TITLE: B-296490; B-296490.2, Johnson Controls Security Systems, August 29, 2005
BNUMBER: B-296490; B-296490.2
DATE: August 29, 2005
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B-296490; B-296490.2, Johnson Controls Security Systems, August 29, 2005

   DOCUMENT FOR PUBLIC RELEASE
   The decision issued on the date below was subject to a GAO Protective
   Order. This redacted version has been approved for public release.

   Decision

   Matter of: Johnson Controls Security Systems

   File: B-296490; B-296490.2

   Date: August 29, 2005

   David R. Johnson, Esq., Kathleen C. Little, Esq., Amy R. Napier, Esq., and
   Amanda J. Kastello, Esq., Vinson & Elkins, for the protester.

   Kevin P. Connelly, Esq., Joseph J. Dyer, Esq., and Amanda B. Weiner, Esq.,
   Seyfarth Shaw, for Quanta Systems Corporation, an intervenor.

   Diane P. Mullaney, Esq., Department of the Treasury, 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

   1. Protest is sustained where awardee misrepresented in its proposal that
   it had made arrangements before award to obtain training and certification
   required under the solicitation for its personnel, and the
   misrepresentation was material in that the agency relied upon it and the
   record indicates that it had a significant impact upon the evaluation.

   2. Protest is sustained where, rather than determining which proposal was
   most advantageous, as required under the "best value" evaluation scheme,
   agency essentially considered only whether the proposals were technically
   acceptable, and failed to reasonably account for the technical superiority
   of the protester's proposal.

   DECISION

   Johnson Controls Security Systems (JCSS) protests the award of a contract
   by the Department of the Treasury, Bureau of Engraving and Printing (BEP),
   to Quanta Systems Corporation, under request for proposals (RFP) No.
   BEP-04-0022, for the operation, monitoring and repair of the security
   systems at BEP's currency production facility in Washington, D.C. JCSS
   challenges the evaluation of proposals and award selection.

   We sustain the protest.

   BACKGROUND

   The RFP contemplated the award of a fixed-price contract for a base period
   of 1 year, with 4 option years, for the operation, monitoring and repair
   of the security systems at BEP's high security, 2 million square foot
   Washington Currency Production Facility. The security systems include: (1)
   the obsolete Access Control and Alarm Monitoring System (ACAMS), a
   computerized card access control and intrusion detection system
   manufactured (but no longer supported) by Monitored Dynamics Incorporated
   (MDI); (2) a closed circuit television (CCTV) system, including a digital
   video recording system (DVRS) manufactured by Loronix (now owned by Verint
   Systems), which enables rapid access to archived video; and (3) a video
   badging system. The solicitation statement of work (SOW) required the
   contractor to provide sufficient staff to operate and monitor the BEP
   security systems 24 hours per day, 7 days per week, 365 days per year. All
   contractor personnel having access to BEP security systems or
   documentation were required to complete a background investigation and
   maintain a "High Risk" security clearance. In addition, the SOW imposed
   various certification requirements--including certifications of training
   with respect to the MDI ACAMS and Loronix CCTV and DVRS systems--for
   employees working with the security systems, and provided that the
   "Contractor has 90 days for proposed employees to be certified from the
   date of contract award." SOW sections C.1, C.2, C.3; Hearing Transcript
   (Tr.), Day One (I) at 17-21, 32-33.[1]

   Award was to be made to the offeror whose proposal was determined to
   represent the "best value" to the government based on a two-phase
   evaluation process. In Phase I, each offeror was to submit a business
   management proposal containing its prices and required representations and
   certifications, and a technical proposal setting forth the offeror's
   demonstrated corporate experience, experience of proposed staff and past
   performance. Phase I proposals were to be evaluated on a pass/fail basis
   so as to determine which offerors were to be included in the competitive
   range. In Phase II, each offeror included in the competitive range was
   required to make an oral presentation and answer any questions posed by
   the agency, with "[t]he answers to the questions . . . considered for
   evaluation purposes" and "[t]he information provided during the oral
   presentation . . . considered [to be] part of the proposal." RFP sect.
   L.12. The purpose of the oral presentation was "to evaluate the offeror's
   management and technical approach, management plan, and phase in/phase out
   plan." RFP sect. L.12. Specifically in this regard, the RFP required
   offerors to "present their proposed technical approach describing how they
   intend to successfully accomplish the efforts described in the [SOW],
   including the offeror's utilization of available resources," and provided
   for evaluation of offerors' "proposed Preventative Maintenance, Normal
   Maintenance and Test/Safety Equipment Programs," offerors' management
   approach and quality control programs, offerors' management plans
   (including "detailed organization chart," "proposed staffing plan," and
   "Human Resources Management" plan), and the adequacy of offerors' proposed
   phase-in/phase-out plans. RFP sect. L.13. The RFP listed three Phase II
   evaluation factors: management/technical approach was equal to management
   plan, and more important than phase in/phase out approach. The
   solicitation further provided that "overall technical merit" was more
   important than price. RFP sect. M.8.

   Four proposals were received, from JCSS (the incumbent contractor),
   Quanta, and two other offerors; JCSS's proposal, Quanta's and a third
   proposal were found to be acceptable (receiving a pass rating) in the
   Phase I evaluation and were included in the competitive range. All
   offerors in the competitive range then made oral presentations. Subsequent
   to the conclusion of the oral presentations, BEP evaluated the proposals
   as follows:

+------------------------------------------------------------------------------+
|                                   |        JCSS         |       Quanta       |
|-----------------------------------+---------------------+--------------------|
|Technical                          |                     |                    |
|-----------------------------------+---------------------+--------------------|
|    |Management/                   |         43          |         37         |
|    |                              |                     |                    |
|    |Technical Approach (45 points)|                     |                    |
|----+------------------------------+---------------------+--------------------|
|    |Management Plan               |         45          |         40         |
|    |                              |                     |                    |
|    |(45 points)                   |                     |                    |
|----+------------------------------+---------------------+--------------------|
|    |Phase-In/Phase-Out            |          7          |         9          |
|    |                              |                     |                    |
|    |(10 points)                   |                     |                    |
|----+------------------------------+---------------------+--------------------|
|    |Total Technical Score         |         95          |         86         |
|-----------------------------------+---------------------+--------------------|
|Price                              |     $30,027,471     |    $25,420,321     |
+------------------------------------------------------------------------------+

   BEP determined that negotiations with the offerors were necessary. In
   reaching this conclusion, the agency noted that Quanta's proposal
   contained several "[w]eaknesses" that needed to be discussed, including
   findings that Quanta's "[t]echnical proposal did not specifically address
   how they plan to maintain the BEP's obsolete MDI ACAMS," and that Quanta
   and its staff did not have experience with the Loronix DVRS, which "is a
   critical security system." Pre-Negotiation Memorandum and Price Analysis,
   Mar. 4, 2005, at 10-11. (However, BEP noted in regard to the Loronix DVRS
   that Quanta had indicated that "Loronix was working with Quanta Systems to
   obtain the certifications" required by the RFP for personnel working with
   this system. Id.) BEP found as an additional weakness that Quanta "[d]id
   not adequately justify its proposed staffing plan," but instead simply
   "proposed to use the same staffing resources currently in use at the BEP."
   Id.

   After conducting oral discussions with the offerors, BEP requested final
   proposal revisions (FPR). In its evaluation of the FPRs, BEP increased
   JCSS's overall technical score from 95 to 96 points, and Quanta's score
   from 86 to 94 points. (The third proposal received a final technical score
   of 93 points.) JCSS's and Quanta's evaluated prices were unchanged.

   In apparent explanation of the 8-point increase in Quanta's score, the
   agency noted that, while Quanta's technical plan "did not specifically
   address how they planned to maintain the BEP's obsolete MDI ACAMS," Quanta
   clarified this issue during negotiations "by stating that their company
   has extensive experience in working with MDI and their various
   equipment/operating systems." Post-Negotiation Memorandum (Source
   Selection Decision (SSD)) at 4; Final Technical Proposal Evaluation at 2.
   According to the agency, the information in Quanta's FPR, which referenced
   prior contracts in which Quanta had installed and maintained MDI security
   products, and the agency's reference checks, resolved this issue. As for
   Quanta's previously noted lack of experience with the Loronix DVRS, the
   agency reiterated its prior observation that, while

   Quanta Systems technical personnel are not currently certified in Loronix
   . . . they have coordinated certification training plans with vendor
   representatives that are scheduled to commence upon contract award. Quanta
   Systems has arranged for the certifications to be accomplished within the
   90-day certification period as stated in the solicitation. The technical
   team has determined this response to be acceptable.

   SSD at 4; Final Technical Proposal Evaluation at 2.

   While the initial draft of the final technical evaluation report simply
   stated that the evaluation team had "determined that all three offerors
   are technically acceptable" and, indeed, the evaluation team at one point
   orally recommended award to JCSS "on a technical basis" based primarily on
   its "incumbent advantages," the final technical evaluation report was
   revised, in response to the intervention of the contracting officer, to
   add the following:

   After completion of negotiations and review of their responses to the
   items discussed, all three offerors are essentially technically equal.

   Final Technical Proposal Evaluation at 2; Tr. I at 89-91. Adopting the
   position that all proposals were "essentially technically equal," the
   contracting officer stated in the SSD that Quanta's lower price,
   representing a savings of approximately $4.6 million, made its proposal
   the best value. SSD at 7, 10. Upon learning of the resulting award to
   Quanta, JCSS first filed a protest with the contracting agency and then
   filed this protest with our Office.

   MATERIAL MISREPRESENTATION

   JCSS asserts that Quanta misrepresented that it had made arrangements
   before award to obtain training and certification for its personnel with
   respect to Loronix equipment and technology, to commence upon award. JCSS
   concludes that, because the evaluation was based in significant part on
   this misrepresentation, it was flawed and did not provide a reasonable
   basis for making award to Quanta.

   A material misrepresentation in a proposal can provide a basis for
   disqualifying the proposal and canceling contract award based upon the
   proposal. A misrepresentation is material where the agency relied upon it
   and it likely had a significant impact upon the evaluation. Integration
   Tech. Group, Inc., B-291657, Feb. 13, 2003, 2003 CPD para. 55 at 2-3;
   Sprint Communications Co. LP; Global Crossing Telecomms., Inc.--Protests
   and Recon., B-288413.11, B-288413.12, Oct. 8, 2002, 2002 CPD para. 171 at
   4; AVIATE L.L.C., B-275058.6, B-275058.7, Apr. 14, 1997, 97-1 CPD para.
   162 at 11.

   We agree with JCSS that Quanta made a material misrepresentation
   concerning the status of its preaward arrangements to obtain training and
   certification with respect to Loronix equipment and technology.

   As noted above, while the agency's pre-negotiation technical evaluation
   report, issued after oral presentations and before negotiations and
   receipt of FPRs, assigned Quanta's proposal a weakness on the basis that
   Quanta and its staff lacked experience with the Loronix DVRS, which "is a
   critical security system," the report noted that Quanta had indicated,
   apparently during its oral presentation, that "Loronix is working with
   Quanta Systems to obtain the certifications" required by the RFP for
   personnel working with this system. Pre-Negotiation Memorandum and Price
   Analysis, Mar. 4, 2005, at 10-11. Likewise, the final technical evaluation
   report and the SSD summarized the results of discussions in this regard by
   noting that, while Quanta's technical personnel are not currently
   certified in Loronix, "they have coordinated certification training plans
   with vendor representatives that are scheduled to commence upon contract
   award. Quanta Systems has arranged for the certifications to be
   accomplished within the 90-day certification period as stated in the
   solicitation." SSD at 4; Final Technical Proposal Evaluation at 2. The
   final technical evaluation report and the SSD indicated that "[t]he
   technical team has determined this response to be acceptable." SSD at 4;
   Final Technical Proposal Evaluation at 2.

   However, neither Quanta nor BEP now disputes that, contrary to the
   evaluation comments, Quanta in fact had not arranged for and coordinated
   certification training plans with Loronix before award. On the contrary, a
   declaration by the proposed Quanta project manager indicates that, when he
   contacted Verint (the owner of Loronix) before award, he was advised that
   "Verint only deals with vendors or distributors with whom the company has
   a contractual relationship" and that, since Verint had a partnership
   agreement with the incumbent BEP contractor (JCSS), it "would be unable to
   discuss Loronix certification until Verint received notice from the BEP
   that Quanta had received award of the contract." Declaration of Quanta's
   Proposed Project Manager. Similarly, a Quanta vice-president who was the
   firm's proposal manager for this procurement testified that, prior to
   award, Quanta contacted the manufacturers of four of the five major
   security systems at BEP (including Loronix) for which employee
   certifications were required, but that Quanta was unable to make
   arrangements for training and certification with any of the manufacturers
   at that time. According to the Quanta vice-president, "the reason is
   [that] they would not [make arrangements] until after contract award," a
   position that the vice-president indicated was "typical of this sort of
   program because of the sensitive nature of the equipment involved." Tr. II
   at 168-71.

   However, both Quanta and BEP assert that Quanta never represented to BEP
   that it had made arrangements prior to award for Loronix training and
   certification. While the contemporaneous preaward agency evaluation
   documentation states with respect to the issue of Loronix certification
   that Quanta had "coordinated certification training plans with vendor
   representatives that are scheduled to commence upon contract award," and
   had "arranged for the certifications to be accomplished within the 90-day
   certification period," the agency maintains that the evaluation reports in
   this regard were erroneous due to an error on the part of one of the
   evaluators as to what was actually stated by Quanta during its oral
   presentation and negotiations. The referenced evaluator explains, in this
   regard, that "[m]y impression that Quanta was working with Loronix at that
   time to obtain certification is based upon general responses by Quanta to
   my questions regarding plans for obtaining certification for the various
   security systems rather than any statements specific to Loronix
   certification." Declaration of Second Evaluator. According to the
   evaluator, "[w]hile I paraphrased my impressions of the conversation in my
   evaluation report, at no time did Quanta specifically state that they had
   already made arrangements with regard to obtaining Loronix certification."
   [2] Id.; see Tr. I at 255-56.

   We find that the agency's position is not supported by the record. Whether
   or not Quanta specifically referred during the oral presentation and
   negotiations to having already made arrangements for Loronix training and
   certification,[3] the record is clear that Quanta indisputably made a more
   sweeping misrepresentation that encompassed not only preaward arrangements
   for Loronix training and certification, but also preaward arrangements for
   training and certification in the other major BEP security systems.
   Specifically, Quanta stated in its FPR as follows:

   To meet all certification requirements, Quanta has coordinated
   certification training plans with vendor representatives that are
   scheduled to commence upon contract award. Quanta has arranged for
   certifications to be accomplished within the 90-day certification period
   stated in the solicitation.

   Quanta FPR, encl. 1, at 2. As the testimony and statements of Quanta's
   vice-president and proposed project manager indicate, the above statement
   was false regarding preaward arrangements for training and certification
   for Loronix and the other major BEP security systems. Tr. II at 168-71;
   Declaration of Quanta Proposed Project Manager.

   BEP nevertheless asserts that, to the extent that Quanta made a
   misrepresentation, it was immaterial to the source selection decision. BEP
   maintains that, "[s]ince completion of certification training was not
   required until after contract award, during Phase II evaluation of
   proposals completion of certifications was not accorded great weight."
   Agency Hearing Comments at 8. According to the agency, given the available
   evaluation points, and in view of the fact that there were five security
   systems requiring factory certified training, "certification for one of
   the systems was probably worth less than one point." Id.; see Tr. I at
   35-36.

   We find the agency's position unpersuasive. Quanta's arrangements for
   obtaining the Loronix certifications after award were set forth in the
   pre-negotiation technical evaluation as an amelioration of or offset to
   Quanta's lack of experience with Loronix, which was listed as one of the
   weaknesses (along with concerns regarding MDI and lack of a staffing plan)
   with respect to Quanta's management/technical approach and management
   plan. Pre-Negotiation Memorandum and Price Analysis, Mar. 4, 2005,
   at 10-11. Likewise, Quanta's arrangements for obtaining the Loronix
   certifications after award were set forth in the final technical
   evaluation as part of the explanation for the 8-point increase in Quanta's
   technical score and in the final technical evaluation and SSD as resolving
   the Loronix issue. SSD at 4; Final Technical Proposal Evaluation, at 2.
   Finally, the agency's position does not account for the fact that the
   misrepresentation extended to all five of the major security systems at
   BEP, not just to the Loronix DVRS. These considerations support the view
   that the misrepresentation was material in that it had more than a
   negligible effect on the evaluation.

   DETERMINATION OF TECHNICAL EQUALITY

   According to the SSD, since Quanta had submitted the low-priced offer, and
   "all the proposals were found to be essentially technically equal after
   negotiations and submittal of [FPRs], Quanta Systems Corporation is deemed
   the best value to the Government." SSD at 7. JCSS challenges the agency's
   determination that the proposals were essentially technically equal.
   According to the protester, rather than determining which proposal was
   most advantageous, as required under the "best-value" evaluation scheme,
   the agency essentially considered only whether the proposals were
   technically acceptable, failing to account for the technical superiority
   of JCSS's proposal. We agree.

   In reviewing protests against allegedly improper evaluations, it is not
   our role to reevaluate proposals. Rather, our Office examines the record
   to determine whether the agency's judgment was reasonable and in accord
   with the RFP criteria and applicable procurement statutes and regulations.
   See Rolf Jensen & Assocs., Inc., B-289475.2, B-289475.3, July 1, 2002,
   2002 CPD para. 110 at 5. Based on the record here, including testimony at
   the hearing we conducted in this matter, we find that the evaluation was
   unreasonable.

   The record indicates that the evaluators determined that JCSS's proposal
   offered three "very compelling advantages" not shared by any of the other
   offerors, which "allowed JCSS to provide a very detailed, name and number
   specific proposal which could not be provided by any potential offeror
   other than the incumbent." Declaration of Technical Team Lead at 5; Tr.
   I at 68. In contrast, the record does not clearly indicate the advantages
   in the other proposals that elevated them to the level of JCSS's proposal.

   The three significant, "very compelling" advantages in JCSS's proposal
   included: (1) incumbent personnel with the required current security
   clearances; (2) incumbent personnel with the required training and
   certifications; and (3) knowledge of the "intimate details," including
   "vulnerabilities," of BEP's security systems. Tr. I at 57, 68; Tr. II at
   75. It appears from the record that having cleared incumbent personnel on
   the job was an especially compelling advantage because, by the agency's
   own account, BEP's standard of scrutiny for granting access is "extremely
   high," resulting in "high risk" security clearances being granted to only
   approximately 35 percent of applicants, notwithstanding that many of the
   individuals not approved have previously received secret and top secret
   clearances for other installations. Agency Legal Memorandum, June 21,
   2005, at 17; Declaration of BEP Manager of Personnel Security Division.

   One example of JCSS's more detailed proposal was the staffing area. The
   RFP required offerors to furnish a "proposed staffing plan," and provided
   for evaluation of these plans under the management plan evaluation factor.
   RFP sections L.13, M.6. JCSS proposed specific, largely incumbent,
   trained, certified and cleared employees, and also described in detail the
   proposed staffing for each shift for each day for each functional area.
   JCSS Technical Proposal at 15-32; JCSS Oral Presentation Slides at 3-9;
   Tr. I at 62. In contrast, as conceded by the agency evaluators, Quanta
   failed to furnish a detailed staffing plan. Tr. I at 65-67, 287-89.
   Instead, the agency evaluated Quanta as proposing (at least initially) to
   use the same level of staffing resources as under the current contract.
   Pre-Negotiation Memorandum and Price Analysis, Mar. 4, 2005, at 11.
   (Quanta, however, reserved the right subsequently to reevaluate the
   required staffing. Tr. I at 122; see Tr. II at 104-05.) In addition,
   Quanta proposed to give "as many favorable, evaluated incumbent personnel
   as practical the opportunity to remain on the job," filling any remaining
   positions with personnel from Quanta or its team member (Wackenhut
   Corporation). See Quanta FPR, encl. 1, at 1; Quanta Oral Presentation
   Slides at 5, 8-9, 17; Quanta Response to Competitive Range Notification,
   Jan. 19, 2005, at 1-2, 5; Tr. I at 63, 84-85.

   The agency ultimately determined that Quanta's approach was "adequate."
   Tr. I at 63, 120. However, this determination was inconsistent with the
   agency's prior determination that Quanta's staffing plan was inadequate.
   Specifically, in its Pre-Negotiation Memorandum and Price Analysis, issued
   after oral presentations and offerors' responses to clarification
   questions, but before negotiations and FPRs, BEP recognized that
   Wackenhut, Quanta's teaming partner, "plans to offer employment to
   existing incumbent personnel, if agreed to by the BEP, along with
   supplying existing Wackenhut personnel for the various operational
   positions"; that Quanta had proposed the use of security communications
   specialist positions (an approach previously used elsewhere); and that
   Quanta had "proposed to use the same staffing resources currently in use
   at the BEP." Pre-Negotiation Memorandum and Price Analysis, Mar. 4, 2005,
   at 9-11. BEP nevertheless assigned Quanta a weakness on the basis that
   Quanta "[d]id not adequately justify its proposed staffing plan." Id.
   at 11. In this regard, according to the evaluators, there was no evidence
   that Quanta/Wackenhut had discussed employment with the incumbent
   personnel or that the incumbent personnel would work for Wackenhut, and
   Quanta had not offered an alternative plan in the event that the incumbent
   personnel did not accept an offer of employment. Consensus Technical
   Evaluation Worksheet, Feb. 4, 2005, at 3; Third Evaluator Technical
   Evaluation Worksheet; Tr. I at 143-46, 288-97.

   The record does not show why the agency subsequently discounted this
   weakness in Quanta's proposal. When asked during the hearing why Quanta's
   staffing approach ultimately was found to be adequate, the lead technical
   evaluator indicated her reliance on Quanta's agreement to conform to the
   existing staffing plan. Tr. I at 141. However, as discussed above, this
   aspect of Quanta's approach already was evident when the agency evaluated
   its staffing approach as inadequate. When asked the same questions by our
   Office, the evaluator who took the lead with respect to staffing issues
   answered that she ultimately came to accept Quanta's approach, even though
   it left her "still a little queasy," as one she "could live with," when
   Quanta during negotiations "double assured" that "they would make the
   offers to the incumbent[s] to get the experienced people." Tr. I at
   274-75, 291-97. (The third evaluator, after some confusion as to the basis
   for the evaluation of Quanta's proposal in this area, ultimately referred
   to the fact that the staffing area was the "bailiwick" of the second
   evaluator. In any case, according to the third evaluator, Quanta had
   "stat[ed] that they could meet the requirements. That's what I based my
   final decision on." Tr. II at 38, 101-05.)

   Evaluators are not precluded from changing their views as to the merits of
   a particular proposed approach to contract performance. However, even if
   it was reasonable for the agency ultimately to find Quanta's staffing
   approach acceptable, there is no basis in the record for the agency to
   determine that Quanta's staffing approach was as advantageous as JCSS's.
   BEP has not shown, nor is it otherwise evident from the record, how JCSS's
   detailed staffing approach, based on the continued employment of trained
   and certified incumbent personnel who have met the agency's rigorous
   security requirements, deserved no more evaluation credit than that
   accorded Quanta's less detailed staffing approach, which relied in
   significant measure on the hope that the incumbent personnel could be
   recruited, a hope not derived from discussions with the incumbent
   personnel or (in the view of the evaluators) other evidence that the
   incumbent personnel in fact could be recruited.

   The manner in which the agency considered offerors' staffing approaches
   supports the protester's assertion that the agency's evaluation focused on
   acceptability rather than best value, as required under the RFP, and that
   this resulted in a failure to accord due evaluation credit to the
   advantages offered by JCSS's proposal. This conclusion is further
   bolstered by the testimony of the contracting officials. For example, in
   addressing the fact that Quanta's proposal was significantly less detailed
   than JCSS's, the lead technical evaluator testified that

   we made a determination that [Quanta] understood our needs and that they
   would likely be able to perform successfully if they were given the award.
   It's kind of like a bar. You know, everybody gets over the bar but some
   people get over it a little bit higher but the fact was that everybody
   went over the bar.

   Tr. I at 58. Likewise, the second evaluator in her testimony agreed that
   "the bottom line for [her] was that both offerors could do the work." Tr.
   I at 304.

   In addition, it is significant given the circumstances that, as discussed
   above, the initial draft of the final technical evaluation report simply
   concluded that the evaluation team had "determined that all three offerors
   are technically acceptable"; only after the contracting officer intervened
   was the final technical evaluation report revised to add that "all three
   offerors are essentially technically equal." Final Technical Proposal
   Evaluation at 2; Tr. I at 89-91. Although the contracting officer
   testified that she made an independent determination that the offerors
   were essentially technically equal, she testified that this determination
   was based on "[p]rimarily the raw score and bearing in mind [that] there
   were still no technical issues remaining with any of the offerors." Tr. II
   at 62, 66-67. As discussed, however, due to the evaluators' approach to
   the evaluation, and in view of the fact that the record indicates that
   Quanta's score was increased as a result of its material
   misrepresentation, it does not appear that the scores relied upon by the
   contracting officer accurately reflected the advantages offered by JCSS's
   proposal over Quanta's.

   The contracting officer subsequently testified that she also considered
   "technical trade-offs," that is, the three advantages associated with
   JCSS's proposal--incumbent personnel with the required current security
   clearances, incumbent personnel with the required training and
   certifications, and knowledge of BEP's security systems--in her source
   selection decision. However, her testimony in this regard focused on the
   monetary value of these advantages, using an estimate in JCSS's proposal
   ($200,000 to $400,000) of certain costs that would be avoided by award to
   JCSS, including the costs of training and certification for new personnel,
   new security clearances, and learning curve inefficiencies. Tr. II
   at 11-17, 75-76. Her testimony did not show that she reasonably took into
   account JCSS's non-monetary, "very compelling" advantages--associated with
   JCSS having an incumbent workforce of trained and certified incumbent
   personnel who have met the agency's rigorous security requirements and are
   knowledgeable as to the "intimate details," including vulnerabilities, of
   BEP's security systems--which would appear to increase the likelihood of
   successful contract performance, especially at the beginning of the
   contract. In any case, since the SSD by its terms was based on the
   determination that the proposals were essentially technically equal, and
   we find that this determination is not reasonably supported by the record,
   we conclude that the resulting source selection was unreasonable and
   sustain the protest on this basis as well.

   RECOMMENDATION

   We recognize that in appropriate circumstances, we have stated that an
   offeror's submission of a proposal containing material misrepresentations
   should disqualify the proposal from consideration for award. Patriot
   Contract Servs.--Advisory Opinion, B-294777.3, May 11, 2005, 2005 at 10;
   ACS Gov't Servs., Inc., B 293014, Jan. 20, 2004, 2004 CPD para. 18 at 11;
   see also Informatics, Inc., B-188566, Jan. 20, 1978, 78-1 CPD para. 53 at
   13. In determining what remedy to recommend, we consider such factors as
   the degree of negligence or intentionality associated with the offeror's
   misrepresentations, as well as the significance of the misrepresentation
   to the evaluation. Patriot Contract Servs.--Advisory Opinion, supra, at
   9-10; ACS Gov't Servs., Inc., supra, at 10-11.

   Here, we recommend that the agency reopen negotiations with offerors and
   request revised proposals. In this regard, we note that the content of
   offerors' oral discussions and oral presentations (which the solicitation
   indicated were part of the offerors' proposals) is uncertain because the
   agency did not record the sessions, and the evaluators subsequently
   discarded any notes they had made during the sessions. In view of the
   uncertainty here as to the information furnished by the offerors and
   relied upon in the source selection, we recommend that BEP require
   offerors to make new oral presentations or obtain further written
   submissions, so as to ensure that the basis for the source selection is
   adequately documented and available for review. eLYNXX Corp., B-292761,
   Dec. 3, 2003, 2003 CPD para. 219 at 8-10 (recommendation that agency
   either conduct new oral presentations given that the evaluators were
   unable to recall the oral presentations with specificity, or obtain
   written submissions). If the evaluation of revised proposals results in a
   determination that an offer other than Quanta's represents the best value
   to the government, the agency should terminate Quanta's contract for
   convenience. We also recommend that JCSS be reimbursed its cost of filing
   and pursuing the protest, including reasonable attorneys' fees. 4 C.F.R.
   sect. 21.8(d)(1). In accordance with 4 C.F.R. sect. 21.8(f)(1), the
   protester's certified claim for such costs, detailing the time expended
   and costs incurred, must be submitted directly to the agency within
   60 days after receipt of this decision.

   The protest is sustained.

   Anthony H. Gamboa

   General Counsel

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

   [1] Transcript citations refer to the transcript of the hearing that our
   Office conducted in this matter.

   [2] BEP and Quanta assert that, because JCSS first raised the issue of
   Quanta's alleged misrepresentation more than 10 days after JCSS received a
   redacted version of the SSD on April 7, and a copy of an April 6 letter
   from Verint to BEP indicating that Verint had not cooperated with Quanta
   before award, this aspect of JCSS's protest is untimely. In this regard,
   our Bid Protest Regulations generally require that protests be filed
   within 10 days of when the protester knew or should have known of a basis
   for protest. 4 C.F.R. sect. 21.2(a)(2) (2005). The allegation is timely.
   As noted by the protester, while the redacted SSD indicated that Quanta
   had made arrangements for Loronix training and certification, it did not
   clearly indicate that the agency's knowledge in this regard was the result
   of a representation by Quanta. This is significant since, as further noted
   by the protester, the SSD indicated that the agency's evaluation had taken
   into account information independently obtained by the agency. Since it
   therefore was not clear that the agency's conclusion regarding preaward
   training and certification had been based on representations by Quanta, we
   find the allegation timely. See LBM, Inc., B-290682, Sept. 18, 2002, 2002
   CPD para. 157 at 7 (GAO will resolve doubts over issues of timeliness in
   favor of protesters).

   [3] The content of the discussions between the agency and Quanta at its
   oral presentation and during oral negotiations is uncertain because the
   agency did not record the sessions, and the evaluators subsequently
   discarded any notes they had made during the sessions. Tr. I at 39-41.
   Although the Federal Acquisition Regulation does not require a particular
   method of establishing a record of what was said during oral
   presentations, the fundamental principle of government accountability
   dictates that an agency maintain a record adequate to permit meaningful
   review. Checchi and Co. Consulting, Inc., B-285777, Oct. 10, 2000, 2001
   CPD para. 132 at 6.