DENIED: December 6, 1994 GSBCA 12993-P TELCOM SYSTEMS SERVICES, INC., Protester, v. DEPARTMENT OF THE INTERIOR, Respondent. Sam Zalman Gdanski, Suffern, NY, counsel for Protester. Alton E. Woods and James L. Weiner, Office of the Solicitor, Department of the Interior, Washington, DC, counsel for Respondent. Before Board Judges NEILL, HYATT, and GOODMAN. GOODMAN, Board Judge. This preaward protest was filed by Telcom Systems Services, Inc. (Telcom), with regard to a solicitation issued by respondent, Department of the Interior, U.S. Geological Survey. As discussed below, we deny the protest. Findings of Fact 1. On July 22, 1994, respondent issued solicitation number 4-5610-1288, a request for proposals (RFP) for the "design, furnishing, engineering, installation, testing, cutover, training and maintenance of a completely operational non-blocking, fully digital, new telephone system . . . to provide on-premise and/or off-premise service to the U.S. Geological Survey . . . located at . . . Sioux Falls, SD." This was a negotiated procurement, and proposals were due on August 25, 1994. Protest File, Exhibit 2 at 1, 9. 2. Section M of the RFP, EVALUATION FACTORS FOR AWARD, read, in relevant part: M2320 Technical and Price Evaluation Factors (Modified) (a) The Contracting Officer will screen proposals to identify and eliminate any proposals that are so incomplete as to preclude a meaningful technical evaluation. (b) The remaining proposals will be technically evaluated by government and/or contractor personnel and will be based upon the following factors: . . . . All items contained in the Statement of Work under C380.II and C380.III have been identified as either mandatory items in a "pass or fail" category or as desirable item/features in the "points awarded" category. . . . For those elements in the "Points" category, the vendor will receive points based upon level of compliance . . . . Protest File, Exhibit 2 at 84-85. 3. The items in the statement of work (SOW) under C380.II and C380.III, which are referenced in the above-quoted section of the RFP, were enumerated in Section C of the RFP. Protest File, Exhibit 2 at 9-21. 4. The RFP contained instructions to offerors concerning the preparation of technical proposals and the determination of the competitive range. The RFP read, in relevant part: L2150 Proposal Format and Submission Instructions: (a) Proposals . . . shall set forth full, accurate, and complete information as required by this solicitation. . . . Failure to furnish full and complete information requested may cause an offer to be determined unacceptable. The cover sheet to the RFP stated, in part: "EXAMINE CLAUSE L2160 TECHNICAL PROPOSAL INSTRUCTIONS CAREFULLY, ESPECIALLY PARAGRAPH (b)." That section of the RFP read as follows: L2160 Technical Proposal Instructions . . . . (b) Important Note: Offerors must address each paragraph of the Statement of Work in sequence by listing the paragraph/subparagraph number and title, and the response. The response shall indicate compliance and explain in sufficient detail how the offeror proposes to meet each requirement. Simply repeating or paraphrasing the specifications or statement of work does not constitute an acceptable technical proposal. General statements such as "the offeror understands", "the offeror can or will comply", "standard procedures will be used" or statements that merely paraphrase the Statement of Work in whole or in part will be awarded only a "poor" rating and the offeror shall only earn 20% of the point value for that one item. Technical proposals must demonstrate how the offeror proposes to meet stated requirements or goals, and that the offeror has the necessary understanding, expertise, facilities, personnel, and experience to successfully accomplish the proposed work. . . . . (d) The main body of the technical proposal must provide sufficient information and detail (AS STATED IN PARAGRAPH (b) ABOVE) to permit the evaluators to score the proposal on each of the factors listed in Section M, Clause 2320. M2330 Competitive Range Determination Following the technical and price evaluation of proposals, the Contracting Officer will establish a competitive range of offerors to participate in negotiations. A proposal will be regarded as within the competitive range unless it receives a technically failing rating in Category I or II, contains a major technical deficiency, is so deficient in overall technical content or merit as to preclude meaningful evaluation or negotiations, or is not price competitive, such that the proposal stands no reasonable chance of being selected for award. Technical proposals which are marginally acceptable will not automatically be excluded from consideration if they are reasonably susceptible to being made acceptable and otherwise competitive. When the nature and extent of revisions required to make a proposal acceptable would be tantamount to submission of a new proposal, the proposal will be excluded from the competitive range. Protest File, Exhibit 2 at 77-78, 88. 5. On August 25, 1994, Telcom submitted a proposal in response to the RFP. Protest File, Exhibit 3. 6. Telcom's technical proposal did not address, in sequence, by listing the paragraph/subparagraph number and title and the response, the evaluation factors under Section C, DESCRIPTION/ SPECIFICATION/WORK STATEMENT, C380.III.E (Station Equipment), F (Training), G (Operation and Maintenance), and H (Installation), as instructed under L2160, Technical Proposal Instructions, paragraphs (b) and (d). Telcom's technical proposal ended at the discussion of evaluation factor C380.III.D.9 of the solicitation. Protest File, Exhibit 3 at 34. 7. By letter dated September 15, 1994, the contracting officer informed Telcom that pursuant to clause M2330 of the RFP, its proposal was determined not to be in the competitive range because the proposal "was so deficient in overall technical content as to preclude meaningful evaluation or negotiation." The deficiencies cited were failure to address the four evaluation factors of station equipment, training, operation and maintenance, and installation, and also a failure to address the principal period of maintenance. Protest File, Exhibit 7. 8. Telcom responded to the contracting officer's letter of September 15, 1994, by letter dated September 28, 1994. In the letter, Telcom set forth its position that the proposal as submitted was not so deficient as to preclude meaningful discussion. Complaint, Exhibit A. 9. After the evaluation of initial proposals, only one offeror remained in the competitive range. Protest File, Exhibit 5. 10. Telcom filed a protest with this Board on September 29, 1994, alleging that respondent improperly rejected protester's bid as nonresponsive. The protester states: "From a legal perspective, the solicitation has included as a matter of 'responsiveness' factors which properly relate to matters of 'responsibility'." The protest also incorporates by reference protester's letter dated September 28, 1994, in which protester states its position that its proposal was not so deficient as to preclude meaningful evaluation. Complaint at 1-2. 11. Respondent filed a motion for summary relief, alleging that protester's proposal was not and could not be made acceptable without a major revision. Protester responded with a sworn affidavit alleging the omissions were not material, and that the information which respondent alleged had not been addressed had been included elsewhere in its proposal, resulting in only a two percent omission of technical information required. The Board declined to rule on the motion on the record as it existed at that time. The parties elected to submit the protest for a decision on the record. 12. Protester's record submission included a sixteen-page document from Telcom which purported to demonstrate that although Telcom had not responded to the four evaluation factors as the result of a "software error with our computer," the information contained in the proposal as submitted rendered the proposal materially complete and therefore acceptable without a major revision, since its omission accounted for only "4.67% of the technical issues." With respect to the evaluation factor of station equipment, Telcom did respond in other portions of its proposal to several requested details, such as whether the system was fully digital and had message lights. However, with regard to most of the information requested for station equipment and the other three evaluation factors for which information was omitted, Telcom supports its assertion that it supplied the information in other parts of the proposal by citing general statements such that "Telcom would provide the design and furnish all facilities, labor and materials in accordance with the terms and conditions of the specification," or that the "telephones can be configured in a variety of ways." Protester's Record Submission at 10-12. 13. Respondent's record submission contained an affidavit from one of the technical evaluation panel members, in which he stated the significance of the evaluation factors for which a response was omitted: 1) Section C380.III.E., Station Equipment, asked for detailed information concerning the telephone equipment which would be installed on the user[']s desk. This included not only a physical description of the equipment but detailed information on the functionality of same. This is vitally important as this is what the system user sees on their [sic] desk and will use everyday. 2) Section C380.III.F, Training, addresses the training the offeror will provide for the system users and the USGS personnel assigned to administer the system. Again, this is a very important part of the acquisition for without adequate training for both users and administrators the system at best would be inadequate and at worst useless. 3) Section C380.III.G, Operation and Maintenance, pertains to how the offeror is expected to maintain the system, both preventative and remedial, after installation is completed. This is an essential ingredient with any electronic system as ongoing maintenance of the system will be a major part of its longevity and usefulness to the USGS. This is particularly important with telephone systems as they are essential tools in the operations of all USGS offices. 4) Section C380.III.H., Installation, as with the Operation and Maintenance of a telephone system, the installation of a telephone system is directly related to its longevity and usefulness and almost as important. Without complete and detailed replies to the requirements as detailed in the missing Sections, it is virtually impossible to evaluate an offeror's proposal with any assurance that either the system complies with the technical requirements or whether the offeror understands them. Declaration of John C. O'Donnell (Nov. 14, 1994) (O'Donnell Declaration) 5. 14. The technical evaluation panel member commented further with regard to respondent's review of the proposal to ascertain if the proposal was capable of being made acceptable without material revision: Telcom's omission was significant. Without the information, the panel had to consider Telcom's proposal unacceptable. However, before recommending to the contracting officer that Telcom's proposal be rejected, we carefully reviewed it to determine whether Telcom had addressed the factors under C380.III.E through H elsewhere. There were some places where Telcom partially responded to the factors, such as whether the system was fully digital, had message waiting lights and a few other items in the Station Equipment section, but these were not addressed in an organized, clear and concise manner. Furthermore, Telcom did not address the Training, Maintenance or Installation issues. The complexity of [Telcom's] letter [Telcom's attachment to its record submission] and the herculean effort involved in ferreting out this information only demonstrates why it was essential to comply with the solicitations [sic] instructions. [Protester's] statement that Telcom only omitted a small percentage (about 4%) of the technical discussion is incorrect. While it is difficult to assign percentages . . . I would assign a percentage of 22%+ to the amount of information omitted . . . . O'Donnell Declaration 6-8. 15. The preponderance of the evidence establishes that protester failed to supply most of the information for the four evaluation factors in the detail required by the RFP. The sparse and incomplete data which was found elsewhere in the proposal, in conjunction with protester's general statements of its intent to comply, was not sufficient to demonstrate its understanding of the requirements of the RFP as to these evaluation factors. The proposal was incapable of being made acceptable without major revision, and protester's proposal had no reasonable chance for being selected for contract award. Respondent's decision not to include protester's proposal in the competitive range was reasonable. Discussion In its complaint, protester alleged that respondent improperly rejected protester's bid as nonresponsive. The protester states: "From a legal perspective, the solicitation has included as a matter of 'responsiveness' factors which properly relate to matters of 'responsibility'." The complaint also incorporates by reference protester's letter dated September 28, 1994, in which protester states its position that its proposal was not so deficient as to preclude meaningful evaluation. While protester uses the term "responsiveness," this term is more accurately applied to "sealed bid" rather than negotiated procurements. See 48 CFR 14.301 (1993), (FAR 14.301.)[foot #] 1 The gist of protester's complaint is that respondent erred in concluding that its proposal was so technically deficient as to preclude meaningful evaluation or negotiation so as to justify the exclusion of the proposal from the competitive range. Despite its failure to include sections in its proposal directly addressing the evaluation factors of station equipment, training, operation and maintenance and installation, Telcom contends that the information contained in other portions of its proposal was sufficient to comply with the requirements of these evaluation factors. In its motion for summary relief, respondent contended that as a result of Telcom's failure to address four evaluation factors in sequence by listing the paragraph/subparagraph number and title and the response as instructed, Telcom provided a materially incomplete proposal which the contracting officer properly regarded as unacceptable and incapable of being made acceptable without major revision. The contracting officer therefore excluded the proposal from the competitive range. In response to the motion for summary relief, protester submitted an affidavit purporting to establish that the information contained in the proposal as submitted rendered the proposal materially complete and therefore acceptable without a major revision. The Board declined to rule on the motion on the record as it existed at that time. The parties elected to submit the protest for a decision on the record. The Board directed protester to submit a detailed document indicating how it contends the information required in the four evaluation factors had been supplied in the ----------- FOOTNOTE BEGINS --------- [foot #] 1 Protester's legal theory of improper designation of responsibility factors as matters of responsiveness in the solicitation was not further addressed by protester. ----------- FOOTNOTE ENDS ----------- proposal. The parties then agreed to file further submissions so that the protest could be decided on the written record. Respondent eliminated four out of five offerors responding to the subject solicitation, leaving one offeror in the competitive range. Finding 9. Although contracting officers have broad discretion in determining whether to place a proposal in the competitive range, a decision which results in the inclusion of only one offeror will be subjected to close scrutiny. Birch & Davis International, Inc., 4 F.3d 970 (Fed. Cir. 1993); Denro, Inc. v. Department of Transporation, GSBCA 11736-P, et al., 93-1 BCA 25,315, 1992 BPD 196; APT Corp., GSBCA 9237-P, 88-1 BCA 20,411, 1987 BPD 284. Even under circumstances when only one offeror remains in the competitive range, it is proper to exclude from the competitive range an unacceptable initial proposal which could be made acceptable only if major modifications or revisions must be undertaken. APT Corp.[foot #] 2 In Peqrab Business Systems v. Department of the Navy, GSBCA 12124-P, 93-2 BCA 25,638, 1992 BPD 390, an offeror failed to provide the detail necessary to enable the contracting officer to determine whether the offeror could meet maintenance requirements called for by the solicitation, and its proposal was deemed technically unacceptable. The Board upheld the contracting officer's determination, stating that "offerors who ignore solicitation instructions act at their peril as such proposals face rejection as technically unacceptable." In the instant protest, as the result of protester's failure to submit a proposal in compliance with the instructions of the RFP, respondent found protester's proposal so deficient in overall technical content as to preclude meaningful evaluation or negotiation. Finding 7. Respondent therefore did not include the proposal in the competitive range, as respondent concluded the proposal could be made acceptable only if major modifications or revisions were undertaken. Finding 13. Even though respondent's actions in this procurement resulted in only one offeror remaining in the competitive range, its actions survive close scrutiny. FAR 15.609 requires that "the competitive range . . . shall include all proposals that have a reasonable chance for being selected for award." 48 CFR 15.609 (1993). A review of the solicitation and protester's failure to comply supports respondent's actions in not including the proposal in the competitive range. In the cover sheet to the ----------- FOOTNOTE BEGINS --------- [foot #] 2 This requirement of close scrutiny contributed to the Board's declining to rule on respondent's motion for summary relief and request for additional supplementation of the record in order to determine if protester's proposal could be made acceptable only by a major modification or revision. ----------- FOOTNOTE ENDS ----------- solicitation, offerors were specifically cautioned to "EXAMINE CLAUSE L2160 TECHNICAL PROPOSAL INSTRUCTIONS CAREFULLY, ESPECIALLY PARAGRAPH (b)." Finding 4. There is no dispute that protester failed to follow the instructions in this clause of the RFP which required offerors to "address each paragraph of the Statement of Work in sequence by listing the paragraph/subparagraph number and title, and the response. The response shall indicate compliance and explain in sufficient detail how the offeror proposes to meet each requirement." Id. Protester omitted a response to four evaluation factors. Finding 6. Respondent has explained the significance of these four evaluation factors. Finding 13. Protester's sixteen-page letter does not support its contention that the information for the four evaluation factors was sufficiently presented throughout the proposal as submitted. While protester did include some of the detailed information requested for the four evaluation factors in other parts of its proposal, the information which it cites as previously submitted and allegedly fulfilling the requirements of the RFP as to the evaluation factors at issue is, for the most part, composed of general statements as to its intent to comply, rather than a description of how it intends to comply. This is especially true for the evaluation factors of training, operation and maintenance, and installation. Finding 12. The RFP instructs offerors that "[s]imply repeating or paraphrasing the specifications or statement of work does not constitute an acceptable technical proposal" and that "[t]echnical proposals must demonstrate how the offeror proposes to meet stated requirements or goals, and that the offeror has the necessary understanding, expertise, facilities, personnel, and experience to successfully accomplish the proposed work." Finding 4. As respondent's technical evaluation panel member notes, such general statements as offered by protester were not sufficient to provide respondent "with any assurance that either the system complies with the technical requirements or whether the offeror understands them." Finding 13. Protester argues that it omitted information concerning only 4.6% of the technical requirements, while respondent characterizes the omission as concerning more than 22% of the technical requirements. A resolution of the protest does not depend on a determination as to the percentage of information omitted. Protester failed to supply most of the information for the four evaluation factors in the detail required by the RFP. The sparse and incomplete data which was found elsewhere in the proposal, in conjunction with protester's general statements of its intent to comply, was not sufficient to demonstrate its understanding of the requirements of the RFP as to these evaluation factors. Accordingly, we conclude, as did respondent, that the proposal was incapable of being made acceptable without major revision, and find that protester's proposal had no reasonable chance of being selected for contract award. Finding 15. Accordingly, respondent's decision not to include protester's proposal in the competitive range was reasonable. 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 protester from the competitive range. Decision The protest is DENIED. ________________________ ALLAN H. GOODMAN Board Judge ________________________ ________________________ EDWIN B. NEILL CATHERINE B. HYATT Board Judge Board Judge