DENIED: December 22, 1994 GSBCA 13082-P SAMTECH RESEARCH, INC., Protester, v. DEPARTMENT OF COMMERCE, Respondent. John T. Schreiber, Walnut Creek, CA, counsel for Protester. Jerry A. Walz and Kenneth Lechter, Office of General Counsel, Department of Commerce, Washington, DC, counsel for Respondent. Before Board Judges DANIELS (Chairman), DEVINE, and DeGRAFF. DANIELS, Board Judge. Samtech Research, Inc., was eliminated from the competitive range in a procurement being conducted by the Department of Commerce for the supply of microcomputers. The firm protests that the agency's action was improper. We find no violation of law and consequently deny the protest. Findings of Fact The case has been submitted for decision on the Government's motion for summary relief. The following facts are uncontested. 1. The solicitation in question is for offers to provide microcomputers and associated hardware and service to the Department of Commerce. The computers were to be supplied in two configurations, a "basic system" and an "advance[d] system." The agency is to buy between 100 and 500 of the former and between 20 and 300 of the latter. Additional items may be purchased, as well, up to a maximum cost of $2,500,000. Protest File, Exhibit 1 at 4, 6, 39 of 87. 2. The solicitation provided that -- Offeror's proposals . . . shall be in the two (2) volumes as described below [technical proposal and business proposal], and the submission of one (1) production unit [of each system] to be evaluated . . . . The equipment shall be original, unmodified production units . . . selected at random from the offeror's production or inventory. Protest File, Exhibit 1 at 77 of 87; see also id. at 16 of 87; id., Exhibit 2 at 1 of 4. 3. The solicitation also explained: The operational tests to be performed will receive paramount consideration in the selection of the Contractor for this acquisition. The merits of each proposed system will be evaluated based on its performance of tasks seen by users as important in use of the equipment, and as measured using standard performance tests. The information in the technical proposals will be used to provide guidance in understanding how each offeror has interpreted the system requirements. Offerors are advised that although paramount consideration will be given to the evaluation of the performance and technical considerations, price will also be used to make a best buy decision. Protest File, Exhibit 1 at 82 of 87; see also id., Exhibit 2 at 1 of 4. 4. Technical proposals and operational capability demonstrations (OCDs) of equipment were to be point-scored. The agency provided a list of subfactors as to which technical proposals would be evaluated. It also stated that the "Government will unpack and assemble the system(s) . . . in accordance with the user instructions," and would then subject the systems to various stated tests. An offeror's OCD score would be divided by the highest OCD score, then multiplied by 350, to give a point score for that offeror. Protest File, Exhibit 1 at 84-85 of 87; see also id., Exhibit 4 at 2 of 2. Price proposals would not be point-scored. Id., Exhibit 1 at 86 of 87. 5. The solicitation stated that the maximum possible score for an offeror on the OCD was 350. Protest File, Exhibit 1 at 85 of 87. The agency's source selection plan provided for the assignment of as many as 650 points to an offeror's technical proposal. The maximum score any offeror could achieve was 1000. Protest File, Exhibit 5. 6. When the agency's technical evaluators attempted to perform an OCD of the computers shipped by Samtech, they found that neither the basic system nor the advanced system booted. With regard to the basic system, the evaluators found a loose jumper plug inside the unit, but were unable to determine from the documentation provided by Samtech the origin of the plug. They also discovered that an electrical wire which should have connected a heat sink and fan unit to the central processing unit had not been properly attached and could not have come loose during shipment. The evaluators determined that the advanced system had a similar problem with regard to the heat sink and fan unit. In addition, it had a loose hard disk controller cable; they reattached the cable, but were unable to load drivers or test software. Protest File, Exhibits 16, 19. 7. The evaluators attempted to contact Samtech by telephone regarding the problems with the systems which had been sent for testing. On two separate occasions, they called the only phone number they had -- the one on the letterhead attached to the firm's technical proposal. On both occasions, the number was answered by a woman at a private home who disclaimed any knowledge of the firm. Protest File, Exhibit 19. 8. Because of the booting problem, neither system supplied by Samtech could be tested. Samtech received a score of zero for its OCD. Protest File, Exhibits 16, 19; see also id., Exhibit 12 at 11 of attachment. 9. The protest alleges that problems encountered by the agency in its OCD of Samtech's systems were caused by the agency's mishandling of the systems. Samtech now acknowledges that no evidence supports this allegation. Protester's Response to Statement of Allegedly Uncontested Facts (Protester's Response), 5. 10. In scoring proposals, the agency rated offerors from 687.29 to 296.50. Samtech's score was lowest of all. Protest File, Exhibit 12 at Overall Score Sheet. The contracting officer eliminated Samtech and several other offerors from the competitive range prior to conducting discussions with any offeror. Id., Exhibits 13, 14. 11. The contracting officer has provided an affidavit in which he states that even if the systems Samtech provided for testing had "booted and scored as high as similar systems in the competition scored for that element," he would have excluded Samtech from the competitive range. Attachment to Respondent's Motion for Summary Relief. Samtech believes that this conclusion is unreasonable. Protester's Response, 2. 12. If Samtech had received as its score on its OCD a figure which is the average of the OCD scores of all offerors, its total score would have been significantly less than the scores of all but one of the offerors remaining in the competitive range. That one offeror's evaluated price was vastly lower than Samtech's. Even if Samtech had received an OCD score as high as the highest figure assigned to any offeror, its total score would still have been somewhat less than that of all offerors in the competitive range except for two -- the one referenced in the preceding sentence and another firm whose evaluated prices were also significantly less than Samtech's. See Protest File, Exhibit 13. Discussion Samtech contends that the Department of Commerce was obliged to contact it, after discovering that the systems supplied for the OCD did not boot, to ask for help in repairing the units or provide an opportunity to ship replacement units. Protester also maintains that the decision to exclude it from the competitive range was unreasonable because if it had received an average score on the OCD, it would have had a higher score than one offeror in the range, and if it had received a score equal to the highest assigned any proposal, it would have had a total higher than two offerors in the range. Samtech does not cite any statute or regulation which might have been violated by the agency's not having alerted the firm to the fact that the systems it supplied for the OCD did not boot. Any requirement for such notice appears dubious in light of the solicitation's clear warning that the agency would follow instructions provided by an offeror in unpacking and assembling each unit for testing. Even if there were such a requirement, the agency actually did attempt to contact the firm, but could not reach it because of Samtech's own error -- putting on its stationery an incorrect telephone number. Samtech contends that the attempts were unreasonable because they were made before 9 a.m. in California, where Samtech is located. Protester's Response, 8. We do not agree with this position; the phone number provided by Samtech turned out to be that of the residence of a woman who knew nothing about the firm, and it strains credulity to believe that during standard business hours, she would know more than she did earlier. Further, even if the agency did violate a law in not giving Samtech notice of the failure of the systems to boot, the violation would have been immaterial in the context of this procurement. The Federal Acquisition Regulation provides this instruction regarding establishment of the competitive range in a negotiated procurement: The contracting officer shall determine which proposals are in the competitive range for the purpose of conducting written or oral discussion . . . . The competitive range shall be determined on the basis of cost or price and other factors that were stated in the solicitation and shall include all proposals that have a reasonable chance of being selected for award. When there is doubt as to whether a proposal is in the competitive range, the proposal should be included. 48 CFR 15.609(a) (1993). The solicitation announced that the agency would select for award the offer which represented the "best buy" to the Government. Samtech's score on its written technical proposal was such that even if the firm had been permitted to fix its systems prior to the OCD, and had then achieved a very high score on the test -- a result which is highly speculative -- Samtech's total score would not have been exceptionally high. Given the technical scores and evaluated prices of the offerors which were in the competitive range, we find reasonable the contracting officer's conclusion that even if Samtech had scored well on the OCD, it should not have been placed in the competitive range. Because other proposals were either superior technically or significantly lower in price, Samtech's offer, even with the benefit of discussions, did not have a reasonable chance of being selected for award. Decision The protest is DENIED. Our order of November 22, 1994, suspending the agency authority to award a contract while this protest is before the Board, lapses with the issuance of this decision. _________________________ STEPHEN M. DANIELS Board Judge We concur: _________________________ _________________________ DONALD W. DEVINE MARTHA H. DeGRAFF Board Judge Board Judge