THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING RELEASED TO THE PUBLIC IN REDACTED FORM ON FEBRUARY 9, 1995 ________________________________________________________________ INTERVENOR MODERN TECHNOLOGY SYSTEMS, INCORPORATED'S MOTION TO DISMISS INTERVENOR PRODUCTIVE DATA SYSTEMS, INC. FOR LACK OF STANDING IN GSBCA 13087-P DENIED: January 12, 1995 ________________________________________________________________ GSBCA 13087-P, 13139-P ANSTEC, INC., Protester, and CAELUM RESEARCH CORPORATION, Protester/Intervenor, and PRODUCTIVE DATA SYSTEMS, INC., Intervenor, v. DEPARTMENT OF TRANSPORTATION, Respondent, and MODERN TECHNOLOGY SYSTEMS, INCORPORATED, Intervenor. James J. Regan, George D. Ruttinger, David Z. Bodenheimer, and Christopher M. Farris of Crowell & Moring, Washington, DC, counsel for Protester Anstec, Inc. William L. Walsh, Jr., Lars E. Anderson, J. Scott Hommer, III, and Wm. Craig Dubishar of Venable, Baetjer and Howard, McLean, VA, counsel for Protester/Intervenor Caelum Research Corporation. Ronald S. Perlman and Ellen F. Randel of Porter, Wright, Morris & Arthur, Washington, DC, counsel for Intervenor Productive Data Systems, Inc. Cathryn G. Cason and A. L. Haizlip, Federal Aviation Administration, Department of Transportation, Oklahoma City, OK, counsel for Respondent. Michael W. Clancy, Richard P. Rector, and Kevin P. Mullen of Pettit & Martin, Washington, DC, counsel for Intervenor Modern Technology Systems, Incorporated. Before Board Judges HYATT, WILLIAMS, and DeGRAFF. WILLIAMS, Board Judge. On November 28, 1994, Anstec, Inc. (Anstec) filed a protest challenging the Department of Transportation, Federal Aviation Administration's (FAA's) award of a contract for federal information processing support services to Modern Technology Systems, Incorporated (MTS). Caelum Research Corporation (Caelum), Productive Data Systems, Inc. (PDS), and MTS timely intervened; Caelum and PDS supported Anstec's protest, and MTS intervened on the side of the Government.[foot #] 1 This matter comes before the Board on intervenor MTS' motion to dismiss PDS because it is not an interested party. For the reasons stated below, we deny MTS' motion. Findings of Fact The Solicitation On September 15, 1993, the FAA issued request for proposals (RFP) No. DTFA-02-93-R-00905. The procurement was a set-aside for small businesses under Section 8(a) of the Small Business Act. The solicitation requested federal information processing (FIP) support services for FAA's Office of Information Services (AMI). Protest File, Exhibit 6. AMI's mission is to provide strategic planning, requirements definition, systems analysis, development, implementation, and maintenance of automated information systems for FAA and the Department of Transportation. Protest File, Exhibit 28 at 1. The proposed contract was to be an indefinite delivery/requirements and time-and-materials type contract. Id. at 7. The solicitation contemplated award of only ----------- FOOTNOTE BEGINS --------- [foot #] 1 PDS also filed its own protest which was docketed as GSBCA 13100-P. On December 13, 1994, PDS filed a notice of withdrawal of its protest, and on December 15, 1994, the Board dismissed PDS' protest with prejudice. ----------- FOOTNOTE ENDS ----------- one contract. Id. at 74. An offeror's technical proposal was to be evaluated based on the following subfactors, in descending order of importance: (a) experience and past performance, (b) program management, (c) staffing, (d) understanding the requirement, (e) transition plan, and (f) risk to the government. Id. at 72. The solicitation stated that an offeror's cost proposal would not be rated or scored, but rather would be evaluated on the basis of its "completeness, reasonableness, and realism." Id. The solicitation specified that the offer which provided the "overall greatest value to the Government" would be selected. Id. at 71. The solicitation further provided that the successful offer might not necessarily be the lowest priced offer and that "technical competency [was] slightly more important than price. However, price may become relatively more important as the difference in the technical scores decreases." Id. Evaluation and Award Seventeen offers were received, and eleven offerors were eliminated from the competitive range after evaluations. Protest File, Exhibit 28 at 9. Five offerors remained in the competitive range after best and final offers and were ranked as follows: Tech Tech Price Offeror Score Rank Est. 5-Year Total Rank A (Caelum) B (MTS) C (ANSTEC) D (MACA) E (PDS) Protest File, Exhibit 28 at 10. In discussing the strengths, weaknesses, and deficiencies of PDS' proposal, the Source Evaluation Board (SEB) Protest File, Exhibit 28 at 16. Under the category of risk assessment, the SEB stated: Id. at 17. The Instant Protest On November 28, 1994, Anstec filed the instant protest raising three grounds of protest. In Count I, Anstec claimed a Procurement Integrity Act violation based upon a former FAA employee's subsequent employment with the awardee's subcontractor and upon his involvement in this procurement. In Count II, Anstec claimed FAA failed to evaluate proposals properly and did not make a proper best value determination. In Count III, Anstec claimed that FAA failed to conduct meaningful discussions with it. On December 5, 1994, PDS timely filed a notice of intervention and its own protest. In its notice of intervention, PDS supported and adopted Count I of Anstec's protest, but alleged "insufficient knowledge to take a position as to the remaining counts of Anstec's protest." Intervention and Protest 3. In its protest, PDS asserted that it had submitted the proposal which offered the greatest value to the Government and should have received award. PDS further claimed that FAA failed to conduct a proper cost/technical tradeoff and failed to make a proper best value determination. Id. 4. Finally, PDS asserted that FAA failed to evaluate proposals in accordance with the evaluation criteria and to inform PDS of any deficiencies or weaknesses in its proposal. Id. 5. In its protest, PDS requested that the Board direct FAA to terminate the award to MTS, direct award to it; or reopen discussions, solicit another round of best and final offers (BAFOs), and reevaluate proposals. Id. 7. On December 13, 1994, PDS filed a notice of withdrawal of protest in which it stated that it had decided to withdraw its independent grounds of protest, but did not withdraw its intervention. In an order dated December 15, 1994, the Board dismissed PDS' independent protest with prejudice, but stated that PDS remained as an intervenor in Anstec's protest. Discussion MTS seeks dismissal of PDS' intervention in the Anstec protest on the ground that PDS lacks status as an interested party. MTS contends that PDS has "no viable chance for award." MTS' Motion to Dismiss PDS for Lack of Standing at 4. Because FAA ranked PDS technically, MTS contends that PDS is not and that because PDS' technical and cost scores are "frozen" due to the dismissal of its independent protest, PDS has no viable chance of award. MTS' motion is not supported by any testimony of the Source Selection Official (SSO) or of other Government procurement officials. We, thus, have no basis to conclude that PDS has no viable chance for award. While PDS' technical and cost scores may be "frozen," the SSO in a best value procurement is not obligated to make an award based solely upon scores. As the Board recognized in Arthur Andersen and Co., GSBCA 8870-P, 87-2 BCA 19,922, at 100,815, 1987 BPD 94, at 18, a source selection advisory council is entitled to reject the evaluation of the source evaluation board because "discretion . . . must be exercised by each level in the evaluation and selection process." See also Burnside-Ott Aviation Training Center, Inc., et al., B-233113, 89-1 CPD 158, at 9 (Feb. 15, 1989); Barron Builders and Management Co., B-225803, 87-1 CPD 645, at 5 (June 30, 1987) ("[G]iven their wide discretion, selection officials are bound neither by those technical scores nor by the source selection recommendations of the technical evaluators."). This Board has previously rejected the suggestion that a low-ranked offeror in a best value procurement lacks interested party status when that offeror remains in the competitive range and the SSO has not determined which of the remaining offerors would provide the overall greatest value to the Government. In Integrated Systems Group, Inc. v. Department of the Air Force, GSBCA 12103-P, 93-2 BCA 25,771, 1993 BPD 4 (1992), we recognized that in the absence of evidence to show what the SSO would have done in the event that the awardee was eliminated from the competition, it would be speculative for the Board to determine that protester had no reasonable chance of award. We stated: Without probing further, a review of only the final technical and risk scores and prices does not dictate an obvious 'best value for the Government' decision. Accordingly, protester remains a viable awardee within the competitive range as it retains a direct economic interest in the award of the contract. Unlike the selection in the sealed bid procurement at issue in International Business Machines [892 F.2d 1006 (Fed. Cir. 1989)] the selection in this negotiated procurement is driven by a variety of factors to be considered, in the first instance, by the agency. Under the circumstances, we will not presume to make a 'subjective' judgment when the only person empowered to make such a judgment, the selection official, never did so. 93-2 BCA 25,771, at 128,231, 1993 BPD 4, at 9. Accord, Federal Computer Corp., et al. v. Department of Justice, GSBCA 12560-P, et al., 94-1 BCA 26,442, 1993 BPD 264, at 5 ("[I]n the limited circumstances where the Board has applied the IBM rule in cases involving negotiated procurements, the facts were closely analogous to sealed bid procurements . . . . Offerors in a best value procurement will be proposing different packages of products and services, and, thus, will differ in more ways than price. Because these differences and the nonstandardization of the vendors' offered solutions, the rationale behind the IBM rule is not appropriate for best value procurements.") 94-1 BCA at 131,563, 1993 BPD 264, at 5. MTS further claims that the only issue being protested to which PDS is a party is the alleged violation of the Procurement Integrity Act. MTS asserts that if the Board were to find a violation of the Procurement Integrity Act, the remedy would necessarily be disqualification of the awardee and award to the offeror ranked next highest. We disagree. This Board retains discretion to fashion relief appropriate to the violation and is not limited to the relief suggested by MTS. Decision MTS' motion to dismiss PDS' intervention for lack of interested party status is DENIED. _____________________________ MARY ELLEN COSTER WILLIAMS Board Judge We concur: ____________________________ ____________________________ CATHERINE B. HYATT MARTHA H. DeGRAFF Board Judge Board Judge