THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING RELEASED TO THE PUBLIC IN ITS ENTIRETY ON SEPTEMBER 21, 1995 ___________________________________________________ INTERVENOR'S FIRST MOTION TO DISMISS FOR LACK OF TIMELY FILING DENIED; INTERVENOR'S MOTION FOR PARTIAL SUMMARY RELIEF GRANTED IN PART: July 26, 1995 ___________________________________________________ GSBCA 13315-P TELOS SYSTEMS INTEGRATION, A DIVISION OF TELOS CORPORATION, Protester, v. ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, Respondent, and DUNN COMPUTER CORPORATION, Intervenor. Timothy Sullivan, Katherine S. Nucci, and Martin R. Fischer of Dykema Gossett PLLC, Washington, DC, counsel for Protester. Dinah Stevens, Roberta M. Echard, Linda Horowitz, and Jeffrey A. Hennemuth, Office of the General Counsel, Administrative Office of the United States Courts, Washington, DC, counsel for Respondent. Edward J. Tolchin of Fettman & Tolchin, Fairfax, VA, counsel for Intervenor. Before Board Judges PARKER, BORWICK, and DeGRAFF. BORWICK, Board Judge. Protester, Telos Systems Integration (Telos) contests the award of an indefinite quantity/indefinite delivery contract for microcomputers to Dunn Computer Corporation (Dunn) by respondent Administrative Office of the United States Courts. Dunn, joined by respondent, moves for partial summary relief on several issues in this protest. For the reasons stated below, we grant Dunn's motion in part on the issue of whether Dunn offered the mandatory double-speed CD-ROM drive. We deny Dunn's motion for summary relief on the other issues. Dunn also moved to dismiss for lack of timely filing Telos's allegation that respondent held illegal discussions after submission of best and final offers (BAFOs). Dunn argues the issue turns on the propriety of a solicitation provision; to be timely, Dunn argues, Telos should have filed a protest contesting the provision before receipt of proposals as required by Board Rule 5(b)(3)(i). We deny Dunn's motion. Telos challenges the actions of the Government, not the propriety of a solicitation provision. Background General specification requirements The contested procurement contemplates award of an indefinite quantity indefinite delivery contract for microcomputers. Protest File, Exhibit 5 at I-7, I.4 and C-2, C-1. The contract term is from the date of award through September 30, 1996, with three one-year option periods; the contemplated contract may not exceed forty-eight months. Id. at F-3, F.1, and I-8, I.9. The request for proposals (RFP) required vendors to propose three desktop systems (slimline, desktop, and tower), each with ascending capabilities. That is, the second system proposed was required to have the capabilities of the first system proposed, as well as its own enhanced capabilities, and the third system proposed was required to have the capabilities of the second system, as well as its own enhanced capabilities. Protest File, Exhibit 5 at C-4, C-3A.(1). The fourth system required was a notebook system, which was required to run all the software outlined for the slimline system. Id. The RFP required vendors to specify feature model numbers of equipment offered in the pricing tables (B-Tables). The model numbers shown in the pricing tables were required to be identical to the model numbers shown in the configurations of equipment and software offered. Protest File, Exhibit 5 at B-4, B.2.1., B.2.2.1. Section L provided instructions for preparation of proposals. In order to have an acceptable proposal, the offeror was: required to respond to each paragraph of Section C of the solicitation document, to include responses to the paragraphs therein, including any amendments thereto, and a paragraph acknowledging his or her ability to meet each of [the requirements]. A detailed statement of the offeror's ability to meet each of the requirements and reference(s) which substantiate the claim must be provided. Protest File, Exhibit 5 at L-10, L.18.2.2.1. For each numbered or lettered requirement, the offeror was required to restate the entire requirement in bold typeface with its associated reference letter, provide a detailed statement of the ability of the offeror's proposed system to meet the requirement, and provide full references to technical documentation which substantiates the offeror's claim. Id. The RFP required vendors to complete specification matrices regarding the hardware and software characteristics of the proposed system. Id. at L-12, L.18.2.2.2. General system specifications The specifications in Section C were performance specifications. All systems were required to be user-friendly, to execute applications while attached to a Novell Netware server, to be certified to run the most current versions of Microsoft DOS, Microsoft NT, Microsoft Windows, Wordperfect, Wordperfect for Windows, OS/2 and Solaris/386 UNIX. Protest File, Exhibit 5 at C-3, C-3A.(1). The slimline system is to be used for word processing, networking, networking calendaring and scheduling, and computer-assisted legal research. To that end, processor and memory have to be sufficient to provide "responsive, concurrent operation of the software products outlined above." Id. at C-4, C-3A.(1)(a). The desktop system has to perform the functions above and also perform "responsive, concurrent operations of moderately complex spreadsheets that may involve complex mathematical operations, CD-ROM based multimedia applications with sound and full or partial screen graphics manipulation and data-base intensive software applications." Protest File, Exhibit 5 at C- 4, C-3A.(1)(b). The tower system has to perform the functions above, and has to be suitable for "use as a computer-assisted design workstation, as a multimedia development system, or as a large database system." Protest File, Exhibit 5 at C-4, C-3A.(1)(c). The notebook system is to be capable of running all the software outlined for the slimline system; performance is to be comparable to that of the slimline system. Protest File, Exhibit 5 at C-4, C-3A.(1)(d). Dunn's proposal for the system For the slimline system, Dunn offered the "Dunn/Intimidator/66," and identified the processor as a "486 DX2/66." Protest File, Exhibit 8 at ll-2-2, B, Specification Matrix. For the desktop system, Dunn offered the "Dunn/Intimidator/100." Id. For the tower system, Dunn offered the "486 DX3 processor" running at 100 MgHz. Id. at ll-2-2, B, Specification Matrix, and ll-2-A18. CD-ROM specifications For the CD-ROM, the RFP stated that the Government would evaluate for type, speed, system compatibility and controllers used. The RFP advised that CD-ROMs that were less than double speed would not be acceptable. Protest File, Exhibit 5 at M-12, M.5A.(j). Dunn's proposal for CD-ROM Dunn, in the specification matrix, proposed IBM internal and external CD-ROMs with transfer rates of 300 kilobytes per second and seek times of 320 milliseconds. Id., Exhibit 8 at ll-2-21.In its B-Tables, Dunn specified the "IBMCD-1" and the "IBMCD-1E" for the internal and external CD-ROM drives, respectively. Protest File, Exhibit 8, B-1 Tables (CLINs 0901-02). In the mandatory features compliance list, Dunn identified the CD-ROM to be offered as the "IBM CD-ROM" and identified it as a "double speed drive." Id., Exhibit 8 at ll-2-A31. Dunn referenced Document 22 of its technical literature. Id. The technical reference identified the "ISA Internal [and External] CD-ROM drive, with data transfer rates of 300 kilobytes per second and seek times of 320 milliseconds." Id. at Document 22. Fast speed printers The RFP stated that fast speed printers offering less than 1,000-page paper tray support would not meet the Government's requirements. Protest File, Exhibit 5 at M-11, M.5A.(e). Dunn's proposal In the mandatory features compliance list of its proposal, Dunn offered the Lexmark Optra Lx, which according to Dunn, could accommodate 1,100 pages of paper tray capacity, and referenced Document 17 of the technical literature. Protest File, Exhibit 8 at ll-2-A30. In the specification matrix, Dunn referenced the Lexmark Optra Lx. Id. at ll-2-16. Document 17 describes the Lexmark Optra Lx as having a 500-sheet paper input tray and an optional 500-sheet second drawer. Id. at Document 17. In the narrative, Dunn referenced both the IBM 4039-16L+ as its fastest printer, id. at ll-1-26, and the Lexmark Optra Lx as its fast speed printer, id. at ll-1-27. Respondent issued a deficiency report, referencing page ll- 1-25 of Dunn's proposal, noting that the proposed printer (the model 4039-16L referenced on page ll-1-26 of that proposal) did not meet the requirement for 1,000-page paper tray support. Protest File, Exhibit 15 at 4. Dunn responded that the model 4039-16L plus (emphasizing the plus) offered that support, and referenced Document 17 of the descriptive literature. Id. at 5. Document 17, however, was technical literature for the Lexmark Optra Lx, not the IBM 4039-16L. Id., Document 17.[foot #] 1 In its BAFO of April 14, 1995, Dunn referenced the Lexmark Optra Lx as its fast speed printer. Protest File, Exhibit 36. In its B-Tables of the same date, however, Dunn referenced, and priced out, the IBM model 4039-16L for the fast speed printer. Id., Exhibit 8, Section B, Table B-1, Clin 0503. For the fast speed printer, the awarded contract lists the IBM model 4039-16L printer, not the Lexmark Optra Lx printer. Protest File, Exhibit 51. Post-BAFO discussions Paragraph M.5 of the RFP provides in pertinent part: The Government reserves the right to conduct a "hands- on" evaluation of any proposed system of offered hardware and software . . . during the proposal evaluation. The Government will notify Offerors of its intention to do so. Protest File, Exhibit 5 at M-5. On March 30, 1995, Telos was told by respondent: "apparent awardee to ship equipment in for verification (may be the top two)." Dunn's First Motion to Dismiss for Lack of Timeliness, Exhibit B. After reviewing proposals, but before award, respondent asked Dunn to deliver a system for a hands-on evaluation at respondent's facilities. Dunn delivered the requested system to respondent, which tested the products. Dunn's Statement of Undisputed Facts 8. The evaluation was conducted on May 12, 1995. Protest File, Exhibit 50 at 5. The source selection authority (SSA) raised several questions to which the source selection advisory council (SSAC) responded in writing. The SSA asked whether the apparent awardee's system had been tested by the technical team and whether the SSAC was confident that the system would interface to the Data Communications Network (DCN). The SSAC responded that ----------- FOOTNOTE BEGINS --------- [foot #] 1 Technical literature for the 4039 16L was included as Document 16. Protest File, Exhibit 8, Document 16. ----------- FOOTNOTE ENDS ----------- Dunn's equipment was tested by installing the hardware and accessing the DCN. The SSAC reported that the team was pleased with the equipment. Protest File, Exhibit 47 at 3. Respondent's summary of negotiations stated that "the purpose of the evaluation was to ensure compliance with mandatory requirements and to verify the offeror's technical proposal." Id., Exhibit 50 at 5. Discussion Summary relief is appropriate only when there is no genuine issue of material fact and the movant is entitled to relief as a matter of law. Armco v. Cyclops Corp., 791 F.2d 147, 149 (Fed. Cir. 1986). To establish a genuine issue of fact, the party opposing the motion must establish that enough evidence exists so that we could decide the fact in its favor after a hearing. To establish that a fact is material, the opposing party must establish that the fact will affect our decision. The established facts, as well as any inferences of fact drawn from such facts, must be viewed in a light most favorable to the opposing party. Barmag Barmer Maschinenfrabrik AG v. Murata Machinery, Ltd., 732 F.2d 831, 835-36 (Fed. Cir. 1984). Our duty at the summary relief stage of proceedings is not to weigh the evidence, but to determine the existence of disputed material facts. Anderson v. Liberty Lobby, 497 U.S. 242, 249 (1986). Moreover, if the evidence presented by the party opposing the motion fails to address an essential legal element of a claim, Dairyland Power Cooperative v. United States, 16 F.3d 1197, 1202-03 (Fed. Cir. 1994), or if the evidence taken as a whole could not lead a rational trier of fact to find for the party opposing the motion, Street v. J.C. Bradford & Co., 886 F.2d 1472, 1480 (6th Cir. 1989), then summary relief would be appropriate. We apply these principles to the issues raised in this protest. CD-ROM compliance Dunn maintains it is entitled to summary relief on this issue because it offered a double-speed drive. Telos argues that it is impossible to tell what drive Dunn offered because Dunn failed to specify a model number for each CLIN. This argument is subsumed in a statement of issues to be litigated submitted by Telos on June 21: "[Respondent's] evaluation was irrational and improper, because Dunn failed to specify a model number for each CLIN, the Dunn proposal was ambiguous and inconsistent with respect to the specific products being offered, and [respondent] could not possibly determine what precise items were being offered and were being purchased under the contract awarded to Dunn." Telos's Statement of Issues to Be Litigated 5. In short, Telos maintains that without precise manufacturer's product numbers in the B-Tables, respondent could not be assured that an offered item, in this case the CD-ROM drive, met mandatory requirements of the RFP. The RFP did not demand precise manufacturer's model numbers as a condition of establishing technical acceptability of a contract line item, although precise model numbers in the B- Tables would have been useful. Rather, compliance with technical requirements was to be primarily determined by the information provided as required by paragraph L.18 of the RFP: i.e., the offeror's restatement of the entire requirement in bold typeface with its associated reference letter; a detailed statement of the ability of the offeror's proposed system to meet the requirement; full references to technical documentation with which to substantiate the offeror's claim; and specification matrices regarding the hardware and software characteristics of the proposed system. In short, for technical evaluation purposes, this RFP contemplated an integrated assessment of each vendor's complete proposal. Here, model numbers or not, in the mandatory features compliance list, Dunn identified the CD-ROM to be offered as the "IBM CD-ROM" and identified it as a "double speed drive." Dunn referenced Document 22 of its technical literature, which identified the "ISA Internal [and External] CD-ROM drive, with data transfer rates of 300 kilobytes per second and seek times of 320 milliseconds." Protest File, Exhibit 8, Document 22. The information is ample that Dunn offered an IBM double speed drive. Telos has not put forward any facts to challenge that conclusion. Dunn's motion for partial summary relief on this point is granted. Printers There is a dispute of fact, indeed confusion, as to what fast speed printer--the Optra Lx or the IBM 4039-16L--Dunn offered and a dispute as to whether the printer offered meets the requirements of support for a 1,000-page paper tray. In this case (unlike the CD-ROM drive), the model number of the printer is directly implicated in compliance with mandatory technical factors. Telos maintains that if Dunn did offer the Optra Lx printer, it offered only the version with the 500-page sheet feeder. Telos's Opposition to Dunn's Motion for Partial Summary Relief at 13. Because of the existence of these disputes, the Board is unable to grant summary relief on this matter. Post-BAFO discussions Disputed issues of material fact A post-BAFO live test demonstration conducted for the purpose of further negotiations is objectionable, while a demonstration for evaluation purposes to determine compatibility with an agency's existing system is not. Data Systems Marketing Corp., B-228888, 87-2 CPD 609, at 3 (Dec. 18, 1987). Correspondence between the SSA and the SSAC raises issues as to the motive for the live test demonstration: Was the purpose to negotiate with Dunn or to determine compatibility with an existing system? An evidentiary hearing is required to obtain additional evidence necessary for resolution of this issue. Timeliness of allegation The Federal Acquisition Regulation (FAR) prohibits post-BAFO discussions with one offeror unless discussions are opened to all offerors within the competitive range. 48 CFR 15.611(c)(1994), FAR 15.611(c). Telos's count alleges that the "hands-on" evaluation after BAFOs was for the purpose of conducting post- BAFO discussions with Dunn. Telos's Statement of Issues to Be Litigated 9 (July 21, 1995). Dunn argues that Telos's count concerning alleged illegal post-BAFO discussions is, in reality, a protest of the propriety of the solicitation, which should have been filed before receipt of proposals. Dunn argues that, under this clause, respondent was allowed to conduct a hands-on discussion any time before award for any purpose. Dunn's First Motion to Dismiss for Lack of Timely Filing at 3. Paragraph M.5 does not mean what Dunn says it means; that paragraph merely reserves the right for the Government to conduct a hands-on evaluation at any time during proposal evaluation. Protest File, Exhibit 5 at M-5. A reservation of right is not permission to violate the FAR. Indeed, such an interpretation would be contrary to the presumption that agency officials will comply with the law. Telos is not protesting the terms of the solicitation; it protests improper action by the Government. Dunn argues that respondent's conversation in March of 1995 with Telos put Telos on notice of the alleged illegal activity. Dunn's First Motion to Dismiss for Lack of Timely Filing at 5. Again, we disagree. As noted, it is not objectionable for an agency to conduct a post-BAFO evaluation to test for compatibility with an existing system. The Government negotiator here told Telos that the evaluation would be for "verification," an ambiguous term which can refer to both a proper and an improper purpose. Telos's allegation, however, is that the evaluation was for a wrongful purpose--i.e., for conducting further discussions with Dunn. That allegation remains unproven, but it was filed within ten working days of the time Telos found out about the alleged purpose of the demonstration. The ground of protest was thus timely filed. Decision Dunn's motion for partial summary relief is GRANTED IN PART as to the issue of CD-ROM compliance. As to the other issues, Dunn's motion for partial summary relief is DENIED. Dunn's motion to dismiss for lack of timely filing is likewise DENIED. _____________________ ANTHONY S. BORWICK Board Judge We concur: _______________________ ______________________ ROBERT W. PARKER MARTHA H. DeGRAFF Board Judge Board Judge