THIS OPINION, INITIALLY ISSUED UNDER PROTECTIVE ORDER, IS RELEASED TO THE PUBLIC IN REDACTED FORM ON FEBRUARY 24, 1995 ________________________ DENIED: February 6, 1995 ________________________ GSBCA 13092-P, 13098-P DATA GENERAL CORPORATION, and HEWLETT-PACKARD COMPANY, Protesters/Intervenors, v. GENERAL SERVICES ADMINISTRATION, Respondent, and INTERNATIONAL BUSINESS MACHINES CORPORATION, Intervenor. Richard J. Webber, John J. O'Brien, Helen L. Gemmill, and Nicole M. Walthour of Arent Fox Kintner Plotkin & Kahn, Washington, DC, counsel for Protester/Intervenor Data General Corporation. William Weisberg, John R. Tolle, and William T. Welch of Barton, Mountain & Tolle, McLean, VA, counsel for Protester/ Intervenor Hewlett-Packard Company. George Barclay, Michael J. Ettner, Roger D. Waldron, Pamela J. Reiner, John C. Sawyer, and Jody B. Burton, Office of the General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Thomas P. Humphrey, L. Graeme Bell, III, Robert T. Ebert, Devon S. Engel, Elizabeth Newsom, Cameron S. Hamrick, Todd L. Hutchen, and Jacqueline E. Hand of Crowell & Moring, Washington, DC, counsel for Intervenor International Business Machines Corporation. Before Board Judges PARKER, VERGILIO, and DeGRAFF. VERGILIO, Board Judge. On November 30, 1994, Data General Corporation filed a post- award protest, GSBCA 13092-P, challenging actions of the respondent, the General Services Administration, in its conduct of a procurement. On December 2, Hewlett-Packard Company filed a protest, GSBCA 13098-P, challenging agency actions in the same procurement. Each protester is an intervenor of right in support of the other protest. The awardee, International Business Machines Corporation (IBM), is an intervenor of right opposing both protests. In the underlying procurement, in June 1994, the agency awarded IBM a contract. In response to a protest challenging that award, the agency stipulated that the contract was awarded in violation of Federal Acquisition Regulation (FAR) 15.612(d), and represented that it would terminate the contract with IBM. The Board dismissed with prejudice the protest in which Data General had withdrawn its intervention and in which Hewlett- Packard was not a party. The agency proceeded with the procurement, in October 1994 issuing an amendment to the solicitation. The amendment altered terms of the solicitation, and projected dates for new best and final offers (BAFOs) and for award. Protests were filed with the Board. The agency decided to withdraw the amendment. The protests were dismissed in November 1994. Later in November, the agency announced that it had reinstated the contract to IBM in accordance with FAR 49.102(d). Data General and Hewlett-Packard filed these protests with the Board. The protesters maintain that the underlying award to IBM was illegal (by the agency's admission) and, therefore, the reinstatement must be illegal when doctrines of estoppel or res judicata are applied. The protesters also assert that the award is improper because the agency engaged in post-BAFO discussions, not clarifications, with IBM. Further, the protesters maintain that the agency utilized an arbitrary scoring methodology in evaluating technical proposals and that the methodology was subject to bias. The Board denies the protests. Contrary to the assertions of the protesters, the agency's stipulation (that its selection of IBM as the awardee in June violated regulation) does not mean that the "reselection" of IBM in November is violative of statute or regulation. The protesters have failed to allege and demonstrate an agency impropriety in proceeding with the award to IBM. The record does not show that the scoring methodology is contrary to statute, regulation, or the terms of the solicitation. Any agency impropriety in the "clarification" process did not adversely affect these protesters; reopened discussions are not mandated. Findings of Fact The solicitation 1. On October 16, 1992, a request for proposals was issued to obtain automatic data processing equipment, software, maintenance, training, and other support to satisfy requirements of the United States Department of Agriculture, Forest Service. Other organizations of the Department of Agriculture may use the contract for up to an additional fifty percent of the value. Protest File, Exhibit 1 at B-2 ( B.1), C-3 ( C.1). The General Services Administration is conducting the procurement through its Federal Computer Acquisition Center (FEDCAC). Id. at 283 (Executive Summary Notice). The solicitation contemplates the award of an indefinite-delivery, indefinite-quantity type contract; items identified by contract line item number (CLIN) and sub-CLIN (SLIN) are firm, fixed-price with the exception of those identified as involving labor, which are subject to an economic price adjustment clause. Id. at H-3 ( H.1, H.2), H-10 to H-12 ( H.15). 2. The solicitation specifies the term of the contract as beginning on the award date and ending on September 30, 1994. Thereafter, the contract is renewable in option periods of twelve months, with the total contract life not to exceed 96 months. Protest File, Exhibit 1 at H-4 ( H.6). Two particular clauses in the solicitation anticipate "equipment alterations/modifications/ substitutions/additions" and "technology changes" over the life of the contract. Id. at H-13 to H-14 ( H.21), H-15 to H-16 ( H.23). 3. The solicitation associates with each CLIN series (i.e., hardware, hardware peripherals, hardware maintenance, software, software maintenance, national implementation support, training, manuals and publications, and hardware installation) features which are mandatory and which are non-mandatory (but to be evaluated for additional credit). Protest File, Exhibit 1 ( B, C). 4. Proposals are to be evaluated in two areas: technical and cost. Protest File, Exhibit 1 at M-3 ( M.4.1). For the technical evaluation, the solicitation identifies four "items," in descending order of importance: system concept, system performance, technical excellence, and organization structure and related experience. Within each item, the solicitation specifies "factors" (of equal importance), and within each factor "considerations" (of equal importance). Id. at M-4 to M-11 ( M.4.3.1). 5. The technical evaluation incorporates a live test demonstration (LTD) of the offeror-proposed systems; the LTD forms the basis of the "system performance" item evaluation. "The LTD is designed to validate/evaluate the Offeror[']s capability to satisfy the RFP hardware and software requirements and to test the capabilities of the proposed system to perform the workload specified in this RFP." Protest File, Exhibit 1 at L-41 ( L.27.1), M-6 to M-7 ( M.4.3.1.3). The solicitation requires offerors to certify, prior to the LTD, that hardware and software to be utilized as the LTD configuration are identical to that proposed. Id. at L-42 ( L.27.5). 6. The solicitation specifies the two hardware configurations to be used during the LTD. The solicitation identifies twenty-three scripts to be run during the LTD; each script must run successfully within the performance validation period of 120 minutes. For each test, the solicitation establishes a target time. Protest File, Exhibit 1 at L-43 ( L.27.9). To evaluate the LTD results for the system performance item, the agency established, for each script, a target time window with times slower and faster than the target-- run times slower than the window received a minus/yellow, those within the window a check/ green, those faster than the window a plus/blue. Id., Exhibit 201. 7. For the cost evaluation, the solicitation specifies that proposals will be evaluated to determine the expected contract life cycle present value costs and will be analyzed for completeness, realism, reasonableness, and risk. Protest File, Exhibit 1 at M-11 ( M.4.2.2). Further, the solicitation dictates how a most probable cost for the total life cycle of the contract will be determined. The solicitation specifies the assumed date of contract award as February 1, 1994, and identifies the assumed level of purchasing--for evaluation purposes reduced to a single purchase per contract year in contract months 6, 18, 30, 42, 54, 66, 78, and 90. Id. at M-11 to M-26. 8. The solicitation specifies that the source selection authority (SSA) "will determine the proposal which provides the best overall value to satisfy Government needs." This selection is to be based on how well each proposal satisfies the evaluation criteria and on an integrated assessment of the proposals. Protest File, Exhibit 1 at M-3 ( M.3). The assessment is to address two areas--technical and cost--with technical significantly more important than cost. Id. ( M.4.1). Initial proposals, LTDs, BAFOs 9. Following the receipt and review of initial proposals, the agency made a competitive range determination on July 1, 1993, placing six offerors within the competitive range. With each offeror, the agency proceeded to issue clarification requests and deficiency requests, conducted discussions of technical and cost matters, and held a pre-LTD conference. One offeror withdrew its offer, leaving IBM, Data General, Hewlett- Packard, GDE Systems, Inc., and Digital Equipment Corporation (DEC) in the competition. Protest File, Exhibit 68 at 4-5 ( 7- 9). 10. The Government witnessed an LTD of each of the five offerors. The agency concluded that IBM (and one other offeror) successfully completed its LTD and that neither protester successfully completed its LTD. The agency permitted all offerors to later utilize two days to conduct a retest.[foot #] 1 Each protester (and one other offeror) ran a retest. The agency concluded that all five offerors successfully completed the LTD portion of the procurement.[foot #] 2 It proceeded to engage in negotiations with each of the five offerors. Protest File, Exhibit 68 at 5-6 ( 9-11). 11. During the LTD of IBM, the agency concluded that IBM successfully performed each LTD script for each of the two configurations. Protest File, Exhibit 57 at 8. A print-out of the IBM results demonstrates begin and end times for each script run within the 120 minute period. Id., Exhibit 109. The agency utilized the test times for evaluation purposes. Id., Exhibit 202. 12. By letters dated April 22, 1994, the agency informed each offeror that discussions of proposals are concluded, and ----------- FOOTNOTE BEGINS --------- [foot #] 1 The contracting officer and contract specialist state in a report: "Due to time constraints observed during the LTD's and the fact that three (3) out of five (5) Offerors were unable to complete the tests during the allotted time, a determination was made to allow [four offerors] two (2) days to retest the [two] configurations. FEDCAC . . . notified all Offerors (except [the one] who had already been provided an additional 2 days) that the Government was granting an additional two days for a retest. This retest was optional." Protest File, Exhibit 68 at 5-6 ( 9). [foot #] 2 The agency and IBM contend that the agency could have eliminated the protesters from the competition at this initial stage because of their failure to complete the LTD successfully during the initial period. The solicitation does not specify that failure must result in elimination from the competition. The record does not establish that the offers of the protesters were not capable of being made acceptable. The agency elected to keep the protesters in the competitive range. No party here contends that a protester failed to successfully complete the LTD. Contrary to the suggestion of the agency and IBM, these facts do not serve as a basis to conclude that the protesters lack status as interested parties. ----------- FOOTNOTE ENDS ----------- that "a complete understanding as to technical aspects and other terms and conditions exist between Offerors and the Government. The opportunity to submit a BAFO based upon the attached model contract and its related documents and attachments is now being given to you and other Offerors." Execution and submission of the attached model contract constituting the BAFO had to occur no later than noon, May 4, 1994. Protest File, Exhibit 63. IBM's BAFO 13. In its BAFO, IBM specifies in the B tables[foot #] 3 initial unit prices for non- maintenance items and identifies "special pricing provisions" applicable to some of these items; [redacted] is the effective date of the first discount. The B tables also specify initial unit prices for maintenance items and identify "special pricing provisions" applicable to some of these items; [redacted ] is the effective date of the first discount. Protest File, Exhibit 227. 14. IBM included in its BAFO an L-1 table--expected contract life cycle cost summary.[foot #] 4 For hardware, software, following day maintenance, next day maintenance, same day maintenance, alternative maintenance, rapid response maintenance, software maintenance, training, manuals, support services, and installation the table contains an entry of a dollar figure for each fiscal year from 1994 through (and including) 2002. The total expressed in the chart in current dollars for the Forest Service requirement (without the 50% Department of Agriculture add-on) is $[redacted]. Protest File, ----------- FOOTNOTE BEGINS --------- [foot #] 3 The solicitation requires offerors to submit pricing in B tables. "These tables shall represent all prices associated with this acquisition." "All price information shall also be submitted in automated form with the proposal." Protest File, Exhibit 1 at L-55 ( L.28.1.1, L.28.1.2). [foot #] 4 The solicitation contains instructions for completion of table L-1, which state, in part: The Expected Contract Life Cycle Cost Summary (Table L- 1) describes the computed total cost of the proposal to the Government. These total costs are to be provided in Government fiscal year increments based on the cost model described in paragraph M5 [see Finding 7] of this ___ RFP, and the unit prices and special pricing provisions contained in the Section B price tables. The format of Table L-1 is in terms of the categories of costs within the contract as described in the cost model. Protest File, Exhibit 1 at L-61 to L-62 ( L.29). ----------- FOOTNOTE ENDS ----------- Exhibit 229. This figure reflects [redacted ]. Transcript at 35. 15. IBM submitted with its BAFO a diskette with automated files of its BAFO pricing at each of the evaluation months. The automated files reveal that [ redacted ] discounts are not in [redacted ] but are in effect in [redacted ]. Protest File, Exhibit 232; Finding 7. Further, the automated files reveal that [ redacted ] discounts are to commence in [redacted ]. Id., Exhibit 230; Transcript at 34. 16. IBM also included within its BAFO a multi-page table captioned ACEM (automatic cost evaluation model) GOVERNMENT FISCAL YEAR PRICING. The table reveals by CLIN/SLIN a "unit purchase price" and "unit installation price." These prices are identified by "Yr1" through "Yr8" (inclusive). From this chart, for example, discounts begin [redacted ]" Protest File, Exhibit 231; Transcript at 35-36. 17. From the IBM BAFO, the cost evaluator utilized the B table entries (including special pricing provisions) to calculate a contract life cycle cost which is greater than that in the L table submitted by IBM. In current dollars, the B table entries produce a contract life cycle cost of $[redacted]. Protest File, Exhibit 206. The L-1 table price, in current life cycle costs, is $[redacted]. The B table pricing produces the L table yearly and total prices if discounts become effective [redacted ]. Transcript at 44-45. If discounts [redacted ] stated in the B table entries [redacted ], the comparable price is $[redacted]. Thus, in current dollars, if the effective dates in the B table "special pricing provisions" are altered [redacted ] the evaluated B table price drops by $[redacted ]. In current dollars, if the effective dates in the B table "special pricing provisions" are further changed [redacted ] the evaluated B table price drops [redacted ]. 18. A contracting officer memorandum for the record summarizes the discrepancies in the IBM BAFO as found by the cost team leader: The B-Table, Special Pricing Provisions, for [redacted ] states [redacted ] however, the L-Table, Life Cycle Cost (LCC), and automated files were based on [redacted ]. B-Table, Special Pricing Provisions, [redacted], states that the effective date for the first discount is [redacted ] however, the L-Table, LCC, and automated files are based on an effective date beginning [redacted ]. The automated files and L-Table, LCC, were consistent with the way reconciliation was previously accomplished prior to BAFO. [The cost team leader] recalled that during reconciliation, even though, the B-Table stated[redacted] [IBM] repeatedly said [redacted ]. Protest File, Exhibit 205. 19. In light of the discrepancies, the contracting officer presented two questions to IBM on May 20, 1994: Question 1: [Redacted ] Your B-Table, special pricing provision, states that the effective date for the first discount is [redacted]. Your automated files are based on an effective date beginning [redacted ]. Should special pricing provision state that the effective date for the first discount is [redacted ]? Yes or No Question 2: [Redacted] B-Table, special pricing provisions, state that the effective date for the first discount is [redacted]. Your automated files are based on an effective date beginning [redacted]. Should special pricing provision state that the effective date for the first discount is [redacted ]? Yes or No Protest File, Exhibit 205. 20. Having posed the questions over the telephone, the contracting officer requested that IBM not immediately respond to the questions; thus, IBM had time to review its submission and determine the correct responses. Transcript at 56-58. Later that day, IBM initially responded with a "no" to question one and a "yes" to question two. Even later that day, IBM responded with a "yes" to each question. Protest File, Exhibit 205. The agency concluded that IBM offered [redacted ] Evaluations and selection 21. In evaluating BAFOs, the agency utilized a color scheme (blue, green, yellow, red) and risk rating (low, medium, high) for the technical items. In an analysis report, the Source Selection Advisory Council provided to the SSA its assessment of the BAFOs; the assessment relies upon and adopts the results of the source selection evaluation board and cost analysis team. The prices reflect the 50% add-on value for Department of Agriculture purchases. Data Gen IBM H-P item 1 [ REDACTED ] item 2 [ REDACTED ] item 3 [ REDACTED ] item 4 [ REDACTED ] overall [ REDACTED ] soundness [ REDACTED ] of approach compliance [ REDACTED ] current dollars [ REDACTED ] present value [ REDACTED ] Protest File, Exhibits 69, 72; Agency Exhibit 3; Transcript at 270. 22. The scoring of item 2 (system performance) in the technical evaluations relates to the run times achieved during the LTD for the twenty-three scripts under two configurations. The ultimate colors were assigned after determining where the individual script run times fell with respect to the target window, Finding 6, and combining the "factors" and "considerations" consistent with the solicitation. The methodology used to combine the various intermediate scores and to assign an overall score was adopted after the LTDs; those doing the scoring determined that the scores properly reflect the LTD results. Transcript at 164-65, 174; Protest File, Exhibit 69, Attachment 3. Under the scoring system, overall scores from [redacted] (inclusive) receive a [ redacted], from [redacted ] receive a [redacted ], and at and above [redacted] receive a [redacted]. IBM received an overall score of [redacted]. Data General correctly points out that IBM's overall rating would drop to a [redacted ] if the scoring range were altered, with scores of [redacted] receiving a [redacted], of [redacted] receiving a [redacted], and at or above [redacted ] a [redacted]. Ignoring the selectiveness of the Data General-proffered range, the record does not demonstrate that such a range is a more accurate reflection of the LTD of IBM when compared to Data General or other offerors than that used by the agency. 23. A memorandum to the contracting officer signed by the SSA, dated June 16, 1994, represents the source selection decision. Other than background information, the document states: Section M of the solicitation states that award will be made to [the] proposal providing the best overall value to satisfy the Government's needs. The Technical Area is significantly more important than the Cost Area. Based on the evaluation criteria set forth in the solicitation, and after reviewing and analyzing the results of the Source Selection Evaluation Board Report and the Source Selection Advisory Council Analysis Report, IBM provides the best overall value to satisfy the Government's needs. Based on the above, I hereby determine the award of FEDCAC Project 107 . . . contract to IBM is in the best interest of the Government as it provides the best overall value to satisfy the Government's needs. You, as Contracting Officer, may proceed to award the Contract to IBM. Protest File, Exhibit 74. Protest round one and the agency stipulation 24. Following the award of the contract to IBM in June 1994, round one of the protests surrounding this procurement commenced, with DEC filing a protest contesting various agency actions associated with the selection determination. GDE intervened in the protest. 25. During the course of the protest, a cost/technical trade-off report was prepared. Dated July 28, 1994, the report "is to provide additional detail to the items considered in doing the price vs. technical tradeoff for the SSAC." The report elaborates upon quantifiable and non-quantifiable differences between IBM and the then-parties to the protest, DEC and GDE. Protest File, Exhibit 89. The report calculates the projected additional costs to the Forest Service over the life of the contract for implementing the systems of DEC and GDE as opposed to those of IBM. The here unchallenged report associates approximately $[redacted ], to the DEC and GDE systems. The overall technical superiority of IBM compared to DEC and GDE [ redacted ]. The analysis suggests that fewer dollars would be projected as costs to the Forest Service for implementing the IBM systems as opposed those of Data General. Id. 26. In a motion dated August 5, 1994, the agency moved to dismiss the protest. In the motion, GSA stipulates that the contract [with IBM] was awarded in violation of Federal Acquisition Regulation 15.612(d). GSA stipulates that Digital and GDE have succeeded as to a significant issue and should be deemed the prevailing parties and awarded reasonable and documented attorney fees and costs of pursuing the protests. Protest File, Exhibit 211. The Board dismissed with prejudice the protest, stating: No party has asked to submit the matter on the record. No party has introduced an admission which would enable the Board to grant the protest. Before the Board is the agency's motion to dismiss. Neither Digital nor GDE agree to the dismissal unless the Board makes determinations which the Board presently is not in a position to make. However, no party has suggested an alternate resolution given the state of proceedings and of the procurement. No party has offered a basis to deny the motion to dismiss with prejudice. Digital Equipment Corp. v. General Services Administration, GSBCA 12891-P, 1994 BPD 171 (Aug. 12, 1994). Data General, an intervenor of right in the protest which, prior to the stipulation, had moved to withdraw from the protest, was dismissed with prejudice as an intervenor. Id. Hewlett-Packard was not a participant in the protest. Id., 94-3 BCA 27,146, 1994 BPD 162. 27. The agency issued to IBM a notice that the contract "is terminated completely for the Government's convenience under FAR clause 52.249-02." Protest File, Exhibit 210. Amendment to the solicitation; protest round two 28. With an effective date of October 6, 1994, the agency issued to the five offerors within the competitive range an amendment to the solicitation. Protest File, Exhibit 220. The amendment projects a schedule of receiving updates to proposals in October 1994, engaging in discussions and cost reconciliations in October and November, requesting BAFOs in December 1994, receiving BAFOs in January 1995, and awarding a contract in February 1995. Id. at L-9 ( L.16). 29. Alleging that agency actions reflected in the amendment were improper, four offerors (not IBM) filed protests with the Board. The agency agreed to withdraw the amendment. The protests were dismissed on November 10. GDE Systems, Inc. v. General Services Administration, GSBCA 13018-P, et al., 95-1 BCA 85,744, 1994 BPD 260. The agency withdrew the amendment. "Reinstatement" of the IBM contract 30. In a letter dated November 21, 1994, the Associate Deputy Chief for Administration of the United States Department of Agriculture, Forest Service, informs the contracting officer: In accordance with FAR 49.102(d) this letter certifies that the requirements identified in the Forest Service Feasibility Study, October 1991, and Functional Requirements, March 1992, and as expressed in RFP KRF- 92-007, still exist. Protest File, Exhibit 79. 31. The contracting officer made a "finding and determination" in support of "reinstating" the contract awarded to IBM and terminated by the agency. With a reference to FAR 49.102(d), the contracting officer made the following two findings: (1) The Forest Service requirements as stated in solicitation KRF-92-007, as amended, still exist. (See [letter in Finding 30]). (2) There are no other alternatives to enable the Forest Service to fulfill their GIS [Geographic Information System] requirements within the timeframe desired and at a fair and reasonable cost. Without Contract GSOOK94ALD0001, the Forest Service will be forced to incur additional costs for interim solutions in order to meet the agency's mission requirements. Contract No. GSOOK94ALD0001 is the best value to the Government as established by previous analyses. Protest File, Exhibit 80.[foot #] 5 The determination states: ----------- FOOTNOTE BEGINS --------- [foot #] 5 The conclusion of the Forest Service and contracting officer that the solicitation correctly states the requirements of the Forest Service appears, on its face, to be inaccurate because the solicitation describes a contract with an assumed award date of February 1, 1994, and solicits offers based on significant ordering occurring prior to November 1994. However, neither protester focuses upon the requirements and FAR 15.606. Accordingly, the Board does not pursue further factual findings on a non-issue of protest. ----------- FOOTNOTE ENDS ----------- After review of all actions taken to make the initial contract award, source selection procedures, Source Selection Evaluation Board Report, Source Selection Advisory Council Analysis Report, Source Selection Decision Document, and all actions taken since the termination, I have determined that it is advantageous to the Government to reinstate the Contract with IBM, which as previously determined provides the best overall value to satisfy the immediate and long term needs of the Forest Service. It is also my determination, that this decision has been accomplished in accordance with all applicable laws and regulations. Id. Along with the contracting officer's signature with a date of November 21, 1994, are the "concurrence" signatures of the FEDCAC Director (with the same date) and SSA (with a date of November 22, 1994). Neither the contracting officer nor the SSA engaged in any source selection analysis with respect to the reinstatement analysis. Transcript at 269, 271-72. However, the SSA testified during the hearing in this protest that the selection of IBM instead of either protester is supported by the original analysis. Further, he testified that were the IBM BAFO evaluated at $[redacted ], his selection determination would not have change because he did not deem the technical advantages of the Data General BAFO to offset the difference in price. Id. at 282, 287. 32. By letter dated November 22, IBM informed the contracting officer that it consents to the reinstatement of its contract. Protest File, Exhibit 82. On November 23, the contracting officer informed IBM that its contract is reinstated. Id., Exhibit 83. By letters dated November 23, the contracting officer informed the protesters of the reinstatement. Id., Exhibits 85, 86. Discussion Data General raises three counts of protest. In count one, it asserts that the reinstated award to IBM violates regulation, 48 CFR 15.612(d), as the agency has previously admitted. Data General would apply doctrines of estoppel to preclude the agency from denying the illegality. In count two, Data General maintains that the agency engaged in post-BAFO discussions with no offeror but IBM and that the discussions had the effect of lowering IBM's evaluated costs. Reopening discussions with only one offeror violates statute and regulation. In count three, Data General contends that the agency utilized an arbitrary methodology for technical evaluation. Hewlett-Packard raised seven counts of protest; it pursues fewer counts through its post-hearing brief (at 11): FEDCAC awarded a contract to IBM. That award was illegal. It is illegal for two reasons. First, FEDCAC stated that it was illegal. Nothing FEDCAC has done since that admission has in any way cured the illegality. Second, FEDCAC engaged in post-BAFO discussions with IBM. IBM, and IBM alone, was also given the opportunity to submit a second BAFO. This was no mere clerical error. Had HP been given the same opportunity, it would have modified its proposal and been selected for award. For these simple reasons, the award to IBM was illegal and should not stand. Hewlett-Packard pursues issues similar to the three counts in the Data General protest. Interested party status of the protesters IBM maintains that both protesters lack interested party status because each did not have a good faith intent to deliver every product which was demonstrated at the LTD and identified in its BAFO. IBM points to some products identified in the BAFOs of each protester, which the protester knew to be no longer in production at the time of BAFO. IBM has not demonstrated that either protester would be unable to comply with the contract because the identified products are out of production. "Out of production" does not necessarily equate to inability to deliver. Estoppel (collateral or judicial) and res judicata The protesters maintain that under theories of collateral and judicial estoppel and of res judicata the agency may not now disavow its stipulation in the round one protest that the award to IBM was contrary to regulation (that is, illegal). In attempting to apply these doctrines, the protesters incorrectly state what occurred during that first protest. The Board did not reach or resolve the merits of the grounds of protest/intervention. Finding 26. Cost cases remain pending. Digital Equipment Corp. v. General Services Administration, GSBCA 12967-C(12891-P); GDE Systems Corp. v. General Services Administration, GSBCA 12969-C(12891-P). With the termination of the IBM contract, the agency was obligated to proceed (or cancel the procurement) in accordance with statute and regulation in satisfying the requirements underlying the solicitation. Neither Data General nor Hewlett- Packard has explained why it is per se improper for the agency, in proceeding, to conclude that IBM is the correct awardee. At issue in the first protest was the propriety of the selection and "best value" determination regarding IBM compared to DEC and GDE. Neither DEC nor GDE is here objecting to the award; any impropriety which the agency may have committed with respect to those offerors need not have affected Data General or Hewlett- Packard. Thus, the position of the agency in the stipulation is not inherently inconsistent with its position in this protest. These protests do not focus upon the selection of IBM made in June; rather, the protests focus upon the propriety of the agency's action in November of "reselecting" IBM and earlier actions relied upon in support of that reselection. Data General Corp. v. General Services Administration, GSBCA 13092-P, et al. (Dec. 8, 1994). Because the earlier stipulation does not demonstrate an agency violation of statute or regulation in its November actions, the Board turns to the other specific actions which the protesters contend violate statute or regulation. LTD scoring methodology Regarding the "system performance" evaluation of the LTDs, assertions of Data General that the scoring methodology was arbitrary and subject to bias and of Hewlett-Packard that the agency failed to follow the evaluation criteria fairly and consistently are not borne out by the record. Both protesters mischaracterize agency actions. The solicitation does not commit the agency to a particular scoring methodology for evaluating the LTD results. The individual script run results were compared to the target windows. The scoring was combined for items, factors, and considerations in a manner consistent with the terms of the solicitation. The evaluators concluded that the [redacted ] for IBM properly reflected its LTD, and that the LTDs for each offeror merited the assigned colors. Finding 22. The record reveals no bias on the part of any individuals in the scoring process. The record demonstrates no agency violation related to the scoring of the IBM BAFO. The assertion of Data General that a different scoring range would result in assigning a [redacted ] to the IBM BAFO for this item is correct. However, such a fact fails to demonstrate a violation of statute or regulation and fails to provide a basis for granting this protest. The record does not demonstrate that the agency used a scoring range which was unreasonable, which improperly biased the evaluation results, or which failed to reflect accurately the results of the LTDs. Post-BAFO communications between the agency and IBM The IBM BAFO contains inconsistencies and discrepancies with respect to the effective dates of proposed discounts. Findings 13-17. Given the actual BAFOs (with the technical and price differences), with or without the altered pricing, the agency reasonably concluded that the IBM BAFO represents the best value to the Government under the terms of the solicitation. Under the solicitation, technical merit is significantly more important than cost in the selection determination. The IBM BAFO rates technically superior to and with a lower evaluated cost than the Hewlett-Packard BAFO. Although Hewlett-Packard now seeks to alter its technical solution and its cost proposal, nothing in the record suggests that it would have done so shortly after the conclusion of the reconciliation process in May 1994, when the agency communicated with IBM. Fortran Corp. v. Department of Transportation, GSBCA 12952-P, 1994 BPD 245 (Oct. 27, 1994), motion for reconsideration denied, 1994 BPD 281 (Dec. 6, 1994). The Data General BAFO rates technically superior to and with a greater evaluated cost than the IBM BAFO (with or without the altered pricing). The SSA has undertaken and relied upon no specific quantifiable or non-quantifiable analysis to support his conclusion that the IBM BAFO represents the best value to the Government in accordance with the terms of the solicitation. Rather, he asserts that the evaluated price difference between the BAFOs is of such magnitude that the technical superiority of the Data General BAFO does not represent the best value to the Government. The analysis of the agency in the report of June 28, 1994, reasonably supports this conclusion, albeit circumstantially. The evaluations of the BAFOs suggest that the gap in technical superiority between the Data General BAFO and the IBM BAFO is less than that between the IBM BAFO and those of DEC and GDE. However, the quantifiable differences between the IBM BAFO and those of DEC and GDE amount to a maximum of $[redacted] of additional Forest Service costs. Finding 25. The record does not suggest that the quantifiable and non- quantifiable discriminators between the Data General and IBM BAFOs could reasonably offset the price difference so as to make the selection of IBM improper. Any improprieties in the clarification/discussion process have not prejudiced either protester. Accordingly, the agency was not required to reopen discussions prior to award. 48 CFR 15.607 (1994). Decision The Board DENIES the protests. The suspension of procurement authority lapses by its terms. 40 U.S.C. 759(f)(3) (1988); Order (Dec. 6, 1994). _________________________ JOSEPH A. VERGILIO Board Judge We concur: _________________________ _________________________ ROBERT W. PARKER MARTHA H. DeGRAFF Board Judge Board Judge