two people. Further, Intermec demonstrated that the Verbex unit was capable of supporting text-to-speech synthesis. Transcript at 720-35. 60. Mr. Ray Alvayrak, an official from the Verbex Corporation, testified[foot #] 8 that the Intermec- offered PVDCD could store 1000-word vocabularies for two ----------- FOOTNOTE BEGINS --------- [foot #] 5 Intermec also refers to this product as a "Model 8556BP-110" -- an Intermec designation of the Verbex Model 7626- 2. Nahm et al. Deposition at 21. ______ [foot #] 6 See Section C.4.17, Finding 17. ___ [foot #] 7 See Paragraph C.16.2.8, Finding 18. ___ [foot #] 8 The Board received into evidence the deposition transcript of officials from Verbex Corporation (Nahm et al. _______ Deposition). ----------- FOOTNOTE ENDS ----------- individuals. Nahm et al. Deposition at 40, 63, and 85. Mr. Alvayrak also testified that the Verbex unit could support text- to-speech synthesis. Additionally, he stated that the Intermec- offered PVDCD could be programmed to perform text-to-speech synthesis. Id. at 86. 61. In order to store two 1000-word vocabularies in the Verbex unit, one of them must be stored in volatile random access memory (RAM); the other is stored in non-volatile memory. If the vocabulary resident in non-volatile memory is selected from the menu, the other vocabulary, resident in the RAM, will be erased. If this happens, the vocabulary information must be downloaded into the PVDCD from another computer in order to access the erased vocabulary. Transcript at 185-86, 840-42. None of the collected data, however, would be lost. Mr. Whitaker, FCC's proffered expert, acknowledged that the solicitation did not require that the voice file and vocabulary be stored in any particular location in the PVDCD. Id. at 318. Intermec intends that the PVDCD will always work in tandem with another computer, the PDCD. Configured in this manner, as described in the solicitation (see Findings 20-21), the PVDCD is capable of accessing more than 600 voice files stored in non-volatile memory. Transcript at 736. 62. To meet the eight hour battery power requirement of the solicitation, Intermec simply linked two standard Verbex 4.5 hour-rated batteries[foot #] 9 in parallel. The batteries were connected via a simple commercially available connector (or "extension cord") and then fitted onto the Verbex unit with the manufacturer's pre-existing battery "slots." Transcript at 708-11. The Verbex representatives confirmed the efficacy of this simple solution, noting that it was "more than possible" to align the battery pack so as to provide for more than eight hours of continuous operation. Nahm et al. Deposition at 84. Intermec's Video Display Unit Terminal 63. Intermec offered the IBM 3151 VDU terminal as part of its AIT suite of equipment. In support of its allegation that the IBM 3151 is incapable of providing for ADM31 emulation, FCC offered the testimony of Mr. Market, an FCC sales representative and its AIT cost manager.[foot #] 10 Mr. Market's ----------- FOOTNOTE BEGINS --------- [foot #] 9 Technical literature from Verbex Voice Systems, Inc. establishes that the nickel-cadmium battery supplied with the Verbex unit offered by Intermec typically achieved 4.5 hours of battery life. Intermec's Exhibit I-47. [foot #] 10 Additionally, FCC relied upon a letter from an IBM sales representative. FCC offered no testimony or statements from an electrical engineer familiar with the operation and capabilities of the IBM 3151 and the ADM31 terminal. ----------- FOOTNOTE ENDS ----------- testimony regarding the IBM 3151 was based upon a conversation he had with a third party technician.[foot #] 11 64. Mr. Winter of Intermec, who is an electrical engineer with more than 17 years of experience in AIT technology, testified that he had tested and observed the IBM 3151 emulate the ADM31 terminal.[foot #] 12 Based upon his first- hand investigation, Mr. Winter concluded that the IBM 3151 fully met all applicable solicitation requirements. Transcript at 691- 95. We find Mr. Winter's testimony in this regard to be highly credible. ----------- FOOTNOTE BEGINS --------- [foot #] 11 In response to Government questioning, Mr. Market identified this third party in the following fashion: A We have a -- a fellow that -- that's a real long- haired, bearded type of guy that's very heavy into technical stuff, and -- Q With FCC? A Yeah, he's -- he works on various projects with FCC, yeah. Q Other than talking to this other fellow with the beard -- A Well, I called him on -- I called him on the phone this morning and said, "Here is the scenario. Can you tell me how this would work, and would it work, and would it be a problem?" And he went and researched the books and came back and said, "No, it would not work." Transcript at 532. [foot #] 12 At the hearing Mr. Winter testified that the IBM 3151 can emulate the ADM31 terminal by using either the Televideo 900 mode or the ADM3A mode resident in the IBM 3151 and then configuring the programmable function keys to complete the emulation of the ADM31. Transcript at 692-94. ----------- FOOTNOTE ENDS ----------- Intermec's Internal PCMCIA PC Reader/Writer 65. Intermec offered the Databook TMB-200 internal PCMCIA PC reader/writer to meet the RFP requirements contained at Paragraph C.4.21. Mr. Robert Robson, the Databook Corporation sales manager, offered the TMB-200 in response to an Intermec "Request For Proposal" (RFP).[foot #] 13 Intermec Supplemental Protest File, Exhibit 24. In his deposition,[foot #] 14 Mr. Robson testified that the TMB-200 is a state-of-the-art internal PCMCIA PC reader/writer that was manufactured by Databook as recently as September 1993, only a month or so prior to Intermec's AIT demonstration. Robson Deposition at 29. 66. Mr. Robson also testified that Databook has recently introduced the TMB-240, an upgrade to the TMB-200. According to Mr. Robson, the first main production run of the TMB-240 did not occur until late November 1993. Robson Deposition at 29. He also testified that his company has not yet issued a formal announcement stating that the TMB-200 has been discontinued. To the contrary, Mr. Robson testified that his company has agreed to continue production of the TMB-200.[foot #] 15 Transcript at 30-31, 34. 67. Mr. Winter further confirmed Mr. Robson's testimony. During the hearing on the merits, Mr. Winter testified that Databook had produced the TMB-200 reader/writers just weeks before the Intermec AIT demonstration in early October 1993.[foot #] 16 Mr. Winter also testified that Intermec had adopted a "belt and suspenders" approach to the ----------- FOOTNOTE BEGINS --------- [foot #] 13 Intermec distributed to potential offerors its own version of the AIT RFP. This Intermec RFP incorporated the identical language of the Government's solicitation and directed vendors to confirm that their proffered equipment met the minimum requirements of the solicitation. [foot #] 14 The Board accepted into record the transcript of Mr. Robson's deposition testimony (Robson Deposition). [foot #] 15 Interestingly, the upgraded version of the TMB- 200, the TMB-240, not only was more capable than its predecessor but was less expensive. This type of upgrade falls within the changes envisioned in the OEM engineering changes clause at C.3.1.3, Finding 6. However, with respect to the solicitation requirements, both reader/writers have the same capabilities. [foot #] 16 In fact, Mr. Winter testified that he repeatedly asked Databook to "reverify" their proposal to Intermec and reaffirm that the TMB-200 would meet the commercial availability and in current production solicitation requirements. Transcript at 749. ----------- FOOTNOTE ENDS ----------- reader/writer requirement. Aware that Databook was upgrading the TMB-200 to the TMB-240, Intermec verified that Databook would continue production of the TMB-200. Consequently, Intermec could offer either the TMB-200 or the TMB-240 -- the choice was the Government's. Transcript at 748-54. 68. Finally, Intermec introduced expert testimony regarding the issue of when a product can be considered to be "in current production." Dr. David Allais, Intermec's expert on the production of AIT equipment, testified that in his opinion a product is still "in current production" in the AIT industry if the manufacturer accepts orders for the product, manufactures the product to meet these orders, and will support or warrant the products. Dr. Allais also testified that if a product is in a production status it cannot be considered "discontinued." Transcript at 933. 69. With respect to the power source of the controller and driver within the reader/writer, the TMB-200 is connected to the computer and is powered by the computer's internal power supply. In other words, the reader/writer has no internal power source on it. Intermec sought proposals from several major manufacturers of PCMCIA reader/writers. These companies were provided with a copy of the solicitation and all offered equipment using the same approach for internal power. Transcript at 745-46. The JANUS Family of Portable Data Collection Devices (PDCDs) 70. Intermec manufactures state-of-the-art portable data collection devices and radio frequency collection devices, identified respectively as the JANUS J2010/J2020 and the JANUS J2010RF/JR2020. These devices meet or exceed all requirements established by the solicitation. With the integration of the PCMCIA PC reader/writers, the JANUS family of PDCDs offers the Government an "elegant" and extremely portable data collection device. The SSEB gave the Intermec PDCDs high marks, specifically commenting on the device's advanced 80386 microprocessor[foot #] 17 and its full suite of MS- DOS 5.0 files. 71. The JANUS J2010 is a hand-held personal computer which can be connected to various AIT data collection devices and other peripherals, including portable printers. Intermec introduced the JANUS J2010A in November 1992 as the first of what is anticipated to be many generations within Intermec JANUS family of PDCDs. Transcript at 6, 512-75. 72. The JANUS J2010 model offers an integrated PCMCIA reader/writer capable of handling Type I PCMCIA cards. Criddle ----------- FOOTNOTE BEGINS --------- [foot #] 17 Although the 80386 microprocessor has been around in the PC market for some time, its integration into the hand-held computers, which includes PDCDs, is relatively new. ----------- FOOTNOTE ENDS ----------- Deposition at 18.[foot #] 18 As part of its corporate policy, Intermec designates the initial model of a product with an alphabetic suffix, such as "A" as in "J2010A". Successive versions with only minor upgrades are then given a different letter designator for purposes of inventory control and support, such as the "J2010B." 73. With the introduction of the JANUS J2010A, Intermec identified various options that could be purchased with the device. One option Intermec offers for the JANUS J2010A is a second PCMCIA reader/writer in an "option back," which is attached to the back of the JANUS J2010 unit. Transcript at 512- 73. This option back allows the JANUS J2010 to use Type II PCMCIA cards (which was not required by the solicitation) as well as integrated circuit cards (ICCs) (which was a solicitation requirement). 74. Intermec formally offered the J2010A with the PCMCIA option back for sale to the general public in February 1993. At that time Intermec informed potential customers that the PCMCIA option back would be available for delivery in May 1993. Transcript at 617-18, 622. This public offering was also extended to the Government via Intermec's General Services Administration (GSA) Catalog, dated July 1993. In this catalog Intermec offers the JANUS J2010A for $1,815 and the PCMCIA option back for an additional $243.75. Intermec's Exhibit I-5. 75. Testimony at the hearing established that the PCMCIA option back for the J2010A was manufactured on the Intermec production floor in the summer of 1993, several months before the October demonstration. By the time of the AIT demonstration in October 1993, Intermec had already sold over 1000 J2010s. Transcript at 628. 76. Because the standard configuration of the JANUS J2010A includes an integrated PCMCIA reader/writer and because in 1992- 93 the PCMCIA standard was in a state of flux, there was little initial demand for the J2010A with option back. Transcript at 592-93. In fact, during this period, Intermec repeatedly advised customers seeking the PCMCIA option back that their basic PCMCIA needs ordinarily could be met through the reader/writer already included in the standard JANUS J2010 configuration. Transcript at 606-07. 77. By October of 1993, Intermec had received several orders for the J2010A with PCMCIA option back. Intermec's Exhibit I-4; Transcript at 577, 625. For example, the issued a purchase order for a J2010A with PCMCIA option back on July 2, 1993. Additionally, the record demonstrates that a ----------- FOOTNOTE BEGINS --------- [foot #] 18 The Board received into evidence the deposition transcript of Ms. Karen Criddle (Criddle Deposition). ----------- FOOTNOTE ENDS ----------- European order for the J2010A with PCMCIA option back was placed on September 20, 1993. Intermec's Exhibit I-61. 78. The J2010s with the PCMCIA option back experienced problems associated with a connector between the basic unit and the option back. As a temporary solution to this problem, Intermec refined the manufacturing process for the JANUS J2010As by hard wiring (or soldering) the connector to the unit. This adjustment, however, ran counter to Intermec's desire to offer an option back that could more easily be connected and disconnected in the field. Transcript at 596. 79. Testimony at the hearing confirmed that the J2010A with the "hard wired" PCMCIA option back functioned properly, met all solicitation requirements, and was successfully demonstrated to the Army. Transcript at 595. In fact, Mr. Whitaker, FCC's proffered expert, testified at the hearing that the J2010A with the option back, as demonstrated during discovery, fulfilled all operational requirements of the solicitation. Id. at 327. This was the same unit which Intermec used during the its AIT demonstration in October 1993. Id. at 353. 80. While the old connector was being replaced with a new connector, the back was also adjusted to allow more power to support new PCMCIA cards coming on the market. No changes were made to the basic power scheme of the J2010. Criddle Deposition at 55-56. Further, Dr. David Allais, Intermec's expert witness on prototypes and the production of AIT equipment, testified that the changes in the connector and power schemes were only "minor" modifications. Transcript at 930-32. We find Dr. Allais' testimony to be highly credible. 81. Incorporating these minor changes, Intermec then began production of what it referred to as the "JANUS J2010B." By April 1994, over 100 J2010Bs with PCMCIA option backs were in production. Transcript at 960. The delay in producing more J2010s with the PCMCIA option backs was principally due to production priorities and the low initial demand for these items. Id. at 961. 82. FCC's allegations regarding the JANUS 2010 are founded primarily on an Intermec product alert of November 18, 1993, which seems to indicate that J2010A units could not support the option backs. FCC's Exhibit 35. Ms. Karen Criddle, an Intermec sales manager, testified that in this regard the alert is simply wrong because the "J2010As can and could support a PCMCIA option back." Criddle Deposition at 23, 37. 83. Furthermore, the same product alert actually demonstrates that the J2010A with PCMCIA option back was both in production and commercially available prior to October 1993. Paragraph 6 of that alert reveals that the preproduction models had a BIOS firmware version .82 and that production units used firmware with version 1.21 or 1.22. FCC's Exhibit 35. At the hearing, Mr. Winter provided unrebutted testimony that the firmware loaded into the J2010A with option back that was demonstrated in October 1993 had version 1.21, thereby indicating it was a production unit. Transcript at 603-04. 84. Intermec also offers the Government the JANUS J2020 PDCD, which combines a built-in laser scanner with all of the features of the J2010, to allow for single-handed data collection. Additionally, Intermec offers the JR2020, a J2020 with a radio frequency transceiver. Approximately of the J2020 parts and components are identical to those used in the J2010. Transcript at 632. 85. Development of the JANUS J2020 began in October 1992 with the release of a design specification. Engineering prototypes were first produced in November 1992 and the first production units were manufactured in June 1993. Transcript at 637. The rapid development and fielding of the J2020 units was due in large part to the commonality of design with the J2010 PDCD. Id. at 645-49. 86. While Intermec product alerts did not announce release of the J2020 for sale to the general public until November 1993, Intermec sold these units to preferred customers prior to the October 1993 demonstration. Mr. Winter testified that the JANUS 2010A (to include the 2010A with the option back) and the JANUS 2020s were in production and commercially available by October 1993. In fact, Mr. Winter noted that by time of Intermec's live demonstration the firm had already sold the devices to and to .[foot #] 19 87. During her deposition, Ms. Criddle informed Protesters' counsel that their reliance on a product alert which stated that the first production for the JR2020 was scheduled for mid- February 1994 was misplaced. This alert referred to production runs intended for the "entire mass market" and did not negate the fact that Intermec had been previously "producing for J2010s and JR2020s and J2020s." Criddle Deposition at 39. 88. In support of Ms. Criddle's and Mr. Winter's testimony, the record demonstrates that ordered twenty-three RF JANUS 2020s. Intermec's Exhibit I-76. Intermec then shipped twenty JANUS 2020s in September 1993 to . Intermec Exhibit ----------- FOOTNOTE BEGINS --------- [foot #] 19 is a company. The JANUS equipment was provided to to assist in a pilot project the company was testing. The objective of the this pilot project was not to test ___ the JANUS PDCDs. ----------- FOOTNOTE ENDS ----------- I-10. These units had been manufactured as part of a production run commencing on September 8, 1993. Intermec's Exhibit I-77. 89. On April 29, 1993, ordered 100 radio frequency J2020s (the "JR2020"). Intermec's Exhibit I-75. , testified his company is a major purchaser of AIT equipment and that early in 1993 it had ordered JR2020s from Intermec. also testified that on October 29, 1993 his company received twenty-five of the JR2020s it had previously ordered, with the remainder to be delivered in December 1993. also testified that, in his opinion, the JR2020s delivered to his company were production units, not prototypes.[foot #] 20 Intermec's Exhibit I-75; Deposition at 30, 46, 49.[foot #] 21 The JANUS J2010s/J2020s and Battery Power 90. Mr. Winter testified that the batteries for the JANUS family of PDCDs provide a minimum of eight hours of power, thereby satisfying the solicitation requirement in this regard. In fact, Mr. Winter testified that it is Intermec policy that all of its devices be capable of operating off of batteries for a minimum of eight hours. Mr. Winter testified that Intermec had tested batteries for the J2010, J2020, and JR2020 under heavy use conditions and determined that the batteries met the eight hour requirement set out by the solicitation. Transcript at 664-78. ----------- FOOTNOTE BEGINS --------- [foot #] 20 also stated that neither he nor his company expected Intermec to deliver prototype equipment for their use. [foot #] 21 The Board received into evidence the deposition transcript of both of whom are employees ( Deposition). ----------- FOOTNOTE ENDS ----------- Forklift Mounted Portable Data Collection Terminals 91. Finally, FCC alleged that Intermec failed to meet an "industry standard" it contended applied to forklift mounted PDCTs. FCC, however, failed to produce any evidence of such an "industry standard." To the contrary, FCC's own witnesses candidly admitted during the hearing that they were unaware of any such standard. See Transcript at 22. 92. In fact, Intermec met all applicable requirements in this regard. It responded to the solicitation's functional specification requiring forklift-mounted PDCTs (C.4.16.2.b) by offering a radio frequency PDCD (JANUS 2010A) with a forklift mounting bracket. Mr. Winter testified that this PDCT has, as standard feature, a backlit screen, with the capacity to enlarge the characters on the screen. Mr. Winter also testified that Intermec offers, as a no-charge option, an enlarged keyboard pad for these devices. Transcript at 660-61. In any event, the SSEB evaluation report confirmed Mr. Winter's testimony and concluded that the Intermec terminals satisfied all minimum requirements set out by the solicitation. Discussion The Grounds of Protest After a substantial amount of adding, subtracting, and refining, the following allegations remain: A. Intermec's portable data collection devices (PDCDs) (the Janus Model 2010 with PCMCIA option back and Model 2020): 1. Are not commercially available and in current production; and 2. Do not include batteries which can supply a minimum of eight hours of continuous operation. B. Intermec's portable voice data collection devices (PVDCDs) (the Verbex products): 1. Do not have internal back-up power to preserve data stored in user RAM; 2. Are not capable of storing and recognizing two separate 1000-word vocabularies spoken by two individuals; 3. Do not include batteries which can supply a minimum of eight hours of continuous operation; 4. Are not commercially available and in current production; 5. Cannot perform text-to-speech synthesis; and 6. Do not have the ability to store multiple speech patterns and allow an operator to select his speech pattern from a menu. C. Intermec's video display unit (VDU) terminals (the IBM 3151) cannot provide for ADM-31 emulation. D. Intermec's vehicle-mounted scanner does not comply with industry standards such as an enlarged keyboard or a lighted display. E. Intermec's internal PCMCIA PC memory card reader/writer (the Databook TMB 200): 1. Was discontinued; and 2. Did not comply with the solicitation requirement that the controller and drive shall not require an internal power source. F. The Army's award to Intermec was improper because acceptance of the extended warranties offered by Intermec would violate the Advance Payment Act. G. The Army performed an improper "best value" analysis. H. FCC received "unequal treatment" from the Army during the evaluation of proposals. I. The Army failed to evaluate hardware items in descending order of importance. Motions to Dismiss FCC's Second Amended Protest Several grounds of protest are alleged to have been untimely filed. First, respondent and intervenor Intermec seek dismissal of FCC's second amended protest. The second amended protest, which was filed on April 22, 1994, added several items to the list of Intermec products alleged not to comply with the solicitation's requirements (specifically, grounds A.1 and E.1). FCC states that it did not find out that these products failed to meet solicitation requirements until it received certain internal Intermec documents on April 15, and the protest file on April 18. Respondent and intervenor maintain that these grounds were untimely filed because FCC was given a list of Intermec's offered products at FCC's debriefing held on March 31, 1994. We hold that the protest was timely filed. A ground of protest not based on alleged improprieties in a solicitation "shall be filed no later than 10 working days after the basis for the ground of protest is known or should have been known, whichever is earlier." Rule 5(b)(3)(ii). On March 31, FCC received Intermec's product list, which contained more than 350 line items and no information as to commercial availability. FCC, in pursuing its original protest counts and researching others, came upon information which allegedly showed that certain other products were not commercially available. FCC filed its second amended protest within ten working days after receiving the information. Our rules require no more. Syscon's Advance Payment Act Complaint Respondent and intervenor also challenge the timeliness of Syscon's ground of protest (ground F) which alleges that the Army accepted Intermec's extended warranties in violation of the Advance Payment Act, 31 U.S.C. 3324 (1988). The Advance Payment Act generally prohibits the Government from paying for services in advance of performance. In this case, we agree with the Army and intervenor that the challenge is untimely. Section C.8 of the RFP required the offerors to provide a one year warranty on all AIT equipment delivered under the contract, covering all maintenance services as required by Section C.8. Section C.8 included, among other things, a preventive maintenance provision. The Army addressed the extended warranty topic in its answer to Question #118, incorporated into the solicitation in amendment 0003. In essence, Respondent advised offerors that it would accept extended warranties. Protest File, Vol. II, Exhibit 30. The types of services to be provided under warranty was the subject of Question and Answer #135, also included in amendment 0003. Question #135 asked whether "the type of service to be provided under 'Warranty' corresponds to the kind of maintenance that can be ordered on a CLIN basis." Protest File, Vol. II, Exhibit 4, Question #135. The Government answered "Yes, the warranty shall be the same as the maintenance in accordance with C.8 and Warranty Clause, Section 1." Id. Rule 5(b)(3)(i) provides that a ground of protest based upon "alleged improprieties in any type of solicitation which are apparent before bid opening . . . shall be filed before bid opening or the closing time for receipt of initial proposals." In this allegation, Syscon is challenging the Government's acceptance of Intermec's extended warranty. The Government, however, clearly conveyed in the solicitation its intention to accept extended warranties with certain types of maintenance services. The purpose of Rule 5(b)(3)(i) is to provide the Board and the agencies the opportunity to examine any terms in the solicitation that are improper before the bids or proposals are due. Pursuant to the rule, the warranty issue should have been raised prior to the time for receipt of best and final offers. It is too late for Syscon to raise the issue now. Even if the allegation had been timely filed, we fail to see the basis for Syscon's allegation that the Army violated the Advanced Payment Act by accepting Intermec's extended warranties. Intermec explained that its extended warranties were offered at no additional cost to the Government. Syscon provided no evidence to the contrary. Intermec's heavily discounted hardware prices were about the same as those of the other offerors. Although Syscon convincingly argues that the extended warranties must involve a cost to Intermec, the record does not support a finding that the extended warranties offered by Intermec involve a cost to the Government. Accordingly, the Army could not have violated the Act. The Merits As discussed in detail below, we find no substance to the remaining allegations, most of which are based upon unreasonably restrictive interpretations of the solicitation requirements. Contrary to FCC's and Syscon's view of the procurement, the record shows that Intermec took full advantage of its status as a manufacturer of the solicited devices to offer the Army a technically advanced, reasonably priced solution. The Army's decision to accept Intermec's proposal is amply supported by the record. Ground A.1 In this ground of protest, FCC and Syscon allege that Intermec's portable data collection devices (PDCDs) were not commercially available,[foot #] 22 or in current production, at the time of Intermec's demonstration in October 1993. We deny this ground of protest. The Army must acquire commercial products whenever practicable. See 10 U.S.C. 2301 (1988). This statutory requirement is implemented in Part 211 of the Defense Federal Acquisition Regulation Supplement (DFARS). The DFARS definition of commercial equipment includes items that are sold or offered for sale, as well as items that are not available in the commercial marketplace but are expected to be available for ----------- FOOTNOTE BEGINS --------- [foot #] 22 Similarly, protesters argue that Intermec's PDCDs were not "commercial-off-the-shelf" (COTS) products. The solicitation, however, did not define COTS. The contracting officer defined COTS as "equipment that was not developed for this RFP." Transcript at 158. Intermec's AIT program manager defined COTS as "a product which is normally marketed or provided in the industry by the company and is available in the market place." Id. at 569. These definitions are reasonable in the ___ context of this procurement. Given the various other specific commerciality requirements of the solicitation, we agree with the Army that the undefined term "COTS" did not impose additional requirements. ----------- FOOTNOTE ENDS ----------- delivery within a reasonable time. The DFARS defines commercial items as follows: (a) Commercial items means items regularly used in the course of normal business operations for other than Government purposes which: (1) Have been sold or licensed to the general public; (2) Have not been sold or licensed, but have been offered for sale or license to the general public; (3) Are not yet available in the commercial marketplace, but will be available for commercial delivery in a reasonable period of time; (4) Are described in paragraph (1), (2) or (3) that would require only minor modification in order to meet the requirements of the procuring agency. 48 CFR Part 211 (1993) (DFARS 211.7001) (emphasis added). The record is clear that all products offered by Intermec were developed for the commercial market. No evidence was offered to show that any item offered by Intermec was developed for the Government under this contract. The AIT solicitation defines the time by which the required equipment must be available. It states: Commercially Available Equipment. Commercially available equipment is required. a. An item is "available" if it meets the Terms and Conditions of this document and can be delivered in accordance with the delivery schedule in Section F, of this document.[foot #] 23 b. Equipment that must be developed to meet the requirement shall be considered unacceptable. Finding 7. Thus, the solicitation, consistent with the DFARS, links the commerciality requirement with the delivery schedule, not the date of the demonstration. The award of this contract occurred on March 29, 1994. If a delivery order had been received on the date of award, the earliest date on which an item had to be available under the solicitation was May 29, 1994. Because the record contains no evidence whatsoever that Intermec's products would not be commercially available at the ----------- FOOTNOTE BEGINS --------- [foot #] 23 Under section F.4 of the solicitation, delivery was required within 60 days after receipt of an order. See ___ Finding 7. ----------- FOOTNOTE ENDS ----------- time of delivery, we deny this ground of protest. Moreover, as explained below, Intermec's products were commercially available, as well as in current production, at the time of Intermec's demonstration in October 1993. The solicitation section which discusses "current production" states: C.3.1.7 Current Production. All equipment shall be state-of-the-art technology and in current production at the time the Demonstration, C.16, is performed. a. "State-of-the-art" is defined as the most recently designed components that are in current production, marketed, available, maintained, and supported in accordance with the mandatory requirements specified elsewhere in this document. Prototype or development equipment is not acceptable. Out-of-date or discontinued equipment is not acceptable. b. To be in "current production", the equipment must meet the following criteria: (1) The equipment may contain components that are new or used, provided that the used components are warranted by the manufacturer as being equivalent to new in performance. (2) Equipment that is remanufactured, refurbished, or reconditioned in accordance with the New or Used Equipment Clause (contained elsewhere in this document), may be acceptable as long as it is an item of equipment of the latest technology and meets the requirements of this document. Finding 8. FCC claims that Intermec's proposed J2020 PCDCs were prototypes or pre-production models which were neither in current production nor commercially available at the time of Intermec's demonstration in October 1993. This argument is based upon several internal Intermec documents which referred to prior sales of "prototype" devices. The uncontroverted evidence adduced at the hearing, however, was that the J2020 products had been marketed, manufactured and delivered to commercial customers even prior to Intermec's demonstration. Findings 85-89. The evidence also shows that these devices were production models, rather than prototypes. Id. Although the J2020s (including the J2020 with RF capability) were relatively new models, the Army correctly determined that the devices were commercially available and in current production. With respect to the J2010 model PDCD with the PCMCIA option back, FCC again alleges that the device was neither commercially available nor in current production. Again, we disagree. The overwhelming weight of the evidence shows that the J2010 with option back had been sold commercially at the time of Intermec's demonstration. Findings 73-77, 83. Although Intermec was in the process of making minor improvements to the device, see Findings 78-81, the contracting officer correctly determined that the J2010 with option back was both commercially available and in current production at the time of the demonstration. Ground A.2 In this ground of protest, FCC maintains that Intermec's PDCDs do not include batteries which can supply a minimum of eight hours of continuous operation. The evidence shows this ground of protest to be baseless. Intermec presented uncontested evidence that its batteries were thoroughly tested under heavy use conditions and found to satisfy the requirement. We found this testimony to be highly credible. Finding 90. Grounds B.1 - B.6 In these grounds of protest, FCC and Syscon maintain that Intermec's portable voice data collection devices (PVDCDs) fail to meet various solicitation requirements. Again, we disagree. Protesters' argument that the Army should have rejected Intermec's clearly superior offer in a $150,000,000 procurement based upon protesters' unreasonably restrictive interpretations of the requirements for these devices (the total price of which is ) borders on the absurd. In ground B.1, FCC maintains that the Verbex device does not have internal back-up power to preserve data stored in user RAM during periods of low-power operation and battery recharging. See Finding 13. The evidence shows, however, that the Verbex unit does not store data in user RAM during periods of low-power operation and battery recharging. The Verbex device does not store collected data in RAM at all. Working in conjunction with a PDCD, data is collected and downloaded into non-volatile memory. FCC maintains that the device stores "data" in RAM because the Verbex unit stores one of the two 1000-word vocabularies in RAM. Clearly, however, the "data" referred to in the solicitation is the information collected by the user, not the vocabularies. See Findings 17, 18. Moreover, as explained below, the whole issue of RAM storage reflects FCC's basic misunderstanding of how the PVDCD will be used. The PVDCD will always operate in tandem with a PDCD. Thus, no data, including the vocabularies, can ever be lost to the user. Finding 61. The related issue of the Verbex's alleged inability to store two 1000-word vocabularies and to allow a user to select his voice pattern from a menu are FCC's grounds B.2 and B.6. Here, FCC alleges that, because the Verbex unit stores one of the 1000- word vocabularies in RAM, the unit cannot "really" store two 1000-word vocabularies or provide the capability for the operator to select his or her speech pattern from a menu. This is because, if the vocabulary resident in the non-volatile memory is selected, the vocabulary resident in the volatile RAM will be erased. Finding 61. Again, FCC's reading of the solicitation is overly restrictive and fails to take into account the way in which the device will be used. First, as a strict technical matter, the Verbex device does store two 1000-word vocabularies and provides the ability to select a speech pattern from a menu. That is all that the solicitation literally requires; it does not specify where the vocabularies are to be stored. Findings 17, 60-61. Of course the device would not be very practical if one of the vocabularies were to be lost when users switched back and forth from the menu. But FCC's complaint fails to acknowledge that the PVDCD will always be used in tandem with a PDCD. With this configuration, the PVDCD is capable of accessing more than 600 voice files stored in non-volatile memory. Findings 17-21, 61. Thus the alleged shortcomings of the Verbex device, in addition to having little to do with the solicitation requirements, become non-existent when the device is used as described. Ground B.3 states that the Verbex device does not include batteries which can supply a minimum of eight hours of continuous operation. This is not true. Intermec simply connected by wire the two battery packs that come with the Verbex PVDCD. The two batteries, which each provide 4.5 hours of operation, provide nine hours of continuous operation when connected in parallel. Finding 62. This connection does not cause the Verbex unit to cease being commercially available or in current production, as FCC alleges in count B.4. As explained above, "minor" modifications do not affect the commerciality of a product. It would be difficult to think of a modification which could be considered more "minor" than this one. In ground B.5, the protesters claim that Intermec's PVDCD cannot perform text-to-speech synthesis. According to protesters, the Verbex device offered by Intermec can only recognize and pronounce words that it has been programmed to accept ("digitized" speech), and cannot recognize just any word (so called "true" text-to-speech synthesis). We begin by noting that the requirement is to "support" text-to-speech synthesis, not to perform it. Finding 17. By using the device in tandem with a PDCD, Intermec demonstrated this ability to the Government's satisfaction. Finding 58. In addition, the Verbex unit can be programmed to perform "true" text-to-speech synthesis all by itself, even though it will not be used that way. Finding 60. The Army correctly determined that the Verbex unit met the requirement. Ground C Here, FCC maintains that Intermec's offered video display unit terminals failed to meet the requirement for terminal emulation. The offered VDU terminals had to "emulate," or mimic, a Lear Siegler ADM-31 terminal. Finding 15. The evidence overwhelming demonstrated that Intermec's offered terminal, the IBM 3151, can emulate the ADM-31. This is accomplished through the use of a program which causes the terminal to emulate a Televideo 900 terminal (which is almost identical to an ADM-31), and then configuring three of the programmable function keys to complete the ADM-31 emulation. Intermec fully tested this procedure and then demonstrated it. Findings 63-64. Ground D FCC contends that Intermec's "forklift" or "vehicle-mounted" scanner does not comply with industry standards such as an enlarged keyboard or a lighted display. A vehicle-mounted scanner is essentially a radio frequency-type PDCD mounted on a forklift. Finding 16. Once again, FCC is way off the mark. The evidence showed that there is no "industry standard" for vehicle- mounted scanners. Finding 91. Moreover, although not quite as large as FCC's, Intermec's vehicle-mounted scanner did have an enlarged keyboard. It also had a backlit screen and the capacity to display enlarged characters. Finding 92. Grounds E.1 and E.2 In ground E.1, FCC argues that Intermec's internal PCMCIA PC memory card reader/writer (the Databook TMB 200) was discontinued and, therefore, unacceptable. A PCMCIA PC memory card reader/writer is a disk drive-type device which moves data in and out of a PCMCIA PC memory card, a small credit card-like object which stores data. These devices, like all of the equipment, were not permitted to be "out-of-date or discontinued." See Finding 8. As is the case with many of FCC's allegations, FCC relies on an internal Intermec marketing document (this one saying that the TMB 200 had been discontinued) in the face of a mountain of evidence to the contrary. Since FCC again refuses to go to the mountain, we again bring the mountain to FCC. Databook offered the TMB 200 in response to an Intermec request for proposal which incorporated the Army's requirements and directed vendors to confirm that their offered equipment met those requirements. Finding 65. The TMB 200 had been manufactured last on September 1993, only one month prior to Intermec's demonstration. Id. Although Databook was in the process of introducing an upgraded version of the device, the TMB 240, Databook had not issued a formal announcement that the TMB 200 had been discontinued and had agreed to continue manufacturing the TMB 200. Although the TMB 240, which had not even been announced until after Intermec's demonstration, includes some additional features not required by the solicitation, it uses the same technology as the TMB 200. Findings 66-67. Under these circumstances, the Army's determination that the TMB 200 was not "out-of-date or discontinued" was correct. Moreover, under the solicitation, offerors are required to incorporate into the equipment delivered all engineering changes adopted by the manufacturer prior to the date of award. Finding 6. Thus, Intermec is required to offer the Army the option of acquiring the TMB 240, which also happens to be less expensive than the TMB 200. In ground E.2, FCC argues that the TMB 200 did not comply with the solicitation requirement that the controller and drive shall not require an internal power source. See Finding 21. The short answer to this allegation is that the TMB 200, which goes in the disk drive slot of the computer, does not require an internal power source -- it uses the computer's own internal power supply similar to a regular disk drive. All of the reader/writers offered in response to Intermec's request for proposal operated in this manner. Finding 69. In addition, the Army, and all of the offerors for this procurement, including FCC, interpreted the requirement in the same manner. FCC's complaint in this regard is that FCC interpreted some correspondence from the Army to say that the reader/writer was required to have its own external power source. In response, FCC changed its reader/writer to one which did not use the computer's internal power source. However, even if FCC is correct in interpreting the Army's correspondence in this manner, FCC was not prejudiced by the Army's actions. Intermec's device clearly met the requirements as stated in the solicitation. FCC's proposal, which was far below Intermec's proposal in terms of technical merit and in terms of cost, could not have received the award even if FCC had been able to propose a reader/writer which uses the computer's internal power source. The ground is thus denied. Ground G Here, FCC contends that the Army failed to conduct a proper "best value" analysis. After four days of hearing, we still fail to see any basis for this allegation. The Board reviews best value determinations in accordance with the following: The legal standard against which we review best value determinations is not one of perfection or even accuracy, but rather one of reasonableness. . . . There is no formulaic methodology for conducting a best value determination; what matters is that award is consistent with the terms of the solicitation and that any price premium is justified by specific technical enhancements. Grumman Data Systems Corp. v. Department of the Air Force, GSBCA 11939-P, 93-2 BCA 25,776, at 128,277, 1993 BPD 2, at 56, aff'd, 15 F.3d 1044 (Fed. Cir. 1994). We do not repeat here our extensive findings of fact in connection with the Army's best value analysis. They can be summarized by saying that the Army thoroughly considered the strengths and weaknesses of the proposals, and the relative costs, and made a reasonable decision based thereon. See Findings 47-51. The decision was not even close. Intermec offered a vastly superior technical solution (as evaluated by the appropriate committee), at a cost higher than the inferior FCC proposal. Findings 37, 45. The Army's selection of Intermec's proposal under these circumstances should have surprised no one. Ground H FCC also claims that it received "unequal treatment" from the Army during the evaluation of proposals. The Board heard no credible evidence of unequal treatment[foot #] 24 and no evidence as to how FCC might have been prejudiced by the alleged unequal treatment. The ground of protest is thus denied. Ground I In the final ground of protest, FCC argues that it was prejudiced in the evaluation because it relied on the Board's statement that the Army would evaluate the thirty-seven listed items of hardware in descending order of importance. This ground of protest begins and ends with FCC's misreading of the solicitation. The Army evaluated the thirty-seven hardware items equally. Finding 42. This was entirely consistent with the terms of the solicitation. The solicitation stated that "[t]he following items are listed in descending order of importance: hardware, software, and technical engineering services." Finding 35. Those items (i.e., hardware, software, and technical engineering services) were evaluated by the Army in descending order of importance. Finding 42. The solicitation does not say that the thirty-seven pieces of equipment which make up the "hardware" item will be evaluated in descending order of importance. Finding 35. Such a method of evaluation would have been highly suspect at best -- it would have made a piece of equipment such as a $60.00 "break-out box" vastly more important than a key piece of equipment such as the Radio Frequency PDCD. The Army's evaluation methodology was made clear in a question and answer which became part of the solicitation. Finding 36. FCC, however, misinterpreted the solicitation to state that the thirty-seven pieces of hardware would be evaluated in descending order of importance, and structured its offer accordingly. Finding 41. The Board, in a preaward protest of the same procurement, made the same mistake as FCC, stating in dicta that "the thirty-seven elements of hardware" were listed "in descending order of importance." Finding 40. FCC's claim of reliance on the language in the Board's decision, however, is not substantiated by the evidence. By the time the Board's decision had been issued, FCC had already submitted its proposal, utilizing FCC's erroneous interpretation.[foot #] 25 Finding 41. The Army ----------- FOOTNOTE BEGINS --------- [foot #] 24 The Board did not consider credible the vague generalizations proffered by FCC's expert. He had not even read FCC's proposal. See Transcript at 332, 335-339. ___ [foot #] 25 We need not, and do not, here decide whether reliance on language in a Board decision can ever support a claim (continued...) ----------- FOOTNOTE ENDS ----------- evaluated the proposals correctly, making each of the thirty- seven items of equipment equally important. See Meridan Corp., B-246330.3, 93-2 CPD 29 (July 19, 1993) (where the relative order of importance for evaluating criteria has not been disclosed, it must be presumed that the evaluation criteria will be accorded approximately equal weight and importance in the evaluation); see also Finley Investments, B-222432, 86-2 CPD 112 (July 25, 1986). The ground of protest is without merit and is denied. Decision The record in this case shows that Intermec submitted a technically superior, reasonably priced proposal. The Army reasonably determined that Intermec's proposal complied with all requirements of the solicitation and provided the best value to the Government. Because we find no violation of statute or regulation, the protests of Syscon and FCC are thus DENIED. The suspension of the Army's delegation of procurement authority lapses by its terms. ___________________________ ROBERT W. PARKER Board Judge We concur: _____________________________ MARTHA H. DeGRAFF Board Judge _____________________________ ALLAN H. GOODMAN Board Judge ----------- FOOTNOTE BEGINS --------- [foot #] 25 (...continued) that a contracting officer violated a statue, regulation, or delegation of procurement authority.