DENIED: November 23, 1994 GSBCA 12982-P INTEGRATED SYSTEMS GROUP, INC., Protester, v. DEPARTMENT OF THE TREASURY, Respondent, and FEDERAL SERVICES, INC., Intervenor. Shelton H. Skolnick, Amer Syed, Amy M. Hall, Wayne Finegar, and Bruce Trimble of Skolnick & Leishman, P.C., Derwood, MD, counsel for Protester. James E. Dumerer, Office of Chief Counsel, Internal Revenue Service, Department of the Treasury, Dallas, TX; and Harold G. Mosher, Office of Chief Counsel, Internal Revenue Service, Department of the Treasury, Washington, DC, counsel for Respondent. Glenn J. Ballenger, President of Federal Services, Inc., Chantilly, VA, appearing for Intervenor. Before Board Judges PARKER, DEVINE, and GOODMAN. GOODMAN, Board Judge. Integrated Systems Group, Inc. (ISG), protests the decision of the Internal Revenue Service (IRS) to award a contract to Federal Services, Inc. (FSI). FSI is an intervenor of right. We do not find that the IRS violated any statute or regulation in the course of conducting the procurement and deny the protest. Findings of Fact 1. This procurement is for two optical character recognition (OCR) scanning workstations and also software, training, support, and maintenance on the OCR workstations, for the Training and Development Branches of the IRS Service Centers at Philadelphia, PA, and Ogden, UT. Protest File, Exhibit 3 at 4-5. 2. Respondent issued solicitation number IRS-94-SW-030 (the RFP) on April 14, 1994, and two amendments to the RFP -- amendment 1 on May 10, 1994, and amendment 2 on June 20, 1994. Protest File, Exhibits 3, 5, 14. 3. Section M.2. reads, in relevant part: M.2 EVALUATION FACTORS The evaluation factors for award are listed below. The technical factors will be scored; however, the price factor will not be scored but will be evaluated as described in paragraph (2) of this provision. M.2.1 Technical Evaluation Factors The technical proposal will be evaluated using the following factors and subfactors listed in the order of importance. Subfactors cited under Scanning System Operation bear equal weight and are most important. Subfactors for Organizational Experience, Personnel Qualifications, and Training Plan bear equal weight and are less important. Protest File, Exhibit 3 at 56. 4. Section M.2.1.3 of the RFP reads, in pertinent part: Personnel Qualifications: Offerors shall demonstrate that all personnel appointed to carry out each aspect of contract performance are experienced and qualified by: (a) Designation of project manager and description of his/her experience and background in development and implementation of ADP systems and support. . . . . (c) Designation of training personnel and descriptions of their proven expertise in the areas of systems operation, forms design, and document management. Protest File, Exhibit 3 at 57. 5. Section M.3 of the RFP reads: "The Government will make award to the lowest priced, technically acceptable offeror." Protest File, Exhibit 3 at 58. 6. Amendment 1 revised portions of the RFP and attached a series of sixteen questions submitted by potential offerors and respondent's answers to each. Protest File, Exhibit 5 at 3-8. Question 16 and its answer state: Q. There is an apparent conflict between paragraphs M.2 and M.3. In particular, M.2 addresses the scoring of technical proposals, while M.3 indicates that award will be made to the lowest price, technically acceptable offeror. Which approach is intended by the IRS? A. Technical proposals will be evaluated against the stated factors to determine whether they meet the criteria; offerors must meet all criteria in order to be technically acceptable. Award will then be made to the technically acceptable proposal offering the lowest price. Id. at 7-8. 7. Section L.7 of the RFP reads, in pertinent part: The following paragraphs set forth instructions for proposal preparation and submission and the required format. Proposals submitted for less than the total requirement of this RFP will not be considered for award. . . . . Submission of Proposal Each offeror's proposal submitted in response to this solicitation shall be in two (2) volumes as described below [a technical proposal and a business proposal]. . . . Proposals shall be prepared in accordance with these instructions, providing all required information in the format specified. Failure of a proposal to show compliance with these instructions may be grounds for exclusion of the proposal from further consideration. Purpose of Instructions These instructions prescribe the format of proposals and describe the approach to be used in the development and presentation of proposal data. They are designed to assure the submission of information essential to the understanding and comprehensive evaluation of the offeror's proposal. There is no intent to limit the contents of proposals. The instructions permit the inclusion of any additional data or information an offeror deems pertinent. Protest File, Exhibit 3 at 50. 8. Section L.7.1 of the solicitation, titled "Volume I - Technical Proposal," provides instructions for preparing the offeror's technical proposal and reads, in pertinent part: Section 3 - Project Management and Support/Personnel Staffing Provide the overall plan for managing and staffing all phases of this effort. The plan shall include detailed information concerning the offeror's ability to adequately staff the operation. Particular attention should be paid to training, technical support, and management support requirements. In addition, the offeror shall describe in detail any anticipated subcontracting plans. Section 4 - Mandatory Requirements Provide a statement concerning the offeror's position with respect to each mandatory requirement as stated in Section C of this RFP. Protest File, Exhibit 3 at 51. 9. Section L.7.2 contains specific requirements regarding the information about personnel experience and capabilities that must be included in business proposals submitted. Pertinent information required includes the following: Offerors shall provide a single point of contact who is empowered to make day-to-day decisions and answer questions concerning the contract. (See Section G). A resume of this individual's credentials shall be included with the proposal. Offerors may also wish to submit resumes for training personnel and any other key personnel who will be instrumental to contract performance. Protest File, Exhibit 3 at 53. 10. Section G.1.3 of the RFP reads, in pertinent part: The Contractor's designated Project Manager for this contract is: _____________________ (TO BE NAMED BY THE CONTRACTOR) _____________________ _____________________ _____________________ The telephone number for the Project Manager is: _____________________ The Contractor shall provide a Project Manager for this contract who shall have the authority to make any no-cost contract technical, decisions, or special arrangement regarding this contract. The Project Manager shall be responsible for the overall management and coordination of this contract and shall act as the central point of contact with the Government. Protest File, Exhibit 3 at 19. 11. The Government received five proposals. Protest File, Exhibit 6. After the initial evaluation of proposals, the contract specialist and contracting officer determined that ISG's proposal and two others would be included in the initial competitive range. Id., Exhibit 12 at 1-2. 12. In their joint Memorandum of Prenegotiation Objectives, the contract specialist and the contracting officer noted that ISG's deficiencies included: "designations of project manager and training personnel, and their areas of expertise and experience, are missing . . . . These will be the subject of negotiations with ISG." Protest File, Exhibit 13 at 3; see id., Exhibits 28 at 2, 32 at 3. 13. Respondent's contract specialist conducted only one round of written discussions with each of the three offerors in the initial competitive range. Protest File, Exhibit 32 at 3. Five written discussion items were sent to ISG on June 20, 1994. Id., Exhibit 15. ISG was "requested to submit proposal revisions to respond to the following weaknesses and deficiencies in your technical proposal[.]" Id. at 1. Written discussion item 3 states, in its entirety: Sections M.2.1.3(a) and (c) of the RFP request designations of a project manager and training personnel, including their experience, backgrounds, and areas of expertise. A modification of your proposal is requested to include these requirements. In addition, please complete and submit the information on page 19 of the RFP in paragraph G.1.3, Project Manager. Id. 14. The written discussion letter directed ISG to provide its written revisions to its proposal by June 29, 1994. Protest File, Exhibit 15 at 2. ISG responded on June 28, 1994. In paragraph 3, ISG repeated discussion item number 4 from respondent's June 20, 1994, letter and its answer follows, in its entirety: Answer: (a) A project manager is designated at the time of award. Attached you will find a resume for Leslie Barry which gives an overview of the experience ISG has in the development and implementation of ADP systems and support. See attached. (c) The training personnel will be hired for an exclusive training session based on the Governments [sic] needs and location. Toni Reinhart will be incharge [sic] of developing and implementing the training specifications in the proposal. The training plan and outline was [sic] developed exclusive [sic] for the IRS. Attached is Mrs. Reinhart's resume along with the Course Description and the Course Outline. Id., Exhibit 17. 15. ISG's revision to its proposal did not designate a project manager or describe the project manager's experience. The revision also did not designate training personnel, but only identified the person who authored the ISG proposal's training response. The contract specialist determined that ISG's proposal, as revised, was deficient. Protest File, Exhibit 32 at 3. 16. The contract specialist and the contracting officer decided not to redetermine the competitive range before requesting BAFOs. Protest File, Exhibits 28 at 3, 32 at 4, 33 at 2. Their reason was to give ISG yet one more opportunity to comply with discussion item number 3 in respondent's June 20, 1994, discussion letter. Id., Exhibits 28 at 3, 33 at 3. 17. The other two proposals were free of deficiencies, and ISG had previously been given specific notice of its deficiencies. Protest File, Exhibits 28 at 3, 33 at 3. The IRS decided not to conduct another round of discussions just for the purpose of reminding ISG of its deficiencies, as it believed to do so would be considered technical leveling. No further discussions occurred prior to the request for BAFOs from the three offerors. Id., Exhibit 28 at 5-6, 9, Exhibit 32 at 5-6. 18. ISG's BAFO failed to supply both the designations of project manager and training personnel and the description of the project manager's experience. Therefore, the contract specialist and the contracting officer determined that ISG's BAFO was technically unacceptable and eliminated ISG from the competitive range. Protest File, Exhibits 28 at 4, 32 at 4, 33 at 3. 19. By letter dated August 6, 1994, respondent informed ISG that: Your firm's proposal has been eliminated from the competitive range and will no longer be considered for award based on the following determination: ISG's proposal failed to provide information to meet mandatory solicitation requirements requested during discussions and is, therefore, technically unacceptable. Protest File, Exhibit 25. 20. By letter dated August 8, 1994, ISG filed a protest with respondent stating, in pertinent part: The Government's conclusion that ISG's original proposal was "deemed technically unacceptable" on August 8 is incorrect. ISG was found technically compliant and given the opportunity to submit a Best and Final Offer (BAFO) on July 8, 1994. FAR 15.611 stipulates that only offerors who are determined to be technically acceptable are invited to submit a BAFO. We submit this Agency Protest over the determination of non-compliance three (3) weeks after invitation to BAFO. Protest File, Exhibit 27. 21. By letter dated September 12, 1994, respondent denied the agency protest. Protest File, Exhibit 29. 22. On September 19, 1994, ISG filed a protest at this Board, realleging its allegations in the agency complaint and also alleging that: The IRS failed to negotiate fairly with ISG. If ISG's proposal was not yet technically compliant when it was invited to submit a BAFO, ISG should have been informed of that fact and permitted to provide the additional required information with [its BAFO]. Had ISG been permitted an opportunity to provide that additional information, it could have easily solved the problem and would have been the lowest offerer. Complaint, Grounds for Protest 2-3. 23. The parties elected to submit the protest on the record for a decision on the merits without an oral hearing pursuant to Board Rule 19.[foot #] 1 Discussion In its original proposal, ISG did not designate a project manager and training personnel, but represented that such personnel would be hired upon contract award. Finding 12. When respondent requested ISG to modify its proposal to supply this information, ISG merely reiterated that the individuals would be designated or hired upon contract award. Findings 14, 15. ISG also failed to submit the requested information subsequently in its BAFO. Respondent therefore eliminated ISG's proposal from the competitive range. Finding 18. ISG contends that its representation that it would designate the project manager and training personnel upon contract award was sufficient to render its proposal technically acceptable because the technical evaluation factor of personnel qualifications in Section M of the RFP was not a mandatory requirement of the RFP. It bases this argument on the fact that Section L.7.1 of the RFP refers to mandatory requirements in Section C, and the technical evaluation factor at issue is found in Section M. Findings 3, 8. ISG's grounds of protest are that the IRS failed to negotiate fairly with ISG and that had ISG been informed of its technical noncompliance before submission of the BAFO, it could have easily solved the problem. Finding 22. ISG therefore contends that the IRS should have reduced the technical scoring of its proposal on this factor as the result of its failure to designate the project manager and training personnel, allowed ISG to remain in the competitive range, and awarded the contract to ISG. In the alternative, ISG argues that the IRS failed timely to notify ISG that it was ineligible for award due to the alleged technical unacceptability. Respondent argues that the submission of the requested information was a mandatory requirement, and that ISG's failure to supply the information when requested after receipt of its initial proposal and in its BAFO was a valid reason for finding ISG's proposal technically unacceptable. Protester does not prevail in this protest. Protester is correct that the technical evaluation factor of personnel qualifications was included in Section M of the RFP and not in Section C, which Section L refers to as containing "mandatory requirements." However, the personnel qualifications factor was written in mandatory language, requiring a designation of the ----------- FOOTNOTE BEGINS --------- [foot #] 1 58 Fed. Reg. 69,246, 69,260 (Dec. 30, 1993) (to be codified at 48 CFR 6101.19). ----------- FOOTNOTE ENDS ----------- project manager and his/her experience and a designation of training personnel and descriptions of their proven expertise. Finding 4. Other sections of the RFP reiterated the importance of this information. Section L of the RFP, which described the format of proposals, clearly warned offerors that the instructions contained therein were "designed to assure the submission of information essential to the understanding and comprehensive evaluation of the offeror's proposal." Finding 7. Immediately above the reference in Section L to mandatory requirements, offerors were directed to provide in their technical proposal the information concerning project management and support/personnel staffing. Finding 8. Section G.1.3 required identification by name of the project manager. Finding 10. Finally, amendment 1 contained a response to a potential offeror's question with regard to the technical evaluation factors in Section M that "[t]echnical proposals will be evaluated against the stated factors to determine whether they meet the criteria; offerors must meet all criteria in order to be technically acceptable." Finding 6. Thus, ISG was on notice that the technical evaluation factor of personnel qualifications must be met in order for its proposal to be deemed technically acceptable. Even though ISG may have initially interpreted the RFP to require only designation of its project manager and training personnel at the time of award, it was clearly advised by respondent during written discussions that this information was a "requirement" and was afforded an opportunity to revise its proposal to supply the information. Finding 13. Having been notified by the IRS that this information was a requirement, ISG did not submit the information, but reiterated that it would designate these individuals at the time of award. Finding 14. A similar situation occurred in Health Systems Technology Corp., GSBCA 10920-P, 91-2 BCA 23,692, 1991 BPD 20. Protester was informed during discussions that it needed to revise its proposal to increase the level of effort devoted to the project. BAFOs were requested and instead of amending its proposal, protester simply disagreed with respondent and failed to increase its level of effort. The procuring agency thereupon found protester's BAFO to be technically unacceptable because the BAFO contained the same deficiencies that were identified in the discussions. The Board upheld the agency's determination that protester's BAFO was technically unacceptable and therefore protester should be eliminated from the competitive range. In so doing, the Board stated: Having been put on notice that this was a problem perceived by the agency, [protester] nevertheless declined to alter its proposal to include additional programming and other time needed to accommodate such requirements. This was an informed decision on protester's part -- the discussions sufficiently identified this concern and made clear to protester that it would have to bolster its proposal in this regard. Regardless of whether the RFP itself can be said to state this criterion clearly, following discussions, the requirement to include a reasonable amount of effort for modifications was known to protester. Id. at 118,641, 1991 BPD 20, at 10. In the instant protest, any misunderstanding as to the requirement of the RFP concerning the subject matter at issue should have been dispelled by the IRS written discussion letter which requested a modification of ISG's proposal to designate the project manager and training personnel, and informed protester that this information was a requirement. The Federal Acquisition Regulation (FAR) contains the following concerning the determination of the competitive range and discussions with offerors: (a) The contracting officer shall determine which proposals are in the competitive range for the purpose of conducting written or oral discussion (see 15.610(b)). . . . When there is doubt as to whether a proposal is in the competitive range, the proposal should be included. (b) If the contracting officer, after complying with 15.610(b), determines that a proposal no longer has a reasonable chance of being selected for contract award, it may no longer be considered for selection. 48 CFR 15.609(a), (b) (1993). FAR 15.610 states, in relevant part: (b) . . . [T]he contracting officer shall conduct written or oral discussion with all responsible offerors who submit proposals within the competitive range. The content and extent of the discussions is a matter of the contracting officer's judgment, based on the particular facts of each acquisition (but see paragraphs (c) and (d) below). (c) The contracting officer shall -- (1) Control all discussions; (2) Advise the offeror of deficiencies in its proposal so that the offeror is given an opportunity to satisfy the Government's requirements; (3) Attempt to resolve any uncertainties concerning the technical proposal and other terms and conditions of the proposal; . . . . (5) Provide the offeror a reasonable opportunity to submit any cost or price, technical, or other revisions to its proposal that may result from the discussions. (d) The contracting officer and other Government personnel involved shall not engage in technical leveling (i.e., helping an offeror to bring its proposal up to the level of other proposals through successive rounds of discussion, such as by pointing out weaknesses resulting from the offeror's lack of diligence . . .). 48 CFR 15.610(b)-(d) (1993). Respondent acted in the instant procurement as required by regulation. ISG's proposal was determined to be in the competitive range, and ISG was advised in written discussion that designation of the project manager and training personnel was a requirement of the RFP. Finding 13. ISG was given an opportunity to satisfy this requirement, as it was allowed to submit revisions to its proposal. Id. The other two proposals were free of deficiencies, and ISG had previously been given specific notice of its deficiencies. The IRS decided not to conduct another round of discussions just for the purpose of reminding ISG of its deficiencies, as it believed to do so would be considered technical leveling. No further discussions occurred prior to the request for BAFOs from the three offerors. As ISG had previously been put on notice as to the deficiency of its failure to include the required information, the contracting officer decided not to redetermine the competitive range before requesting BAFOs, allowing ISG one more opportunity to supply the required information. Findings 16, 17. Apparently, the contracting officer believed there was a reasonable chance that ISG would supply the information in its BAFO. When ISG failed to include the required information in its BAFO, respondent determined that ISG's BAFO was technically unacceptable and eliminated it from the competitive range. Finding 18. ISG has not proven its grounds of protest that the IRS failed to negotiate fairly with ISG, or that had ISG been informed of its technical noncompliance before submission of the BAFO, it could have easily solved the problem. ISG could have solved the problem by simply supplying the information when it was requested during discussions, or subsequently in its BAFO. ISG was given notice of the deficiency and failure to meet a requirement of the RFP during written discussions, and two opportunities to remedy the deficiency -- in its response to the written discussion questions and in its BAFO. Accordingly, ISG's argument that the IRS failed timely to notify ISG that it was ineligible for award also lacks merit. The Board will not disturb a competitive range determination unless the protester can demonstrate that the determination is unreasonable. Phoenix Associates, Inc., GSBCA 9190-P, et al., 88- 1 BCA 20,455, 1988 BPD 1. Protester has failed to demonstrate that respondent acted unreasonably in eliminating it from the competitive range after the submission of its BAFO. Decision The protest is DENIED. ________________________ ALLAN H. GOODMAN Board Judge We concur: ________________________ ________________________ ROBERT W. PARKER DONALD W. DEVINE Board Judge Board Judge