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-�-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).