BNUMBER: B-270330; B-270330.2
DATE: February 28, 1996
TITLE: Cornet, Inc.; Datacomm Management Services, Inc.
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DECISION FOR PUBLIC RELEASE
A protected decision was issued on the date below and was subject to a
GAO Protective Order. This version has been redacted or approved by
the parties involved for public release.
Matter of:Cornet, Inc.; Datacomm Management Services, Inc.
File: B-270330; B-270330.2
Date:February 28, 1996
Stephen P. Flott, Esq., Lisa A. Federici, Esq., and Miriam Lavanya
Shashikant, Esq., Flott, Rosner & O'Brien, for Cornet, Inc.; and
William A. Roberts III, Esq., Lee Curtis, Esq., Jerone C. Cecelic,
Esq., Marcia L. Stuart, Esq., and Karen L. Manos, Esq., Howrey &
Simon, for Datacomm Management Services, Inc., protesters.
Neal Walters, Esq., and William Kenny, Esq., Archer & Greiner, and
Donald J. Mulvihill, Esq., Kathy Siberthau Strom, Esq., Paul W.
Butler, Esq., and Barbara O. Brincefield, Esq., Cahill, Gordon &
Reindel, for Telenex Corporation, an intervenor.
Nicholas P. Retson, Esq. and Thomas J. Duffy, Esq., Department of the
Army, for the agency.
Scott H. Riback, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Where protest initially raises only general allegations and is
subsequently supplemented in protester's comments by specific
allegations, specific arguments must independently satisfy timeliness
requirements; where record shows that protester could have advanced
specific allegations in initial protest, these contentions are
dismissed as untimely.
2. Protest allegations relating to technical acceptability of
awardee's product are dismissed as untimely where not raised until
after protester's receipt of agency report, even though allegations
are based upon commercial information available to protester at an
earlier time.
3. Protest against agency's decision to make award based on initial
proposals is dismissed where solicitation advised offerors of agency's
intent to award without discussions, and agency's decision that
discussions were not necessary is not shown to be incorrect.
4. Protest by concern that initially filed protest at General
Services Board of Contract Appeals is dismissed as untimely where,
despite protester's position to the contrary, record shows that firm
had knowledge sufficient to formulate bases for protest more than 14
days prior to filing at General Accounting Office.
DECISION
Cornet, Inc. and Datacomm Management Sciences, Inc. protest the award
of a contract to Telenex Corporation under request for proposals (RFP)
No. DAEA32-95-R-0003, issued by the Department of the Army to acquire
a quantity of telecommunications matrix switches. The protesters
principally maintain that the evaluation of their proposals as
unacceptable, and Telenex's as acceptable, was improper.
We dismiss the protests.
BACKGROUND
The RFP called for offers to furnish up to 20 matrix switches and
advised offerors that the agency would make award to the firm
submitting the proposal representing the best overall value to the
government based on cost and numerous technical evaluation factors.
The Army received four initial proposals, but ultimately found only
Telenex's to be completely technically acceptable. The Army thus
awarded a contract to Telenex based on its initial proposal on August
25. Cornet filed a protest in our Office on September 1, and Datacomm
filed a protest at the General Services Board of Contract Appeals
(GSBCA) on September 5. After learning of Datacomm's protest at the
GSBCA, Cornet filed as an intervenor in that proceeding. Both firms
were debriefed on September 11. Because of the pendency of Datacomm's
protest at the GSBCA, our Office dismissed Cornet's protest on
September 22. See 4 C.F.R. sec. 21.3(m)(6) (1995). Thereafter, on
October 12, the GSBCA dismissed Datacomm's protest for lack of
jurisdiction. Both firms subsequently filed protests in our Office on
October 26.
CORNET'S PROTEST
In its initial, September 1 protest, filed in our Office prior to the
debriefing, Cornet raised three general contentions: the agency
improperly failed to engage in discussions; Telenex's switch failed to
meet the requirement that the switches be 100 percent redundant;[1]
and the agency improperly evaluated the Cornet and Telenex proposals
on an "apples and oranges" basis because Cornet's proposal allegedly
was based on a 4,000 port capacity matrix switch while Telenex's was
based on a 1,000 port capacity switch.[2] Cornet's October 26 protest
was a refiling of its September 1 protest letter (with a
nonsubstantive cover letter attached), with no new arguments raised or
information presented.
On December 6, the Army submitted its agency report. In commenting on
that report, Cornet challenged several specific areas of the
evaluation for the first time, arguing that: (1) several specific
areas of its proposal were misevaluated; (2) Telenex's
switch--in particular, the standard switching boards (SSB)--improperly
was evaluated as meeting the 100 percent redundancy requirement; ( 3)
the Telenex switch experiences impermissible "port degradation" when
all 4,000 ports are used at certain specified high-speed data rates;
(4) Telenex is unable to provide a "ringer equivalency number" and,
thus, cannot furnish the required "2-wire interface"; and (5) Telenex
improperly proposed a proprietary management information base (MIB)
for simple network management protocol (SNMP) control. Cornet also
alleged that the agency improperly failed to conduct discussions prior
to award.[3]
Timeliness
Under our Bid Protest Regulations, section 21.2(a)(2), 60 Fed. Reg.
40,737, 40,740 (Aug. 10, 1995) (to be codified at 4 C.F.R. sec.
21.2(a)(2)), protests must be filed in our Office within 14 days of
when a protester knows or should know of its basis for protest. We
find that much of Cornet's protest was not filed in a timely manner.
1. Evaluation of Cornet's Proposal
During Cornet's September 11 debriefing, the Army advised the firm in
significant detail of the specific reasons why its proposal was
rejected as technically unacceptable. However, as discussed, Cornet's
October 26 protest consisted of a refiling of its September 1 protest,
and did not challenge any of the specific bases for rejection provided
to Cornet in the debriefing; rather, again, Cornet's comments
responding to the agency's administrative report set forth for the
first time its disagreement with the bases for rejection. Since
Cornet's detailed arguments concerning the evaluation were not raised
in the October 26 resubmission of its original protest, they are
untimely and will not be considered. Cornet's original general
allegations were too nonspecific to constitute a valid basis for
protest, Ebon Research Sys., B-253833.2; B-253833.3. Nov. 3, 1993,
93-2 CPD para. 270, and do not render its later raised specific arguments
timely. Id.; see also Battelle Memorial Inst., B-259571.3, Dec. 8,
1995, 95-2 CPD para. 284 (even where general allegation is timely raised,
later raised specific arguments must independently satisfy timeliness
requirements).
2. Evaluation of Telenex's Proposal
In its September 1 and October 26 protests, Cornet alleged only
generally that the Telenex matrix switch was not 100 percent redundant
as required by the RFP; Cornet did not specify that it was the SSB
component of the switch that it believed lacked redundancy. As
discussed above, protesters cannot initially raise general arguments
and only later provide specifics; such arguments will be dismissed as
untimely. QualMed, Inc., B-257184.2, Jan. 27, 1995, 95-1 CPD para. 94; tg
Bauer Assocs., Inc.--Recon., B-229831.7, Mar. 2, 1989, 89-1 CPD para. 218.
While it is not clear precisely when Cornet became aware of the
specific SSB redundancy issue, since no other specific argument has
been raised we can only assume that the alleged SSB problem was the
basis for Cornet's original general redundancy argument; in other
words, it appears Cornet was aware of its specific argument as of
September 1. In any case, Cornet's own statements show that it had
adequate knowledge to raise the issue no later than October 26, that
is, when it resubmitted its protest to our Office. In this regard,
Cornet states in a February 12, 1996, filing that "Cornet was aware
[at the time of an October 25 meeting] that the Telenex switch would
allow a certain number of ports to fail at any given time [because the
SSBs lacked redundancy], and thus was not 'fully redundant' as that
term is understood in the industry." Further, Cornet's December 20
comments state: "[n]ote in Telenex's own brochure, which is
commercially available . . ., the definition of port and switch. It
was clear from the brochure that the SSB is part of the matrix switch
[as opposed to the port card] and the switch therefore does not
provide 100 percent redundancy." Since the referenced brochure is
dated 1991, there is no reason to believe that Cornet was unaware of
it until it filed its report comments. As Cornet was aware of the
alleged SSB redundancy problem well before raising the argument in its
December 20 comments, the argument is untimely and will not be
considered.[4]
Cornet's allegation that Telenex could not provide a "ringer
equivalency number" and, as a consequence, could not provide a "2-wire
interface," is untimely for the same reason. Cornet's December 20
submission states that "it was commercially believed that Telenex did
not have this capacity." As this argument is based on Cornet's
"commercial belief," there is no reason why it could not have been
raised as a specific argument in Cornet's October 26 refiled protest.
Because it was not, we will not consider it.
Abandoned Issues
As noted above, Cornet argued for the first time in its comments that
Telenex's proposal was technically unacceptable because it must have
relied on a "proprietary MIB" for SNMP control. Although not stated
by the protester, Cornet apparently reached this conclusion based on
its reading of the Telenex proposal which, according to the protester,
showed that [deleted]. This alleged deficiency relates to the RFP's
requirement that the switch offered provide an "open architecture" to
support a variety of devices, networks, and protocols; essentially,
use of a proprietary MIB would be inconsistent with the open
architecture requirement because the various devices, networks, and
protocols that may be directed through the switch will be unable to
interface with it.
The Army specifically addressed this allegation in a supplemental
agency report, explaining that the Telenex proposal described the
VARCOM VC-1000 Network Management System, which can interface with a
wide variety of open network system protocols; the agency stated that
it considered this aspect of the Telenex matrix switch acceptable from
the standpoint of meeting the open architecture requirement. In its
comments on this supplemental report, Cornet did not address the
agency's explanation, or in any way refute its position that the
VARCOM VC-1000 Network Management System meets the open architecture
requirement. (Cornet's only reference to this issue in its
supplemental comments related to the timeliness of the argument.)
Under these circumstances, we consider the issue abandoned. Battelle
Memorial Inst., supra.
Cornet also argued in its December 20 comments that the Telenex switch
experienced "port degradation"--and that all 4,000 required ports
would not be available regardless of port population or interface data
rate--at data rates of 256 Kilobytes per second (Kbps) or higher.[5]
Again, however, the agency fully explained its position in its
report--the Telenex switch in fact would have all 4,000 ports
available regardless of port population or interface data rates
through the use of [deleted]. Cornet did not rebut the agency's
position, and we thus consider this contention abandoned as well.
Battelle Memorial Institute, supra.[6]
Failure to Conduct Discussions
Cornet maintains that the agency erred in failing to engage in
discussions prior to awarding the contract to Telenex because the
solicitation did not advise offerors of the possibility that award
might be made without discussions, none of the proposals was
technically compliant with the requirements of the solicitation, and
the offerors did not compete on the basis of a common understanding of
the requirement.[7]
Cornet's assertion that the RFP did not advise offerors of the
possibility of award without discussions is incorrect. In fact, the
RFP included the provision at Federal Acquisition Regulation (FAR) sec.
52.215-16 Alternate III, which specifically provides that the
government intends to make award without conducting discussions.
Where an RFP sets forth FAR sec. 52.215-16 Alternate III, a contracting
agency properly may make award without discussions, provided the
contracting officer determines that discussions are unnecessary. FAR sec.
15.610(a)(4); Lloyd-Lamont Design, Inc., B-270090.3, Feb. 13,
1996, 96-1 CPD para. ___.
The agency determined that discussions were not necessary in light of
its finding that Telenex submitted the only acceptable initial
proposal and also offered a clearly superior technical solution.
There has been no timely argument or showing by either Cornet or
Datacomm that the agency's determination in this regard is incorrect.
Since the agency also determined that Telenex's price was fair and
reasonable, there is no basis for us to object to the Army's award
without discussions. Although Cornet maintains that all offerors
based their proposals on erroneous assumptions regarding the agency's
requirements, the record does not support this assertion; Telenex's
proposal was found to fully meet the agency's requirements, and Cornet
has not specified any erroneous assumptions on which the Telenex
proposal was based.[8]
DATACOMM'S PROTEST
As noted, Datacomm initially filed a protest with the GSBCA on
September 5, which was dismissed for lack of jurisdiction on October
12. On October 13, officials from the Army and Datacomm held a
previously scheduled meeting during which the parties engaged in
settlement discussions. Datacomm filed its protest in our Office on
October 26. We find that Datacomm's arguments are untimely or without
merit.
Redundancy of the Telenex SSBs
Datacomm's allegation that the Telenex switch does not meet the 100
percent redundancy requirement because Telenex's SSBs--which Datacomm
maintains are part of the switch rather than the port--are not 100
percent redundant, also is untimely. The record contains numerous
examples where the protester clearly acknowledged this as a basis for
its GSBCA protest. For example, in its requests for admissions
submitted to the agency on September 15, the protester asked the
agency through numerous questions to admit that the Telenex switch did
not meet the redundancy requirement because its SSBs were not
redundant. One request for admission provided "The awardee's proposal
offers equipment which has no redundancy provision in the event of a
failure of a single SSB (Standard Switching Board) module, and
therefore fails to comply with the . . . requirement that the switch
shall provide 100 percent redundancy of all internal systems except
ports." The record thus shows that the protester had sufficient
information to frame this issue no later than September 15.[9] While
Datacomm asserts that it was not until the October 13 meeting that it
was advised that the Army considered the SSB to be part of the port
rather than the switch, the fact remains that the Army considered all
components of the Telenex switch, including the Telenex SSBs, to meet
all specifications, including the redundancy requirement.[10]
Telenex's Ability To Meet The 4,000 Port Capacity
and Commercial Availability Requirements
Datacomm alleges that Telenex did not meet the 4,000 port capacity
requirement or, if it did, the firm was proposing new technology that
did not meet the RFP's commercial availability requirement.[11] These
allegations relate to an allegedly new capability of the Telenex
product [deleted].
These allegations are untimely because Datacomm was provided with a
copy of the Telenex proposal on September 18 in connection with its
protest at the GSBCA, and the proposal shows both that Telenex offered
to meet the 4,000 port availability requirement regardless of the
interface data rate, and that it could modify existing, standard port
interfaces to accommodate user-unique requirements. Specifically, the
proposal provides:
"[Deleted]."
Elsewhere, the proposal states that the Telenex [deleted] matrix
switch can ". . . accommodate maximum port capacity for the size of
the switch selected regardless of the port population." The Telenex
proposal thus specifically represents the firm's capability to meet
the 4,000 port capacity requirement without regard to interface type.
The proposal goes on to describe Telenex's ability to modify existing
interfaces to meet particular user needs. The proposal states :
"[Deleted]."
Since it is clear from Telenex's proposal that it both offered to
comply with the agency's 4,000 port capacity requirement, and
represented that it could easily modify any standard port interface
card to meet the particular user needs, in this case, the need to have
all 4,000 ports available regardless of port population or data
transmission rate, and Datacomm had a copy of Telenex's proposal no
later than September 18, these arguments were untimely raised in its
October 26 protest.[12]
Datacomm's Noncompliance With Unstated
4,000 Circuit Availability Requirement
Datacomm maintains that it learned at the October 13 meeting with the
Army that its switch was rejected for failing to provide 4,000
circuits, a requirement that it maintains is not outlined in the RFP.
This argument is without merit. Datacomm's understanding of the
October 13 meeting notwithstanding, the evaluation and source
selection materials clearly show that the Datacomm switch was found
technically unacceptable because it could not provide 4,000 ports at
data rates exceeding 64 Kbps, not because it did not have the
capacity to provide 4,000 circuits at all interface data rates. To
the extent Datacomm's protest can also be read to assert that
rejection based on the 4,000 port requirement was improper, the
protest is
untimely. The record shows that Datacomm was advised of this reason
for rejection at the September 11 debriefing, more than 14 days before
its October 26 protest was filed.
The protests are dismissed.[13]
Comptroller General
of the United States
1. Specifically, Cornet's protest stated that Telenex does not offer
fully redundant switches "as that phrase is defined by [the agency]
and as per specification ASQB-94276." We interpret this as a
reference to the RFP's specification for the technical control
facility matrix switch, which is designated ASQB-94276A, dated March
15, 1995. This broad specification describes all attributes of the
matrix switches, and not just the redundancy requirement; paragraph
3.2.20 of this specification states "provide 100 percent redundancy of
all internal systems except ports." Cornet's protest did not specify
what components of the Telenex matrix switch allegedly failed to meet
the redundancy requirement
2. Cornet also maintained generally that "on information and belief,
Telenex does not currently meet further specifications as specifically
required by the RFP." Cornet did not specify which requirements
Telenex allegedly did not meet.
3. Cornet also asserted that, due to its pricing, the Army should have
suspected a mistake in Cornet's proposal and invoked the mistake in
bid/offer price procedures. As we find that Cornet has not raised
timely challenges to the Army's technical evaluation, and there thus
is no basis to question the agency's conclusion that Cornet's proposal
was technically unacceptable, this argument is academic. SSI Servs.,
Inc., B-254269.2; B-254269.3, Sept. 2, 1994, 94-2 CPD para. 85.
4. Moreover, Cornet's general contentions that the Telenex switch was
not 100 percent redundant as well as its more generalized contention
that Telenex did not meet "further specifications", without more, were
insufficient to establish a valid basis of protest. As with its
general allegation relating to the evaluation of its own proposal,
these allegations were so nonspecific that they failed to state a
valid basis for protest. Sector Technology, Inc., B-239420, June 7,
1990, 90-1 CPD para. 536; see also Ebon Research Sys., supra.
5. Although not specifically stated by Cornet, we presume that by port
degradation Cornet means that the Telenex switch would "consume" more
than one port at interface data rates above 256 Kbps. The RFP
required that the offered matrix switch have a capacity of up to 4,000
ports and that all 4,000 ports be available regardless of port
population or interface data rates. Some switches lose port capacity
as higher interface data rates are utilized. For example, a switch
may use one port for any interface data rate from 0 to 64 Kbps, but at
a higher rate--for example at a rate of 128 Kbps--may require two or
more ports. In the above example, one port is "consumed" for every 64
Kbps, and therefore two ports would be necessary to support the 128
Kbps interface data rate.
6. We also find that Cornet abandoned its initial allegation that the
agency's evaluation was improper because it essentially amounted to an
"apples to oranges" comparison between the two firms. According to
its initial protest, Cornet offered a 4,000 port capacity switch while
Telenex offered only a 1,000 port capacity switch. The protester's
subsequent submissions make no mention of this "apples to oranges"
comparison and, in any case, the record shows that Telenex in fact
offered a 4,000 port switch.
7. Cornet's contention that none of the firms was technically
compliant is based on its untimely and abandoned assertions that the
Telenex switch was not compliant with various aspects of the
specifications. Since Cornet has either abandoned its contentions or
failed to timely challenge the acceptability of the Telenex switch, we
have no basis for questioning the agency's conclusion that the Telenex
switch was technically acceptable. Thus there is no legal basis for
finding, as Cornet suggests, that all firms were technically
unacceptable.
8. Datacomm also contends that the Army improperly made award without
conducting discussions. Since Datacomm was advised of the Army's
award decision on August 28, and also knew at that time that the
agency had not conducted discussions, it was required to allege this
basis for protest within 10 working days of that date. 4 C.F.R. sec.
21.2 (1995). Since Datacomm did not file in our Office until October
26, its protest on this basis is untimely.
9. The record also contains a deposition taken on October 6 from one
of Datacomm's engineers. During this deposition he explained in great
detail his view regarding the function of the SSBs as well as their
lack of redundancy.
10. We note as well that the Datacomm protest also states "[t]he
noncompliance of the Telenex switch with the requirement for 100
percent redundancy was apparent in the Telenex proposal." Datacomm
was provided a copy of Telenex's proposal in connection with the GSBCA
protest.
11. The RFP required firms to offer only products that were
commercially available; a product is commercially available under the
terms of the RFP if it is regularly used for other than government
purposes and is sold or traded to the general public in the course of
normal business operations. The RFP does allow firms to offer
commercially available equipment that has been subject to a "special
engineering change" provided that the modification can be made and the
product supplied within the delivery schedule stated in the
solicitation.
12. In its comments on the agency's administrative report filed on
February 8, Datacomm alleges for the first time that the Telenex
switch does not meet the RFP's redundancy requirement for a new
reason--because the switch "consumes" two or more paths at higher data
rates the "spare" paths relied on for redundancy purposes are not
available. As with the 4,000 port capacity and commercial
availability arguments, this contention is untimely because Datacomm
had a copy of the Telenex proposal on September 18.
13. Datacomm requests that we consider its protest under the "good
cause" exception to our timeliness requirements. Under that
exception, we may consider an otherwise untimely protest where some
compelling reason beyond the protester's control prevents it from
timely submitting its protest. Bid Protest Regulations, section
21.2(c), 60 Fed. Reg. supra (to be codified at 4 C.F.R. sec. 21.2(c));
Oracle Corp., B-260963, May 4, 1995, 95-1 CPD para. 231. The only cause
preventing Datacomm from filing in our Office, however, was its
decision to pursue its protest initially at the GSBCA. Since this was
a matter entirely within Datacomm's control, we find no basis to
invoke the good cause exception here.