BNUMBER: B-275480.2, B-275480.3, B-275480.4
DATE: April 3, 1997
TITLE: International Data Products, Inc.; Commax Technologies, Inc.,
B-275480.2, B-275480.3, B-275480.4, April 3, 1997
**********************************************************************
DOCUMENT 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:International Data Products, Inc.; Commax Technologies, Inc.
File: B-275480.2, B-275480.3, B-275480.4
Date:April 3, 1997
Carl J. Peckinpaugh, Esq., Eric J. Marcotte, Esq., and Jason I.
Hewitt, Esq.,
Winston & Strawn, for International Data Products, Inc.; and Laura K.
Kennedy, Esq., Grace Bateman, Esq., and G. Matthew Koehl, Esq.,
Seyfarth, Shaw, Fairweather & Geraldson, for Commax Technologies,
Inc., the protesters.
William M. Rosen, Esq., and Kendrick C. Fong, Esq., Dickstein,
Shapiro, Morin & Oshinsky, for Government Technology Services, Inc.;
Patrick O' Keefe, Esq., Ian T. Graham, Esq., and Philip H. M.
Beauregard, Esq., McKenna & Cuneo, for Sysorex Information Systems,
Inc., the intervenors.
Vera Meza, Esq., Richard C. McGinnis, Esq., and Arthur E. Lees, Esq.,
Department of the Army, for the agency.
David A. Ashen, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
An offeror's global or blanket certification of compliance with the
specifications is insufficient to establish compliance where the
agency has reason to question the characteristics of the products
being offered.
DECISION
International Data Products, Inc. (IDP) and Commax Technologies, Inc.
protest the Department of the Army, Army Materiel Command's (AMC)
award of contracts to Sysorex Information Systems, Inc. and Government
Technology Services, Inc. (GTSI), under request for proposals (RFP)
No. DAHC94-96-R-0003, for portable computer systems and related
resources. The protesters primarily argue that the awardees'
proposals failed to comply with various mandatory specification
requirements.
We deny the protests.
The solicitation contemplated award of two firm, fixed-price,
indefinite delivery, indefinite quantity contracts, with a contract
period of 2 years, for commercial off-the-shelf (COTS) portable
computer systems, including generally a number of standard
configurations and a number of high performance configurations.[1]
Award was to be made to the two responsible offerors whose offers
"represent the best overall value to the Government" under four
criteria: (1) technical, (2) past performance, (3) cost, and (4)
management. The technical factor--comprised of eight subfactors,
including performance of the standard and high performance systems on
the Winstone 32, Winbench 96, and Ziff-Davis BatteryMark benchmark
tests and on the agency's ergonomics tests--was "significantly more
important" than past performance, cost or management; past performance
was "comparatively equal" to cost; and past performance and cost both
were "more important" than management. Although the solicitation
included detailed specifications, it did not require the submission of
detailed technical proposals. Instead, it required that offerors:
(1) furnish "commercial technical information sheets/brochures
sufficient to identify the products being offered (e.g., specification
sheets)," and identify the original equipment manufacturer (OEM) of
the products; (2) furnish the results from unwitnessed benchmark
tests; (3) furnish bid samples consisting of the core systems, but not
the various required peripherals, for witnessed benchmark testing; (4)
make oral presentations; and (5) complete a "global certification"
stating that "the offeror meets all the requirements of the
solicitation . . . except as noted below. . .," and agreeing that in
the event that it should "fail to meet any requirements, the
contractor shall, at no additional cost, make any changes necessary to
the products or services to comply with the contract requirements."
(In addition, offerors were required to submit price, past
performance, and management information.)
Eight proposals were received. Following discussions, oral
presentations and benchmark testing, AMC requested best and final
offers (BAFO) from five offerors, including IDP, Commax, Sysorex and
GTSI. Based upon the evaluation of BAFOs, oral presentations and
benchmark testing, AMC determined that the proposals of Sysorex and
GTSI, which included signed global certifications of compliance with
the specifications, represented the best value. The evaluation scores
were as follows:
Sysorex GTSI Commax IDP
Technical 38.78 32.43 39.88 32.43
Past Performance15.0518.6511.45 16.85
Management 13.55 13.55 11 12.2
Total Non-Cost67.38 64.63 62.33 61.48
Evaluated Cost$[DELETED]
million $[DELETED]
million $[DELETED] million$[DELETED]
million
Upon learning of the resulting awards to Sysorex and GTSI, IDP and
Commax filed these protests with our Office.
GLOBAL CERTIFICATION
As an initial matter, AMC contends that by signing the solicitation's
global certification of compliance, and taking no exception to the
specifications, the awardees established the technical acceptability
of their proposals, irrespective of the contents of the proposals.
AMC concludes that the awardees' proposal are not subject to challenge
on the basis that they do not satisfy specification requirements.
We disagree. While an agency can properly provide for a certification
of compliance and based on such certification accept a proposal that
does not affirmatively establish compliance with the specifications,
an offeror's blanket certification or promise of compliance is
insufficient to establish compliance where the agency has reason to
question the characteristics of the products being offered. See
generally Lappen Auto Supply Co., Inc., B-261475, Aug. 14, 1995, 95-2
CPD para. 68 at 4 (although "brand name" offeror was not required to
submit descriptive literature, its unsolicited literature could not be
disregarded to the extent that it clearly qualified the bid by
describing an item that did not satisfy a specified salient
characteristic); SeaBeam Instruments, Inc., B-253129, Aug. 19, 1993,
93-2 CPD para. 106 at 7 (certification of compliance with Appropriations
Act domestic manufacture restriction may not be accepted where the
proposal suggests noncompliance); Mine Safety Appliances Co.;
Interspiro, Inc., B-247919.5; B-247919.6, Sept. 3, 1992, 92-2 CPD para.
150 at 3 (even where a solicitation does not require a showing of
compliance with each solicitation requirement, a proposal that does
not explicitly show compliance with a requirement may not be accepted
where there is reason to doubt that the offeror is agreeing to meet
that requirement). Thus, notwithstanding the existence of a signed
global certification, our Office will still review protests that the
agency had reason to question the characteristics of the products
being offered.
IDP PROTEST
IDP asserts that the IBM Thinkpad 760E portable proposed by Sysorex to
meet the high performance requirement is noncompliant with the
specification requirement that "[t]he base configuration for a high
performance portable shall include an internal 3�" floppy disk drive,
a built-in pointing device, 1.2 [gigabyte] removable hard disk drive,
internal 5�" CD-ROM Player. . . ." Specifically, Sysorex's proposal
indicated that the IDP Thinkpad 760E uses a single drive-bay to
accommodate internally either a floppy disk drive or a CD-ROM drive;
thus, the floppy disk drive and CD-ROM drive are accommodated on an
interchangeable basis rather than simultaneously. IDP argues that
simultaneous accommodation is required.
Where a dispute exists as to the meaning of a solicitation
requirement, we will resolve the matter by reading the solicitation as
a whole, and in a manner that is reasonable and which gives effect to
all its provisions. Honeywell Regelsysteme GmbH, B-237248, Feb. 2,
1990, 90-1 CPD para. 149 at 5. Further, we will not read a provision
restrictively where it is not clear from the solicitation that such a
restrictive interpretation was intended by the agency. Reflectone
Training Sys., Inc.; Hernandez Eng'g, Inc., B-261224; B-261224.2, Aug.
30, 1995, 95-2 CPD para. 95 at 5; MAR Inc., B-242465, May 6, 1991, 91-1
CPD para. 437 at 4.
We find no basis to conclude that simultaneous accommodation was
required. First, the specifications did not expressly require
simultaneous accommodation, and AMC notes (and IDP does not refute)
that interchangeable floppy disk and CD-ROM drives is a common
commercial approach for portables (five of the eight offerors proposed
portables based on this approach). Further, in offeror question No.
59, IDP asked the agency to "confirm this offeror's understanding that
the Standard Portable need not support the 3.5 "floppy disk drive and
optional CD-ROM simultaneously." AMC answered that: "The offeror's
understanding is correct. The Standard Portable need not support the
3.5 "floppy disk drive and the optional Standard Portable CD-ROM
Player . . . simultaneously." While AMC's answer did not address the
high performance portable, in the absence of any express RFP
requirement that the high performance model provide for simultaneous
accommodation, and given the fact that interchangeability is a common
commercial approach, we think AMC's answer was sufficient to indicate
that it did not intend that offerors read a simultaneous accommodation
requirement into the RFP.[2] Put another way, it was unreasonable for
IDP to read the RFP restrictively by assuming that the solicitation
was intended to preclude a common commercial approach to providing the
required functionality, when the solicitation did not include any such
express restriction. We conclude that Sysorex's proposal reasonably
was found compliant with this aspect of the specifications.
COMMAX PROTEST
Docking Station
Commax asserts that GTSI's proposal failed to comply with a
solicitation requirement for docking stations (which permit connection
of the portable with desktop components and provide additional
capabilities). In this regard, the solicitation required offerors to
propose standard and high performance portables equipped with a PCMCIA
card reader "capable of accommodating two Type II and one Type III
device (not simultaneously)," five separate types of PCMCIA cards, and
docking stations for both portables. Commax contends that because
GTSI proposed a PCMCIA card reader that accommodates two Type II cards
or one Type III PCMCIA card, and a "universal" docking station that
connects to the portables using the PCMCIA slot--rather than a docking
station connecting with the portables through the docking station
interface connector--and occupies one Type II PCMCIA slot, thereby
preventing use of the PCMCIA card reader by a Type III card, GTSI's
docking station is noncompliant with the solicitation requirements as
clarified by the agency's response to offeror question No. 46. In its
answer, AMC responded to a request that the solicitation "requirement
for the MPEG [video] module be supplied via a PCMCIA card," by stating
that
"[t]he Army needs to use the existing PCMCIA card reader for
other missions (e.g., remote communications and Fortezza). Use
of a PCMCIA MPEG card would greatly limit the Government's
flexibility. The requirement remains as stated."
Commax argues that use of the PCMCIA card reader by GTSI's docking
station is inconsistent with the above-stated need of the agency to
use the PCMCIA card reader "for other missions." Commax specifically
notes that by occupying one Type II slot, GTSI's docking station
prevents the use of the PCMCIA card reader by the Type III card GTSI
proposed to meet the solicitation requirement for a PCMCIA hard
card.[3]
The fact that GTSI's proposed docking station connects to the portable
through the PCMCIA card reader was not apparent from GTSI's proposal,
which did not discuss the mode of connection to the portable, and only
became known to the agency during the course of the protest (AMC
relied on the global certification in finding GTSI's proposal
compliant). Hearing Transcript (Tr.) at 309. Commax argues that this
should not protect GTSI from the consequences of its proposal of an
allegedly nonconforming docking station, since GTSI allegedly
concealed the identity of the OEM for the docking station. In this
regard, claims Commax, while GTSI's proposal identified Everex
Systems, Inc. as the OEM, the proposed docking station, which
apparently was designed and engineered by CNF, Inc. and known as the
CNF Digitari 535i Universal Docking Station, was to be manufactured by
CNF.
GTSI, on the other hand, has testified that it was advised by Everex,
and believed, that although CNF designed the docking station, Everex
would manufacture it. Tr. at 172-174, 179-180, 185, 216-221. Indeed,
GTSI maintains that Everex will in fact manufacture the docking
stations for this contract under license from CNF.[4]
Generally, where an offeror has made an intentional misrepresentation
that materially influenced the agency's consideration of its proposal,
the proposal should be disqualified and a contract awarded based upon
the proposal should be canceled. The Law Offices of George E. Hill,
B-272168, Sept. 4, 1996, 96-2 CPD para. 96 at 4; Gold Appraisal Co.,
B-259201, Mar. 15, 1995, 95-1 CPD para. 144 at 6.
Here, it is clear that the alleged misrepresentation and concealment
could not have been material. AMC states that, had it been aware that
GTSI was offering a CNF Digitari 535i Universal Docking Station, it
would have accepted it as compliant with the specifications.
According to the agency, a PCMCIA-based docking station would not have
the same negative impact on utilization of the PCMCIA card reader as
would a PCMCIA MPEG card (referenced in the answer to question 46).
AMC maintains in this regard that users generally want to have an MPEG
card (and its video capabilities) available at all times, which is why
the agency considers a PCMCIA MPEG card to pose an impediment to
communications. In contrast, AMC explains, since a docking station is
intended for home station (rather than remote) use, and communications
are possible even when the PCMCIA-based docking station is connected
to the portable (through use of a modem that is resident on either a
network, via a docking station interface card, or on an internal
docking station modem expansion board), a docking station does not
impede remote communications. In addition, the agency states, a Type
II Fortezza encryption card can be used with a PCMCIA-based docking
station utilizing a Type II connection, since the card reader can
accommodate two Type II devices simultaneously. Tr. at 312-313.
Indeed, the agency considers GTSI's offer of a universal PCMCIA-based
docking station not only to be compliant with the specifications, but
also to represent a significant advantage, since it could be used with
portables in the existing Army inventory, as well as portables
obtained from other sources.
AMC's position--that use of the PCMCIA card reader by GTSI's docking
station is consistent with the specifications--is reasonable. As with
the simultaneous accommodation issue discussed above, the
specifications, even as clarified by the questions and answers, did
not expressly prohibit such an approach. Specifically,
notwithstanding the protester's urged expansive reading, the agency's
answer to question No. 46 stated only that use of the PCMCIA card
reader for purposes of meeting the MPEG requirement was unacceptable;
it did not state that use by a docking station--which, unlike an MPEG
card would not impede communications--likewise was unacceptable, and
the specifications did not even address how the required docking
station was to connect with the portable.[5] Under these
circumstances, it was unreasonable for Commax to assume that the
solicitation precluded GTSI's approach.
Other Issues
Commax challenges other aspects of the evaluation of proposals. We
conclude that Commax's arguments are either without merit or, given
Commax's lower non cost score and significantly higher cost, do not
demonstrate competitive prejudice.
For example, Commax argues that GTSI's proposal failed to comply with
the solicitation requirements for memory upgrades to the required
graphics accelerator cards. In this regard, the specifications
required: (1) a standard graphics accelerator card that supports a
resolution of 800x600 with 16.7 million simultaneous colors, and whose
memory is "upgradeable to 4 MB [megabytes]"; and (2) a high
performance graphics accelerator card that supports a resolution of
1024x768 with 16.7 million simultaneous colors, and whose memory is
"upgradeable to 8 MB." The record indicates that two common types of
memory on graphics cards are DRAM (Direct Random Access Memory) and
VRAM (Video Random Access Memory). Although the base configurations
of GTSI's standard and high performance graphics cards come with VRAM,
they are only upgradeable with DRAM; adding DRAM would tend to
accelerate graphics processing and facilitate 3D (3-dimensional)
displays and full motion video without jitters but, unlike an addition
of VRAM, would not permit higher resolutions at a given color depth on
these cards. Tr. at 207-209, 335-338, 439, 441-442, 449. Commax
essentially argues that because the specifications define the
performance requirements for the base configuration graphics cards in
terms of resolution at a given color depth, any upgrade to GTSI's
graphics cards must involve the addition of VRAM, since only VRAM will
increase resolution at a given color depth. According to the
protester, had it been afforded an opportunity to propose to the
allegedly relaxed specifications, it could have reduced its price by
approximately $[DELETED] by offering different graphics accelerator
cards.
We find the protester's position unpersuasive. As with the other
features discussed above, the protester's restrictive interpretation
is not supported by any RFP language. The solicitation neither
defined the type of memory to be used in the upgrades nor established
performance requirements for the upgraded cards. Although the
solicitation implicitly required an improvement in performance from an
upgrade, the record indicates that upgrading GTSI's proposed graphics
accelerator cards with DRAM would in fact improve performance; it
would tend to accelerate graphics processing and facilitate 3D
displays and full motion video without jitters. (Indeed, it appears
from the record that for certain graphics accelerator cards, but not
for GTSI's proposed cards, a DRAM upgrade would also permit higher
resolutions at a given color depth.) The record further indicates
that some Army users actually were more interested in the additional
3D capability offered by a DRAM upgrade than in the additional
capability offered by a VRAM upgrade. Tr. at 335-338. In our view,
it was unreasonable for Commax to assume without inquiry that the
solicitation precluded a commercial approach to providing memory on
graphics accelerator cards when the solicitation did not include any
such express prohibition.
As a further example, Commax challenges the agency's acceptance of the
product GTSI offered to comply with the solicitation requirement for a
combination printer/scanner/copier/fax machine. We agree with the
protester that, given the manufacturer's speed rating for this
product, as revealed in the descriptive literature enclosed with
GTSI's proposal, the unit was noncompliant under any reasonable
interpretation of the specifications. However, Commax claims it could
have reduced its price only by $[DELETED] had it been aware of this
relaxed specification. Since Commax's evaluated price was
approximately $[DELETED] million higher than Sysorex's much
higher-rated proposal and $[DELETED] million higher than GTSI's
somewhat higher-rated proposal, it clearly suffered no competitive
prejudice as a result of the relaxation.
The protests are denied.
Comptroller General
of the United States
1. Although the agency's answer to offeror question No. 75 (answers to
questions from offerors were incorporated in the RFP) stated that the
applicable definition of commerciality would be that specified by
Federal Acquisition Regulation sec. 52.212-4(e), the answer indicated
that
"[t]he fact that a product is unannounced when offered
would not violate the commerciality requirement for that
reason as long as the product otherwise satisfies the
provisions of the clause, which encompasses certain items
not yet available in the commercial marketplace that have
evolved through advances in technology or performance and
that will be available in time to satisfy the delivery
requirements under the contract."
2. We recognize that, as noted by the protester, although both
portables must support a CD-ROM drive, the CD-ROM for the high
performance portable was a mandatory part of the base configuration
while the CD-ROM for the standard portable was an optional item.
However, AMC's answer to question No. 59--that the standard portable
need not support the floppy disk drive and the CD-ROM
simultaneously--addressed the agency's needs with respect to
simultaneous support of the two devices where a CD-ROM also is
required for the standard portable. Thus, we see no reason why AMC's
answer should not likewise apply to the high performance portable.
3. Commax also cites AMC's answer to an offeror's request that,
because the requirement for a docking station is "limiting," and the
functionality of a docking station can be furnished by a PCMCIA card
reader, the agency delete the requirement for a docking station. The
agency responded that
"[t]he Government has a requirement for docking stations
that are capable of supporting expansion cards and storage
bays for use with not only products provided with the
vendor proposal, but also to provide the flexibility to
utilize items which already exist in the Government
inventory. The requirement stands as stated."
This question and answer, however, addressed the need for the docking
station, while Commax' protest focuses on the need for and use of the
PCMCIA card reader. Thus, we do not consider it relevant to the
question of whether GTSI's proposed docking station makes unacceptable
use of the PCMCIA card reader.
4. GTSI also offered evidence to the effect that it believed when
preparing its proposal that its proposed docking station would be
commercially available by the time of contract delivery. See, e.g.,
Tr. at 195-197, 222-224.
5. At a minimum, we fail to understand why, in view of the fact that
the specifications did not expressly prohibit a PCMCIA-based docking
station, and the protester's claim as to the significance of this for
the choice of portable and components, the protester did not seek
clarification from the agency with respect to this matter. In this
regard, a Commax employee involved in developing its technical
approach to this procurement testified that had it viewed a universal
PCMCIA-based docking station as being acceptable, and thus not
believed it necessary to propose a proprietary-design docking station
with a more limited market for its product, it could have realized
savings totaling approximately $22 to $22.5 million as a result of the
consequently greater choice it would have had with respect to
portables and other components. Tr. at 111-122. (Likewise, Commax
maintains that permitting "a universal docking station removes the
tremendous 'compatibility' challenge" offerors would otherwise face
when utilizing a proprietary design.)