B-219601.2, JAN 23, 1986, 86-1 CPD 75

B-219601.2: Jan 23, 1986

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

PROTEST ALLEGING AN OFFEROR'S NONCOMPLIANCE WITH MANDATORY TECHNICAL REQUIREMENTS IS WITHOUT MERIT WHERE THE RECORD SHOWS THAT THE SUCCESSFUL TECHNICAL PROPOSAL WAS REASONABLY EVALUATED BY THE AGENCY AS MEETING THE REQUIREMENTS. A PROTEST ALLEGING AN IMPROPRIETY WHICH DID NOT EXIST IN THE INITIAL SOLICITATION BUT WHICH IS SUBSEQUENTLY INCORPORATED THEREIN MUST BE FILED NOT LATER THAN THE NEXT CLOSING DATE FOR RECEIPT OF PROPOSALS OR IT IS UNTIMELY AND WILL NOT BE CONSIDERED. INC.: THIS IS OUR SECOND DECISION CONCERNING THE PROTEST OF MANAGEMENT SYSTEMS DESIGNERS. WE HAVE TREATED THESE ISSUES AS NEWLY FILED PROTESTS AND NOW CONSIDER THEM IN THIS SEPARATE DECISION. THESE CLUSTERS WERE TO BE LINKED TO EACH OTHER AND TO SHARED RESOURCES.

B-219601.2, JAN 23, 1986, 86-1 CPD 75

CONTRACTS - PROTESTS - ALLEGATIONS - UNSUBSTANTIATED DIGEST: 1. PROTEST ALLEGING AN OFFEROR'S NONCOMPLIANCE WITH MANDATORY TECHNICAL REQUIREMENTS IS WITHOUT MERIT WHERE THE RECORD SHOWS THAT THE SUCCESSFUL TECHNICAL PROPOSAL WAS REASONABLY EVALUATED BY THE AGENCY AS MEETING THE REQUIREMENTS. CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - TIMELINESS OF PROTEST - SOLICITATION IMPROPRIETIES - APPARENT PRIOR TO BID OPENING/CLOSING DATE FOR PROPOSALS 2. A PROTEST ALLEGING AN IMPROPRIETY WHICH DID NOT EXIST IN THE INITIAL SOLICITATION BUT WHICH IS SUBSEQUENTLY INCORPORATED THEREIN MUST BE FILED NOT LATER THAN THE NEXT CLOSING DATE FOR RECEIPT OF PROPOSALS OR IT IS UNTIMELY AND WILL NOT BE CONSIDERED.

MANAGEMENT SYSTEMS DESIGNERS, INC.:

THIS IS OUR SECOND DECISION CONCERNING THE PROTEST OF MANAGEMENT SYSTEMS DESIGNERS, INC. (MSD) REGARDING THE AWARD TO TERMINALS UNLIMITED, INC. (TUI) OF A CONTRACT FOR AN INTEGRATED OFFICE AUTOMATION SYSTEM AT SOCIAL SECURITY ADMINISTRATION (SSA) OFFICES IN THE BALTIMORE, MARYLAND AND WASHINGTON, D.C. METROPOLITAN AREAS. IN OUR PRIOR DECISION, MANAGEMENT SYSTEMS DESIGNERS, INC., B-219601, NOV. 13, 1985, 85-2 CPD PARA. 546, WE DENIED MSD'S PROTEST ALLEGING THAT THE TUI PROPOSAL, SUBMITTED IN RESPONSE TO REQUEST FOR PROPOSALS (RFP) NO. SSA RFP-84-002, DID NOT MEET NUMEROUS MANDATORY REQUIREMENTS OF THE SOLICITATION. HOWEVER, IN THAT DECISION, WE ALSO IDENTIFIED THREE NEW OR SUBSTANTIALLY NEW ISSUES CONCERNING ADDITIONAL ALLEGED TECHNICAL DEFICIENCIES IN THE TUI PROPOSAL THAT MSD FIRST RAISED IN ITS CONFERENCE COMMENTS AND THAT STEMMED FROM MATERIAL FIRST REVEALED BY SSA IN ITS REPORT ON THE PRIOR PROTEST TO OUR OFFICE. WE HAVE TREATED THESE ISSUES AS NEWLY FILED PROTESTS AND NOW CONSIDER THEM IN THIS SEPARATE DECISION.

WE DENY THE PROTEST IN PART AND DISMISS IT IN PART.

THE RFP GENERALLY REQUIRED THAT THE INTEGRATED OFFICE AUTOMATION SYSTEM ALLOW EFFICIENT CREATION, MANAGEMENT, AND COMMUNICATION OF DATA AND TEXT. THE SOLICITATION'S PROJECT SYSTEM ARCHITECTURE ENVISIONED A SERIES OF "CLUSTERS," EACH CONSISTING OF FOUR TO EIGHT TERMINALS, WORKSTATION PROCESSORS, AND PERIPHERAL EQUIPMENT. THESE CLUSTERS WERE TO BE LINKED TO EACH OTHER AND TO SHARED RESOURCES, SUCH AS HIGH SPEED PRINTERS, BY MEANS OF LOCAL AREA NETWORKS. THE SOLICITATION PROVIDED THAT AWARD WOULD BE MADE TO THE RESPONSIBLE OFFEROR WHOSE PROPOSAL MET ALL MANDATORY REQUIREMENTS AT THE LOWEST OVERALL COST TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED, FOR THE 60-MONTH SYSTEM LIFE.

SSA RECEIVED FOUR PROPOSALS ON JULY 19, 1984. IT THEN CONDUCTED DISCUSSIONS WITH EACH OFFEROR. TWO OFFERORS WITHDREW FROM THE COMPETITION AND SSA SUBSEQUENTLY DETERMINED THAT THE PROPOSALS OF MSD AND TUI WERE TECHNICALLY ACCEPTABLE. AFTER FURTHER DISCUSSIONS AND TWO ROUNDS OF BEST AND FINAL OFFERS, SSA SELECTED TUI'S PROPOSAL AS OFFERING THE LOWEST EVALUATED COST AND AWARDED THE CONTRACT TO THE FIRM IN THE AMOUNT OF $6,673,926, EXCLUSIVE OF OPTIONS.

MSD CONTINUES TO ALLEGE THAT WHILE ITS SYSTEM FULLY COMPLIED WITH THE SOLICITATION'S MANDATORY REQUIREMENTS, TUI'S SYSTEM DID NOT, AND THAT SSA'S AWARD OF THE CONTRACT TO THE FIRM, THEREFORE, CONSTITUTED A WAIVER OF MANDATORY SPECIFICATIONS WITHOUT A FORMAL SOLICITATION AMENDMENT. MSD STILL HAS NO INFORMATION CONCERNING THE SPECIFIC CONFIGURATION OR OTHER TECHNICAL DETAILS CONTAINED IN TUI'S PROPOSAL, SO THAT THE PROTESTER'S OBJECTIONS ARE PRIMARILY BASED ON ITS ALLEGED KNOWLEDGE OF THE COMMERCIALLY KNOWN INHERENT CAPABILITIES OF THE EQUIPMENT PROPOSED BY TUI. THE PROTESTER ADVANCES THREE REMAINING GROUNDS FOR PROTEST.

GENERALLY, IN CONSIDERING A PROTEST OF THIS NATURE, WE DO NOT REEVALUATE TECHNICAL PROPOSALS OR SUBSTITUTE OUR JUDGMENT FOR THAT OF THE AGENCY, AND WE WILL NOT DISTURB AN AGENCY'S DETERMINATION OF THE TECHNICAL ADEQUACY OF A PROPOSAL ABSENT A CLEAR SHOWING THAT THE DETERMINATION WAS UNREASONABLE OR WAS OTHERWISE IN VIOLATION OF PROCUREMENT STATUTES AND REGULATIONS. FURTHERMORE, THE PROTESTER HAS THE BURDEN OF AFFIRMATIVELY PROVING ITS CASE, AND MERE DISAGREEMENT WITH A TECHNICAL EVALUATION DOES NOT SATISFY THIS REQUIREMENT. A.B. DICK CO., B-211119.3, SEPT. 22, 1983, 83-2 CPD PARA. 360, AFF'D ON RECONSIDERATION, B-211119.5, APR. 17, 1984, 84-1 CPD PARA. 424. AN ITEM-BY-ITEM ANALYSIS OF THOSE ISSUES THAT REMAIN FOLLOWS.

A. EXTERNAL COMMUNICATIONS

MSD QUESTIONS WHETHER THE TUI PROPOSAL MET SEVERAL TECHNICAL REQUIREMENTS FOR THE SYSTEM CONCERNING EXTERNAL COMMUNICATIONS. PARAGRAPH F.3208 OF THE MANDATORY SPECIFICATIONS REQUIRED THAT OFFERORS PROPOSE A SYSTEM WITH A "SUFFICIENT NUMBER OF PORTS AND MODEMS ... TO PROVIDE COMPUTER SYSTEM COMMUNICATIONS." THE SOLICITATION REQUIRED THAT THIS EQUIPMENT SUPPORT A CERTAIN MINIMUM NUMBER OF CONCURRENT COMMUNICATION SESSIONS. MSD INITIALLY ASSERTED THAT THIS SPECIFICATION REQUIRED "UP TO 50% OF THE TERMINALS" TO BE ABLE TO COMMUNICATE SIMULTANEOUSLY WITH CERTAIN EXTERNAL MAINFRAMES.

IN RESPONSE, THE AGENCY STATES THAT THE SPECIFICATION SIMPLY DOES NOT REQUIRE THAT 50 PERCENT OF THE TERMINALS HAVE THE CAPABILITY OF COMMUNICATING WITH OUTSIDE MAINFRAMES. SSA REPORTS THAT TUI PROPOSED A CONFIGURATION WITH 6 HIGH-SPEED "ETHERNET LANS (LOCAL AREA NETWORKS)," AND A "CASE RIXON GATEWAY" AT LOCATIONS IN BALTIMORE AND WASHINGTON, D.C. ACCORDING TO SSA, THIS CAPABILITY WILL SUPPORT GREATER THAN THE MINIMUM REQUIRED NUMBER OF CONCURRENT COMMUNICATION SESSIONS AND IS ALSO EXPANDABLE FOR FUTURE NEEDS.

PARAGRAPHS F.3211 AND F.3212 OF THE MANDATORY SPECIFICATIONS PROVIDED AS FOLLOWS:

"F.3211 INTER-LAN COMMUNICATIONS CAPACITY REQUIREMENTS

AT LEAST 50% ... OF THE DTE'S (TERMINALS) ON EACH LAN MUST BE ABLE TO SIMULTANEOUSLY COMMUNICATE WITH ANOTHER LAN. FOR THESE DTE'S SIMULTANEOUSLY COMMUNICATING, A TRANSMISSION RESPONSE TIME OF NO GREATER THAN 4 SECONDS AND A MINIMUM TRANSMISSION SPEED EFFECTIVE RATE PER DEVICE OF AT LEAST 4800 BPS (BITS PER SECOND) IS REQUIRED.

"F.3212 INTER-LAN COMMUNICATIONS REDUNDANCY

THE CONTRACTOR SHALL PROVIDE INTER-LAN COMMUNICATION REDUNDANCY SO THAT THERE WILL BE NO INTERRUPTION OF COMMUNICATION FROM THE LAN."

SSA DETERMINED THAT THE TUI PROPOSAL MET THESE REQUIREMENTS. SPECIFICALLY, TUI PROPOSED 6 SEPARATE NETWORKS WITH 50 DTE'S ON EACH NETWORK. SINCE ONLY 50 PERCENT OF THE DTE'S PER LAN (25 DTE'S) ARE REQUIRED TO COMMUNICATE SIMULTANEOUSLY AT THE MINIMUM 4800 BPS, SSA STATES THAT EACH OF TUI'S LAN'S HAS THIS CAPABILITY. ADDITIONALLY, SSA REPORTS THAT TUI'S INTER-LAN COMMUNICATIONS ARE CONTROLLED BY FOUR POWERFUL VAX 11 -750 COMPUTERS, EACH WITH 4 MEGABYTES OF RAM (RANDOM ACCESS MEMORY), AND WHICH, IN TURN, ARE DIRECTLY CONNECTED TO EACH OF TUI'S SIX SEPARATE LANS. FURTHER, SSA STATES THAT THE REDUNDANCY REQUIREMENT IS ALSO MET BECAUSE THE VAX 11/750'S ARE CLUSTERED IN PAIRS AND ONE WILL PICK UP THE OTHER'S WORKLOAD IN THE EVENT OF FAILURE.

MSD ATTEMPTS TO REBUT THE AGENCY'S TECHNICAL CONCLUSIONS BY ASSERTING THAT TUI'S CONFIGURATION IS TOO HEAVILY DEPENDENT ON THE VAX 11/750 AS ITS SHARED OFFICE AUTOMATION FACILITY (SOAF) TO DISCHARGE ALL REQUIRED FUNCTIONS. IN SUPPORT OF ITS POSITION, MSD HAS SUBMITTED A DETAILED TECHNICAL ANALYSIS, BASED ON ITS OWN ASSUMPTIONS OF TUI'S CONFIGURATION AND ON AVAILABLE COMMERCIAL LITERATURE. MSD ALSO QUESTIONS THE "OFF-THE- SHELF" AVAILABILITY OF THE CASE RIXON GATEWAY, AS REQUIRED BY THE SOLICITATION.

IN RESPONSE, THE AGENCY STATES THAT MSD'S ANALYSIS IS FLAWED BECAUSE IT IS BASED ON MSD'S LACK OF UNDERSTANDING OF THE PROPRIETARY CONFIGURATION PROPOSED BY TUI. REGARDING THE CASE RIXON GATEWAY, SSA HAS SUBMITTED TWO LETTERS FROM TUI SUBCONTRACTORS INDICATING THAT THE CASE RIXON GATEWAY, ALSO KNOWN AS "BLUEGATE," HAS BEEN SOLD TO MANY CUSTOMERS WORLDWIDE SINCE 1984. THUS, IT APPEARS FROM THE RECORD THAT THE CASE RIXON GATEWAY MEETS THE OFF-THE-SHELF REQUIREMENT.

WITH RESPECT TO THE COMMUNICATIONS CAPABILITY OF THE TERMINALS, WE AGREE WITH SSA THAT THE SPECIFICATIONS DID NOT REQUIRE THAT 50 PERCENT OF TERMINALS HAVE THE CAPABILITY OF COMMUNICATING WITH OUTSIDE MAINFRAMES. INDEED, MSD APPEARS NOT TO HAVE PURSUED THIS ISSUE IN ITS COMMENTS FILED ON THE PROTEST. CONCERNING THE OTHER TECHNICAL MATTERS, THE PROTEST GROUNDS ARE SIMPLY BASED ON A MYRIAD OF TECHNICAL ASSUMPTIONS WHICH HAVE NOT BEEN SHOWN TO BE APPLICABLE TO TUI'S ACTUAL CONFIGURATION. WE HAVE REVIEWED TUI'S PROPOSAL AND FIND THAT SSA'S EVALUATION OF TUI'S PROPOSAL IS REASONABLE. TUI SUBMITTED CERTIFICATIONS TO SSA FROM SUBCONTRACTORS THAT THE OFFERED EQUIPMENT DOES MEET SPECIFICATIONS. THE AGENCY ACCEPTED THESE CERTIFICATIONS FOR THESE FEATURES. MOREOVER, TUI'S EQUIPMENT MUST UNDERGO EXTENSIVE ACCEPTANCE TESTING TO DETERMINE ACTUAL SPECIFICATION COMPLIANCE, THAT IS, TO ASSURE THE ACCURACY OF THE PROPOSAL AND THE CERTIFICATIONS. WE THEREFORE FIND NO BASIS TO QUESTION THE AWARD TO MSD.

B. DATA BASE MANAGEMENT SYSTEM

MSD ASSERTS THAT TUI'S PROPOSAL FAILED TO MEET THE SOLICITATION'S MANDATORY SPECIFICATIONS CONCERNING THE DATA BASE MANAGEMENT SYSTEM. TUI PROPOSED TO USE "UNIFY DBMS" TO EXECUTE OPERATIONS BOTH ON THE WORKSTATION PROCESSORS AND THE SOAF. MSD HAS SUBMITTED A DETAILED TECHNICAL ANALYSIS IN SUPPORT OF ITS POSITION THAT THE TUI UNIFY SOFTWARE FAILS TO MEET THE FOLLOWING SPECIFICATIONS: 1) DETECTION OF DATA ENTRY ERROR; 2) DATA BASE RECOVERY CAPABILITY FROM NONCATASTROPHIC SOFTWARES AND HARDWARE FAILURES; 3) "BACK OUT" CAPABILITY FOR TRANSACTIONS THAT WERE INCOMPLETE WHEN A FAILURE OCCURS; AND 4) AUTOMATIC RECOVERY FROM AN ABNORMAL DISCONNECT OF THE USER'S LINE.

THE RECORD DOES NOT CONTAIN SUFFICIENT TECHNICAL INFORMATION TO CONCLUSIVELY DETERMINE WHETHER THESE FOUR FEATURES ARE PROVIDED BY TUI'S UNIFY SOFTWARE. HOWEVER, TUI'S PROPOSAL, REFERENCING SPECIFIC TECHNICAL MANUALS, DOES SPECIFICALLY PROMISE THESE FEATURES. FURTHER, TUI HAS CERTIFIED THAT THESE FEATURES ARE AVAILABLE. ACCORDING TO SSA, TUI'S PROPOSAL MEETS THESE REQUIREMENTS AND SSA HAS EXPLICITLY REPRESENTED TO OUR OFFICE THAT TUI'S EQUIPMENT WILL UNDERGO DETAILED AND EXTENSIVE ACCEPTANCE TESTING TO VERIFY TECHNICAL CONFORMANCE. ACCORDINGLY, BASED ON THIS RECORD, WE AGAIN CANNOT SAY THAT MSD HAS CARRIED ITS BURDEN OF PROOF THAT TUI'S PROPOSAL WAS NONCONFORMING.

C. OPTICAL CHARACTER READER

THE SOLICITATION REQUIRED THAT THE OPTICAL CHARACTER READER (OCR) READ AT A RATE OF AT LEAST 2 PAGES PER MINUTE. MSD ASSERTS THAT AS A RESULT OF UNSPECIFIED MEETINGS AND A JULY 1, 1985 LETTER FROM SSA TO TUI DURING DISCUSSIONS, TUI SUBMITTED THE FOLLOWING PROPOSAL WITH RESPECT TO THE OCR:

"PURSUANT TO PARAGRAPH 3 OF YOUR JULY 1, 1985, LETTER, TUI CERTIFIES THAT IF A SECOND OCR IS REQUIRED PER OCR SITE TO MEET THE PERFORMANCE REQUIREMENT DURING ACCEPTANCE TESTING, IT SHALL BE SUPPLIED AT NO ADDITIONAL COST TO THE GOVERNMENT AND SHALL REMAIN ON SITE FOR THE LIFE OF THE CONTRACT."

THE AGENCY ACCEPTED THIS CERTIFICATION.

MSD ASSERTS THAT SSA IMPROPERLY PERMITTED TUI TO GIVE A "NO-COST LEASE" OF A SECOND OCR WITHOUT PASSAGE OF TITLE TO THE GOVERNMENT FOR THE LIFE OF THE CONTRACT. MSD CONTENDS THAT IT IS LESS COSTLY TO PROVIDE (THROUGH LEASE OR OTHERWISE) FOR THE USE OF EQUIPMENT TO THE GOVERNMENT THAN TO SUPPLY THE GOVERNMENT'S NEEDS BY OUTRIGHT SALE.

WE THINK THIS BASIS FOR PROTEST IS UNTIMELY. THE JULY 1, 1985 LETTER WAS IN FACT A REQUEST FOR BEST AND FINAL OFFERS IN WHICH SSA ADVISED BOTH OFFERORS AS FOLLOWS:

"AMENDMENT NO. 7 STILL LEAVES IT TO THE OFFEROR'S DISCRETION WHETHER TO PROPOSE ONE (1) OR MORE OCR'S FOR EACH OF TWO REQUIRED LOCATIONS. ... IT MAY BE NECESSARY TO PROVIDE A SECOND OCR AT EACH SITE IN ORDER TO MEET THE SPECIFIED READ RATE. ... AS WE DISCUSSED ON JUNE 28, 1985, IF YOU SHOULD CHOOSE TO PROPOSE ONLY ... ONE FOR EACH SITE, YOUR OFFER MUST INCLUDE AN EXPLICIT COMMITMENT THAT IF A SECOND OCR IS REQUIRED IN ORDER TO MEET ANY PERFORMANCE REQUIREMENT DURING ACCEPTANCE TESTING, THE OFFEROR WILL FURNISH IT AT NO COST (PURCHASE, INSTALLATION, OR MAINTENANCE) TO THE GOVERNMENT."

THUS, WHILE THESE TERMS WERE NOT IN THE INITIAL SOLICITATION, MSD KNEW PRIOR TO SUBMITTING ITS BEST AND FINAL OFFER THAT SSA WAS SOLICITING A SECOND "NO-COST" OCR IF ONE PROVED INSUFFICIENT. YET, MSD DID NOT PROTEST WHAT IT PERCEIVED TO BE AN IMPROPRIETY UNTIL AFTER THE AWARD OF THE CONTRACT TO ITS COMPETITOR. SINCE SSA'S LETTER WAS A SOLICITATION FOR BEST AND FINAL OFFERS, ITS TERMS WERE INCORPORATED INTO THE SOLICITATION AND SHOULD HAVE BEEN PROTESTED PRIOR TO THE CLOSING DATE. SEE 4 C.F.R. SEC. 21.2(A)(1) (1985).

IN ANY EVENT, IT SEEMS CLEAR THAT BOTH OFFERORS HAD AN EQUAL OPPORTUNITY TO PROPOSE A "NO-COST" SECOND OCR SO THAT WE FAIL TO FIND ANY COMPETITIVE HARM TO MSD EVEN IF SSA'S REQUEST WAS SOMEHOW IMPROPER. ACCORDINGLY, THIS BASIS FOR PROTEST IS DISMISSED.

THE PROTEST IS DENIED IN PART AND DISMISSED IN PART.