THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING RELEASED TO THE PUBLIC IN REDACTED FORM ON MARCH 30, 1995 ______________________ DENIED: March 2, 1995 ______________________ GSBCA 13128-P I-NET, INC., Protester, v. DEPARTMENT OF THE ARMY, Respondent, and NORTH AMERICAN MORPHO SYSTEMS, INC., Intervenor. Richard J. Conway, Merle M. DeLancey, Jr., William M. Rosen, Hilary S. Cairnie, and Kendrick C. Fong of Dickstein, Shapiro & Morin, Washington, DC, counsel for Protester. Craig R. Schmauder, Scott M. McCaleb, Danielle M. Conway-Jones, Susan J. Platt, and Timothy L. Felker, Jr., U.S. Army Corps of Engineers, Department of the Army, Washington, DC; Robert L. Oswald, U.S. Army Corps of Engineers, Department of the Army, Norfolk, VA; and Thomas Ainora, Federal Bureau of Investigation, Department of Justice, Washington, DC, counsel for Respondent. Martin P. Willard and Kara M. Sacilotto of Perkins Coie, Washington, DC; Richard W. Oehler of Perkins Coie, Seattle, WA; and Jeffrey A. Lovitky, Washington, DC, counsel for Intervenor. Before Board Judges HYATT, DeGRAFF, and GOODMAN. DeGRAFF, Board Judge. I-Net, Inc. (I-Net) protests the decision of the United States Army Corps of Engineers (Army) to award a contract to North American Morpho Systems, Inc. (Morpho). I-Net alleges that the Army determined that I-Net's proposal contains deficiencies and never told I-Net of those deficiencies, and that the Army imposed an unstated requirement for a certain minimum level of fingerprint conversion experience. Because we find no violation of statute, regulation, or delegation of procurement authority, we deny the protest. Findings of Fact The Solicitation On December 30, 1993, the Army issued solicitation DACW-65- 94-R-0001 for conversion of fingerprint cards to digital form. The Army anticipated awarding a firm fixed-price contract for the conversion of approximately thirty-five million fingerprint cards. Protest File, Exhibit 10. Section M3.1 of the solicitation states that, in order to be eligible for award, offerors must meet all mandatory solicitation requirements. Protest File, Exhibit 10 at M-2. Section C of the solicitation states simply, "Contractor shall provide all labor, materials, equipment, management, and other resources necessary to provide services as required under the contract, including the requirements of all ATTACHMENTS and APPENDICES thereto." Protest File, Exhibit 10 at C-1. Attachment B to the solicitation is titled, "Statement of Work," and section 3.5 of Attachment B provides, "[T]he contractor shall produce the scanned image of each fingerprint card which complies with the image quality requirements of the contract. . . . The scanned images shall be clear and representative of the original. . . . During visual inspection the contractor shall apply pass/fail standards, developed by the contractor and approved by the Government, to each image." Section 3.5.1 of Attachment B provides that the contractor will convert all fingerprint cards, regardless of format or condition. Section 3.5.1 also explains that some fingerprint cards will require special handling and requires the contractor to ensure that such cards "are processed to obtain the image quality requirements of the contract." Section 5.0 of Attachment B requires the contractor to implement a quality control and assurance program "to ensure that each fingerprint impression image produced meets or exceeds the requirements of the contract." Protest File, Exhibit 10 at Att B-11, B-12, B-20. Attachment C to the solicitation is titled, "IAFIS Image Quality Specifications" and is referred to as the IQS. Protest File, Exhibit 10. IAFIS is the acronym for the Integrated Automated Fingerprint Identification System, and the procurement at issue in this case is a part of IAFIS. Protest File, Exhibit 10 at Att B-1. The IQS, in paragraphs 2.0, 3.0, and 4.0, describes the performance characteristics for scanners, displays, and printers used for IAFIS. Protest File, Exhibit 10. Paragraph 1.0 of the IQS explains the scope and the purpose of the IQS is to "provide objective criteria for insuring image quality." Paragraph 1.0 also states that the IQS "will be used by the Government in acceptance testing to ensure compliance with the requirements, and in performance capability demonstrations as an indication of capability to perform." Protest File, Exhibit 10 at Att C-3. At the preproposal conference, the IQS was described as establishing "attainable goals." Protest File, Exhibit 11 at 30; Transcript at 221. In response to a vendor question, the Army amended the solicitation to explain that, during the performance capability demonstration (PCD), offerors "must show how well the proposed system meets the [IQS]. . . . While it is desirable that the Offeror's proposed production equipment has the capability to meet or exceed the IQS values under production conditions, a few minor deviations in one or two of the parameters will not automatically exclude an imaging system from consideration. The nature and extent of the deviation in context with all the other quality assurance, testing considerations, and results of the PCD will be taken into account." The amendment goes on to state that the Army did not want to establish "absolute pass/fail criteria for image quality." Protest File, Exhibit 12 at 37. The technical panel leader and the program manager for the procurement, who will also be the program manager for the contract, testified that, in their view, the IQS does not contain mandatory solicitation requirements. Transcript at 627- 34, 229-24. The technical panel leader explained that the image quality requirements of the contract are not established by the IQS, and that the IQS does not contain requirements that are either passed or failed by offerors. Instead, the IQS is one method of evaluating an offeror's proposed solution. The image quality requirements of the contract were to be established by the pass/fail criteria proposed and demonstrated by an offeror. The reason for requiring offerors to propose pass/fail criteria was to establish the level of quality that would be provided during performance of the contract. Transcript at 586-87, 607- 12. The program manager testified that the IQS contains numerical values and that the purpose of the evaluation was to determine how well the values were met by the offerors. The program manager testified that his understanding of the IQS is consistent with information provided at the preproposal conference and in the amendment to the solicitation. Transcript at 215-21, 225. Evaluation of Proposals Section M of the solicitation explains the manner in which the Army intended to evaluate proposals and to select an awardee. According to paragraph M3.2, "selection will be based on how well each proposal satisfies the evaluation criteria as described in paragraph M4." Section M4 explains that the evaluation criteria are divided into three areas. In descending order of importance, they are the technical area, the management area, and the cost area. For each of the areas, section M sets out specific evaluation criteria at the item level, the factor level, and the subfactor level. Subfactors are contained within factors, factors are contained within items, and items are contained within areas. Protest File, Exhibits 10, 12. Paragraph M4 explains that three assessment criteria will be applied against the evaluation criteria. The assessment criteria are: Soundness of Approach - The Government will assess how well it considers the proposal is capable of being implemented. Understanding of the Requirements - The Government will assess the degree to which the proposal demonstrates the offeror's comprehension of the requirements to be satisfied. Implementation Risk - The Government will assess the technical and schedule risk associated with the offeror's design, technical management, and program management approaches. Protest File, Exhibit 10. Before issuing the solicitation, the Army developed a source selection plan that explains the organization established for selecting an awardee. The source selection authority (SSA) was the Chief, Contracting Division, Norfolk District, United States Army Corps of Engineers. Below the SSA was a source selection recommendation board (SSRB), which approved evaluation standards and which appointed the members of a technical evaluation board (TEB). The TEB consisted of a technical panel, a management team, a cost team, a contract team, and advisors. The TEB was responsible for preparing evaluation standards and for reviewing and evaluating proposals by comparison to the standards. The TEB was to prepare an evaluation report and to provide the report and a briefing to the SSRB. The SSRB was to conduct a comparative analysis of the proposals and present its findings to the SSA. Protest File, Exhibit 6. I-Net and Morpho submitted their proposals on March 24, 1994. The Army initially reviewed the proposals to ensure that they contained sufficient information to describe each offeror's proposed method of meeting the Army's requirements. The validators who conducted this review were instructed "to ensure compliance with minimum requirements of the [solicitation]." Protest File, Exhibit 7 at 32. This initial review was meant to validate whether an offeror's proposal met the Army's requirements. Transcript at 507, 541-42; Protest File, Exhibit 7 at 3, 10-11. The Army prepared a proposal compliance validation checklist to use when conducting its initial review of proposals. The checklist contains approximately five hundred requirements. Transcript at 508; Protest File, Exhibits 7, 16. The validation checklist lists the requirements found in sections 3.5, 3.5.1, and 5.0 of Attachment B to the solicitation, but does not list the "requirements" found in the IQS. Protest File, Exhibit 16 at 29-30, 33, 69. Ten validators reviewed I-Net's proposal in order to determine whether it complied with the technical and management requirements of the solicitation. Transcript at 509; Protest File, Exhibits 7, 16. They determined that I-Net's proposal did not comply with some of the requirements and on April 7, 1994, in a series of clarification requests, they asked I-Net questions concerning those requirements. Transcript at 510-11; Protest File, Exhibit 17. On April 15, 1994, I-Net provided the Army with responses to its questions and also revised its proposal. Protest File, Exhibits 17, 19; Transcript at 511. After reviewing I-Net's responses and proposal revisions, on April 22, 1994, the validators asked I-Net additional questions concerning how I-Net proposed to meet certain solicitation requirements. These questions are also contained in a series of clarification requests, rather than in deficiency reports. Transcript at 513; Protest File, Exhibit 21. On May 3, 1994, I-Net provided the Army with responses and again revised its proposal. Protest File, Exhibits 21, 22; Transcript at 513-14. After reviewing I- Net's second set of responses and proposal revisions, the validators determined that I-Net's proposal met the minimum mandatory requirements of the solicitation. Transcript at 514- 15. The technical panel leader reviewed the validation checklists with each validator in order to ensure that the validator "understood that he had identified compliance with all the requirements." Transcript at 514. The technical panel leader concluded that I-Net's proposal met the mandatory requirements of the solicitation. Transcript at 515. After I-Net provided its April 15, 1994 responses and proposal revision, the Army began its evaluation of I-Net's proposal. Transcript at 512. The Army developed factor worksheets to utilize in conducting its evaluation of proposals. Each worksheet addresses an area (technical or management), an item within the area, and a factor within the item. Each worksheet contains a "standard," which is a guideline developed to "assist in the evaluation of the solution to the requirements associated with particular evaluation criteria. Standards are provided to assist the evaluator in focusing on the manner in which the particular proposal response addresses the [solicitation] requirement." Protest File, Exhibit 7 at 44. "Standards are used to determine where a proposal fails to meet requirements, meets requirements, or exceeds the minimum level of compliance with a requirement." Protest File, Exhibit 7 at 14. "The standards criteria were generally set above minimal compliance to provide a range of evaluation for each factor and subfactor." Protest File, Exhibit 71 at 2; Transcript at 596. In addition to a standard, each worksheet contains a list of "considerations," which are questions designed to "guide the thought processes of evaluators" in order to determine "how well" a proposal meets the standard. Protest File, Exhibit 8 at 15, 44. Each consideration was to be rated as to the "Soundness of Approach & Understanding of the Requirement" and "Implementation Risk." The worksheets contain a column labeled "Comments (Strengths/Weaknesses)" for each consideration. Protest File, Exhibit 20. Each standard was supposed to receive an overall rating, based upon the rating of the considerations and considering the importance of each consideration to the standard. Protest File, Exhibits 7, 20. The ratings for both the considerations and the standards were as follows: (1) "+". Exceptional. Exceeds standards/considera-tions in a beneficial way to the Government. No significant weaknesses. When this rating is assigned, one or more strengths which justify the rating should be included on the Factor Worksheet in conjunction with the consideration to which the rating applies. (2) " ". Acceptable. Meets standards/considera- tions. Good probability of success. Weaknesses can be readily corrected. (3) "-". Fails to meet the standards/considera- tions. Significant weaknesses. When this rating is assigned, one or more weaknesses which justify the rating should be included on the Factor Worksheet in conjunction with the consideration to which the rating applies. Protest File, Exhibit 7 at 16. Proposals were to be evaluated by comparing them to the standards and rating each proposal's worth in relation to the standards. Protest File, Exhibit 7 at 13. The factor worksheets served as records of each individual evaluator's notes. Transcript at 518. After the factor worksheets were completed by the evaluators, the evaluators discussed their individual ratings and arrived at an consensus rating which is reflected in a factor summary for each factor. Protest File, Exhibit 7 at 17. If there were differences of opinion among the evaluators, they were resolved when the factor summary was prepared. Transcript at 529. The factor summaries were provided to item-level supervisors and used by them to prepare item summaries, which contain a "composite subjective analysis of all the factors associated with the Item." Protest File, Exhibit 7 at 18. The item summaries were provided to area- level supervisors and used by them to prepare area summaries. Protest File, Exhibit 7 at 18. The item and area summaries received color ratings. Protest File, Exhibit 7 at 18. A rating of "red" in an item or area summary meant that the proposal failed to meet a minimum requirement. A rating of "yellow" meant that the proposal failed to meet the evaluation standards or had a low probability of satisfying the requirement or had significant but correctable weaknesses. A rating of "green" meant that the proposal met the evaluation standards, had a good probability of satisfying the requirement, and that any weaknesses could be readily corrected. Protest File, Exhibit 6.[foot #] 1 At no time during the evaluation process did I-Net's proposal ever receive a "red" rating in any item or area summary. Transcript at 515-17; Protest File, Exhibits 20, 25, 38, 42. The first evaluation of I-Net's proposal was completed on April 22, 1994. Protest File, Exhibit 20. As mentioned above, on this date the Army sent a set of clarification requests to I- Net. I-Net responded to those clarification requests and revised its proposal on May 3, 1994. Protest File, Exhibits 21, 22. The April 22, 1994 evaluation was preliminary because I-Net had not yet conducted its performance capability demonstration (PCD), which was one of the items within the technical area. Protest File, Exhibits 10, 71 at 7. On May 9 and 10, 1994, I-Net conducted its PCD. Protest File, Exhibit 23. On May 13, 1994, I-Net sent the Army a report concerning the results of the PCD and modifications made by I-Net as a result of the PCD. Protest File, Exhibit 23. On May 17, 1994, an independent analysis team prepared its report concerning the results of I-Net's PCD. Protest File, Exhibit 24. The second evaluation of I-Net's proposal was completed on May 20, 1994. Protest File, Exhibit 25. On June 3, 1994, the SSRB met with the TEB chairperson, who reported that I-Net met the mandatory requirements of the solicitation. The TEB chairperson also reported that neither offeror's imaging system was fully compliant with the IQS, possibly because there were ambiguities in the IQS and possibly because the offerors had not had sufficient time to implement their systems before the PCD. For this reason, the SSRB decided to amend the solicitation to change portions of the IQS and to schedule a second PCD. Protest File, Exhibits 64-67. On June 28, 1994, the Army sent a set of clarification requests to I-Net. Protest File, Exhibit 27. On August 10, 1994, I-Net responded to the clarification requests and submitted another revision to its proposal. Protest File, Exhibits 27, 28. The Army sent additional clarification requests to I-Net on August 25, 1994. I-Net responded to the requests and also revised its proposal on September 1, 1994. Protest File, Exhibits 29, 30. I-Net conducted a second PCD on September 7 and 8, 1994. On September 16, 1994, I-Net provided the Army with a report concerning its second PCD and additional revisions to its ----------- FOOTNOTE BEGINS --------- [foot #] 1 Not all of the documents prepared by the Army during the course of the procurement contain identical definitions of a yellow rating. The inconsistency was resolved by the testimony of a witness who clearly understands how the documents were prepared and who knows which definitions were used by the evaluators. Transcript at 539-40. ----------- FOOTNOTE ENDS ----------- proposal. Protest File, Exhibits 33, 34. On September 21, 1994, the independent analysis team prepared its report concerning the results of I-Net's second PCD. The report is the result of the team's analysis of magnetic tapes containing the image data actually produced by I-Net during the second PCD. The report, which contains approximately six hundred pages of test results, states in its summary, "The image quality requirements of the Government were met by [I-Net] for [all stages] of the PCD." Protest File, Exhibit 35 at 3. On September 22, 1994, in response to a question asked by the Army, I-Net submitted its sixth revision to its proposal. Protest File, Exhibits 36, 37. The third evaluation of I-Net's proposal was completed on September 30, 1994 (technical area), and October 11, 1994 (management area). Protest File, Exhibit 38. The technical panel leader and the evaluators discussed comments contained in the factor worksheets in order to determine whether I-Net's proposal contained any deficiencies. Based upon these discussions, the technical panel leader determined that I-Net's proposal contained weaknesses in some areas, but did not contain deficiencies. That is, the Army did not determine that I-Net failed to meet any of the mandatory requirements of the solicitation. Transcript at 519-26. The third evaluation of the technical area contains fifteen factor summaries for which I- Net received overall " " ratings and overall "-" ratings. In the factor summaries for which I-Net received "-" ratings, the Army notes that, although I-Net met the image quality requirements, I-Net's proposal contained weaknesses in the areas of . Protest File, Exhibit 38. The technical panel leader reviewed all of the factor summaries with the authors of the summaries, and again determined that I-Net's proposal contained weaknesses, not deficiencies. Transcript at 527-28. The third evaluation of the technical area contains three item summaries for which I-Net received overall ratings. Protest File, Exhibit 38. The technical panel leader reviewed all of the item summaries with the authors of the summaries and found no indication that I- Net had failed to meet a mandatory requirement of the solicitation. Transcript at 529-30. The item summaries state that, although I-Net's proposal contained weaknesses, I-Net's problems could be overcome. One of the item summaries states that I-Net proposed a "marginal, but correctable solution," and another states that "all these weaknesses are correctable." Protest File, Exhibit 38 at 73, 138. I-Net received an overall rating of for the technical area. Protest File, Exhibit 38 at 1. On October 5, 1994, the TEB again met with the SSRB and provided a draft briefing concerning the offerors' technical, management, and cost merits. The TEB noted that its major objective in negotiating with I-Net was to improve its . The TEB members stated that I-Net was proposing a viable solution and that its problems were readily correctable. Protest File, Exhibits 71, 5005. The TEB told the SSRB that both offerors' proposals were acceptable and that no deficiencies were noted. Protest File, Exhibit 5005. On October 12, 1994, the Army sent I-Net a letter transmitting a set of points for negotiation (PFNs) and informing I-Net that negotiations would be held on October 20, 1994. Among the PFNs were these: PFN 2606. The Army stated that , and asked I-Net to . PFNs 2602 and 2609. . The Army told I- Net that . The Army asked I-Net to . The Army also asked I-Net . PFN 2605. The Army stated that . The Army explained that , and asked I-Net . PFN 2607. The Army stated that . The Army asked I-Net . PFN 2608. The Army noted that I-Net's report concerning the second PCD . . The Army also noted that, . The Army asked I-Net . PFNs 2610 and 2611. The Army pointed out that I-Net's proposed scanner configuration . The Army asked I-Net . The Army stated that, at the second PCD, . Protest File, Exhibit 39. These PFNs reflect the weaknesses identified in the factor and item summaries. Protest File, Exhibit 38. I-Net submitted responses to the PFNs incrementally, both before and after negotiations. Transcript at 726-27; Protest File, Exhibits 39, 68. Negotiations were held with I-Net on October 20, 1994. The Army and I-Net discussed I-Net's responses to the PFNs. The Army stated that I-Net had only partially responded to some of the Army's concerns, and that I-Net was being given another opportunity to improve its proposal. Protest File, Exhibit 68. I-Net's final responses to the PFNs contain both explanations and revisions to its proposal. Protest File, Exhibit 39. On October 31, 1994, the Army requested that I-Net submit its best and final offer. The Army's letter states, "As indicated in our points for negotiation, your proposal included weaknesses and risks to the Government in the area of . As noted in our face-to-face discussions, your initial responses to these points for negotiation included residual weaknesses and risks in areas related to . Your updated responses continue to leave a measure of concern in these same areas." Protest File, Exhibit 40 at 1. I-Net submitted its best and final offer on November 7, 1994. The offer contains numerous revisions to I-Net's proposal. Protest File, Exhibit 41. The Army completed its evaluation of I-Net's best and final offer on November 18, 1994 (management area) and November 21, 1994 (technical area). I-Net received an overall rating of for the technical area and for the management area. Protest File, Exhibit 42. The technical panel leader again discussed the factor worksheets, the factor summaries, and the item summaries with their authors. He determined that I-Net's proposal contained weaknesses, but not deficiencies. Transcript at 533-37. The results of the evaluation of I-Net's best and final offer are discussed in a report prepared by the TEB for the SSRB on November 21, 1994. The report shows that, although I-Net received "-" ratings for some factors and although the evaluators believed that I-Net's offer contained some weaknesses, I-Net did not receive a "red" rating in any item or area. The report states that, although the portions of I-Net's proposal needed improvement, I- Net met all of the Government's image quality requirements. Protest File, Exhibit 71. The SSRB prepared its report for the SSA on November 22, 1994. The SSRB stated that both offerors' proposals were compliant with the requirements of the solicitation and eligible for award. Protest File, Exhibit 72 at 11, 32. In the course of discussing the appropriate weighing of technical merit and cost, the SSRB states that Morpho's proposal "will achieve well above both the defined requirements and the higher evaluation standards while the I-NET offer will produce . . . . It could be argued that the ." The SSRB also notes that I-Net's proposal "could render up to . . . ."[foot #] 2 Protest File, Exhibit 72 at 39. As is clear from the SSRB's forty-page report, it did consider I-Net for award. Based upon an examination of the relative technical merits of the Morpho and I-Net proposals, of the offerors' management, and of the offerors' cost proposals, the SSRB report recommends that award be made to Morpho.[foot #] 3 On December 13, 1994, the Army awarded the contract to Morpho. Protest File, Exhibit 75. At the hearing, I-Net introduced the testimony of an expert in the evaluation of computer systems. In the expert's opinion, based upon his review of a portion of the record in this protest, the Army's evaluators determined that I-Net's proposal did not meet mandatory solicitation requirements. His opinion concerning the evaluators' determination is based primarily upon the comments written on the evaluation worksheets. I-Net's expert did not offer any opinion as to whether I-Net's proposal meets the solicitation's requirements. Transcript at 326, 368-69, 454, 464-65, 483. Fingerprint Conversion Experience The solicitation does not state that offerors are required to have fingerprint conversion experience in order to be awarded the contract. Protest File, Exhibit 10; Transcript at 166. However, within the management area, one of the evaluation items is "Company Experience with Similar Projects." This item is divided into the following factors: FACTOR: Conversion Experience. Evaluates the Offeror's experience in converting very large quantities of data, providing quality assurance, maintaining conversion records, and delivering the product that meets image quality and schedule requirements. Evaluates Offeror's experience in safeguarding documents of various physical conditions and delicacies. ----------- FOOTNOTE BEGINS --------- [foot #] 2 A fingerprint card contains fourteen images. Protest File, Exhibit 10 at Att B-11. Approximately thirty-five million cards were to be converted by the successful offeror. Protest File, Exhibit 10. Therefore, is approximately percent of the total number of images to be converted. [foot #] 3 In both the technical and management areas, Morpho received the overall rating . Protest File, Exhibit 63. ----------- FOOTNOTE ENDS ----------- FACTOR: Customer Satisfaction. Evaluates previous clients' assessment of the Offeror's ability to manage a program, understand a customer's business area, and execute a solution which enhances mission accomplishment. Protest File, Exhibit 10 at M-7, M-8. Offerors are instructed to describe their experience with at least three projects of a scope and nature similar to the fingerprint conversion project which the offerors deem relevant to the requirements of the fingerprint conversion project. Protest File, Exhibit 10 at Sec L/Appendix 1 page 15. In its proposal, I-Net identifies three projects as evidencing its experience with similar projects. Two of the projects were large records conversion projects. The third project, for which I-Net was a subcontractor, was for the conversion of approximately 110,000 fingerprint cards, which I- Net stated was completed two months later than scheduled. Protest File, Exhibit 15 at Volume 3, pages 3-A1-2 through 3-A1- 8. . Transcript at 96-97, 136. The two customers for the two large conversion projects were generally satisfied with I-Net's work, although they indicated some dissatisfaction with management. Protest File, Exhibit 1004 at 57-91. The contractor for the fingerprint conversion project confirmed that the project was completed late. The contractor stated that I-Net was supposed to provide a scanner operator and to train the operator. I-Net hired someone from a local temporary employment agency, provided approximately one hour of training and did not provide a training manual. After its initial visit to the site, I-Net did not return to provide any management or supervision. When the operator quit, the contractor had to train a replacement operator and hire another operator to work in the evening in order to meet the conversion schedule. Protest File, Exhibit 1004 at 88-91. The technical area summary prepared on April 22, 1994, does not mention I-Net's fingerprint conversion experience. Protest File, Exhibit 20 at 1. The management area summary prepared on April 22, 1994, mentions that I-Net's fingerprint conversion experience is , and also mentions that I-Net's proposed subcontractor was currently working on fingerprint image conversion. I-Net's fingerprint conversion experience was not identified as a weakness. The overall rating ( ) was primarily due to concerns about I-Net's . Protest File, Exhibit 20 at 167. The technical area summary prepared on May 20, 1994, does not mention I-Net's fingerprint conversion experience. Protest File, Exhibit 25 at 1-2. The management area summary prepared on May 20, 1994, mentions that I-Net's fingerprint conversion experience consists of and that its managers lack experience in . The management area summary also mentions that I-Net's proposed subcontractors provide the needed technical support and have experience working with the Government's fingerprint imaging efforts. As far as weaknesses are concerned, the management area summary states that I-Net has . The risk assessment expressed some concern about . The management area summary also discusses management tools and procedures, conversion methodology, and other management factors and states, "Overall, the Offeror's proposal demonstrates a satisfactory approach and understanding of the requirements." The area received a rating of . Protest File, Exhibit 25 at 240-41. The technical area summary prepared on September 30, 1994, does not mention I-Net's fingerprint conversion experience. The summary does mention that, during the second PCD, I-Net demonstrated a lack of understanding of the problems with . The comments contained in the technical area summary are based upon the results of the second PCD and are not based upon I-Net's prior fingerprint conversion experience. Protest File, Exhibit 38 at 1-2. The management area summary prepared on October 11, 1994, mentions the size of I-Net's previous fingerprint card project. Also, one of several comments made concerning I-Net's personnel is that they . I-Net's fingerprint conversion experience is not identified as a weakness, and the overall rating for the management area is . Concerning risk, which was rated , the management area summary states that I-Net's previous experience had , and that I-Net's posed a risk because . The management area summary also discusses weaknesses in I-Net's proposed which could lead to a . Protest File, Exhibit 38 at 177-78. PFNs 2620 and 2623, which were sent to I-Net by the Army on October 12, 1994, mention that I-Net and its personnel have . These PFNs ask I-Net to provide more description of its , and ask I-Net how it will . I-Net provided extensive responses to both of these PFNs and also made some revisions to its proposal. Protest File, Exhibit 39 at 51-54, 61-62. During face-to-face negotiations concerning PFN 2620, the Army told I-Net that I- Net's "conversion experience is compliant" and noted that it had not issued any deficiency notices. Protest File, Exhibit 68 at 4. The November 21, 1994 technical area summary mentions that I-Net's second PCD demonstrated " ." Protest File, Exhibit 42 at 1. The technical area summary does not mention I-Net's fingerprint conversion experience. Protest File, Exhibit 42. The November 18, 1994 management area summary discusses all of I-Net's experience and concludes, " ." Protest File, Exhibit 42 at 104. The management summary notes that I-Net's proposed subcontractors have some experience with fingerprint conversion and states that I-Net's personnel , which presents one risk . Another risk was due to I-Net's proposed . The management area summary mentions , and the management area received an overall rating of . Concerning risk, the management area summary states that I-Net's prior fingerprint conversion experience was and had , that the problems encountered by I-Net during performance of its fingerprint conversion project posed a risk concerning . The management area summary also mentions that I-Net's poses a risk. Protest File, Exhibit 42. The individual who prepared the management area summaries testified that a lack of fingerprint conversion experience would not have disqualified I-Net from award. He considered I-Net's management proposal to have a weakness, because I-Net's participation in the fingerprint conversion project identified in its proposal "was " and because that project " ." Transcript at 168-73. He also testified that, although his assessment of the risk associated with I-Net's management proposal was due, in part, to its , his assessment was due, in larger part, to the . Transcript at 198- 200, 207-10. He testified that I-Net's experience was not a serious problem that ended I-Net's chance for award. Transcript at 206. He also testified that the Army never issued a clarification request concerning I-Net's fingerprint conversion experience because I-Net's proposal was not unclear concerning its experience, and because it would have been "like leveling the field" if the Army had told I-Net that its experience was weak and asked I-Net to provide information showing better experience. Transcript at 192-93. In its November 22, 1994 report, the SSRB notes that one of Morpho's advantages in the management area is its comparative . The SSRB also notes that . Protest File, Exhibit 72 at 35-36. The program manager, who was also a member of the SSRB, testified that the flaws in I-Net's conversion process could have been the result of I-Net's lack of understanding of the Army's requirements or could have been the result of poor performance by I-Net. Transcript at 238, 243. I-Net's expert testified that, in his opinion, the Army's evaluators treated fingerprint conversion experience as a mandatory requirement. Transcript at 435, 484-85. Discussion There are two bases for I-Net's protest. First, I-Net complains that the Army determined that I-Net's proposal contains deficiencies and never told I-Net about those deficiencies. Second, I-Net complains that the Army imposed an unstated requirement for a certain minimum level of fingerprint conversion experience. As explained below, we conclude that the Army did not determine that I-Net's proposal contains deficiencies. Although the Army determined that, in some instances, I-Net's proposal contains weaknesses and does not fulfill the Army's requirements as well as Morpho's proposal, the Army determined that I-Net's proposal meets the Army's requirements. In addition, we conclude that the Army did not establish a requirement for a minimum level of fingerprint conversion experience. I-Net's fingerprint conversion experience was appropriately considered and evaluated by the Army in accordance with the relevant solicitation provisions. Requirements and Deficiencies In a negotiated procurement, the Government establishes a competitive range by determining which proposals have a reasonable chance of being selected for award. 48 CFR 15.609 (1993) (FAR 15.609). The Government then conducts discussions with responsible offerors who submit proposals within the competitive range. FAR 15.610. One purpose of discussions is to advise offerors of deficiencies in their proposals so that they are given the opportunity to satisfy the Government's requirements. A "deficiency" means "any part of a proposal that fails to satisfy the Government's requirements." FAR 15.601. I-Net argues that the IQS and sections 3.5, 3.5.1, and 5.0 of Attachment B to the solicitation contain mandatory requirements, and that the Army determined that I-Net's proposal fails to meet these requirements. I-Net asserts that the Government violated the procurement regulations discussed in the preceding paragraph because the Government did not tell I-Net that its proposal fails to satisfy these requirements. The Army decided that the IQS does not contain mandatory requirements. The provisions of the IQS are not contained in the Army's proposal compliance validation checklist, which was used to determine whether proposals met the solicitation's requirements. The IQS states that it would be used during PCDs as an indication of capability to perform. At the preproposal conference, offerors were told that the IQS contains attainable goals. In response to a vendor question, the Army amended the solicitation to explain that, during PCDs, offerors were expected to show how well -- not whether -- their systems met the IQS. The amendment states that offerors could deviate from the parameters established by the IQS, and that the Army was not establishing pass/fail criteria for image quality. The IQS provides one means for evaluating proposals, and that is how the IQS was utilized by the technical area evaluators. The Army did not determine that I-Net's proposal contains deficiencies related to the IQS because the Army evaluators properly understood that the IQS does not contain mandatory requirements. Sections 3.5, 3.5.1, and 5.0 of Attachment B to the solicitation contain mandatory requirements. According to I-Net, these requirements are included in the considerations and standards that were evaluated by the Army. Protester's Post- Hearing Brief at 11, n.3. As evidence of the Army's determination that I-Net's proposal fails to meet the requirements of Attachment B, I-Net points to the fact that the evaluators' factor worksheets contain "-" ratings for some standards and considerations and contain comments concerning problems with I-Net's proposal. Protester's Post-Hearing Brief at 15-16. The ratings and comments contained in the evaluators' factor worksheets do not establish that the Army determined that I-Net's proposal fails to meet the requirements of Attachment B. The worksheets comprise only the notes made by the evaluators when they were reviewing each proposal. The ratings assigned by the evaluators reflect how well they believed I-Net's proposal met the standards contained in the worksheets. Because the worksheets express some concerns about I-Net's proposal, the technical panel leader met with the evaluators and discussed their comments in order to ascertain whether the evaluators believed that I-Net's proposal fails to meet any of the solicitation's requirements. Based upon these discussions, the technical panel leader determined that I-Net's proposal contains no deficiencies. This decision is consistent with the conclusion reached by the validators who, using their checklist, determined that I-Net's proposal meets the solicitation's requirements. The factor, item, and area summaries contain the Army's decision concerning whether I-Net's proposal meets the requirements of Attachment B. After the evaluators completed their individual worksheets, they met, discussed their ratings, and resolved any differences in order to arrive at a consensus rating which is contained in the factor summaries. The factor summaries were combined into item summaries, and the item summaries were combined into area summaries. The factor, item, and area summaries consistently refer to I-Net's proposal's problems as weaknesses, not deficiencies, and state that I-Net's problems were correctable. A "red" rating would have been assessed in the item and area summaries if I-Net's proposal failed to meet a mandatory requirement, and no "red" rating was ever assigned by the evaluators. The PFNs issued by the Army establish that I-Net experienced problems with . I-Net contends that these PFNs reflect the Army's determination that I-Net's proposal contains deficiencies concerning image quality.[foot #] 4 Protester's Post- Hearing Brief at 16. The Army never considered I-Net's proposal to be deficient as a result of encountering these problems. As required by Attachment B, I-Net scanned and converted the fingerprint cards, applied pass/fail criteria, and implemented a quality control program. The Army consistently determined that I-Net met the Army's image quality requirements. The problems experienced by I-Net affected the Army's assessment of how well I-Net met the requirements of Attachment B, not whether I-Net met those requirements. Although the SSRB report states that I-Net's proposal complies with the solicitation's requirements and is eligible for award, I-Net asserts that the SSRB report contains evidence that the Army determined that I-Net's proposal contains deficiencies. I-Net states that the SSRB noted that the I-Net offer "should" be barred from award. Protester's Post-Hearing Brief at 35. This is not what the SSRB report says. In the course of discussing the appropriate tradeoff between technical merit and cost, which is not an issue in this protest, the SSRB report states that . But, the SSRB did not bar I-Net from consideration for award. Instead, it thoroughly examined the merits of I-Net's proposal and considered whether to award to I-Net or to Morpho. I-Net also states that the SSRB determined that one-third of I- Net's images would be unusable. Protester's Reply Brief at 17. Again, this is not what the SSRB report says. The report states that , and this is approximately percent -- not one-third -- of the total images to be converted. The Army did not determine that I-Net's proposal was deficient and then fail to discuss this determination with I-Net. The record establishes that the Army decided that I-Net's proposal addressed all of the solicitation's requirements, although I-Net's proposal did not always address those requirements as well as I-Net might have wished. ----------- FOOTNOTE BEGINS --------- [foot #] 4 I-Net also contends that the Army determined that I-Net's lack of sufficient fingerprint conversion experience constituted a deficiency. This issue is addressed in the following section of this opinion. ----------- FOOTNOTE ENDS ----------- Fingerprint Conversion Experience The Army was required to state clearly the evaluation factors that it would consider during its source selection process. FAR 15.610(e). I-Net alleges that the Army violated this regulation because it required offerors to possess a certain minimum level of fingerprint conversion experience and never told offerors of this requirement. Neither the technical nor the management summaries establish that the Army imposed a requirement for a minimum level of fingerprint conversion experience. The solicitation states clearly that the Army intended to consider I-Net's experience with similar projects when it evaluated the management area of I- Net's proposal. The record establishes that, when evaluating the management area, the Army considered the fingerprint conversion experience identified by I-Net. The management area summaries establish that the Army was concerned about I-Net's . The Army considered I-Net's proposal to have a weakness in the management area due to its , although a lack of fingerprint conversion experience would not have disqualified I-Net from award. In none of the factor, item, or area summaries did the Army ever determine that I-Net's proposal was deficient because I-Net was lacking some minimum level of fingerprint conversion experience. The SSRB speculated that perhaps I-Net's is the basis for flaws in I-Net's conversion process and for I-Net's lack of understanding of the conversion process. Perhaps the SSRB is correct and perhaps not. Either way, the SSRB's speculation as to the cause of I-Net's problems does not establish that the Army imposed a requirement for a minimum level of fingerprint conversion experience. There is no evidence to suggest that the Army required offerors to possess a certain number of years of experience in fingerprint conversion, to have completed a certain number of fingerprint conversion projects, to have converted a certain number of fingerprint cards, or to have achieved any level of expertise in fingerprint conversion. The Army evaluated the fingerprint conversion experience identified by I-Net and determined that I-Net's experience . The Army's evaluation is consistent with the terms of the solicitation. The evidence does not establish that the Army imposed a requirement for a minimum level of fingerprint conversion experience. Decision The protest is DENIED. The suspension of the delegation of procurement authority lapses by its terms. _______________________________ MARTHA H. DeGRAFF Board Judge We concur: _______________________________ ________________________________ CATHERINE B. HYATT ALLAN H. GOODMAN Board Judge Board Judge