B-219400, SEP 30, 1985, 85-2 CPD 356

B-219400, SEP 30, 1985, 85-2 CPD 356

CONTRACTS - NEGOTIATION - OFFERS OR PROPOSALS - EVALUATION - ADMINISTRATIVE DISCRETION DIGEST: 1. ALTHOUGH PROCURING AGENCIES ARE RELATIVELY FREE TO DETERMINE THE MANNER IN WHICH PROPOSALS ARE EVALUATED, GAO WILL REVIEW THE RECORD TO DETERMINE WHETHER THE CHOSEN METHOD FOR EVALUATING PROPOSALS PROVIDES A RATIONAL BASIS FOR SOURCE SELECTION AND WHETHER THE ACTUAL EVALUATION HAS BEEN CONDUCTED IN ACCORDANCE WITH ESTABLISHED CRITERIA. CONTRACTS - NEGOTIATION - OFFERS OR PROPOSALS - EVALUATION - POINT RATING - PROPRIETY OF EVALUATION 2. PROTEST IS SUSTAINED WHERE THE AWARDEE'S PROPOSAL IMPROPERLY RECEIVED CERTAIN TECHNICAL EVALUATION POINTS MATERIAL TO THE AGENCY'S SOURCE SELECTION FOR OFFERING TO FURNISH TEMPEST-CERTIFIED EQUIPMENT WHICH IN FACT WAS NOT CERTIFIED AT THE TIME OF PROPOSAL SUBMISSION. CONTRACTS - NEGOTIATION - REQUEST FOR PROPOSALS - CONSTRUCTION - READING ALL PROVISIONS TOGETHER RULE - PRESUMPTION AGAINST CONFLICT 3. WHEN THERE IS A DISPUTE BETWEEN THE PROTESTER AND THE AGENCY AS TO THE ACTUAL MEANING OF A PARTICULAR SOLICITATION REQUIREMENT, GAO WILL RESOLVE THE MATTER BY READING THE SOLICITATION AS A WHOLE AND IN A MANNER THAT GIVES EFFECT TO ALL PROVISIONS OF THE SOLICITATION.

SYSTEM DEVELOPMENT CORPORATION:

SYSTEM DEVELOPMENT CORPORATION (SDC) PROTESTS THE AWARD OF A CONTRACT TO SPERRY CORPORATION UNDER REQUEST FOR PROPOSALS (RFP) NO. MDA903-84-R-0173, ISSUED BY THE DEPARTMENT OF THE ARMY, DEFENSE SUPPLY SERVICE-- WASHINGTON (DSS-W). SDC COMPLAINS THAT THE AGENCY IMPROPERLY EVALUATED TECHNICAL PROPOSALS DURING THE SOURCE SELECTION PROCESS. WE SUSTAIN THE PROTEST.

BACKGROUND

THE PROCUREMENT CONTEMPLATED THE AWARD OF A FIRM-FIXED-PRICE, INDEFINITE QUANTITY CONTRACT FOR THE PURCHASE AND MAINTENANCE OF WORD PROCESSING SYSTEMS FOR DESIGNATED CIVILIAN PERSONNEL OFFICES. OFFERORS WERE ADVISED THAT PROPOSALS WOULD BE REJECTED AS TECHNICALLY UNACCEPTABLE IF THE EQUIPMENT DID NOT MEET CERTAIN MANDATORY REQUIREMENTS. AS PROVIDED AT SECTION 2.1 OF THE RFP, ONE OF THESE REQUIREMENTS WAS THAT ALL SYSTEMS OFFERED HAD TO BE:

"COMMERCIALLY AVAILABLE, PUBLICLY ANNOUNCED, OFF-THE-SHELF EQUIPMENT. ALL PROPOSED EQUIPMENT MUST BE IN CURRENT PRODUCTION AT THE TIME PROPOSALS ARE SUBMITTED. PROTOTYPE OR DEVELOPMENTAL EQUIPMENT IS NOT ACCEPTABLE."

THE RFP PROVIDED THAT CONFORMING PROPOSALS WOULD BE EVALUATED ON THE BASIS OF THE NUMBER OF SPECIFIED "DESIRED OPTIONALS" THE EQUIPMENT POSSESSED, RECEIVING TECHNICAL EVALUATION POINTS FOR EACH DESIRED OPTIONAL FEATURE UP TO A MAXIMUM OF 40,105 TOTAL POSSIBLE POINTS. (THERE WERE NO POINTS AVAILABLE FOR MEETING MANDATORY REQUIREMENTS.) THE RFP STATED THAT THIS EVALUATION FACTOR WAS OF GREATER RELATIVE IMPORTANCE THAN COST IN DETERMINING THE SUCCESSFUL OFFEROR. THE RFP DID NOT INDICATE THE ACTUAL NUMBER OF POINTS AVAILABLE FOR COST; HOWEVER, FOR EVALUATION PURPOSES, COST ACTUALLY WAS WORTH A MAXIMUM OF 10,000 POSSIBLE POINTS.

CENTRAL TO THIS PROTEST IS DSS-W'S NEED FOR CERTAIN ITEMS OF EQUIPMENT TO BE "TEMPEST-CERTIFIED." SUCH EQUIPMENT HAS BEEN CERTIFIED BY THE NATIONAL COMMUNICATIONS SECURITY SUBCOMMITTEE ON COMPROMISING EMANATIONS AS FULLY MEETING SPECIFIED STANDARDS FOR THE SUPPRESSION OF ELECTROMAGNETIC EMANATIONS WHICH COULD COMPROMISE NATIONAL SECURITY. ALTHOUGH THE RFP HAD ORIGINALLY PROVIDED AT SECTION 2.8 THAT TEMPEST CERTIFICATION OF THESE ITEMS WAS A MANDATORY REQUIREMENT, SECTION 2.8 WAS LATER AMENDED TO MAKE TEMPEST CERTIFICATION A "DESIRED OPTIONAL" WORTH 20,000 TECHNICAL EVALUATION POINTS, ALTHOUGH THE LANGUAGE OF THE REQUIREMENT IN FACT REMAINED THE SAME:

"EQUIPMENT FOR SYSTEM MUST BE 'TEMPEST' CERTIFIED FOR DESIGNATED LOCATIONS LISTED IN ATTACHMENT 1."

SDC'S BEST AND FINAL ALTERNATIVE PROPOSAL (AS ALLOWED BY THE RFP) RECEIVED 34,150 TECHNICAL EVALUATION POINTS FOR "DESIRED OPTIONALS," AND, SINCE SDC'S EVALUATED COST WAS LOW, THE PROPOSAL RECEIVED THE MAXIMUM 10,000 COST POINTS, FOR A TOTAL COMBINED SCORE OF 44,150, WHICH WAS THE SECOND HIGHEST SCORE. (SDC'S BASIC PROPOSAL DID NOT SCORE AS WELL AS ITS ALTERNATIVE PROPOSAL AND WAS RANKED FOURTH OVERALL.) SPERRY'S BEST AND FINAL OFFER RECEIVED 37,000 TECHNICAL EVALUATION POINTS INCLUDING THE 20,000 FOR TEMPEST CERTIFICATION AND 8,400 POINTS FOR COST /1/, FOR A TOTAL COMBINED SCORE OF 46,100, THE HIGHEST SCORE. ON THE BASIS OF THE SCORING, DSS-W AWARDED THE CONTRACT TO SPERRY.

SDC PRINCIPALLY CONTENDS THAT SPERRY'S PROPOSAL SHOULD NOT HAVE RECEIVED THE 20,000 TEMPEST TECHNICAL EVALUATION POINTS DUE TO THE FACT THAT SPERRY'S OFFERED ITEMS OF EQUIPMENT WERE NOT TEMPEST-CERTIFIED WHEN THE PROPOSALS WERE EVALUATED. IN THIS REGARD, SDC BELIEVES THAT ANY ITEMS OF EQUIPMENT TO BE FURNISHED AS TEMPEST-CERTIFIED HAD TO BE CERTIFIED AS MEETING THE NATIONAL TEMPEST STANDARDS UPON THE SUBMISSION OF PROPOSALS AND NOT, AS DSS-W ASSERTS, BY THE TIME THAT THE ITEMS ARE DELIVERED TO THE GOVERNMENT. SDC ALSO ALLEGES THAT DSS-W FAILED TO GIVE ITS PROPOSAL CERTAIN TECHNICAL EVALUATION POINTS FOR "DESIRED OPTIONALS" TO WHICH THE FIRM WAS ENTITLED.

TIMELINESS

WE FIND NO MERIT IN DSS-W'S ARGUMENT THAT SDC'S PROTEST IS UNTIMELY BECAUSE THE FIRM SHOULD HAVE PERCEIVED ANY AMBIGUITY WITH RESPECT TO TEMPEST CERTIFICATION FROM THE FACE OF THE SOLICITATION AND PROTESTED THE MATTER PRIOR TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS. IN OUR VIEW, THE BASIS FOR SDC'S PROTEST DID NOT ARISE UNTIL SDC LEARNED FROM THE AWARD TO SPERRY THAT DSS-W WAS APPARENTLY GIVING THE TEMPEST CERTIFICATION REQUIREMENT A DIFFERENT INTERPRETATION THAN SDC. SEE CONRAC CORP., B-205562, APR. 5, 1982, 82-1 CPD PARA. 309. THUS, SDC'S PROTEST, FILED WITHIN 10 WORKING DAYS OF THAT KNOWLEDGE, IS TIMELY. SEE GAO BID PROTEST REGULATIONS, 4 C.F.R. SEC. 21.2(A)(2) (1985).

ANALYSIS

INITIALLY, WE POINT OUT THAT IT IS NOT THE PRACTICE OF THIS OFFICE TO CONDUCT INDEPENDENT TECHNICAL EVALUATIONS OF SUBMITTED PROPOSALS AND, THEREFORE, WE WILL NOT MAKE OUR OWN JUDGMENTS AS TO THE NUMERICAL SCORES THAT SHOULD HAVE BEEN ASSIGNED TO VARIOUS PROPOSALS DURING THE EVALUATION PROCESS. BLURTON, BANKS & ASSOCIATES, INC., B-206429, SEPT. 20, 1982, 82-2 CPD PARA. 238. RATHER, BECAUSE PROCURING AGENCIES ARE RELATIVELY FREE TO DETERMINE THE MANNER IN WHICH PROPOSALS WILL BE EVALUATED, OUR REVIEW IS NECESSARILY LIMITED TO DETERMINING WHETHER THE CHOSEN METHOD FOR EVALUATING PROPOSALS PROVIDES A RATIONAL BASIS FOR SOURCE SELECTION AND WHETHER THE ACTUAL EVALUATION HAS BEEN CONDUCTED IN ACCORDANCE WITH ESTABLISHED CRITERIA. JOINT ACTION IN COMMUNITY SERVICE, INC., B-214564, AUG. 27, 1984, 84-2 CPD PARA. 228.

THE FUNDAMENTAL ISSUE TO BE RESOLVED HERE IS WHETHER SPERRY PROPERLY RECEIVED 20,000 TECHNICAL EVALUATION POINTS, HALF THE NUMBER OF TOTAL POINTS AVAILABLE, FOR PROPOSING TO FURNISH EQUIPMENT WHICH WAS NOT YET TEMPEST CERTIFIED. OTHERWISE, THE FIRM'S TOTAL COMBINED SCORE FOR SOURCE SELECTION PURPOSES WOULD HAVE BEEN SIGNIFICANTLY LOWER, AND SPERRY WOULD NOT HAVE BEEN ENTITLED TO THE CONTRACT AWARD.

ALTHOUGH DSS-W ADMITS THAT SPERRY'S EQUIPMENT WAS NOT CERTIFIED AT THE TIME OF PROPOSAL SUBMISSION, THE AGENCY ASSERTS THAT NOTHING IN THE RFP MANDATED THAT TEMPEST CERTIFICATION OF OFFERED ITEMS OF EQUIPMENT BE MET AT ANY TIME PRIOR TO THE DELIVERY OF THE ITEMS TO THE GOVERNMENT. RATHER, DSS-W'S VIEW IS THAT THE 20,000 TEMPEST POINTS PROPERLY COULD HAVE GIVEN TO ANY OFFEROR WHICH WARRANTED IN ITS PROPOSAL THAT IT WOULD FURNISH TEMPEST-CERTIFIED ITEMS. DSS-W STATES THAT IT WAS SUFFICIENT THAT SPERRY HAD VERIFIED THAT IT WAS INITIATING TEMPEST CERTIFICATION PROCEDURES AND, ACCORDINGLY, THAT IT WOULD DELIVER TEMPEST-CERTIFIED ITEMS TO THE GOVERNMENT. THEREFORE, DSS-W CONTENDS THAT SPERRY WAS PROPERLY GIVEN THE 20,000 POINTS FOR TEMPEST CERTIFICATION DURING THE EVALUATION PROCESS.

DSS-W ALSO ASSERTS THAT, HAD IT INTENDED TO REQUIRE TEMPEST CERTIFICATION UPON THE SUBMISSION OF PROPOSALS, IT WOULD HAVE INCLUDED A SPECIFIC CLAUSE TO THAT EFFECT IN THE RFP, AS PRESCRIBED BY SECTION 70.1003(C) OF THE DEPARTMENT OF DEFENSE SUPPLEMENT TO THE FEDERAL ACQUISITION REGULATION (DFARS) (1984). SECTION 70.1003(C) STATES THAT WHEN THE AGENCY IS ACQUIRING EQUIPMENT WHICH MUST BE PROTECTED AGAINST COMPROMISING EMANATIONS, THE CONTRACTING OFFICER SHALL INSERT A CLAUSE "SIMILAR" TO THE CLAUSE SET FORTH AT DFARS SEC. 52.270-7060. THAT CLAUSE GENERALLY PROVIDES THAT THE CONTRACTOR MUST CERTIFY IN ITS BID OR PROPOSAL THAT ITS EQUIPMENT HAS BEEN CERTIFIED AS MEETING THE NATIONAL TEMPEST STANDARDS, AND THAT, PRIOR TO AWARD, THE CONTRACTING OFFICER MAY CONDUCT SUCH ADDITIONAL TESTS AS ARE NECESSARY TO ENSURE THAT THE EQUIPMENT IN FACT MEETS THOSE STANDARDS.

DSS-W NOTES THAT THE RFP DID NOT CONTAIN THE DFARS SEC. 52.270-7060 CLAUSE, BUT INSTEAD PROVIDED AT SECTION H-15 THAT OFFERORS WERE TO WARRANT THAT THEIR PROPOSED EQUIPMENT MET THE TEMPEST STANDARDS, AND THAT THE GOVERNMENT RESERVED THE RIGHT TO TEST ANY EQUIPMENT UP TO 1 YEAR AFTER INSTALLATION TO INSURE THAT IT CONFORMED TO THE TEMPEST STANDARDS, WITH THE CONTRACTOR BEARING ALL COSTS FOR THE REPLACEMENT OR REPAIR OF DEFECTIVE EQUIPMENT. ACCORDINGLY, DSS-W ASSERTS THAT NOTHING IN THE RFP CAN BE CONSTRUED AS MANDATING TEMPEST CERTIFICATION UPON PROPOSAL SUBMISSION, BUT ONLY THAT OFFERORS WERE REQUIRED TO FURNISH TEMPEST- CERTIFIED EQUIPMENT UPON DELIVERY, SUBJECT TO FURTHER TESTING BY THE GOVERNMENT. DSS-W THUS CONTENDS THAT SDC'S INTERPRETATION OF THE RFP'S REQUIREMENTS AS TO TEMPEST CERTIFICATION IS UNREASONABLY NARROW. WE DO NOT AGREE.

A SOLICITATION MUST BE READ AS A WHOLE AND IN A MANNER THAT GIVES EFFECT TO ALL PROVISIONS OF THE SOLICITATION. ROACH MANUFACTURING CORP., B-208574, MAY 23, 1983, 83-1 CPD PARA. 547. AS WE HAVE ALREADY INDICATED, SECTION 2.1 OF THE RFP IMPOSED A MANDATORY REQUIREMENT THAT ALL OFFERED EQUIPMENT BE "COMMERCIALLY AVAILABLE, PUBLICLY ANNOUNCED, OFF-THE-SHELF EQUIPMENT ... IN CURRENT PRODUCTION AT THE TIME PROPOSALS ARE SUBMITTED." IN ADDITION, SECTION M-5 PROVIDED THAT THE GOVERNMENT COULD CONDUCT A PREAWARD OPERATIONAL DEMONSTRATION TEST TO "DEMONSTRATE ALL REQUIRED AND CONTRACTOR PROPOSED DESIRED SYSTEM CAPABILITIES." THESE TWO PROVISIONS, WHEN READ IN CONTEXT WITH SECTION 2.8'S REQUIREMENT THAT OFFERED EQUIPMENT "MUST" BE TEMPEST-CERTIFIED, CLEARLY SUPPORT SDC'S CONTENTION THAT THE TEMPEST CERTIFICATION REQUIREMENT HAD TO BE MET AT THE TIME PROPOSALS WERE SUBMITTED.

WE NOTE THAT THERE IS NO PROVISION IN SECTION 2.1 OR ELSEWHERE IN THE RFP THAT OFFERORS WERE PERMITTED TO PROPOSE OTHER THAN OFF-THE SHELF EQUIPMENT IN ORDER TO SATISFY ANY OF THE AGENCY'S REQUIREMENTS. SEE COMPUSCAN, INC., 58 COMP.GEN. 440 (1979), 79-1 CPD PARA. 288. ACCORDINGLY, WE FAIL TO SEE HOW SPERRY CAN PROPERLY BE VIEWED AS HAVING SATISFIED THE GENERAL REQUIREMENT TO FURNISH COMMERCIALLY AVAILABLE, OFF-THE-SHELF EQUIPMENT IN CURRENT PRODUCTION AS TO THE TEMPEST ITEMS. IN THIS CONNECTION, THE RECORD STRONGLY SUGGESTS THAT THE TEMPEST CERTIFICATION PROCESS INVOLVES MORE THAN THE SIMPLE MODIFICATION OF RECONFIGURATION OF EXISTING EQUIPMENT, SINCE SDC ASSERTS, AND DSS-W DOES NOT DISPUTE, THAT THE TEMPEST VERSION OF A PARTICULAR PIECE OF EQUIPMENT NORMALLY IS COMPOSED OF A LARGE NUMBER OF PARTS DIFFERENT FROM THOSE FOUND IN THE NON-TEMPEST VERSION, WITH SIGNIFICANTLY DIFFERENT CHARACTERISTICS NECESSARY TO MEET STRINGENT ELECTROMAGNETIC SUPPRESSION REQUIREMENTS, THUS REQUIRING AN INVOLVED ENGINEERING AND MANUFACTURING EFFORT. CONSEQUENTLY, ITEMS THAT HAVE YET TO BE CERTIFIED AS MEETING THE NATIONAL TEMPEST STANDARDS CANNOT REASONABLY BE SAID TO BE OFF-THE-SHELF ITEMS, SINCE THERE CAN BE NO HISTORY OF PRIOR SALES OF THE ITEMS AS TEMPEST-CERTIFIED. SEE BASIX CONTROLS SYSTEMS CORP., B-212668, JULY 2, 1984, 84-2 CPD PARA. 2.

MOREOVER, SINCE SECTION M-5 OF THE RFP CLEARLY INDICATED THAT THE PREAWARD OPERATIONAL DEMONSTRATION TEST, IF CONDUCTED, WOULD ENCOMPASS ALL REQUIRED SYSTEM CAPABILITIES AND CONTRACTOR PROPOSED "DESIRED OPTIONALS" (THE LATTER NECESSARILY INCLUDING TEMPEST ITEMS), IT IS OBVIOUS FROM THIS PROVISION THAT OFFERORS WERE EXPECTED TO BE ABLE TO DEMONSTRATE ALL SYSTEM CAPABILITIES PRIOR TO AWARD. THUS, WE BELIEVE THAT DSS-W'S BASIC VIEW THAT OFFERORS PROPOSING TO FURNISH TEMPEST ITEMS NEED ONLY SHOW COMPLIANCE WITH THE NATIONAL TEMPEST STANDARDS AT THE TIME OF DELIVERY IS INDEED QUESTIONABLE.

TO THE EXTENT DSS-W RELIES UPON SECTION H-15 OF THE RFP AS SUPPORT FOR ITS POSITION THAT THE SOLICITATION DID NOT REQUIRE TEMPEST CERTIFICATION UPON PROPOSAL SUBMISSION, WE BELIEVE THAT RELIANCE IS MISPLACED. AS SDC NOTES, SECTION H-15 EXPRESSLY STATES THAT THE CONTRACTOR IS TO WARRANT THAT ITS PROPOSED EQUIPMENT "MEETS" THE NATION TEMPEST STANDARDS. AGREE WITH SDC THAT, FROM THE USE OF THE PRESENT TENSE OF THE WORD, IT FOLLOWS THAT DSS-W INTENDED THAT OFFERORS PROPOSE EQUIPMENT THAT HAD ALREADY BEEN CERTIFIED. AS FOR THE GOVERNMENT'S RIGHT UNDER SECTION H-15 TO TEST THE EQUIPMENT AFTER INSTALLATION TO INSURE CONFORMANCE WITH THE TEMPEST STANDARDS, THE EXISTENCE OF THIS RIGHT DOES NOT INDICATE THAT TEMPEST CERTIFICATION WAS NECESSARY ONLY AT THE TIME OF DELIVERY. RATHER, WE BELIEVE THAT SECTION H-15 MERELY PRESERVES TO THE GOVERNMENT AN EFFECTIVE CONTRACTURAL REMEDY IN THE EVENT THAT TEMPEST-CERTIFIED EQUIPMENT CAN LATER BE SHOWN AS NOT CONFORMING TO THE TEMPEST STANDARDS.

FURTHERMORE, SECTION H-15, WHICH INCLUDES WARRANTY AND TESTING PROVISIONS, IS A CLAUSE "SIMILAR" TO THAT AT DFARS SEC. 52.270-7060, AS PRESCRIBED BY DFARS SEC. 70.1003(C) FOR INSERTION IN ALL SOLICITATIONS CONTEMPLATING THE ACQUISITION OF EQUIPMENT THAT MUST BE PROTECTED AGAINST COMPROMISING EMANATIONS. THEREFORE, SINCE SECTION H-15 SERVES THE IDENTICAL FUNCTION AS THE SPECIFIC CLAUSE PROVIDED AT DFARS SEC. 52.270- 7060, THERE IS LITTLE MERIT TO DSS-W'S ARGUMENT THAT THE ABSENCE OF THE PRECISE LANGUAGE OF THAT CLAUSE FROM THE RFP INDICATES THAT TEMPEST CERTIFICATION WAS NOT REQUIRED PRIOR TO THE TIME OF DELIVERY.

WE ALSO NOTE THAT THE RFP PROVIDES THAT ALL ITEMS MUST BE DELIVERED NO LATER THAN 60 DAYS AFTER THE CONTRACT IS AWARDED. (IN FACT, THE RFP STATES THAT 30 DAYS WAS THE GOVERNMENT'S DESIRED DELIVERY SCHEDULE.) THIS REGARD, SDC HAS INTRODUCED EVIDENCE, UNCHALLENGED BY DSS-W, THAT THE TEMPEST CERTIFICATION PROCESS WILL TAKE FROM 17 TO 32 WEEKS AT A MINIMUM. THEREFORE, EVEN IF SPERRY HAS INITIATED THE TEMPEST CERTIFICATION PROCESS, IT IS QUITE POSSIBLE THAT SPERRY WILL NOT BE ABLE TO DELIVER TEMPEST CERTIFIED ITEMS NO LATER THAN 60 DAYS AFTER AWARD AS THE FIRM WARRANTED. FROM OUR READING OF THE SOLICITATION AS A WHOLE, EVEN THOUGH NO PROVISION OF THE RFP EXPRESSLY STATED THAT TEMPEST CERTIFICATION WAS NECESSARY UPON PROPOSAL SUBMISSION, CF. COMPUSCAN INC., 58 COMP.GEN. 440, SUPRA (EXPLICIT PROVISION THAT TEMPEST CERTIFICATION BE MET PRIOR TO AWARD), IT IS OUR VIEW THAT SDC'S INTERPRETATION OF THE TEMPEST REQUIREMENT IS THE ONLY REASONABLE ONE. SEE WHEELER BROTHERS, INC., ET AL.-- REQUEST FOR RECONSIDERATION, B-214081.3, APR. 4, 1985, 85-1 CPD PARA. 388. SINCE WE BELIEVE THAT THE RFP REQUIRED THAT THE TEMPEST CERTIFICATION BE MET AT THE TIME OF PROPOSAL SUBMISSION, SPERRY'S PROPOSAL CLEARLY SHOULD NOT HAVE BEEN GIVEN THE 20,000 TECHNICAL EVALUATION POINTS FOR THAT "DESIRED OPTIONAL." IN DOING SO DSS-W EFFECTIVELY WAIVED A MATERIAL REQUIREMENT OF THE RFP TO THE SOLE BENEFIT OF SPERRY, CONTRARY TO THE FUNDAMENTAL RULE THAT THE BASIS FOR AN AWARD MUST BE THE SAME, IS ESSENTIAL TERMS, AS THAT ON WHICH THE COMPETITION IS CONDUCTED. ID.

MOREOVER, EVEN IF WE WERE TO ACCEPT DSS-W'S INTERPRETATION OF THE SOLICITATION THAT CERTIFICATION WAS NOT NECESSARY UNTIL DELIVERY, THE AGENCY'S UTILIZATION OF THE TEMPEST FEATURE AS AN EVALUATION FACTOR DID NOT PROVIDE A RATIONAL BASIS FOR SOURCE SELECTION BECAUSE NO DISTINCTION WAS DRAWN BETWEEN FIRMS SUCH AS SDC, WHICH ALREADY HAD TEMPEST-CERTIFIED EQUIPMENT ON HAND, AND FIRMS SUCH AS SPERRY, WHICH MERELY HAD TO WARRANT TO FURNISH TEMPEST ITEMS IN ORDER TO RECEIVE THE FULL NUMBER OF EVALUATION POINTS. ALTHOUGH THE TEMPEST FEATURE HAD BEEN CHANGED FROM A MANDATORY REQUIREMENT TO A "DESIRED OPTIONAL," THE FACT THAT DSS-W ASSIGNED HALF OF THE TOTAL NUMBER OF TECHNICAL EVALUATION POINTS TO THIS FEATURE CLEARLY INDICATES THAT IT REMAINED OF PARAMOUNT IMPORTANCE FOR SOURCE SELECTION PURPOSES. (WE NOT THAT THE RFP DID NOT PROVIDE THAT THE TEMPEST POINTS COULD BE AWARDED ON OTHER THAN AN ALL-OR-NONE BASIS.) THUS, ANY PRUDENT OFFEROR WOULD HAVE REALIZED THAT IT HAD TO RECEIVE THE 20,000 TEMPEST POINTS IN ORDER TO STAND ANY CHANCE OF WINNING THE COMPETITION. ALTHOUGH WE DO NOT SUGGEST THAT SPERRY NEVER INTENDED TO COMPLY WITH THE TEMPEST CERTIFICATION REQUIREMENT, IT WAS UNREASONABLE EVEN UNDER DSS-W'S INTERPRETATION TO GIVE SPERRY THE SAME NUMBER OF EVALUATION POINTS AS SDC ON THE BASIS OF A PROMISE TO MEET THAT REQUIREMENT. ONE OF THE PRIMARY PURPOSES OF A POINT SCORE SYSTEM IS TO PERMIT THE AGENCY TO COMPARE THE RELATIVE MERITS OF COMPETING PROPOSALS. THEREFORE, WE FAIL TO SEE WHY A PROPOSAL WHICH MAXIMIZED THE RISK THAT THE OFFERED ITEMS OF EQUIPMENT MIGHT LATER FAIL TO BE CERTIFIED AS MEETING THE NATIONAL TEMPEST STANDARDS SHOULD HAVE BEEN SCORED AS EQUAL IN TERMS OF RELATIVE MERIT TO A PROPOSAL WHICH REMOVED THAT RISK AND FULLY MET THE AGENCY'S NEED FOR TEMPEST- CERTIFIED ITEMS IN CURRENT PRODUCTION TO BE DELIVERED WITHIN THE PRESCRIBED 60-DAY SCHEDULE.

UNDER EITHER INTERPRETATION OF THE SOLICITATION, WE CONCLUDE THAT SDC WOULD HAVE BEEN ENTITLED TO THE AWARD HAD DSS-W PROPERLY EVALUATED THE PROPOSALS WITH RESPECT TO TEMPEST CERTIFICATION. THEREFORE, BY SEPERATE LETTER OF TODAY, WE ARE RECOMMENDING TO THE SECRETARY OF THE ARMY THAT THE CONTRACT WITH SPERRY BE TERMINATED FOR THE CONVENIENCE OF THE GOVERNMENT AND THE BALANCE OF THE REQUIREMENT BE AWARDED TO SDC.

BECAUSE OF OUR RECOMMENDATION THAT CORRECTIVE ACTION BE TAKEN, WE NEED NOT ADDRESS SDC'S OTHER BASIS OF PROTEST ALLEGING THAT DSS-W FAILED TO GIVE THE FIRM'S PROPOSAL CERTAIN TECHNICAL EVALUATION POINTS FOR "DESIRED OPTIONALS" TO WHICH IT WAS ENTITLED.

THE PROTEST IS SUSTAINED.

/1/ SINCE SPERRY'S EVALUATED COST WAS HIGHER, SPERRY RECEIVED FEWER COST POINTS IN DIRECT PROPORTION TO THE PERCENTAGE BY WHICH ITS EVALUATED COST EXCEEDED SDC'S. SEE UMPQUA RESEARCH CO., B-199014, APR. 3, 1981, 81-1 CPD PARA. 254.