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.