THIS OPINION, ORIGINALLY ISSUED UNDER PROTECTIVE ORDER, IS RELEASED WITHOUT REDACTION ON JULY 24, 1995 _____________________ DENIED: July 14, 1995 _____________________ GSBCA 13272-P TELCOM SYSTEMS SERVICES, INC., Protester, v. DEPARTMENT OF JUSTICE, Respondent, and AT&T CORP., Intervenor. Sam Zalman Gdanski, Montebello (Suffern), NY, counsel for Protester. Sheryl L. Floyd, Department of Justice, Commercial Litigation Branch, Civil Division, Washington, DC, counsel for Respondent. Gerard F. Doyle, Ron R. Hutchinson, and Alexander T. Bakos of Doyle & Bachman, Washington, DC; and Steven W. DeGeorge and Pam Goldstein of AT&T Corp., Silver Spring, MD, counsel for Intervenor. Before Board Judges DANIELS (Chairman), BORWICK, and VERGILIO. VERGILIO, Board Judge. In this protest, Telcom Systems Services, Inc. asserts that the respondent, the Department of Justice, Federal Bureau of Investigation (FBI), improperly awarded a contract to the intervenor, AT&T Corp. In particular, the protester maintains that in making the best value determination, the agency utilized an undisclosed factor (experience); improperly downgraded the protester's proposal for past performance; failed to refer to the Small Business Administration a matter concerning the protester's responsibility; and made the selection determination in contravention of the requirements of the solicitation. Additionally, in an amendment, the protester asserts that the head of the technical evaluation committee was biased. The agency's conduct of this procurement is not without fault. Most notably, the agency should have deemed the protester's ultimate best and final offer to be unacceptable because the protester failed to propose factory-certified personnel as required by the solicitation. Regarding the particular grounds of protest, experience of offerors was a valid discriminator in the evaluation process and an identified element for the selection determination. What the protester characterizes as a responsibility determination was the agency's review of the pricing offered by the protester. The agency has not made a responsibility determination (adverse or otherwise) in this procurement regarding the protester. The agency did not alter the technical or price evaluations of the protester's submissions because of its concerns; rather, the protester altered its proffered maintenance prices for which the agency sought justification. Although the record suggests that an evaluator accorded undue relevance to one incident, four years ago, in the context of past performance by the protester, that evaluation did not adversely affect the protester's ability to obtain the award. The protester has not demonstrated that the associated discussions or overall evaluation were improper or that the source selection determination was adversely impacted. Rather, the protester submitted its ultimate best and final offer which is less advantageous to the Government than that of the awardee. Portions of the source selection recommendation and determination are not supported by the record. However, given the technical superiority of the awardee's ultimate best and final offer compared to that of the protester's, and the evaluated price difference, the protester has not suggested a reasonable rationale, consistent with the selection criteria, which would support an award to it. Contrary to the protester's asserted understanding, award to the lowest-cost, technically acceptable proposal was not the basis of the competition. The Board denies the protest. Findings of Fact The solicitation 1. Through the underlying request for proposals (RFP) issued on May 26, 1994, the agency seeks to satisfy its specified requirements for the provision, installation and maintenance of three electronic private automatic branch exchange (EPABX) telephone systems or one EPABX and two NODEs (remote extensions of an EPABX) for the New York, Brooklyn/Queens, and New Rochelle, New York, FBI divisions. Protest File, Exhibit 5. The solicitation is to result in a firm, fixed-price contract to last from the date of award through the end of the fiscal year, with options for a total system contract life not to exceed 120 months from acceptance. Id. at 65 ( H.16.1, H.16.2). 2. The solicitation specifies that the networks shall be installed and operational within 150 calendar days after contract award. Protest File, Exhibit 5 at 11 ( C.3.1), 53 ( F.9.1). The solicitation does not state or suggest that the agency views an earlier installation as advantageous. 3. By paragraph and subparagraph, the solicitation dictates requirements for equipment configuration, attributes and features. Protest File, Exhibit 5 at 5-9 ( B.1.1 to B.1.20), 11-38 ( C.3.2 to C.5.5.11), Exhibit 13. Among the solicitation-required ancillary equipment and features are the following: battery reserve power system (BRPS); station message detail recording (SMDR); voice messaging systems (VMS); dedicated administration terminals (DAT); and telecommunications management system (TMS). Id. at 25-38 ( C.5). 4. Section C of the solicitation also establishes requirements for installation and maintenance services. With respect to installation technicians: As part of the proposals, Offerors must include the names of the factory-certified installation technicians they propose to utilize for the installation of the proposed EPABXs/NODEs network for the [three] Offices. Include the specific installation factory-training course titles (by manufacturer of the proposed system) successfully completed by each installation technician, and the dates they attended. Protest File, Exhibit 5 at 38-39 ( C.6.1). 5. Regarding maintenance technicians, section C specifies: As part of the proposals, Offerors shall include specific individual identification of all of their factory-certified full-time maintenance technicians permanently employed and assigned within the New York, Brooklyn/Queens, and New Rochelle Offices, who would be available to maintain the proposed EPABXs/NODEs network and shall also be responsible for all moves, adds and changes (MAC). To be responsive to the critical maintenance coverage specified in this solicitation, the FBI recommends that Offerors identify a minimum of seven (7) factory-certified technicians that would be available to maintain the proposed EPABXs/NODEs network and be responsible for MAC orders. 6.5.1 If an Offeror's responses to RFP paragraphs 6.5 and 6.8 identified less tha[n] the recommended seven (7) maintenance/MAC technicians, evaluation consideration will be reduced proportionately based on the number of factory-certified technicians proposed. 6.5.2 List the factory-training course titles (by the manufacturer of the proposed system) successfully completed by each maintenance/MAC technician, and the dates they attended. These technicians must be certified in the specific proposed EPABXs/NODEs network, and should be exclusive of any other identified and proposed technicians required to maintain the VMS and TMS. Protest File, Exhibit 5 at 40 ( C.6.5, C.6.5.1, C.6.5.2). The referenced paragraph 6.8 is not here relevant. 6. The solicitation specifies that the FBI will not allow the implementation of any form of system remote capabilities from outside FBI controlled space--that is, remote access for diagnostic and maintenance purposes is disallowed. Protest File, Exhibit 5 at 46 ( C.6.22). 7. In the "supplemental data" portion of section C, offerors are required to provide information regarding relevant customers in the given areas: Proposals must include a current listing, including full addresses, individual points of contact and telephone numbers, of any customers located in the New York, Brooklyn/Queens, and New Rochelle, New York areas, where the Offeror has installed and maintained EPABXs/NODEs networks of the types proposed. The listing should be limited to those EPABXs/NODEs networks that were installed and maintained by the same installation and maintenance facility (located within the New York, Brooklyn/Queens, and New Rochelle, New York areas) that the Offeror proposes to utilize for their proposed EPABXs/NODEs network. The FBI recommends that the Offeror identify a minimum of three customers located in the New York, Brooklyn/Queens, and New Rochelle, New York areas, utilizing the proposed EPABXs/NODEs networks. Protest File, Exhibit 5 at 48 ( C.7.5). Moreover, the solicitation specifies that if the offeror identifies fewer than "the recommended three EPABXs/NODEs networks, evaluation consideration will be reduced proportionately based on the number of installed EPABXs/NODEs networks." Id. ( C.7.6). Evaluation and selection 8. Section M of the solicitation specifies: "Award will be made to the Offeror whose proposal, conforming to this solicitation, is determined to be in the best interests of the Government, price and other factors considers." Protest File, Exhibit 5 at 74 ( M.22.1). Among the other factors included within that consideration, the solicitation specifies: Those technical factors, as set forth herein below, upon which a comparative ranking of proposals will be based in accordance with the relative order of importance accorded each respectively. and Technical, operation, and contractual aspects of the proposal found compliant, or which with minor revision, can be made compliant with the minimum or mandatory technical requirements referenced in paragraphs 22.3 and 22.4 above, will be comparatively evaluated with their relative order of importance as described below[.] Id. ( M.22.5, M.22.6). 9. The solicitation identifies the evaluation criteria in order of relative importance: 23.1 Contractor Maintenance and Service Support 23.1.1 Number of full-time maintenance technicians permanently employed and assigned to the [relevant] Offices, who will be available to maintain the proposed EPABXs/NODEs network as outlined in RFP paragraph 6.5. 23.1.2 Qualifications (factory training on system proposed) of maintenance personnel assigned to the [relevant] Offices, who will be available to maintain the proposed EPABX/NODES network as outlined in RFP paragraph 6.5. 23.1.3 Demonstration/documentation of capability to install and reliably maintain the proposed type of EPABXs/NODEs network in the [relevant] Offices, as outlined in RFP paragraph 7.5. 23.2 Technical Proposal 23.2.1 Capability to satisfy technical and operational requirements of specification. 23.2.2 Compliance with other Terms and Conditions of the Solicitation. 23.3 Total Cost Projection includes: [particulars not here relevant]. 23.4 The Cash Flow Discount Table [particulars not here relevant]. Protest File, Exhibit 5 at 74-75. 10. The solicitation, by amendment, specifies the role of past performance in the evaluation and selection processes: 26.1 The Government will evaluate the quality of the offeror's past performance. The assessment of past performance will be used in two ways. 26.2 First, the assessment of the offeror's past performance will be used as one of evaluating the credibility of the offeror's technical and management proposal volumes. A record of marginal or unacceptable past performance may be considered an indication that the promises made by the offeror are less than reliable. Such an indication may be reflected in the Government's overall assessment of the offeror's proposal. However, a record of acceptable--or even excellent--past performance will not result in a favorable assessment of an otherwise unacceptable technical or management proposal. 26.3 Second, the assessment of the offeror's past performance will be used as one means of evaluating the relative capability of the offeror and the other competitors. Thus, an offeror with an exceptional record of past performance may receive a more favorable evaluation than another whose record is acceptable, even though both may have acceptable technical and management proposals. 26.4 In investigating an offeror's past performance, the Government will consider information in the offeror's proposal and information obtained from other sources, including past and present customers and their employees; other Government agencies, including state and local agencies; . . . and others. 26.5 Evaluation of past performance will be a subjective assessment based on a consideration of all relevant facts and circumstances. It will not be based on absolute standards of acceptable performance. The Government is seeking to determine whether the offeror has consistently demonstrated a commitment to customer satisfaction and timely delivery of quality goods and services at fair and reasonable prices. This is a matter of judgment. Offerors in the competitive range will be given an opportunity to address especially unfavorable reports of past performance, and the offeror's response--or lack thereof--will be taken into consideration. 26.6 The Government's conclusions about the overall quality of the offeror's past performance will be highly influential in determining the relative merit of the offeror's proposal and in selecting the offeror whose proposal is considered most advantageous to the Government. 26.7 By past performance, the Government means the offeror's record of conforming to specifications and to standards of good workmanship; the offeror's adherence to contract schedules, including the administrative aspects of performance; the offeror's control of costs, including costs incurred for changed work, the offeror's reputation for reasonable and cooperative behavior and commitment to customer satisfaction; and, generally, the offeror's business-like concern for the interests of the customer. Protest File, Exhibit 13 at 16-17 ( M.26). 11. The solicitation describes the evaluation procedure as follows: After the proposal submission deadline, the FBI's Telephone System Proposal Evaluation Committee (TSPEC) will study each proposal and determine any deficiencies and/or unclear portions that might exist. If necessary, the Offeror will be contracted at the Government's discretion and Offerors will be requested to clarify the pertinent portion(s) of their proposals. The second phase of the proposal evaluation process consists of methodic evaluation of all proposals by the TSPEC. In the evaluation, all proposals will be rated on each of the three evaluation areas, with the large values being assigned to those proposals which best satisfy the Government's requirements. Subsequent to this evaluation, the TSPEC's recommendation for contract award will be forwarded to the FBI's Contracting Officer. Protest File, Exhibit 13 at 16 ( M.25.1, M.25.2) (emphasis added). Initial proposals 12. Representing itself as a small business, the protester submitted an initial proposal.[foot #] 1 Protest File, Exhibit 18 at 14 ( K.12). In response to paragraphs C.6.5 and C.6.5.1, Finding 5, the submission states in whole: 6.5 TELCOM has read, understands and will comply. The following maintenance personnel will be available to perform maintenance on the proposed system: In addition, ROLM personnel will be available to provide backup services. These individuals are being identified under separate cover. 6.5.1 TELCOM has read, understands and will comply. TELCOM has identified seven maintenance personnel. Please reference the contractor maintenance and support proposal. Id. at 59. 13. Regarding the requirement to provide customer references, Finding 7, the protester's initial proposal states in whole: 7.5 TELCOM has read, understands and will comply. Please reference local customer list. Protest File, Exhibit 18 at 63. 14. In its initial proposal, the protester does not specifically address any portion of section M.26, past performance, Finding 10; that is, it provides no information on other contracts in its entries under this section. Protest File, Exhibit 18. Discussions 15. The agency held discussions with the offerors. The agency provided the protester with a list of questions, seeking responses in order to further evaluate the proposal. Protest ----------- FOOTNOTE BEGINS --------- [foot #] 1 AT&T, among others, also submitted an initial proposal. The agency subsequently engaged in discussions with, among others, AT&T, which then provided best and final offers. ----------- FOOTNOTE ENDS ----------- File, Exhibit 20. Among the questions are one each relating particularly to paragraphs C.6.1, C.6.5, C.6.5.1, C.7.5, and M.26, as set forth below, together with the response (dated November 29, 1994) of the protester: Reference RFP Paragraph 6.1. To date, the FBI has not received any additional information from TELCOM. There are no additional personnel listed nor SF-86 forms. Additionally, provide any factory-training [a named individual] has received for your proposed VMS, SMDR, and TMS. Response: The additional personnel are identified on Attachment 5 of this response. SF-86 forms for these individuals are being delivered directly to the FBI under separate cover. Reference RFP Paragraph 6.5. There is no list of "the following maintenance personnel...." There is no list of ROLM personnel who you refer to as available to provide backup services. The FBI has not received any list under separate cover. Response: The appropriate number of personnel for maintenance/MAC are identified in Attachment 5 of this response. Reference RFP Paragraph 6.5.1. The FBI is in receipt of the identity of only one TELCOM employee and that employee is identified under the installation criteria listed in response to paragraph 6.1. You are reminded that the FBI recommends seven maintenance/MAC technicians, and that evaluation consideration will be reduced proportionately based on the number of factory- certified technicians proposed. Response: The appropriate number of personnel for maintenance/MAC are identified in Attachment 5 of this response. Reference RFP Paragraph 7.5. Your response references a local customer list. This list has not been provided. Please provide same at this time (for each location). Response: The local customer list for each location is included with this response as Attachment 10. Reference RFP Paragraphs 26.0, 26.1, 26.2, 26.3, 26.4, 26.5, 26.6, and 26.7. Refer to clarification question number "66" above and provide your proposed response [to] this paragraph at this time. [Question 66 notes that all references to a deleted paragraph or ignored paragraphs and sub-paragraphs will be addressed by reference to the solicitation requirement that requires responses to address each paragraph and sub-paragraph of the solicitation.] Response: [The protester repeats the general language of each subparagraph of section M.26, stating that it "has read, understands and will comply." The response does not direct the attention of the evaluators to any past performance of the protester or its proposed subcontractor.] Protest File, Exhibit 20 at 11 ( 69, 74, 75), 12 ( 89), 15 ( 119), Exhibit 23 at 45-46 ( 69, 74, 75), 48 ( 89), 56-57 ( 119). Attachment 5 contains the names of eleven individuals; it associates with each name a single course (9751 CBX) and a completion date (varying from 1986 through 1991). Id., Exhibit 23 at 209. Attachment 10, the customer list, is a "reference list which may be used for all three locations." It identifies five companies by name and address, and provides a contact point for each. Id. at 349. 16. Thereafter, the agency provided the protester with a second list of questions/clarifications, including the following; the protester's responses (dated January 4, 1995), also follow. Reference RFP Paragraph 6.1. Are the installation technicians for your proposed VMS and TMS portions of the network identified in your response? If not, identify same at this time and as previously requested, provide the factory training each has received on your proposed VMS and TMS systems. Response: Training on the VMS and TMS will be provided upon notice of award for the necessary technicians. This training may be scheduled for both the VMS and TMS in early March if the contract is awarded on or near to schedule. Proof of certification will be provided upon completion for all technicians trained. Reference RFP Paragraph 7.5. All customers listed in response to this question have identified ROLM as their installation and maintenance contractor. Please clarify what part Telcom had in the installation of these systems and/or identify your customer base in the New York area as originally requested. Response: Telcom may use ROLM for installation and maintenance support services. Therefore, we have identified systems that were installed and are currently maintained by ROLM. Protest File, Exhibit 27 at 2 ( 7), 3 ( 13), Exhibit 29 at 3 ( 7), 4 ( 13). 17. Subsequently, the agency provided to the protester a "third set of clarification questions" which addresses, in part, the protester's submissions regarding paragraphs C.6.1, C.6.5.1, and C.7.5; the protester submitted the responses (dated January 17, 1995) which follow each question: Reference RFP Paragraph 6.1. Your November 29, 1994 response identified 11 Rolm employees with accompanying copies of SF-86 forms. Your January 4, 1995 response to RFP paragraph 7.5 states Telcom "may" use Rolm employees. Identify the installation technicians, by name, that you propose to use at this time. Any requested information not submitted for those individuals should also be submitted at this time. Your response will be evaluated accordingly. Response: The proposed individual to be used for installation are: [there are twelve names]. Reference RFP Paragraphs 6.5 and 6.53. Please clarify your previous responses to these paragraphs by providing the name/names of your factory certified maintenance technicians you propose to maintain your proposed SMDR, TMS, and VMS systems. Response: To date, the technicians are not factory certified on the SMDR, TMS and VMS systems. Upon award of this contract, the technicians will be factory certified. Please reference Attachment 1 of this response for a schedule and commitment from the manufacturers of these products. If this is not sufficient, Telcom will provide the names of manufacturer personnel who could be utilized to install the SMDR, TMS and VMS systems and will adjust the price accordingly. Reference RFP Paragraph 7.5. Your response again indicated that you "may" use Rolm for installation and maintenance purposes. Specify whether you will or will not use Rolm technicians for the installation and maintenance of your proposed system at this time. Your response will be evaluated accordingly. Response: Telcom will use ROLM employees for the installation and maintenance of the proposed system. The proposed dedicated on-site technician is [named individual] who currently resides in the New York, New York area. Protest File, Exhibit 32 at 3 ( 3, 4), 4 ( 8), Exhibit 33 at 3 ( 3,4), 5 ( 8). The attachment referenced in response to the question regarding paragraphs 6.5 and 6.5.3 is a letter from Telecommunications Management Associates, Inc. (TMA) to the protester which states that upon notification of award TMA will provide Telcom with factory certified training courses. Id., Exhibit 33 at 15-19. 18. Dated January 26, 1995, a fourth set of what the agency labelled "clarification questions" contains only the following: Reference RFP Paragraphs 6.5 and 6.5.3. Previous clarification questions were issued in the Government's November 9, December 19, and January 12, 1995 clarification questions requesting that you specify exactly who you are proposing to maintain your proposed EPABX system and whether they have or have not received factory certification on the EPABX, SMDR, TMS, and VMS systems. This information was also requested in the original RFP paragraphs. Your January 17, 1995 response indicates that you will use ROLM technicians to perform in the installation and maintenance of your proposed system. However, you also stated that at the present time these technicians are not factory certified on the SMDR, TMS, and VMS systems. Your response "upon award of this contract, the technicians will be factory certified," is unacceptable. Please list each technician scheduled for training, the date when the training is scheduled and the applicable SMDR, TMS, and/or VMS systems course title. Your response will be evaluated accordingly. Protest File, Exhibit 35 (emphasis added). The protester responded under cover letter dated January 27, 1995: Training for the SMDR and TMS will be provided on February 24th and 25th for [the twelve individuals named in the response of January 17, Finding 17]. The training provided will be MANAKON System Manager Training Course No. 401. Training for the VMS will be provided from February 27th through March 3rd for [same twelve individuals]. The training provided will be VMX System Management Course No. 2011. Additional training on the VMS will be provided for the above listed individuals from March 6th through March 17th. The training provided will be VMX System Implementation and Support Course No. 3011. Please note that all of the above training is being provided via a special class in the New York area as the number of people to be trained is enough to warrant its own class. This training will be identical to that provided at the manufacturer's training facility including hands-on (lab) type environment. Id., Exhibit 36. 19. In a document dated February 6, 1995, the evaluation team compiled its consensus ratings of the offerors by evaluation paragraph. The ratings for the awardee and protester are: item AT&T Telcom 23.1.1 MAX MAX 23.1.2 MAX ACC 23.1.3 MAX ACC- 23.2.1 ACC ACC 23.2.2 ACC ACC 26.0 MAX MIN+ OVERALL MAX ACC- MAX reflects a maximum rating; that is, "Vendor exceeds the specifications in the referenced RFP paragraph." ACC reflects an acceptable rating; that is, "Vendor meets the specifications in the referenced RFP paragraph." MIN reflects a minimum rating; that is, "Vendor minimally meets the specifications in the referenced RFP paragraph." "Rating followed by a + (Plus) or - (Minus) indicate an incremental value to the next lowest or highest rating." Protest File, Exhibit 37; Transcript at 310, 384. Findings 32, 33, and 34 reveal some of the rationale in support of the ratings under the contractor maintenance and service support criterion. 20. The evaluation document states the following under past performance for the protester: Has compiled a Minimum+ past performance record in the maintenance and installation of telephone systems installed in FBI Field Offices. Telcom was awarded a contract for the FBI's Pittsburgh Field Office telephone system. Telcom used sub-contractors that were not identified in their response to the RFP and had only received on-the-job training. Additionally, a faulty telephone system was initially installed that required the replacement of the entire telephone system. Although it appears these problems have been satisfactorily resolved, this evaluation reflects the FBI's concern about their willingness and ability to support the long term maintenance agreements with respect to the FBI telephone systems in our Field Offices. Protest File, Exhibit 39. Although the technical evaluation committee, headed by the agency's contracting officer technical representative on the protester's Pittsburgh contract, had originally rated the protester as a minimum minus for past performance, in light of a cure notice the protester had received under that contract in 1991, the overall score was raised to a minimum plus at the direction of the contract specialist. The minimum minus was a proposed (or draft) score; the actual score circulated in final form was minimum plus. Transcript at 200-01, 240, 291. In addition to the Pittsburgh contract, the agency also considered in the past performance evaluation the protester's satisfactory performance in its contract with the FBI in Norfolk. Id. at 392, 423, 426. First best and final offer 21. By letters dated February 9, 1995, the agency informed offerors (including the protester and intervenor) that they were deemed within the technical competitive range. The letter requested offerors "to review your cost to ascertain if there is any possibility for price reduction" and sought best and final offers (BAFOs) no later than February 21, 1995, with offers to be extended to March 17. Protest File, Exhibits 39, 40. 22. The protester and intervenor submitted (what turned out to be initial) BAFOs. Protest File, Exhibits 41, 42. The protester did not alter from its initial proposal the BAFO quantities or prices of its proffered equipment. Id., Exhibits 18, 41, 44. From its initial proposal, however, the protester decreased its maintenance price in its initial BAFO. Id., Exhibits 18, 41. 23. On March 9, to determine if training had taken place, the agency inquired of the protester. The protester informed the agency that training had not taken place, but that the protester would provide a letter with new dates for training. Protest File, Exhibit 48. The protester provided the letter, dated March 10, with the new dates--training was to take place on March 16 and 17, from March 20 through 25, and from March 27 through April 7. Id., Exhibit 49. 24. By letter dated March 14, the agency informed offerors that it would reopen discussions and requested offerors to extend the period for acceptance of their BAFOs to April 21, 1995. The offerors so extended their submissions. Protest File, Exhibit 50. 25. The agency had concerns, expressed to the protester in a letter, regarding the protester's initial BAFO maintenance pricing which was significantly below that of its initial proposal and which appeared inconsistent with its pricing in other agency contracts. In seeking information from the protester, the letter specifies that it "should not be construed as a request to increase or decrease your pricing. Rather, it should be viewed as an opportunity to substantiate your pricing in view of the solicitation requirements or as an opportunity to discuss your pricing strategy." Protest File, Exhibit 51; Transcript at 280. 26. On March 29, a meeting took place with the agency and the protester at which pricing and training were discussed. Referencing an agreement with its subcontractor, the protester stated that it could profitably provide maintenance at the initial BAFO prices. The protester stated that training had not taken place, but advised that it would provide dates for the start and completion of training. Protest File, Exhibit 52. A letter dated March 30 from the protester to the agency corroborates what occurred at the meeting. In the letter the protester states: "All VMS, SMDR, and TMS training for the specified employees will begin by April 10, 1995. The referenced training courses are anticipated to be completed three weeks from commencement." Id., Exhibit 53. 27. In further response to the agency's request for assurances concerning the initial BAFO maintenance pricing, by letter dated April 3, 1995, the protester provided to the agency the names of a reference associated with each of three contracts the protester has with the Department of Veterans Affairs. Protest File, Exhibit 55. Each of these contracts permits the use of remote access (something prohibited under this procurement, Finding 6), and is different in other respects; e.g., the response times for maintenance are shorter under the protested procurement. Transcript at 53, 351-52, 395. Second best and final offer 28. The agency requested a second (which turned out to be the final) BAFO to be furnished by April 19, with the offer to be extended to May 5. Protest File, Exhibits 57, 58. 29. In its final BAFO, the protester increased from its initial BAFO the maintenance prices. Protest File, Exhibits 41, 59, 60. Final evaluations and award 30. On May 3, the agency contacted the protester to determine if training had taken place as stated in the protester's letter of March 30, Finding 26. The protester advised that training had begun with an unspecified number of (but fewer than all proposed) individuals for TMS and SMDR systems, but would only be completed "during the month of May"; training had yet to occur for the VMS, but the protester did not provide a schedule. Exhibits 65, 66. Training had not been completed as of the time of the hearing on the merits. Indeed, the protester intends to delay completion of the training until after it receives the award. Transcript at 145. 31. The evaluated total prices under the final BAFOs for the awardee and protester are $2,501,345 and $2,315,370, respectively. Protest File, Exhibit 63. The technical evaluation ratings for the final BAFOs did not change from those done earlier, Finding 19. Transcript at 203. 32. The agency explained the technical evaluation results, Finding 19. Under factor 23.1.1, number of maintenance personnel, the solicitation recommended a minimum of seven. Because both the awardee and the protester exceeded the minimum, each received a score of maximum. Transcript at 311-13, 387-88. 33. Under 23.1.2, qualifications of maintenance personnel, with a reference to C.6.5, Findings 5 and 9, the evaluators noted the difference in training of proposed maintenance personnel; the awardee received a rating of maximum, the protester a rating of acceptable. Finding 19; Transcript at 387-88. In stark contrast to the not-completed factory training identified by the protester, the awardee specifies numerous courses completed by each of its identified individuals (under C.6.1 and C.6.5) and emphasizes the scope and depth of its capabilities. Protest File, Exhibit 17 at 120-31, 141. The evaluators refer to the "superiority" of the awardee's proposal in this area. Protest File, Exhibit 64 at 2. 34. As to 23.1.3, demonstrated capability to install and maintain, with a reference to C.7.5, Findings 7 and 9, the awardee identified ten telephone systems installed and ten voice mail systems installed. Each was over three; the awardee received a rating of maximum. The protester identified five telephone systems installed and zero voice messaging systems installed. Only the former exceeded three; the protester received a rating of acceptable minus. Transcript at 388-89; Protest File, Exhibit 64 at 3. Although the evaluators considered submissions by the protester in response to cost inquiries, Finding 27, which identified three contracts of the protester with the Department of Veterans Affairs, the evaluators noted that those contracts are all performed outside the New York area and permit remote access, and that the protester lacks a presence in the New York area. Protest File, Exhibit 64 at 3. 35. The source selection recommendation (provided to the source selection official along with other evaluation materials) highlights some of the distinctions in the number and training of the proposed maintenance personnel: Installation technicians: 20 (AT&T); 12 (Telcom) Factory trained and certified technicians PBX: 12 (AT&T); 9 (Telcom) TMS: 8 (AT&T); 9 (as yet untrained; Telcom) VMS: 12 (AT&T); 9 (as yet untrained; Telcom). Protest File, Exhibit 67 at 2. Further, it states: "All of the AT&T technicians have been factory trained and certified and have experience on the proposed systems since the 1990 - 1993 time frame." Id. These comments are consistent with the submissions of the protester and awardee and the analysis of the evaluators. 36. The source selection recommendation states: "The price differential between the proposed price of [the awardee] and [the protester] is $194,975.00 or 7.7%, which equates to an additional $19,497.50 per year over the life of the contract. The technical superiority of AT&T's offer well justifies this additional cost[.]" Protest File, Exhibit 67 at 2. As detailed below, the justification focuses, in part, on the number of installation and maintenance technicians identified by the awardee and the protester, and the lack of training in the personnel proposed by the protester. Id. 37. The source selection recommendation notes that the awardee offers eight more installation technicians than does the protester. It states the conclusion: "Having eight (8) more technicians will facilitate a smoother installation of the systems." Protest File, Exhibit 67 at 3. The document also focuses upon the lack of training of the protester's proposed personnel: In addition, as shown above technicians proposed by Telcom to support the Telecommunication Management System (TM) and the Voice Mail System (VMS) have not completed their training or have they been certified for those areas. Telcom's proposal identified 9 technicians [from company X] to support the TMS and VMS systems. It should be noted that [company X] proposed the same systems as Telcom in response to this solicitation with the exception that [company X] proposed Octel technicians to maintain the proposed Octel VMS as their technicians are not trained to support this system. Additionally, [the protester] offered nine (9) technicians to maintain the PBXs as compared to AT&T's 12 technicians. Therefore, the Government benefits with three (3) additional technicians to maintain the systems at a cost of approximately $6,499.00 per year per technician. Protest File, Exhibit 67 at 3. 38. The source selection recommendation also summarizes the discussion process with the protester regarding the factory- training and certification of proposed personnel. It then states: While the solicitation only states the technicians must be trained, AT&T's proposed technicians are not only trained, but are also experienced. Without certified training along with hands on experience, it has been noted that it takes longer to identify and fix a problem and in some instances has required multiple trips to correct the problem. Due to security concerns the FBI does not allow remote access to identify and fix a problem. Therefore, due to the crucial importance of all aspects of the telephone system it is essential that the technician be knowledgeable enough to identify and fix a problem in a minimal amount of time. While it is hard to put a monetary figure on the delays incurred because of the lack of training and experience, conservatively, the Jackson FBI Field Office has documented an estimated loss of facilities totaling eighty hours for a one year period. This office estimates that five percent of the office or, 3.5 employees have been affected by delays attributable to the inexperience of a technician which amounts to a loss of service equal to $5,600.00 per year using an average salary figure of $20.00 per hour. In the case of the New York Office, this would equate to less than optimum performance of 61 employees or a loss of $97,600.00 per year using the same average salary figure. Protest File, Exhibit 67. The record does not demonstrate the comparability of the Jackson system or office with the redundant system to be installed under this procurement at the given offices. 39. The source selection official deemed the awardee's submission to be significantly more advantageous than that of the protester in three primary aspects, and well worth the cost differential over the ten-year potential contract life. His rationale, explained during the hearing on merits in this protest, noted that the awardee "was offering us more people for installation, which would be less disruptive to the office. They were offering us more people available for maintenance, which was extremely important, and they were offering us not only people that were trained on the telephone systems but people that were experienced." Further, he testified that, even apart from past performance, "the number of installation maintenance people that are trained and experienced more than justified making the award to [the awardee] and establishing it was in the best interests of the Government." Transcript at 458-59, 461. 40. The debriefing notes of the agency's contracting officer depict his version of what transpired during the post- award debriefing of the protester regarding past performance and Pittsburgh: Problems concerning a telephone system installed in the Pittsburgh Field Office was noted. Telcom used sub- contractors tha[t] were not identified in their response to the RFP and had only received on-the-job training. A faulty telephone system was initially installed that required the replacement of th[e] entire telephone system. Due to the severity of this problem[] it had to be taken into consideration. The problem has been corrected and Telcom was advised that it[,] this past performance was noted, but had little affect on their technical rating. They were further advised that the FBI didn't count this performance against their score to a great extent and that if we did they would not have been awarded the contract for the Norfolk field office. Protest File, Exhibit 92. 41. In the course of this procurement, the agency did not make a determination regarding the responsibility of the protester; having not selected the protester for the award, the agency did not reach that matter. Transcript at 239-40. 42. On May 12, the protester filed this protest at the Board. On June 12, the protester amended its protest to allege that one of the evaluators was biased in his evaluations and assessments. Discussion The protester faults the evaluations of the agency and the source selection determination, as well as the views of one evaluator regarding the protester's past performance. Factory-certified maintenance technicians The most significant error of the agency occurred with respect to the protester's final BAFO. At the time of award, the protester had failed to identify factory-certified maintenance technicians. Finding 30. In January, the agency had informed the protester: "Your response 'upon award of this contract, the technicians will be factory certified,' is unacceptable." Finding 18. The protester proceeded to propose a training schedule which ensured completion of training prior to the expiration of its proposal. Findings 18, 21, 23, 24, 26, 29. Although not expressed in these submissions, the protester did not intend to complete training until after it received the award. Finding 30. Agency personnel testified during the hearing on the merits that they would permit training to be completed prior to installation--such that an offer of soon-to-be-trained personnel is not per se unacceptable. This interpretation is inconsistent with the requirements of the solicitation, which reference training in the past tense, Finding 5, and is at odds with the interpretation provided to the protester in January 1995. The protester's interpretation contravenes the language of the solicitation and the agency's interpretation it received in January. The protester did not protest or otherwise object to the solicitation requirements or to that interpretation. Not only would it have been impossible for the protester to rely upon an agency interpretation which had not yet been formulated or released, but also an oral interpretation would not take precedence over the written interpretation it had received. Understandably, the protester has not claimed to have relied upon the later-stated, more lenient interpretation. At the time of award, the protester had not identified factory-certified maintenance technicians (to-be-trained technicians are not trained technicians). Accordingly, to be consistent with the language of the solicitation (as well as the explicit interpretation provided in January 1995) the agency should have deemed unacceptable the final BAFO of the protester. Instead, the evaluations are overly generous in rating the protester's final BAFO. Allegedly undisclosed evaluation criteria The protester maintains that, by imposing an "experience" requirement in its evaluation and source selection, the agency violated statute, 41 U.S.C. 253a(b)(1)(a) (1988), and regulation, 48 CFR 15.605(e) (1994), by utilizing undisclosed evaluation factors. The protester's argument relies upon the lack of the word "experience" in section M (and sections B and C) of the solicitation. This basis of protest is premised upon a misreading, and an unreasonable interpretation, of the solicitation. The solicitation explicitly states that the agency is to evaluate the "Qualifications (factory training on system proposed) of maintenance personnel" and the demonstrated/documented "capability to install and reliably maintain the proposed type of network." Finding 9 ( M.23.1.2, M.23.1.3). Further, the solicitation specifies that the agency is to evaluate the offeror's "[c]apability to satisfy technical and operational requirements of specification." Id. ( 23.2.1). Experience--in terms of the number and scope of courses, and actual installations performed--is an element of qualifications and capability, and directly relates to the section C requirements, Findings 4, 5, 7. Additionally, the protester's interpretation fails to give meaning to the past performance provisions, which expressly state that "past performance will be used as one means of evaluating the relative capability of the offeror and the other competitors." Finding 10. It is unreasonable to suggest that past performance does not encompass experience. Consistent with the solicitation requirements, the evaluators could note the distinctions in the training and experience of the proposed technicians and the companies. Under the selection criteria, the source selection official was to compare such attributes and discriminators in making his best value determination. The lack of the word "experience" in the solicitation does not prohibit the agency from considering experience, consistent with the terms of the solicitation. The Board denies this ground of protest. Responsibility determination The protester maintains that the agency failed to refer the issue of responsibility to the Small Business Administration. It contends that the agency has, in effect, made a non- responsibility determination by its assessment of the protester's proposal under section 26, past performance. The protester concludes that the agency has violated regulation, 48 CFR 19.602 (1994). The facts do not support the protester's contentions. Having not selected the protester for award, the agency has not made a responsibility determination (positive or negative) regarding the protester. Finding 41. Hence, the agency has not made the determination which the protester contends should have been referred to the Small Business Administration. Further, the assertion that the agency actions amount to a determination of non-responsibility is also belied by the facts. After receipt of the initial BAFO, the agency observed the price drop from the initial proposal of the protester. As permitted by regulation, 48 CFR 15.608(a)(1), 15.610(b), (c) (1994), the agency sought information to confirm or lend assurance that the protester could reasonably perform the solicitation requirements at the proposed price. Findings 25, 26. By the time of its ultimate BAFO, the protester had referenced three contracts with different terms and conditions at locations outside the New York area and had raised its maintenance prices. Findings 27, 29. Accordingly, the agency made its ultimate price calculations based upon prices in the final BAFO. Neither the technical nor cost evaluations were affected by the protester's pricing of its initial BAFO. Nothing in the record hints of an adverse responsibility determination by the agency regarding the protester. The protester has failed to point to any statute, regulation, or case law which dictates or suggests that an agency must consult or defer to the Small Business Administration whenever an evaluation results in a small business receiving other than the maximum evaluated rating or a best-value analysis fails to deem the small business the awardee. The facts do not demonstrate that the agency made a negative determination of responsibility. Lacking the requisite element of this claim, the protester has not met its burden. Accordingly, the Board denies this basis of protest. Alleged bias The protester maintains that the head of the technical evaluation committee was biased against the protester in his evaluations. The record does not suggest (and neither has the protester) that the awardee's ultimate BAFO does not merit the final ratings it received--which are either acceptable or maximum. Findings 19, 31. The ratings the protester received under section 23 (ranging from maximum to acceptable minus), Findings 19, 31, are either fully supported by the quality of its ultimate BAFO, or are overly generous. Hence, assuming the existence of bias, that bias did not adversely affect such scoring. Past performance is the sole element of the evaluations which exists for the protester's contentions. The individual in question was instrumental in rating the protester's past performance as minimum minus. Finding 20. However, whether or not the individual was motivated by bias, the agency recognized that the minimum minus draft rating was inappropriate before that rating became final. The agency raised the rating to a minimum plus. Finding 20. The alleged bias is irrelevant to the final evaluation and selection determination; what is relevant to this protest is the agency's conclusions regarding protester's past performance and the affect on the selection determination. The Board denies this basis of protest and addresses past performance in the context of the following sections. Past performance The protester maintains that it was inappropriately rated for past performance, and that, given the agency's views on the impact of the Pittsburgh contract, the agency was required to have given the protester the opportunity, under paragraph M.26.5, Finding 10, to address the "especially unfavorable reports." Past performance is to encompass the offeror's record of conforming to specifications and to standards of good workmanship; the offeror's adherence to contract schedules, including the administrative aspects of performance; the offeror's control of costs, including costs incurred for changed work, the offeror's reputation for reasonable and cooperative behavior and commitment to customer satisfaction; and, generally, the offeror's business- like concern for the interests of the customer. Finding 10 ( M.26.7). The Pittsburgh incidents occurred in 1991. They represent but a portion of what is to be factored into the past performance determination. Subsequent performance at Pittsburgh has not revealed problems (according to the record here developed); other more recent performance has been satisfactory. Finding 20. The agency recognized "the severity of the problem" and that it adversely affected, at least to some extent, the actual scoring. Finding 40. The record demonstrates that, in exercising its discretion, the agency was faithful neither to the facts concerning the protester's past performance nor to the past performance clause. However, as discussed below, the protester has failed to demonstrate any violation of statute or regulation in the agency's source selection determination. The source selection determination focused upon technical differences, apart from past performance. Finding 39. The protester has not demonstrated any prejudice which may have derived from the past performance evaluation. In short, the past performance element was not critical to making the source selection determination between the protester and the awardee. The protester has not demonstrated that its past performance reasonably could be deemed equivalent to that of the awardee; during the course of the procurement, the protester did not supplement its initial proposal to provide particular information to be considered in the past performance evaluations. Findings 14, 15. The Board denies this basis of protest. Source selection The protester contends that the source selection determination is unsupported by the record and inconsistent with the terms of the solicitation. This allegation is not borne out by the facts (even ignoring that the protester's ultimate BAFO is unacceptable under the terms of the solicitation). The solicitation does not dictate that award is to go to the lowest cost, technically acceptable offeror. Rather, technical aspects of the proposals are more important than cost. The protester has not suggested a reasonable rationale, consistent with the terms of the solicitation, which would support an award to the protester. The ultimate BAFOs of the awardee and the protester are substantially different. In every element of the contractor maintenance and service support criterion, the awardee is superior to the protester. Under 23.1.1, although the evaluators rated both the awardee and the protester the same, because the awardee identified a greater number of available maintenance technicians than did the protester, the source selection official viewed the awardee's final BAFO as the more advantageous. Findings 35, 39. Such a determination is fully in keeping with the evaluation element which focuses on number; the reference to minimum in this best value procurement indicates that exceeding the minimum would be advantageous to the agency. Under 23.1.2 and 23.1.3, looking to the ultimate BAFOs and the language of the referenced requirements, the conclusion is inescapable that awardee proposed maintenance personnel far better qualified than the protester and that the awardee demonstrates a far superior capability to install and maintain the systems. Findings 33, 34, 35. Assuming equality between the ultimate BAFOs of the protester and awardee in the other, less important criteria (although the protester has not demonstrated that it merits such treatment in any given area) would still leave the protester sufficiently lacking in the technical comparison. The source selection official relied upon the difference in the number of proposed installation technicians as a discriminator influencing his selection determination. Finding 39. The installation technicians, by number or qualifications, are not referenced in paragraphs M.23.1.1 or M.23.1.2 (which reference C.6.5, not C.6.1). However, with its reference to paragraph C.7.5, paragraph M.23.1.3 focuses upon demonstrated and documented capability to install and reliably maintain the proposed network. Although more installers do not necessarily signify greater capabilities, and the solicitation does not suggest that completing installation in fewer than 150 days is advantageous to the agency, Finding 2, in the ultimate BAFOs, the awardee reveals capabilities --as documented in course training and installation experience--which favorably distinguish it from the protester. The record demonstrates that by selecting the awardee, the source selection official violated no statute, regulation, or term of the solicitation. As revealed in the ultimate BAFOs, the awardee's technical superiority in the evaluation areas is unmistakable. The past performance ratings did not play a critical role in the selection determination; correcting upwards the protester's rating would not have altered the selection determination. The agency's quantification of the technical differences, Finding 38, is not supported by the record. This conclusion does not mean that the Government does not derive a benefit from utilizing better trained and more experienced technicians (indeed, such is a premise of the solicitation); rather, the agency's methodology for attributing dollars to the differences appears fanciful. However, the quantification did not play a critical role in the selection determination. The protester has failed to reveal a reasonable rationale, consistent with the terms of the solicitation, which would permit the agency to place the award with the protester. The substantive differences in the primary evaluation criterion, greatly favoring the awardee, and the relatively minor differences in cost over the ten-year contract life, together with cost playing the least important criterion, fully supports the selection determination. The protester has not demonstrated that the determination violates statute, regulation, or any solicitation provision. Each and every error by the source selection official (either directly, or by reliance on errors of evaluators or others) does not demand that the Board grant the protest and return the procurement to the agency to make a selection determination. As in this case, the errors and violations are inconsequential. The record does not support the selection of the protester. The protester has failed to demonstrate that the selection official could exercise his discretion to choose the protester. Without a potential for a change in the awardee, the Board will not require the agency to exercise its discretion unimpeded by violations of statute and regulation. Grumman Data Systems Corp. v. Widnall, 15 F.3d 1044 (Fed. Cir. 1994); Andersen Consulting Co. v. United States, 959 F.2d 929 (Fed. Cir. 1992). Decision The Board DENIES the protest. The order suspending the applicable procurement authority of the agency, including its ability to proceed with the contract, lapses by its terms. 40 U.S.C. 759(f)(3) (West Supp. 1995); Order (May 18, 1995). _____________________________ JOSEPH A. VERGILIO Board Judge We concur: ____________________________ _____________________________ STEPHEN M. DANIELS ANTHONY S. BORWICK Board Judge Board Judge