PROTESTER'S MOTION FOR SUMMARY RELIEF DENIED: November 6, 1992 GSBCA 12092-P CBIS FEDERAL INC., Protester, v. DEPARTMENT OF THE INTERIOR, Respondent, and COMPUTER BASED SYSTEMS, INCORPORATED, Intervenor. Rand L. Allen, Stanley R. Soya, Phillip H. Harrington, and David A. Vogel of Wiley, Rein & Fielding, Washington, DC, counsel for Protester. Alton Woods and James L. Weiner, Division of General Law, Office of the Solicitor, Department of the Interior, Washington, DC, counsel for Respondent. J. Patrick McMahon, Vienna, VA, counsel for Intervenor. Before Board Judges DEVINE, DANIELS, and WILLIAMS. DANIELS, Board Judge. CBIS Federal Inc. maintains that the Department of the Interior's United States Geological Survey (USGS) acted in violation of law in awarding a contract to Computer Based Systems, Incorporated. According to the protest, USGS erred in evaluating technical and price proposals, as well as in balancing technical merit against cost savings to determine the awardee. Protester contends further that the awardee should also be denied the contract because contrary to solicitation requirements, it has tendered key personnel other than those included in its proposal. Protester has filed a motion for summary relief. The premise of the motion is that documents and statements made by the agency in discovery establish that -- Either USGS awarded the contract to an offeror whose proposal did not meet the RFP's [request for proposal's] stated minimum requirements, or the RFP did not express USGS's actual minimum needs; and The "acceptable/not acceptable" technical evaluation scheme actually used by USGS was inconsistent with the "greatest value" scheme set forth in the RFP. Although we agree with some of protester's contentions as to the legal import of solicitation provisions, we are persuaded by the agency and the awardee (which has intervened in the protest) that the motion should be denied. The acronyms generally used to represent the names of the protester (CBIS) and the awardee (CBSI) are so similar that their use in this protest has proved confusing. For this reason, in this opinion, we refer to protester, whose parent is Cincinnati Bell Information Systems, as "Cincinnati Bell." Background 1. On May 11, 1992, USGS issued a solicitation requesting proposals to supply automatic data processing (ADP) facilities management services to the agency's facility in Reston, Virginia, over a five-year period. Protest File, Exhibit 1 at 2, 8, 234- 40. 2. The solicitation states two kinds of requirements for staff positions. First, it lists numerous types of positions "which are required under this [statement of work]." Protest File, Exhibit 1 at 13. There are thirteen of these categories, which bear titles such as "Computer Operations/Production Control Overall Site Manager," "Shift Supervisor," "Senior Computer Operator," and "Supervisory Computer Support Specialist." Id. at 15-20, 220-21. For each of the positions, a job description and statement of minimum required experience is prescribed. Id. As an example of the statement of experience, for the supervisory computer support specialist position, the solicitation says: "This position requires six (6) years ADP experience with two (2) years as a supervisor in Computer Operations or Production Control in a mainframe environment." Id. at 17. Additionally, for all positions other than computer operator trainee, "all proposed individuals must have received their experience while working in a large mainframe computer environment similar to the USGS GPCC [General Purpose Computer Center]." Id. at 13. 3. The second kind of experience requirement contained in the solicitation does not pertain to any particular individuals. It states that "contractor personnel shall have" experience in twelve general and fourteen specific areas. The general areas include "Data processing," "Large scale third generation computer systems," and "Production Control work in large data processing computer centers." The specific areas include "Operation of IBM 370 architecture and analogous systems operating under IBM Multiple Virtual Storage (MVS)," "Operation of Amdahl 5890 mainframe computer with Multiple Domain Feature [(]MDF)," and "IBM Job Control Language (JCL) knowledge." Protest File, Exhibit 1 at 14. 4. Among the thirteen categories of positions, seven -- involving seventeen people -- are designated "key personnel." Protest File, Exhibit 1 at 79, 229. For evaluation purposes, each offeror was to supply resum s for individuals proposed to fill these positions. Id. at 121-23; see also id. at 129. Each resum was to "be evaluated to determine the Contractor's compliance with the minimum qualifications for each indicated skill level as required in the Position Description" (see 2). Id. at 121. The solicitation goes on to say: Qualified resumes will be scored for degree of significant experience. Significant experience is that specialized experience which, (1) includes direct, participatory involvement; (2) was of duration to achieve a continuing expertise; and, (3) was of a level of responsibility appropriate to the skill level for which the resume is offered. Id. 5. With additional reference to evaluation of proposed personnel, the solicitation provides, "A college degree, college course work, specific training, and practical experience is highly desireable [sic]." Id. at 129. In response to a question about this statement, the agency said that these items are not mandatory. Id. at 253. 6. The solicitation states that "[a]ward shall be made to that offeror whose proposal, conforming to this solicitation, is determined to be most advantageous to the Government, cost or price and other factors considered." Protest File, Exhibit 1 at 130. The principal "other factor" is "[t]he offeror's technical evaluation and score;" within that factor, "Personnel and Experience" was the most important subfactor. Id. at 129, 130. The solicitation explains: In determining which proposal offers the greatest value or advantage to the Government, overall technical merit will be considered more important than price or cost. The degree of importance of price or cost as an evaluation factor will increase with the degree of equality in the technical merits of the proposals. Between acceptable proposals with a significant difference in technical rating, a determination will be made as to whether the additional technical merit or benefits reflected by a higher priced proposal warrants payment of the additional price or cost. Id. at 130. 7. Cincinnati Bell and CBSI both submitted proposals in response to this solicitation. Protest File, Exhibit 2a. Cincinnati Bell received the maximum possible number of points for its technical proposal. CBSI received slightly less; it was given less than the maximum for its proposed personnel. Id. at 305-08. Cincinnati Bell's evaluated price was slightly higher than CBSI's evaluated price of $8,857,927. Id., Exhibit 5 at 626-28, 631. USGS awarded the contract to CBSI after determining that there was no significant difference between the proposals in terms of technical merit. Id. at 631; Respondent's Answers to Protestor's First Set of Interrogatories and Request for Production of Documents at 5 ( 2(b)). 8. In response to a request by Cincinnati Bell, USGS has admitted that "USGS awarded maximum points to proposals that met the RFP's minimum requirements for required staff positions." Government's Responses to Protestor's First Request for Admissions at 3-4 ( 9). 9. The evaluators' scoresheets show that all three evaluators rated several of CBSI's proposed key personnel at less than the maximum possible score. Protest File, Exhibit 2b at 329-30, 428-31, 540-41. Based solely on our deciphering of the scoresheets, however, we cannot conclude that the evaluators' concerns relate specifically to the requirements described in paragraph 2 above. Rather, they appear to relate to the requirements described in paragraph 3 above. The technical evaluation committee's report states that CBSI's proposed personnel "meet and some exceed the criteria" expressed in the solicitation. Id., Exhibit 2a at 307. 10. Some of the evaluators' scoresheets contain comments that portions of Cincinnati Bell's technical proposal exceeded the solicitation's minimum requirements. Protest File, Exhibit 2b at 349, 459, 462. The technical evaluation committee's report states that Cincinnati Bell's proposed personnel "either meet or exceed the criteria." Id., Exhibit 2a at 305. 11. Four other firms also submitted proposals in this procurement. Protest File, Exhibit 5 at 612. Two of the technical proposals were considered acceptable by USGS. Id. Neither of these was rated as highly as Cincinnati Bell or CBSI. Id., Exhibits 2a, 5 at 613. 12. The solicitation provides that "[d]uring the first 90 days of performance, the Contractor shall make no substitutions of key personnel unless the substitution is necessitated by illness, death, or termination of employment." Protest File, Exhibit 1 at 79. The contract was awarded on September 28. Id., Exhibit 9 at 1. On October 7, CBSI asked USGS for permission to substitute purportedly better-qualified individuals for five of the people named in the firm's proposal as key personnel. The contractor stated, "If these are not satisfactory replacements, CBSI will provide the individuals that were originally proposed." Respondent's Production of Documents, Exhibit 8 (supplied by protester). Discussion Cincinnati Bell asks us to conclude from the facts stated above that CBSI was ineligible for award because some of the individuals it proposed as key personnel did not meet minimum mandatory requirements. The principal reason suggested for reaching this result is that USGS admitted it "awarded maximum points to proposals that met the RFP's minimum requirements for required staff positions;" some of CBSI's proposed personnel received less than maximum scores from the agency's evaluators; and CBSI's overall personnel score in the technical evaluation was less than optimum. See Background, 7-9. USGS responds that the citation to the agency admission is misleading, and CBSI says that the admission itself should be disregarded because it is contrary to fact. USGS argues further: None of the stated qualifications were mandatory requirements or qualifications but set forth general qualifications to be met by the offeror's personnel. Government witnesses will testify that if an offeror did not meet the stated qualifications [it] simply received less points in this category. However, [it was] not in any way disqualified from receiving the award. Government's Opposition to Protester's Motion for Summary [Relief] at 4. In our judgment, all three parties have misunderstood the situation. The admission is a red herring; Cincinnati Bell and CBSI have read it to say that the agency awarded maximum points to all proposals that met the minimum requirements, but the word "all" is clearly not present. The statement can just as easily be read to say merely that some of the proposals that met minimum requirements got maximum scores -- and on protester's motion for summary relief, we must give it this reading. A. B. Chance Co. v. RTE Corp., 854 F.2d 1307, 1310-11 (Fed. Cir. 1988); Armco, Inc. v. Cyclops Corp., 791 F.2d 147, 149 (Fed. Cir. 1986) (on such a motion, all reasonable inferences to be drawn in favor of non-movant). Indeed, the fact that two other firms' proposals were considered acceptable, though they received lesser scores than either Cincinnati Bell or CBIS, indicates that the second interpretation is likely correct. See Finding 11. Consequently, the fact that CBSI did not receive maximum points for its proposed personnel does not render its proposal ineligible for award. We can conclude as a matter of law that the solicitation established minimum mandatory requirements for key individuals. Sysorex Information Systems, Inc., GSBCA 10642-P et al., 90-3 BCA 23,181, at 116,371-72, 1990 BPD 193, at 20, aff'd, sub nom. SMS Data Products Group, Inc. v. Austin, 940 F.2d 1514 (Fed. Cir. 1991). USGS's statement that no such requirements existed is plainly refuted by the language of the document itself. The requirements were of two varieties -- specific qualifications which each individual had to meet (Background, 2) and other prerequisites which the proposed key personnel had to meet as a team (Background, 3). As to the second category, we note that the qualifications are for "contractor personnel," not any particular (or each) position, and that there are so many areas listed (twenty-six, of which twelve are highly specific) that expecting each person to have experience in all of them would be unreasonable. Based on the scoresheets to which Cincinnati Bell points us, we find that the evaluators had concerns about whether various members of the CBSI team had the kinds of experience which the team as a whole had to have. Background, 9. This is not enough to establish that any of the individuals was inadequate under the agency's standards. If this is all that USGS means when it says that "if an offeror did not meet the stated qualifications [it] simply received less points in this category . . . [but was] not in any way disqualified from receiving the award," the evaluation of resum s may have been proper. If the agency truly evaluated proposals under the impression that the solicitation did not mandate minimum requirements, however, it was not following its own rules. Cincinnati Bell would also have us believe that its technical proposal should have received a considerably higher score than CBSI's because the evaluators thought that Cincinnati Bell's proposed personnel "either meet or exceed the criteria" of the solicitation. See Background, 10. The reason that Cincinnati Bell is so concerned about the relative merit of technical proposals is that although protester's technical proposal was rated slightly preferable to CBSI's, its proposal was also higher priced, and the solicitation makes clear that award will go to the lower-priced offeror unless the technical difference is significant. See Background, 6-7. In response to Cincinnati Bell's contention, CBSI points us to another evaluators' statement, that CBSI's personnel "meet and some exceed the criteria." See Background, 9. We agree with Cincinnati Bell that the solicitation indicates that resum s will be qualitatively scored -- the document says so expressly in at least two places (Background, 4, 5) and implicitly by indicating that a technical proposal may be superior to another even if both meet minimum standards (Background, 6). We have been given no reason to believe, however, that Cincinnati Bell's proposed personnel were materially superior to CBSI's; the record as established thus far shows only that Cincinnati Bell's people were considered by USGS to be a bit better. The evaluation of resum s of an offeror's key personnel is highly subjective, and we must consequently give deference to the agency in this matter. Computer Sciences Corp., GSBCA 11497-P, 92-1 BCA 24,703, at 123,297, 1992 BPD 6, at 32. For Cincinnati Bell to prevail as to this allegation, it must prove that USGS's evaluation was clearly erroneous -- an abuse of discretion demonstrating a "gross disparity or unfairness." Corporate Jets, Inc., GSBCA 11049-P, 91-2 BCA 23,998, at 120,118, 1991 BPD 111, at 17; Health Systems Technology Corp., GSBCA 10920-P, 91-2 BCA 23,692, at 118,643, 1991 BPD 20, at 13-14. In the motion for summary relief, Cincinnati Bell states as a material fact the existence of a CBSI letter proposing to substitute for key personnel after award. Background, 12. Protester does not offer argument as to this matter, but we assume it placed the fact before us for the purpose of seeking a ruling as to a count of the protest. The solicitation required that with limited exceptions, key personnel stay on the job for the first ninety days of contract performance. Id. CBSI asked USGS for an exception from this rule, but told the agency very clearly that if the exception was not granted, CBSI would live up to its contractual obligations. Id. Without more, this is insufficient to establish the existence of the sort of "bait and switch" scheme that taints a contract award. See Electronic Data Systems Federal Corp., GSBCA 9869-P, 89-2 BCA 21,655, 1989 BPD 69, reconsideration denied, 89-2 BCA 21,778, 1989 BPD 111, aff'd in part, vacated in part, sub nom. Planning Research Corp. v. United States, 971 F.2d 736 (Fed. Cir. 1992). Decision Protester's motion for summary relief is DENIED. _________________________ STEPHEN M. DANIELS Board Judge We concur: _________________________ _________________________ DONALD W. DEVINE MARY ELLEN COSTER WILLIAMS Board Judge Board Judge