BNUMBER:  B-277926.2 
DATE:  September 17, 1998
TITLE: Teleport Communications Group, B-277926.2, September 17, 1998
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Matter of:Teleport Communications Group

File:     B-277926.2

Date:September 17, 1998

Attila A. Tota for the protester.
Paula Coombs for Pacific Bell, an intervenor.
Eva Escalante, Esq., Department of the Navy, for the agency.
John L. Formica, Esq., and James A. Spangenberg, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Agency reasonably evaluated the protester's proposal for a network to 
meet certain telecommunications requirements as proposing a network 
not dedicated to the agency's exclusive use.

DECISION

Teleport Communications Group (TCG) protests the award of a contract 
to Pacific Bell under request for proposals (RFP) No. 
N00244-97-R-5197, issued by the Department of the Navy, for a network 
to meet the Navy's telecommunications requirements for the San Diego, 
California metropolitan area.  TCG protests the evaluation of its 
proposal and selection of Pacific Bell's higher-priced proposal for 
award.

We deny the protest.

The RFP, issued on July 11, 1997, provided for the award of a 
fixed-price indefinite quantity contract for a 5-year performance 
period.  The successful contractor under the RFP will be required "to 
provide a fully operational, heterogeneous transport vehicle for all 
voice, video and data transmissions necessary for conducting Navy 
business (plus any emergent Federal users) in the San Diego region."  
RFP amendment No. 0005 at 2.  The RFP added here that "[t]his includes 
. . . the expansion of bandwidth at initial and expanded sites and the 
upgrade of technology as needs evolve."[1]  Id.  The RFP included a 
statement of objectives (SOO), which set forth 15 general objectives 
which the offerors' proposals were to meet.[2]  RFP attachment 1, 
revision 2.  The agency explains that it chose this approach so that 
firms had "wide latitude to propose innovative ways of doing business 
and to employ creative problem solving to meet the Navy's 
requirements."  Agency Report at 2-3.

The RFP stated that award would be made to the offeror submitting the 
offer determined to be most advantageous to the government, and listed 
the following evaluation factors in descending order of importance:  
(1) price; (2) technical capability; and (3) past performance.  RFP 
amendment No. 0002 replacement pp. 14-15.  The RFP added that 
technical capability and past performance were approximately equal in 
importance, and that technical capability and past performance 
combined were approximately equal in importance to price.  Id.

The RFP set forth detailed instructions for the preparation of 
proposals.  Specifically, the RFP required that proposals include, 
among other things, a statement of work (SOW) detailing how the 
offeror would meet each of the RFP's listed objectives, and a price 
proposal setting forth relevant contract line items.   RFP amendment 
No. 0002 replacement p. 12.  The RFP added that offerors were 
permitted to submit up to three technical approaches.  Id. at 15. 

The agency received seven proposals from four offerors by the RFP's 
closing date.  The proposals were evaluated, discussions held, and 
best and final offers (BAFO) were requested, received, and evaluated.  
A second round of discussions was conducted, and revised BAFOs were 
requested and received.

In accordance with the source selection plan, each proposal was rated 
by the cognizant technical evaluation board (TEB) as to how well it 
demonstrated fulfillment of each of the RFP's 15 objectives.  Each 
proposal also received an overall technical rating, past performance 
rating, and combined (technical capability and past performance) 
rating.[3]  In this regard, Pacific Bell's technical proposal received 
ten highly satisfactory" and five "satisfactory" ratings, an overall 
technical rating of "highly satisfactory," a past performance rating 
of "satisfactory," and a combined proposal rating of "highly 
satisfactory," at a price of $18,993,409.  TCG's technical proposal 
received 2 "highly satisfactory" and 13 "satisfactory" ratings, an 
overall technical rating of "satisfactory," a past performance rating 
of "satisfactory," and a combined rating of "satisfactory," at a price 
of $18,244,182.

The agency's best value decision focused on the superior elements of 
Pacific Bell's technical proposal, as evidenced by its "highly 
satisfactory" ratings, as well as the additional bandwidth provided 
for by Pacific Bell's proposed technical solution.  The agency 
determined that the value of the superior elements of Pacific Bell's 
technical proposal, which could not be readily quantified, as well as 
the additional bandwidth, valued by the agency as worth approximately 
$2.3 million, more than offset TCG's proposal's price advantage.  The 
agency subsequently awarded a contract under the RFP to Pacific Bell 
as the offeror whose proposal was determined to be most advantageous 
to the government.

TCG, after requesting and receiving a debriefing, which according to 
TCG included "an explanation of our network design differences versus 
our competitor, Pacific Bell," filed this protest.  Protest at 2.  

TCG protests that the agency's evaluation of its technical proposal 
was unreasonable.  The evaluation of technical proposals is a matter 
within the discretion of the contracting agency since the agency is 
responsible for defining its needs and the best method of 
accommodating them.  Marine Animal Prods. Int'l, Inc., B-247150.2, 
July 13, 1992, 92-2 CPD  para.  16 at 5.  In reviewing an agency's 
evaluation, we will not reevaluate technical proposals, but instead 
will examine the agency's evaluation to ensure that it was reasonable 
and consistent with the solicitation's stated evaluation criteria.  
MAR, Inc., B-246889, Apr. 14, 1992, 92-1 CPD  para.  367 at 4.  An offeror's 
mere disagreement with the agency does not render the evaluation 
unreasonable.  McDonnell Douglas Corp., B-259694.2, B-259694.3, June 
16, 1995, 95-2 CPD  para.  51 at 18.

The RFP's SOO listed the following as objective (b):

     Allow for future growth, additions to the network, and 
     implementation of new technology as it becomes available.

RFP attachment 1, revision 2, at 1.  In evaluating TCG's technical 
proposal under objective (b), the TEB found that, although TCG 
proposed the use of a synchronized optical network, or "backbone" 
network, with a relatively high speed which would provide "more than 
sufficient capacity for growth at major sites," it did not appear that 
this network would be dedicated for the Navy's exclusive use.[4]  TEB 
Report at 26.  In this regard, the TEB pointed out that TCG's proposal 
provided only that the Navy would "have equal and fair access to the 
backbone network."  TCG proposal addendum A at 20.  The agency 
concluded that because it may be sharing the network with other TCG 
customers, it may have to compete with those customers for additional 
space on the network as the agency's requirements increased.  Because 
this could adversely affect the ability to expand the Navy's use of 
the network in the future, TCG's proposal was evaluated as only 
"satisfactory" under objective (b).  The agency also noted here that 
TCG's proposal did not specify whether the additional capacity 
provided by its network would be made available to the Navy at any (or 
no) additional cost.

In contrast, the Navy found that, while Pacific Bell's technical 
solution provided less capacity initially, the capacity provided was 
more than adequate, and that Pacific Bell stated in its offer that it 
would expand the capacity to meet any future Navy requirements at no 
additional cost.  The agency thus rated Pacific Bell's proposal as 
"highly satisfactory" under objective (b).    

TCG contends that the agency's interpretation of its proposal was 
unreasonable.  TCG claims in its protest that the network would be 
"dedicated to the exclusive use by the Navy," and that the statement 
in its proposal that the Navy would have "equal and fair access" to 
the network did not indicate otherwise.  Protest at 2.  TCG explains 
that it included the phrase "equal and fair access" because the RFP's 
SOO provided in its introduction that the MAN would "assist the Navy, 
as well as other government agencies."  RFP attachment 1, revision 2, 
at 1.  TCG points out that its proposal refers to five dedicated 
backbones that it had built for other federal customers, and that its 
proposal states that the network being proposed would "be supported by 
this type of infrastructure and architecture."  TCG proposal addendum 
A at 18.  TCG also contends that it did not specifically mention in 
its proposal whether additional capacity provided by its network would 
be made available to the Navy at no additional cost because TCG, as 
part of its business approach, "inherently must increase the capacity 
to accommodate services delivered, at our own expense."  Protester's 
comments at 2.  TCG concludes that the agency's interpretation of its 
proposal regarding the agency's access to the network and TCG's 
ability to meet the agency's future needs regarding expanded capacity 
was in error.  TCG argues that, because of this, the agency's 
evaluation of its proposal was unreasonable and its conclusions as to 
the relative merits of Pacific Bell's proposal, specifically regarding 
the additional bandwidth proposed by Pacific Bell, were unfounded.    

We cannot find the agency's evaluation of TCG's proposal to be 
unreasonable.  The statement in TCG's proposal that the agency would 
have "equal and fair access to the backbone network" can reasonably be 
interpreted only as providing that the user would have other than 
exclusive or dedicated access.  Simply put, the phrase "equal and fair 
access" denotes that the access being offered will be shared "equally" 
with some other entity or entities (as opposed to being shared with 
other entities where certain users have either priority or subordinate 
access).

The fact that TCG mentioned elsewhere in its proposal that it had 
built five dedicated backbone networks for federal customers does not 
nullify or somehow qualify the meaning of the phrase "equal and fair 
access" so as to render the agency's interpretation of the phrase 
unreasonable.  In this regard, the proposal refers to dedicated 
networks that TCG has built, and then states that the network being 
proposed here would be supported by the same infrastructure and 
architecture--it does not specify that access to the network would 
also be exclusive or dedicated.  Moreover, even if the relevant 
subsection of TCG's proposal could be interpreted as clearly stating 
that TCG intended to provide a network dedicated to the Navy, or if it 
did contain additional language clearly stating as such, the 
subsection would at best be inconsistent with the succeeding 
subsection of TCG's proposal that specifically provided that the 
agency would have only "equal and fair access to the backbone 
network."  

In sum, to the extent that TCG did intend to propose a backbone 
network "dedicated to the exclusive use by the Navy," the protester 
had the burden of clearly stating this in its proposal.  It is an 
offeror's obligation to submit an adequately written proposal for the 
agency to evaluate, and in light of TCG's failure to fulfill its 
obligation in this regard, we see no basis to criticize this aspect of 
the agency's evaluation.  GEC-Marconi Elec. Sys. Corp., B-276186, 
B-276186.2, May 21, 1997, 97-2 CPD  para.  23 at 7.  The same analysis 
applies to TCG's assertion that it did not specifically mention in its 
proposal that additional capacity provided by its network would be 
made available to the Navy at no additional cost because TCG, as part 
of its business approach, "inherently must increase the capacity to 
accommodate services delivered, at our own expense."  Comments at 2.  
The protester has not pointed out where in its proposal there is any 
statement that would put the agency on notice of this "inherent" 
aspect of its approach.  Accordingly, we have no basis to criticize 
this aspect of the agency's evaluation.[5]
Finally, TCG challenges the agency's best value determination based 
upon its contention that the agency's evaluation of its proposal and 
consideration of the relative merits of Pacific Bell's proposal 
vis-ï¿½-vis TCG's proposal as evaluated were unreasonable.  As explained 
above, we cannot find the agency's evaluation of TCG's proposals to be 
unreasonable.  Because the agency in its award selection documentation 
reasonably explained why Pacific Bell's higher-rated proposal was 
worth its evaluated price premium, the protester's contentions here 
provide no basis for overturning the award.[6]  Matrix Int'l 
Logistics, Inc., B-277208, B-277208.2, Sept. 15, 1997, 97-2 CPD  para.  94 
at 14; Hughes Georgia, Inc., B-272526, Oct. 21, 1996, 96-2 CPD  para.  151 
at 8.

The protest is denied.

Comptroller General
of the United States

1. Bandwidth is defined in the RFP, annex B at 1, as:

            The range of frequencies, expressed in hertz (Hz), that 
            can pass over a given transmission channel.  The bandwidth 
            determines the rate at which information can be 
            transmitted through the circuit the greater the bandwidth, 
            the more information that can be sent in a given amount of 
            time.  

2. For example, objective (a) requested that the contractor:

            Furnish a robust and reliable network that provides for 
            open systems, interoperability, scalability, cost 
            effectiveness and efficient transport of integrated voice, 
            video and data.  The provider to provider and switch to 
            switch interfaces must not limit the Government to a non 
            standards based solution.

RFP attachment 1, revision 2, at 1.

3. The adjectival ratings used by the agency in evaluating proposals 
were outstanding, highly satisfactory, satisfactory, marginal, and 
unsatisfactory.

4. A synchronized optical network, or SONET, is a high-speed fiber 
optic network that is sometimes referred to as a "backbone."  RFP 
annex B at 3; Agency Report at 13 n.2.

5. TCG has made a number of other related contentions during the 
course of this protest having to do with the agency's evaluation of 
proposals and selection of Pacific Bell for award.  Although these 
contentions may not be specifically addressed in this decision, each 
was carefully considered by our Office and found either to be 
abandoned because the agency explained in detail the bases of its 
evaluation, insignificant in view of our other findings, or invalid 
based upon the record as a whole.

6. TCG protests that the solicitation should have included a detailed 
statement of work (SOW), rather than a SOO because the SOO "favors the 
incumbent [Pacific Bell] because of familiarity, and is not in the 
best interest of the Navy."  Protester's supplemental comments at 1.  
This contention, raised for the first time in the protester's comments 
on the agency report, is untimely.  Our Bid Protest Regulations 
contain strict rules requiring the timely submission of protests.  
Under these rules, protests based upon alleged improprieties in a 
solicitation which are apparent prior to the time set for the receipt 
of proposals must be filed prior to that time to be considered by our 
Office.  4 C.F.R.  sec.  21.2(a)(1) (1998).  For the same reason, we will 
not consider TCG's contention that the agency should have set forth 
its actual requirements relating to the legacy local area network 
(LAN) interface in greater detail in the solicitation.

TCG also states that it has learned that the agency's requirements can 
be met by a less expensive solution than those proposed by TCG and 
Pacific Bell, and asserts that in performing the contract Pacific Bell 
will use this less expensive solution.  The agency responds that 
Pacific Bell is providing the legacy LAN interfacing that it promised 
in its proposal, and that this approach meets the agency's 
requirements.  To the extent TCG is arguing that the solicitation 
overstated the agency's requirements, this is an untimely challenge to 
the solicitation's terms; otherwise, this argument appears to question 
the administration of Pacific Bell's contract, which is outside our 
bid protest jurisdiction.  4 C.F.R.  sec.  21.5(a).