TITLE:  Integration Technologies Group, Inc., B-295958; B-295958.2, May 13, 2005
BNUMBER:  B-295958; B-295958.2
DATE:  May 13, 2005
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   Decision

   Matter of: Integration Technologies Group, Inc.

   File: B-295958; B-295958.2

   Date: May 13, 2005

   David S. Cohen, Esq., John J. O'Brien, Esq., Rowena E. Laxa, Esq., and
Catherine K. Kroll, Esq., Cohen Mohr LLP, for the protester.

   James H. Roberts, III, Esq., and Carrol H. Kinsey, Jr., Esq., Van Scoyoc
Kelly PLLC, and Grace Bateman, Esq., and Kevin P. Connelly, Esq., Seyfarth
Shaw LLP, for Electronic Vision Access Solutions, an intervenor.

   Maura C. Brown, Esq., Department  of Veterans Affairs, for the agency.

   Sharon L. Larkin, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1. Agency reasonably eliminated from the competitive range a proposal for
a computer system for use by blind veterans that included a 107-key
keyboard instead of the 104-key keyboard required by the solicitation.

   2.  Agency reasonably made a nonavailability determination waiving
application of the Trade Agreements Act, 19 U.S.C. SS 2501-81 (2000), to a
procurement, where award was to be made on a group basis and all proposals
included components that were not acquired from the United States or
designated countries.

   DECISION

   Integration Technologies Group, Inc. (ITG) protests the award of a
contract to Electronic Vision Access Solutions (EVAS) under request for
proposals (RFP) No. 797-NC-04-0004, issued by the Department of Veterans
Affairs (VA) for computers for blind veterans.

   We deny the protest.

   The RFP provided for award of a requirements contract for a base year with
four 1-year options.  Award was to be made on a "best value" basis,
considering (in descending order of importance) technical, price, past
performance, and small disadvantaged business utilization criteria.  The
technical factor consisted of subfactors for ease of use, connectors and
controls easily differentiated by touch, experience and training of
technical representatives in working with blind and low vision veterans,
and compliance with Section 508 of the Rehabilitation Act, 29 U.S.C. S
794d (2000).  The solicitation announced that only one award would be made
under the RFP. 

   The RFP estimated that the VA would order 1,000 computers for use by blind
veterans at VA medical centers nationwide.  The solicitation requested
unit and extended prices for the line items.  There was a separate line
item for the computer hardware system (which included such things as the
operating system, keyboard, mouse, CD-Rom drive, floppy drive, hard drive,
Intel Pentium processor, RAM memory, USB ports, video card, network card,
sound card, mouse pad, speakers, modem, surge protector, and mini-tower
case) and nine other line items for the accompanying flat screen monitors,
printers, mouse track ball, scanners, and software.  

   While the components of the hardware system line item were not listed as
separate line items, some components were specified as brand name or equal
products and were required to comply with mandatory "salient
characteristics" in the RFP.  For example, the RFP specified that the
keyboard had to be a "Microsoft with 104 keys (or equal product)" and
identified "104 keys" as the "salient characteristic" for the "brand name
or equal" keyboard.  RFP at 15, 19.  In response to an offeror's question,
the agency indicated that a "Windows 104 keyboard" was required.  RFP
amend. 6, Q&A No. 17.

   The RFP also required that the offered computer comply with the Trade
Agreements Act (TAA), 19 U.S.C. SS 2501-81 (2000), which, as implemented
by the Federal Acquisition Regulation (FAR), generally requires that "end
products" be acquired from the United States or designated countries.  19
U.S.C. S 2512(a)(1)(A); FAR S 25.403(c). 

   ITG and EVAS were among 10 offerors that responded to the RFP.  None of
the proposals fully complied with the TAA; all offered hardware systems
and other line item equipment with one or more components that were made
in non-designated countries, and the agency determined, on that basis,
that the offered "end products" were not from designated countries or the
United States.  In accordance with the TAA and relevant FAR provisions,
the agency made a "nonavailability determination" to exempt the
procurement from TAA compliance, and proceeded with the evaluation of the
proposals and award.  AR, Tab 9, Price Negotiation Memorandum, at 2.

   As determined by the agency, the three highest technically rated proposals
were submitted by EVAS, [REDACTED], and ITG.  EVAS's proposal, priced at
$15,324,455, was the lowest priced and one of the two highest technically
rated proposals.  EVAS's proposal was rated "very good" under the
technical factor, "excellent" under the past performance factor, and
"poor" under the small disadvantaged business factor.  Id. at 9. 
[REDACTED].  ITG's proposal, priced at $18,525,095 was the third highest
technically rated offer.  Its proposal was rated "acceptable" under the
technical factor, "excellent" under the past performance factor, and
"fair" under the small disadvantaged business factor.  Id. at 3. 

   The VA made a competitive range determination that eliminated all
proposals except EVAS's and [REDACTED].  After considering the relative
price of ITG's proposal, the agency eliminated the proposal from the
competitive range because ITG proposed a keyboard that failed to meet a
minimum specification, such that no award based on its proposal was
"possible," and because two other proposals had "significantly better
technical ratings."  Id. at 10.  In this regard, ITG's proposed keyboard
did not conform to the solicitation because it was not "a Microsoft or
equal keyboard with 104 keys" as required, but instead had 107 keys. 
After discussions with the two competitive range offerors, the VA
performed a cost/technical tradeoff and selected EVAS for award.  The
agency then notified ITG that its proposal had been eliminated from the
competitive range and that award had been made to EVAS, and this protest
followed.

   ITG first complains that, although the VA found ITG's proposal acceptable
under the technical factor, the agency unreasonably rejected the proposal
because ITG's proposed keyboard had 107 keys.  According to the protester,
its proposed keyboard is the "functional equivalent" of the Microsoft
104-key keyboard and should have been considered an equal product, as
allowed under the RFP's "brand name or equal" specification.  ITG further
argues that the solicitation did not specify the precise number and
placement of the keys. 

   Contrary to ITG's protest contention, the RFP did specify as a salient
(i.e., mandatory) characteristic that "104 keys" were required regardless
of whether an offeror supplied a Microsoft or another brand keyboard.[1] 
See RFP at 19 (specifying "104 keys"); RFP amend. 6, Q&A No. 17
(clarifying that a "Windows 104 keyboard" was required).  The VA explains
that the reason for this requirement was that teaching materials are
"based on standard key placement" and that the standardized layout of
these keyboards is "essential to non-visual use," since the blind "depend
upon key placement as well as open space locations to orient themselves to
keyboards they cannot see."[2]  AR at 10.  In finding ITG's keyboard
noncompliant, the agency stated that:

   [ITG] offered a 107 "key" keyboard that made use more difficult for
visually impaired veterans with diminished tactile (touch) sensitivity. 
Ease of use is significantly hampered because [the] keyboard is
crowded.[3] 

               . . . .

   With the 107 keys, the lack of space between keys on the keyboard made it
difficult to differentiate by touch.  This failure of ITG's keyboard to
meet the specifications eliminated their offer from further consideration.

   AR, Tab 9, Price Negotiation Memorandum at 3, 10.    

   In proposing a keyboard that has 107 keys, ITG's proposal failed to meet
the mandatory requirement of the solicitation that the keyboard have 104
keys, and therefore could not be accepted for award.  See White Storage &
Retrieval Sys., Inc., B-250245, Jan. 19, 1993, 93-1 CPD P 70 at 3. 
Although the agency assigned ITG's proposal a rating of acceptable under
this factor, the record shows that the agency recognized the proposal's
non-compliance with this solicitation requirement in eliminating its
proposal from the competitive range.[4]  See id.

   ITG also complains that it was prejudiced by the VA's waiver of TAA
compliance for this procurement.  ITG contends that such a blanket waiver
is inconsistent with the solicitation, as clarified by amendment No. 6. 
This amendment assertedly indicated that each component would be
separately evaluated for TAA compliance to determine whether a
nonavailability determination should be made for that particular
component.  ITG asserts that had the agency announced that it was going to
make a general nonavailability determination, the firm would have proposed
additional non-TAA compliant parts, such as a 104-key keyboard (as did the
awardee), which would have drastically reduced its price.

   ITG's argument is inconsistent with the regulatory framework for making
nonavailability determinations so as to waive application of the TAA.  As
noted above, the TAA generally requires that "end products" be acquired
from the United States or designated countries.  19 U.S.C. S
2512(a)(1)(A); FAR S 25.403(c).  The clause implementing the TAA that was
incorporated into the solicitation defines "end products" as "supplies
delivered under a line item of a Government contract."  FAR S 52.225-5
(June 2003).  A TAA compliant "end product" is one that is "wholly the
growth, product, or manufacture of a designated country."  Id.  If there
are no offers of "end products" from the United States or designated
countries, the agency may make a "nonavailability determination" and
proceed with procuring the non-TAA compliant products.  FAR S
25.502(b)(3).  In determining whether an offer is TAA compliant, the
agency must evaluate the offer on a line-item by line-item basis, "unless
either the offer or the solicitation specifies evaluation on a group
basis."  FAR S 25.501(a).  In this regard, where the solicitation
specifies that "award can be made only on a group of line items or on all
line items," the agency is required to reject the offer if the TAA applies
"and any part of the offer consists of items restricted in accordance with
[FAR S] 25.403(c)."  FAR S 25.503(a)(2).  

   Here, the solicitation stated that a single award of all line items would
be made, that is, award would be made on a group basis.  The record shows
that the agency evaluated each of the separate components of the line
items for TAA compliance.  Consistent with the applicable regulatory
framework, because no proposal offered all line item components that were
TAA compliant and award was to be made on a group basis, the agency
properly made a single nonavailability determination that was applicable
to all components and line items to be provided under the contract.[5] 
The regulations do not contemplate that TAA nonavailability decisions
would be made on a component-by-component basis where, as here, award was
to be made on a group basis, and we are aware of no requirement, and ITG
has cited none, that the agency was obligated to reopen the competition
once that nonavailability determination was properly made. 

   ITG's argument here is based entirely on a question and answer included in
amendment 6 of the RFP.  This question posed a hypothetical to the agency
of a computer bundled with a keyboard and mouse from China (a
non-designated country) and asked whether the components needed to be TAA
compliant.  The agency responded: 

   We cannot accept products from China.  The only exception is if every
offer comes in with a mouse and keyboard from China, there is a waiver
process.  If the Offeror['s] position is [that] there are not any
manufacturers in the U.S. or designated countries that make these products
(mouse & keyboard), then it's up to the Offeror to decide whether or not
to submit products from a non-designated country.

   RFP, amend. 6, Q&A 10(a).  ITG asserts that this advised offerors that the
TAA waiver would be obtained on a component-by-component basis rather than
on the group basis as done by the VA. 

   We disagree.  When read in context with the rest of the solicitation, it
is clear that the agency's answer was only in response to the hypothetical
posed, and did not explain the waiver process or indicate that the TAA
waiver would be obtained on a component-by-component basis.  The agency
simply advised offerors that it was their obligation to determine whether
or not to submit components from a non-designated country and that a
waiver process was available.  That process is explained in the applicable
regulations, as analyzed above, and was followed here.    

   The protest is denied.

   Anthony H. Gamboa

   General Counsel

   ------------------------

   [1] It appears from the record that ITG recognized that 104 keys was a
feature distinct from Microsoft compatibility.  In an e-mail communication
from ITG to its suppliers, the firm identified 104 keys and Microsoft
compatibility as separate keyboard requirements.  See Supplemental
Protest, exh. 12, at 1. 

   [2] As explained by the VA's Supervisor Blind Rehabilitation Specialist:

   [W]hen training veterans with visual impairments to utilize computers, the
layout of the keyboard is essential to success.  Instructors develop and
utilize teaching materials that are based upon standard key placement. 
Students depend upon key placement as well as open space locations to
orient themselves to keyboards that they cannot see.  Since tactual labels
of each key would be inefficient in most cases and impossible in others,
the use of the proprioceptive sense (muscle memory) and habituation of key
location is essential to non-visual use.

   Since standardization of hardware is possible to control and a veteran's
learning capacity is not, the consistent and exact location of keys is
essential to success.

   AR at 10-11.

   [3] The three additional keys proposed by ITG were function keys located
above the arrow keys on the right side of the keyboard.  On a typical
104-key keyboard, there are 3 function keys on top, a space below that, 6
more function keys located in 2 rows, a space below that, and then 4 arrow
keys on the bottom of the keyboard.  With ITG's 107-key keyboard, there
are 3 new function keys on top, a space, and 9 function keys (which are
the function keys on the 104-key keyboard) located in 3 rows immediately
above the arrow keys with no space between any of the keys.   That is, the
9 function keys from the 104-key keyboard were relocated downward on the
107-key keyboard and a new row of function keys was placed above these
three rows of function keys.

   [4] ITG also complains that the agency disparately evaluated proposals and
considered unstated criteria under the experience and training of
technical representatives in working with blind and low vision veterans
subfactor of the technical factor.  However, we need not consider this
issue because the record shows that this aspect of the evaluation was not
the reason ITG's proposal was eliminated from the competitive range.  

   [5] We note that ITG's proposal included various non-TAA compliant
components of the hardware system line item, that is, the surge protector
and speakers, such that its hardware system was not TAA compliant.  In
addition, ITG offered a non-TAA compliant printer and scanner, which are
two other line items listed in the RFP.