TITLE:  Williams Communications Solutions, LLC, B-283900, January 18, 2000
BNUMBER:  B-283900
DATE:  January 18, 2000
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Williams Communications Solutions, LLC, B-283900, January 18, 2000

Decision

Matter of: Williams Communications Solutions, LLC

File: B-283900

Date: January 18, 2000

Carl L. Vacketta, Esq., Kevin P. Mullen, Esq., and Brian R. Kennedy, Esq.,
Piper, Marbury, Rudnick & Wolfe, for the protester.

Judith Ward Mattox, Esq., for TennMark Telecommunications, Inc., an
intervenor.

Phillipa L. Anderson, Esq., and Dennis Foley, Esq., Department of Veterans
Affairs, for the agency.

Robert C. Arsenoff, Esq., and Paul I. Lieberman, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

1. Protest against agency determination that protester's proposal was
technically noncompliant is denied where it is based on protester's
unreasonable interpretation of solicitation requirements.

2. Protest alleging that discussions were not meaningful is denied where
record reflects that agency led protester into the area of its proposal in
need of revision.

DECISION

Williams Communications Solutions, LLC protests the issuance of a task order
to TennMark Telecommunications, Inc. by the Department of Veterans Affairs
(VA), under task order proposal request No. VHA-020(642), issued to all
Nortel Authorized General Services Administration (GSA) schedule
representatives listed on GSA schedule No. GS-35F-1130D. The task order is
for the upgrade of a telephone system at the VA Medical Center in
Philadelphia. Williams argues that its proposal was improperly determined to
be technically unacceptable, that the VA failed to conduct meaningful
discussions, and that the VA improperly waived certain material requirements
for the benefit of the awardee.

We deny the protest.

The proposal request was released on July 30, 1999, as a competitive Nortel
GSA schedule procurement. Paragraph 2.17 of the request provided that the
government would award a task order to the offeror whose offer conforming to
the requirements of the proposal request was determined to be most
advantageous to the government, price and other factors considered. The
other factor set forth in paragraph 2.17 was past performance. That
paragraph further provided that proposals that failed to meet all of the
mandatory requirements of the statement of work (SOW) would not be
considered.

Amendments Nos. 1 through 3 modified various elements of the SOW and
amendment No. 4 extended the proposal response date to September 15. Three
proposals were received, including those from Williams and TennMark.

Technical proposals were reviewed by the contracting officer's technical
representative (COTR) and the chief information officer (CIO) in
Philadelphia. The contracting officer evaluated price proposals. On
September 28, the VA issued letters to each offeror detailing technical
deficiencies found by the COTR and the CIO, requesting price clarifications
and establishing 12 noon on September 29 as the deadline for receipt of
responses.

Final responses were forwarded to the COTR and the CIO on September 29 for
review, and a second price analysis was performed. On September 30,
Williams' proposal, with an evaluated price of $ [deleted] (Agency Report,
exh. 20), was found to be technically noncompliant in two areas because it
proposed an insufficient number of power failure transfer units (PFTUs) and
an insufficient number of paging microphones and consoles. Agency Report,
exh. 22. TennMark's proposal, with an evaluated price of $ 2,613,836.47
(Agency Report, exh. 20), was found to be technically compliant in all
respects, and was selected for the issuance of the task order. Agency
Report, exh. 22. Williams was notified of TennMark's selection on October 4;
the firm was provided with a written debriefing on October 7 and this
protest followed on October 12, in which Williams challenges the VA's
evaluation of both proposals.

Williams first alleges that the evaluation of its technical proposal as
failing to provide a sufficient number of PFTUs and paging microphone and
consoles is incorrect. Further, Williams argues that these requirements were
not identified as "mandatory" and, therefore, failure to satisfy them could
not constitute a basis for rejection of its proposal under paragraph 2.17 of
the proposal request. Williams also maintains that the requirements are not
material and, therefore, any failure to meet them should have been waived by
the VA. Finally, Williams alleges the agency failed to conduct meaningful
discussions concerning the perceived weaknesses in its technical proposal.

EVALUATION

In reviewing protests against the propriety of an agency evaluation, it is
not the function of our Office to independently evaluate proposals and we
will, therefore, not disturb the agency's conclusion unless it is shown to
be unreasonable. The record must establish that the evaluation is
unreasonable and the mere fact that a protester disagrees with the agency
does not render the evaluation unreasonable. WRS Infrastructure & Env't,
Inc., B-281222, Jan. 12, 1999, 99-1 CPD para. 66 at 3-4.

Regarding the requirement for PFTUs, paragraph 1.1.3.10 of the SOW provided,
in pertinent part, as follows:

An automatic central office [CO] trunk connection to [predetermined]
stations for emergency trunk by-pass/cut-through service shall be provided.
The device(s) proposed interface to existing analog trunk facilities. These
trunk bypass units shall be automatically activated upon power failure.
[Emphasis added.]

The SOW, at paragraph 1.1.2.1, CO Trunk Bypass, required 16 ports for this
requirement.

Amendment No. 1 responded to questions concerning the procurement. Question
V involved the PFTU requirement: "[H]ow many size-wise, [PFTUs] are
required?" In response, the VA advised: "The existing system has 52 analog
ports that are power fail. The new system shall retain this capability."
Agency Report, exh. 3, at 6 (emphasis added).

Amendment No. 2 also discussed the PFTU requirement: "The Philadelphia
facility is providing the following information for clarification with
respect to the [PFTUs] discussed in Amendment No. 1."

The number of existing [PFTUs] is approximately 84. These [PFTUs] support
approximately 84 lines currently going through single density cards. These
single density cards will be replaced under this task order. The
Philadelphia facility will add an additional 16 new power fail lines prior
to the award of this task order. This will be done using two 8 line Dee's
units. The old power [failure] equipment shall be replaced with 11 eight
line Dee's (or equal) units.

Agency Report, exh. 4, at 6 (emphasis added).

In its initial proposal, Williams proposed two [deleted] PFTUs and explained
that each unit provides transfer circuits for [deleted] trunks to pre-wired
analog telephones. The proposal also offered two [deleted] model [deleted]
PFTUs to allow use of digital trunking, should all power go out. Agency
Report at 6-7.

In written discussions, Williams was advised:

Paragraph 1.1.3.10 – [Your response] states [deleted] power failure
equipment. The requirement is for analog trunk power failure equipment. In
Amendment No. 2, Item G, ". . . the Philadelphia facility will add an
additional 18 [sic] new power fail lines prior to the award of the task
order. This will be done using two 8 line Dee's units." Does the [deleted]
unit meet the analog requirement and work with the VA provided lines? Do the
features and capabilities of the [deleted] unit meet the features and
capabilities of the Dee's unit the facility has?

Agency Report at 7.

In its final response, Williams advised:

The two (2) [deleted] power failure units provides for full operation of the
two T-1 circuits during a power outage. The units allow access to the
circuits without the need for special telephones or ground start buttons.

We have also proposed two (2) [deleted] [PFTUs] for the sixteen (16) analog
trunks identified in [SOW] Table 1.1.2.1 which are required to be equipped
with power failure transfer.

Id.

The agency's position is that Williams' proposal ignores the effect of
amendment No. 2 which set forth the VA's need for 11 eight-line PFTUs to
cover the 84 analog ports required by the amendment. The VA states that
Williams has proposed two [deleted] units, which will cover 48 digital
ports, and two [deleted] units, which will cover only 16 analog ports.
Finally, VA points out that even the total of 64 ports covered does not meet
its minimum needs of coverage of 84 analog ports.

Williams contends that the proposal request, even as amended, requires PFTUs
for only 16 new analog lines because paragraph 1.1.2.2 of the SOW, which
amendment No. 2 does not explicitly address, in the protester's view,
states: "The existing analog emergency bypass shall be retained." Williams
argues that this meant that it could assume that the existing capability to
cover 100 analog lines was not to be covered under the task order. Williams
concludes that, under its interpretation of the request, its proposal meets
the VA's stated requirements.

Williams' interpretation is not reasonable. As quoted above, amendment No. 2
specifically advised offerors of a change in requirements. It explicitly
referenced the need for supporting 84 analog lines and stated that "[t]he
old power [failure] equipment shall be replaced with 11 eight line . . .
units." In our view, although not explicitly referencing SOW paragraph
1.1.2.2, the later-issued amendment No. 2, which is directly contradictory
to it, is intended to, and does, supersede the earlier provision.
Accordingly, we find that the agency reasonably concluded that Williams'
proposal did not meet the stated solicitation requirements for analog PFTUs.
[1]

MANDATORY REQUIREMENTS

Williams next argues that since the proposal request did not identify any
requirement as mandatory, it was improper for the VA to reject its proposal
pursuant to paragraph 2.17 of the request. This argument elevates form over
substance. As quoted with emphasis above, each provision regarding the need
for PFTUs is couched in mandatory language. Therefore, the PFTU requirement,
as amended, was "mandatory" within the context of paragraph 2.17 of the
proposal request, and the proposal was properly rejected for failing to meet
the requirement.

MATERIALITY

Williams argues that the PFTU requirement is not material and, therefore,
should have been waived with respect to the evaluation of its proposal,
considering the allegedly minimal impact on comparative evaluated prices
that would occur if, in its proposal, the protester had, in fact, addressed
and priced the full number of analog PFTUs required by the VA.

Where the failure of a proposal to accommodate a stated technical
requirement has more than a negligible impact on the quality of goods or
services needed by an agency, that failure is not to be viewed as a waivable
minor informality. See TBS Research, B-274845, Jan. 7, 1997, 97-1 CPD para. 6 at
4; United Int'l Investigative Servs., B-265650, Dec. 18, 1995, 95-2 CPD para.
271 at 2-3.

Both the agency and the protester have described the critical impact that
PFTUs have on the quality of medical care in emergency situations. According
to the contracting officer:

With respect to the [PFTUs], they are an integral part of the telephone
system, especially in a health care setting. In the event the telephone
system loses power or it becomes necessary to by-pass the telephone system
due to unforeseen problems, the [PFTUs] activate. Analog telephone sets,
strategically placed throughout the Philadelphia medical center, are
directly connected to these [PFTUs] to provide connectivity to the outside
world for medical center staff. In an emergent situation, these telephone
sets would be used to contact additional staff to report for work;
coordinate health care activities with area hospitals; or contact suppliers
for needed medical equipment and supplies.

Agency Report, exh. 26, at 1-2.

According to the protester:

PFTU equipment is typically used with hospital telephone systems, which
require emergency telephone service when experiencing an electrical power
failure. A PFTU provides emergency telephone service in the event of an
electrical power failure, when outgoing telephone lines otherwise would be
rendered inoperable.

Protester's Comments at 3.

On this record, it is clear that not satisfying the full PFTU requirement
would have a significant impact on the quality of emergency medical services
at the Philadelphia Medical Center. Thus, the requirement was material and
we have no basis to question the agency's decision not to waive it. See TBS
Research, supra, at 4.

DISCUSSIONS

Williams asserts that discussions regarding the need for analog PFTU were
not meaningful. It is a fundamental precept of negotiated procurement that
discussions, when conducted, must be meaningful. Cotton & Co., LLP,
B-282808, Aug. 30, 1999, 99-2 CPD para. 48 at 6. For discussions to be
meaningful, they must lead offerors into the areas of their proposals
requiring amplification or revision; the agency is not, however, required to
"spoon feed" an offeror as to each and every item that could be revised so
as to improved its proposal. The Communities Group, B-283147, Oct. 12, 1999,
99-2 CPD para. __ at 4.

Here, the agency clearly met the standard for meaningful discussions. The
written question quoted above led Williams directly into the area of concern
as to whether its proposal satisfied the agency's stated need for extended
analog PFTU coverage as modified by amendment No. 2. Nothing more was
required. In light of the analysis set forth above, we find that the agency
reasonably rejected Williams' proposal for failing to meet the expanded PFTU
requirement for analog lines. Accordingly, we need not address the issues
relating to the other requirement Williams allegedly did not meet--the
agency's requirement for paging microphones and consoles.

Finally, in its comments on the agency report, Williams alleged that the VA
"may have waived" defects in evaluating TennMark's proposal. Protester's
Comments

at 13. Specifically, the requirements which were allegedly waived were
identified as PFTUs for future digital tracking and microphones/consoles to
be installed in Building 3 of the Medical Center. Protester's Comments,
attach. 1, at 5. In support of its contention the protester submitted the
declaration of a telecommunications consultant who was admitted to the
protective order issued in this case.

In its supplemental report, the agency explained its position as to why no
requirements were waived for TennMark and why the awardee's proposal was
fully compliant. TennMark also addressed the issue in supplemental comments.
In Williams' response, its consultant concedes that the VA's position "may
be reasonable" but asserts that Williams's position is "more reasonable."
Protester's Supplemental Comments, attach. 1, at 2. In the final comments,
the protester also concedes that TennMark's position is reasonable and
similarly asserts that Williams' position is "more logical." Protester's
Supplemental Comments at 3.

In view of this Williams' concession in this regard, the record provides no
basis to conclude that the agency's evaluation of TennMark's proposal was
unreasonable, and we, therefore, have no basis to disturb the selection. WRS
Infrastructure & Env't, Inc., supra.

The protest is denied.

Comptroller General
of the United States

Notes

1. To the extent that Williams views the amendment as creating a patent
ambiguity concerning whether the VA intended to retain or replace analog
PFTU equipment, Williams was required to protest such an apparent
solicitation defect prior to the next closing time. Bid Protest Regulations,
4 C.F.R. sect. 21.2(a)(1) 1999. In this regard, we note that Williams concedes
that the agency's interpretation of the proposal request as amended is
reasonable. Protester's Comments at 6. An offeror may not simply act on its
own assumptions regarding a patently ambiguous solicitation requirement and
then complain when the agency proceeds in a manner that is inconsistent with
one of the possible interpretations. Watchdog, Inc., B-258671,
Feb. 13, 1995, 95-1 CPD para. 69 at 5.