______________________________________________ DENIED: December 12, 1994 _______________________________________________ GSBCA 13064-P OPTIMUM SERVICES & SYSTEMS, INC., Protester, v. DEPARTMENT OF AGRICULTURE, Respondent. Anne Marie Moon, Marketing Director of Optimum Services & Systems, Inc., Lanham, MD, appearing for Protester. Michael F. Kiely, Office of the General Counsel, Department of Agriculture, Washington, DC, counsel for Respondent. Before Board Judges WILLIAMS, DeGRAFF, and GOODMAN. DeGRAFF, Board Judge. In this protest, Optimum Services & Systems, Inc. (OSS) challenges the decision of the United States Department of Agriculture (USDA) to award a contract to East Coast Support Services (ECSS). We deny OSS's motion for summary relief because OSS has not put forward any facts or argument to establish that it is entitled to relief. We grant USDA's motion for summary relief and deny the protest because there are no material facts in dispute and USDA is entitled to relief as a matter of law. Background On July 25, 1994, USDA issued solicitation number RFP 01- 3K06-95 for preventive maintenance, remedial maintenance, and emergency repair services to computer equipment owned by USDA. The solicitation requires offerors to provide technical proposals and cost proposals to USDA. Section L of the solicitation explains that the technical proposals were to consist of five sections, and contains a description of the contents of each section. Protest File, Exhibit 1. Section M of the solicitation contains the evaluation factors to be used by USDA when awarding a contract. Section M.1 explains that proposals which meet all requirements will be evaluated to determine which proposal is most advantageous to USDA, and states that this determination will be based upon both technical and price proposals. Section M.2 states that technical factors are paramount, although price may become the determining factor as technical proposals become more equal. Protest File, Exhibit 1. Section M.1 also lists the technical evaluation criteria that are the basis for determining which proposals will be placed in the competitive range. These criteria are divided into five sections, which correspond to the five sections of the technical proposals described in section L. The criteria, listed in descending order of importance, and the maximum points available for each criterion are: I. Maintenance Technical Resources 350 II. Corporate Experience/Past Performance 200 and Personnel Qualifications III. Maintenance Plan 175 IV. Field Change Orders 150 V. Replacement Parts 100 Protest File, Exhibit 1. USDA received eight proposals in response to the solicitation. Although the solicitation does not require the contracting officer to convene a technical evaluation panel (TEP), the contracting officer convened a TEP consisting of three members, and the TEP reviewed the technical proposals. The contracting officer decided to include ECSS, OSS, and five other offerors in the competitive range. ECSS's proposal scored significantly higher than OSS's proposal for Criterion I, slightly lower than OSS's proposal for Criterion III, and the same as OSS's proposal for Criteria II, IV, and V. ECSS's proposal was priced approximately $7,000 higher than OSS's proposal. The scoring sheets prepared by the TEP members contain detailed comments concerning each proposal's response to the solicitation's requirements and the strengths and weaknesses of each proposal. Protest File, Exhibits 4, 6; Affidavit of Lyndia V. Countee. On October 6, 1994, the contracting officer invited each offeror in the competitive range to submit a best and final offer (BAFO). The contracting officer identified her concerns about each offeror's proposal and told the offerors to address those concerns in their BAFOs. The concerns identified by the contracting officer correspond to the weaknesses identified by the TEP. Protest File, Exhibit 7. ECSS's BAFO consists of a brief response to the concerns identified by USDA. Protest File, Exhibit 20. OSS's BAFO consists of a brief response to USDA's concerns and revised pricing tables. Protest File, Exhibit 16. The chairperson of the TEP reviewed the offerors' responses to USDA's concerns and also reviewed material regarding the offerors' past performance. Based upon his review, the chairperson determined that ECSS had improved its proposal and deserved more points for Criteria II and IV, and that OSS had improved its proposal and deserved more points for Criterion II. The chairperson revised the scoring sheets that had been prepared when the competitive range determination was made, and concluded that ECSS's proposal deserved 129 points more than OSS's proposal. The chairperson concluded that the proposals prepared by ECSS and one other offeror were outstanding, and that the proposals prepared by OSS and four other offerors were acceptable. The chairperson also concluded that the proposal prepared by ECSS was superior to that of the other offeror that submitted an outstanding proposal, and recommended that award be made to ECSS. The chairperson explained the reasons for his conclusions in two memoranda prepared for the contract specialist and the contracting officer. Protest File, Exhibits 9, 10, 11; Affidavit of Lyndia V. Countee. The contracting officer considered the TEP chairperson's explanation of the superiority of ECSS's proposal. In a November 4, 1994 memorandum, the contracting officer and the contract specialist summarized the technical merit of all of the offerors. ECSS was ranked first technically by a wide margin, and OSS was ranked fifth. ECSS's proposed price was approximately $7,200 higher than OSS's proposed price. The November 4, 1994 memorandum explains why ECSS's proposal provides the greatest overall value to USDA. Protest File, Exhibit 11; Affidavit of Lyndia V. Countee. USDA awarded the contract to ECSS on November 4, 1994. Protest File, Exhibit 12. On November 10, 1994, OSS filed this protest. OSS's protest complaint states that it should have been awarded the contract because its proposal was technically acceptable and it offered the lowest price. On November 30, 1994, USDA filed a motion for summary relief. USDA asserts that there are no facts in dispute concerning the contents of the solicitation, the evaluation criteria, or the manner in which the evaluation was conducted, and that it is entitled to relief because it conducted this procurement properly. The presiding judge ordered OSS to respond to USDA's motion on December 5, 1994. Instead, on December 6, 1994, OSS filed a motion for summary relief. In its motion, OSS alleges that USDA conducted the evaluation improperly because it failed to re-evaluate OSS's proposal after OSS provided new information and clarifications to USDA. OSS offers no facts in support of its allegations. OSS also alleges that USDA conducted the evaluation improperly because the contracting officer did not require all of the members of the TEP to review the BAFOs. OSS does not cite any statute, regulation, or term of the delegation of procurement authority which might have been violated by USDA. USDA filed its opposition to OSS's motion on December 9, 1994. Discussion A motion for summary relief will be granted if, based upon uncontested material facts, the moving party is entitled to relief as a matter of law. The party opposing a motion for summary relief is required to come forward with some evidence to establish that there is a genuine conflict concerning a material fact. Rule 8(g). When considering a motion for summary relief, we must determine whether there are any genuine factual issues that can be resolved only by a trial. If there no such issues, then summary relief is appropriate. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Summary relief will be granted against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The Facts There are no material facts in dispute concerning the terms of the solicitation or the evaluation criteria. The solicitation provides that technical merit was more important than price, and that award would be made to the offeror whose proposal was most advantageous to USDA, considering both technical merit and price. The evaluation criteria are set forth in section M of the solicitation, which explains the basis upon which USDA would award the contract, and are described in section L of the solicitation, which explains how offerors should prepare their proposals. The solicitation makes it clear that USDA would consider more than whether a proposal was acceptable or unacceptable, and would consider the degree to which acceptable proposals met USDA's requirements. The solicitation does not permit USDA to award a contract to the offeror proposing the lowest price, without regard to the offeror's relative technical merit. There are no material facts in dispute concerning USDA's evaluation of the proposals. The record reflects that USDA considered the technical merit of each proposal and provided the offerors with the opportunity to eliminate the weaknesses in their proposals. The record also reflects that USDA reviewed and considered the BAFOs, and adjusted the offerors' technical ratings accordingly. Although OSS contends that USDA failed to consider the information and clarifications provided by OSS, there is no support in the record for OSS's contention. There are no material facts in dispute concerning USDA's review of the BAFOs. The BAFOs were reviewed by the chairperson of the TEP, and not by all of the members of the TEP. The solicitation does not require the contracting officer to convene a TEP, and so does not require all of the members of the TEP to review BAFOs. OSS's Motion For Summary Relief In order to prevail in this protest, OSS must establish that USDA violated statute, regulation, or the delegation of procurement authority. 40 U.S.C. 759(f) (1988). Read as broadly as possible, OSS's pleadings contain three grounds for relief. First, OSS alleges that it should have been awarded the contract because its proposal was technically acceptable and it offered the lowest price. Second, OSS alleges that USDA failed to re-evaluate OSS's proposal after OSS provided new information and clarifications to USDA. Third, OSS alleges that the BAFOs should have been reviewed by the entire TEP. OSS's motion for summary relief is denied. First, although OSS is correct that its proposal was technically acceptable and that it offered the lowest price, these facts do not entitle OSS to relief because USDA's decision to award the contract to ECSS did not violate statute, regulation, or the delegation of procurement authority. As the solicitation makes clear, technical merit was more important to USDA than price, and USDA was required to award the contract to the offeror whose proposal was the most advantageous to USDA. Second, OSS's allegation that USDA did not consider OSS's information and clarifications is not supported by any facts contained in the record. Third, although OSS is correct that the contracting officer decided not to ask all members of the TEP to review the BAFOs, this fact does not entitle OSS to relief because USDA's decision did not violate statute, regulation, or the delegation of procurement authority. The solicitation does not require that the contracting officer use a TEP at all, and so does not require that all members of the TEP review the BAFOs. USDA's Motion For Summary Relief USDA's motion asserts that OSS cannot establish a violation of any statute, regulation, or delegation of procurement authority because USDA conducted the procurement properly. In order to oppose USDA's motion successfully, OSS was required to produce some evidence that USDA did not conduct the procurement properly or at least to explain why further discovery is required to develop relevant facts. Rule 8(g). OSS, however, failed to put forward any such evidence or to suggest how it might be developed through discovery. OSS has not identified any statute, regulation, or provision in the delegation of procurement authority that USDA might have violated when it conducted this procurement, and such a violation is an element essential to OSS's case. USDA is entitled to summary relief, due to the absence of any evidence to suggest that USDA violated a statute, regulation, or the terms of the delegation of procurement authority when it conducted this procurement. Decision Protester's motion for summary relief is DENIED, respondent's motion for summary relief is GRANTED, and the protest is DENIED. ______________________________ MARTHA H. DeGRAFF Board Judge We concur: ______________________________ _______________________________ MARY ELLEN COSTER WILLIAMS ALLAN H. GOODMAN Board Judge Board Judge