TITLE: B-299744; B-299744.4, Computer Literacy World, Inc., August 6, 2007
BNUMBER: B-299744; B-299744.4
DATE: August 6, 2007
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B-299744; B-299744.4, Computer Literacy World, Inc., August 6, 2007
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: Computer Literacy World, Inc.
File: B-299744; B-299744.4
Date: August 6, 2007
Michael A. Gordon, Esq., and Fran Baskin, Esq., Holmes & Gordon, for the
protester.
Daniel R. Forman, Esq., Christopher Gagne, Esq., and John E. McCarthy,
Jr., Esq., Crowell & Moring LLP, for Electronic Data Systems, Inc., and
John S. Pachter, Esq., Jonathan D. Shaffer, Esq., and Mary Pat Gregory,
Esq., Smith Pachter McWhorter PLC, for XTec, Inc., intervenors.
Carmody A. Gaba, Esq., Micul E. Thompson, Esq., and Kevin J. Rice, Esq.,
for the agency.
Edward Goldstein, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protester's interpretation of solicitation issued under the Federal Supply
Schedule program for a contractor managed "end-to-end" solution meeting
government-wide federal identification card requirements as requiring all
products and services within a vendor's "end-to-end" solution to be listed
on the agency's Approved Products List (APL) at the time technical
submissions were due is unreasonable where the agency, in answer to a
question regarding when items within a vendor's "end-to-end" solution had
to be on the APL, indicated that they had to be on the APL by Milestone 1
during contract performance.
DECISION
Computer Literacy World, Inc. (CLW) protests the issuance of a task order
to Electronic Data Systems, Inc. (EDS) under request for quotations (RFQ)
No. TQ-PLB07-0002, issued by the General Services Administration (GSA) to
vendors under its Federal Supply Schedule (FSS) program, to provide
contractor-managed services for an "end-to-end" solution meeting
government-wide federal identification card requirements. CLW argues that
EDS was not eligible for an order because its solution did not meet
mandatory solicitation requirements and that GSA improperly evaluated its
own solution under the RFQ's technical criteria.
We deny the protest.
BACKGROUND
Homeland Security Presidential Directive-12
In an effort to enhance security, increase efficiency, reduce identity
fraud, protect personal privacy, and deter terrorist threats, the
President, on August 27, 2004, issued Homeland Security Presidential
Directive-12 (HSPD-12), mandating the establishment of a standard for
identification of federal employees and contractors. HSPD-12 requires the
use of a common identification card for access to federally-controlled
facilities and information systems.[1] RFQ amend. 4, at 6-7.
Under HSPD-12, the National Institute of Standards and Technology (NIST)
was tasked with producing a standard for a secure and reliable form of
identification. In response, on February 25, 2005, NIST issued Federal
Information Processing Standard Publication 201 (FIPS 201), Personal
Identity Verification (PIV) of Federal Employees and Contractors. In order
to assist agencies with implementing the FIPS 201 requirements, the Office
of Management and Budget (OMB) established GSA as the "executive agency"
for government-wide acquisition of the products and services necessary to
implement the HSPD-12 mandate. As the executive agency, GSA is responsible
for making available products and services that meet all applicable
federal standards and requirements, to include FIPS 201, for acquisition
by federal agencies.
In order to achieve this end, and as directed by OMB, GSA has assumed
various roles. Specifically, in conjunction with NIST, GSA identified 22
categories of products/services which must comply with specific normative
requirements contained in FIPS 201. In May 2006, GSA established a FIPS
201 evaluation program to ensure that commercial products in the 22
identified categories are FIPS 201 compliant. Under this program,
laboratories test products and services under the 22 categories to ensure
conformance with FIPS 201 standards. When a product/service is determined
to be FIPS 201 compliant, GSA issues an approval letter, specifying the
supplier, the Approved Products List (APL) category (e.g., PIV smart
card), approved product name, and version/part number. Products/services
receiving an approval letter under one of the 22 categories are publicly
listed on what is known as the FIPS 201 APL. As it relates to this
protest, "graphical personalization" and "electronic personalization"
products and services are within the 22 categories of products and
services which must be approved as compliant with the requirements of FIPS
201.[2] Pursuant to OMB guidance, when agencies seek to acquire products
or services within the 22 FIPS 201 categories, they can only acquire those
products and services which have been approved by GSA--that is, those
products and services listed on the APL. Approved products/services for
the 22 categories are posted on the idmanagement.gov website.
In addition, GSA has recognized that agencies may require the services of
contractors which are outside the scope of the FIPS 201 evaluation
program, as they seek to develop and implement their HSPD-12 systems. In
this regard, GSA has established an "integration services qualification
program" through GSA's Center for Smartcard Solutions, whereby GSA
identifies vendors that are qualified to provide "integrated, bundled
solutions, and contractor managed solutions." GSA Hearing Exh. 4, at 7.
Under this program, GSA established qualification requirements in
following five areas: (1) enrollment products and services; (2) systems
infrastructure products and services; (3) card production products and
services; (4) card finalization products and services; and (5) integration
services (which included the following sub-categories "pure integration"
services, "turn-key" solutions, and "contractor-managed services."[3] Id.
at 11.
As explained by GSA, qualification requirements under the five areas are
evaluated under three criteria, "functional requirements," "experience
requirements," and "security requirements." Id. at 12. Those firms meeting
the qualification requirements receive a certificate specifying in which
of the five areas the firm is qualified as a systems integrator. Vendors
certified in all five areas are considered "end-to-end" integrators.
GSA indicates that as a requirement for obtaining the systems integrator
qualification certificate, all HSPD-12 systems integrators must expressly
commit to delivering systems which incorporate approved products/services,
i.e., those products/services listed on the APL. See GSA Hearing Exh. 4,
at 13. In this regard, GSA states that the systems integrator
qualification and certification process does not examine what GSA refers
to as a firm's particular "bundled" solution to determine whether it is
actually comprised of components from the APL. Rather, GSA qualifies
integrators based on their commitment to deliver bundled systems comprised
only of products from the APL. Id. As with FIPS 201 approved products and
services, GSA maintains a list of vendors qualified to provide the above
described services on the idmanagement.gov website.
In order to further facilitate the ability of federal agencies to acquire
FIPS 201 approved products/services and integration services from
qualified firms, GSA established special item number (SIN) 132-62, under
the GSA Schedule Information Technology (IT) 70, specifically for FIPS 201
compliant products and qualified integrators.[4] Under Schedule 70, SIN
132-62, GSA sought to make available to agencies the various products and
types of services that they would need as they endeavored to implement the
HSPD-12 mandate.
Believing that some agencies may decide to buy FIPS 201 compliant products
and services on an individual basis and attempt to develop and integrate
their own HSPD-12 systems, GSA provided for vendors to list their approved
FIPS 201 compliant products and services under SIN 132-62. As explained by
GSA, in order for a vendor to list its FIPS 201 product or service under
SIN 132-62, the item must first be approved and listed on the APL.
Due to the tight timeline associated with implementing the HSPD-12
mandate, however, GSA was encouraging agencies not to handle the HSPD-12
mandate on their own, but rather to have qualified firms provide them with
contractor-managed services for "end-to-end" systems. Hearing Transcript
at 35-36. As a consequence, GSA also included the services of qualified
integrators under SIN 132-62. According to GSA, as a prerequisite for a
systems integrator to be listed on SIN 132-62, it had to demonstrate that
it had obtained the applicable GSA systems integrator certification
awarded by GSA's Center for SmartCard Solutions.
In sum, as explained by GSA, it had established two parallel, yet distinct
processes for firms to meet agencies' HSPD-12 needs. One process pertained
to individual products/services falling under the 22 categories requiring
FIPS 201 approval, which entailed testing the specific products/services
for FIPS 201 compliance and listing approved products/services on the APL.
As a predicate for vendors to have their products/services listed under
SIN 132-62, GSA required vendors to demonstrate that the particular
product or service was listed on the APL. GSA also identified a separate
process for qualifying HSPD-12 systems integrators seeking to provide
integrated HSPD-12 system solutions to federal agencies.
RFQ No. TQ-PLB07-0002
Consistent with its mission to assist federal agencies in their efforts to
implement HSPD-12, on January 12, 2007, GSA issued the subject
solicitation under IT Schedule 70, SIN 132-62, seeking proposals[5] from
vendors for the issuance of a task order to provide a "shared service
solution for an end-to-end" contractor-managed HSPD-12 system, that is, a
bundled system capable of meeting the following core HSPD-12 system
elements: (1) enrollment, (2) system infrastructure (identity management
system, card management system), (3) card production and issuance, and (4)
card activation. RFQ amend. 4, at 7. The selected vendor would "supply
equipment, materials, and services" necessary to meet these core services
requirements for various federal agencies endeavoring to meet the HSPD-12
mandates. Id. The RFQ contemplated a base period of performance from the
date of issuance of the order through September 30, 2007, and four 1-year
option periods. The base period was composed of four "milestone" dates. As
it relates to the protest, within Milestone 1, System Setup, GSA
identified three sub-elements, 1A -- Initial Functionality (due 30 days
after issuance of the order), 1B -- Updated Functionality (due 45 days
after issuance of the order) and 1C -- Infrastructure Build Out (due 60
days after issuance of the order). Within Milestone 1A, the vendor was
required to demonstrate numerous requirements, and deliver "key
documents." RFQ amend. 4, at 11.
The RFQ contemplated selection of the vendor whose proposal represented
the "best value" to the government considering price and the following
non-price factors (listed in descending order of importance): (1)
operational capability demonstration (OCD); (2) understanding of and
capability to fully and timely perform technical requirements; (3) project
management; and (4) past performance. In regard to the best value
determination, the RFQ provided that the non-price factors were
collectively more important than price. RFQ amend. 4, at 128.
Under the RFQ, vendors were required to submit a technical and management
proposal for the purpose of "identify[ing] how the contractor meets the
requirements stated in th[e] solicitation." RFQ amend. 4, at 127. The RFQ
further advised vendors that proposals "must address the requirements,
provisions, terms and conditions, and clauses stated in all sections of
this solicitation." RFQ amend. 4, at 128. In evaluating vendors'
proposals, GSA sought to ensure that the vendor fully understood and was
capable of performing the technical requirements contained in the RFQ,
that it demonstrated this understanding, and that "the proposed solution
is technically sound." RFQ amend. 4, at 130. The RFQ also indicated that
GSA would evaluate vendors' proposals to ensure a full understanding of
all project management requirements contained in the RFQ and evaluate
vendors' past performance risk.
The OCD, the most heavily weighted non-price evaluation factor, consisted
of a "functional capability demonstration" of specific HSPD-12 system
technical requirements contained in the RFQ. RFQ amend. 4, at 146. The
specific functional requirements tested were called "use cases," which
were individually identified in the RFQ.[6] Under the OCD factor, GSA
identified two subfactors: (1) the results of the use case functional
requirements demonstration, which were evaluated on a "demonstrated/not
demonstrated" basis for the various use cases identified; and
(2) observations regarding expected and desired results, efficiency of
data entry, and flow of the system. RFQ amend. 4, at 148. Prior to
conducting their demonstrations, each vendor was required to submit a
"white paper" containing its proposed test plan, any assumptions, and
documentation containing detailed system architecture, security
architecture, and user interface specification. According to the RFQ, the
test plan was not to be evaluated, but rather was to be used by GSA to
prepare for the OCD evaluation. RFQ amend. 4, at 129.
Vendors were advised that after evaluation of the non-price factors, GSA
would request price proposals from those vendors whose non-price proposals
were "rated highly acceptable technically." RFQ amend. 4, at 130.
At the time GSA issued the RFQ, it had executed agreements with
approximately
40 agencies to obtain an end-to-end HSPD-12 solution under the
contemplated task order. While these agreements had resulted in a
requirement under the task order for the vendor to enroll and issue
HSPD-12 compliant credentials to approximately 420,000 federal employees
and contractors, GSA informed vendors that it also had an open offer for
other agencies to employ the task order to meet their HSPD-12
requirements. RFQ at 7. Given the undefined scope of the ultimate
requirement, the RFQ required vendors to price their "end-to-end" service
on the basis of a "seat" price, which was defined as "a single enrollment
transaction per enrollee" or, as described by the contracting officer, "a
single, active PIV account." RFQ amend. 4, at 8; Contracting Officer's
(CO) Statement of Facts at 3.
Vendors selected to submit price proposals were required to submit fixed
prices for two "mandatory" contract line item numbers (CLIN), CLIN 1
"Milestones 1, 2, and 3 Enrollment Seat Price," and CLIN 2, "Milestones 1,
2, and 3 Monthly Maintenance Seat Price." RFQ amend. 4, at 132. Under CLIN
1, a vendor was to submit its "seat price" for its bundled solution for
enrolling federal employees and contractors in the PIV program. CLIN 2
required a vendor to submit its "seat price" for maintaining the
established, active identity accounts. In addition, the RFQ included more
than 80 "additional optional CLINs," some of which were for
separately-priced products and services (i.e., PIV activation stations or
card sleeves). RFQ amend. 4, at 132. As a general matter, vendors were
required to submit fixed prices on a per item basis for these CLINs.
Regarding the mandatory CLINs, while the total number of seats that a
vendor would have to provide was not defined, the RFQ specified that the
minimum number of seats to be ordered under the task order would be
10,000, and that the maximum number of seats that could be ordered over
the life of the task order was limited to 1.5 million. RFQ amend. 4, at
124. For the purpose of determining their seat prices, however, vendors
were instructed to assume an order quantity of 420,000 seats. RFQ amend.
4, at 8.
Since this was an acquisition under the FSS program, the RFQ advised
vendors as follows:
All products and services must be available on SIN 132-62 and/or
Schedule 70. If a product, service or labor category is not required to
be on SIN 132-62, then it must be on Schedule 70. No other Schedules may
be offered and open market items may not be proposed. All products and
services must be on Schedules by the time Price Proposals are submitted.
It is the responsibility of each contractor or team to ensure that all
required HSPD-12 contract line items that constitute an end-to-end
solution are priced on their Schedule 70 SIN 132-62. There will be no
open market items permitted under this task order.
RFQ amend. 4, at 131.
In addition, GSA addressed numerous questions raised by vendors regarding
the RFQ. As it relates to the protest, several questions concerned which
products or services had to be listed on GSA's APL and when they had to be
on the APL. In this regard, questions 45-47, which reference RFQ section
6.1, HSPD-12 General Requirements, are particularly relevant. RFQ section
6.1 read as follows:
The system shall be designed with [commercial off-the-shelf (COTS)]
products with a demonstrated track record wherever possible. Any COTS
product shall be proven in at least 2 production deployments. For
product categories requiring GSA approval, only products/services on the
GSA FIPS 201 Approved Product List may be offered.
RFQ amend. 4, at 19-20.
Regarding section 6.1, vendor question number 45 raised the following
question:
Considering that several categories in the APL are abstract, that is,
not specifically related to any specific equipment, such as Electronic
Personalization, exactly what products used in the solution does GSA
expect to be on the FIPS 201 APL? Do all products need to be on the APL
at the time of proposal submission or may some products be undergoing
the evaluation?
RFQ mod. 4, at 6.
Vendor question number 46 asked:
The GSA APL continues to publish Updates to the Approval Procedures . .
. . Will GSA consider and accept products that have been submitted and
are in the process of approval?
Id.
GSA answered both questions with the following statement:
GSA does not agree that categories on the APL are abstract. Electronic
Personalization products/services represent core functionality for Card
Management System (CMS) products/services. Products approved on the APL
for this category are exclusively CMS products/services. GSA anticipates
that the configuration of products for the end-to-end solution required
by the solicitation will be provided at the OCD and, therefore, also at
the time of proposal submission. All products in that configuration must
be on the APL at the time of system certification and accreditation
document submission in Milestone 1A. Items offered as CLINs must be
available on SIN 132-62 and/or Schedule 70 at time of RFQ Price
Submission. Items requiring GSA approval must be approved on the GSA
Approved Products List (APL) by that time.
Id.
Also referencing section 6.1, vendor question 47 raised the following
concerns:
GSA approved companies as "End-to-End" solution providers to allow a
migration path for solution providers while products are added to the
list. To this date, there are still categories on the APL with no
products listed. Additionally, many of the categories have only one or
two products. It was stated last summer that if the vendor owned the
equipment, the APL requirements did not apply. GSA states in this RFP
that the vendor will own all the equipment. In light of this fact and
that products are in the pipeline or still emerging on the APL, will GSA
consider and accept products that have applications to the APL submitted
prior to proposal submission? To meet the objective, GSA could still
require those products to be listed on the APL prior to award. This
would allow for the most robust and efficient solution to be provided
for this important program.
Id.
GSA responded as follows:
GSA's requirements are that system integrators offering contractor
managed services do not need to have all products/services in their
bundled solutions on the APL in order to be qualified as a managed
service contractor. However, GSA clearly articulated that the system
solution must be comprised of only GSA-approved products/services from
the APL at time of delivery. This requirement was also provided in
writing in the contractor managed service qualification requirements. In
addition, see responses to questions 45 and 46.
Id.
On February 8, GSA issued RFQ Modification 5, incorporating the vendors'
questions and GSA's answers under the RFQ.[7] Modification 5 also
established an RFQ closing date of February 16, 2007, and provided that
"all proposal submissions must be sent through the GSA Advantage e-Buy web
site using its established systems procedures."[8] RFQ mod. 5.
Proposal Submission
On February 16, GSA received six proposals in response to the RFQ,
including proposals from EDS and CLW, a small business which teamed with
other firms and submitted a proposal as the American Sentinel Alliance PIV
team. At the time CLW submitted its proposal, CLW did not hold a Schedule
70 contract. While CLW was in the final stages of receiving its Schedule
70 contract award, GSA did not award CLW its Schedule 70 contract until
February 21, 5 days after proposals were due. Agency Report (AR), Tab Q,
CLW Schedule 70 Contract Form 1449.
The fact that CLW was not awarded a Schedule 70 contract until after the
due date for proposals significantly affected CLW's ability to submit a
proposal in response to the RFQ. Without a Schedule 70 contract, CLW was
unable to access GSA's e-Buy system and without access to this system, CLW
was unable to obtain modifications to the RFQ, which were posted
exclusively through the e-Buy system. Moreover, CLW was unable to submit
its proposal through e-Buy as mandated by the RFQ. As a consequence, when
CLW submitted its proposal, it was not based on the final version of the
RFQ and CLW did not use the e-Buy system; rather, CLW submitted its
proposal directly to the contracting officer via e-mail as the RFQ had
required prior to being amended. Notwithstanding CLW's failure to submit
its proposal through the e-Buy system, the contracting officer determined
that because "CLW had been working with the GSA Schedules [contracting
officer] to get their company posted on the Schedules web site before the
close of the RFQ, this company should be allowed [to] submit their
offering and be evaluated." AR, Tab T, CO Statement of Facts Regarding
Late Submission of Proposals, Feb. 22, 2007, at T0005.
GSA's Evaluation of Vendors' Proposals
After receipt of proposals, GSA scheduled the OCD with each vendor. EDS
conducted its OCD on February 26. CLW attempted to conduct its OCD on
March 9, but due to system difficulties, it was permitted a one-time
24-hour reset in accordance with the ground rules of the OCD as
established under the RFQ. CLW then completed its OCD the next day.
Thereafter, GSA completed its evaluation of vendors' proposals under the
technical factors and ranked them as follows:
+------------------------------------------------------------------------+
|Vendor|Factor 1 -| Factor 2 - |Factor 3 --| Factor 4 - Past | Overall |
| | OCD |Understanding| Project. | Performance | Rating |
| | | | Mgmt. | | |
|------+----------+-------------+-----------+-----------------+----------|
| EDS |Excellent/|Good/Low Risk|Excellent/ | Good |Excellent/|
| | Low Risk | | Low Risk | | Low Risk |
|------+----------+-------------+-----------+-----------------+----------|
| A |Excellent/|Good/Low Risk| Good/Low | Good |Good/ Low |
| | Low Risk | | Risk | | Risk |
|------+----------+-------------+-----------+-----------------+----------|
| B | Good/Low |Good/Low Risk| Good/Low | Good | Good/Low |
| | Risk | | Risk | | Risk |
|------+----------+-------------+-----------+-----------------+----------|
| C | Average/ |Average/ Mod.| Good/Low | Good | Average/ |
| |Mod. Risk | Risk | Risk | |Mod. Risk |
|------+----------+-------------+-----------+-----------------+----------|
| D | Average/ | Average/Low | Good/Low | Average | Average/ |
| |Mod. Risk | Risk | Risk | |Mod. Risk |
|------+----------+-------------+-----------+-----------------+----------|
| CLW |Poor/High |Average/High | Average/ | Average | Average/ |
| | Risk | Risk | Mod. Risk | |High Risk |
+------------------------------------------------------------------------+
AR, Tab H, CO Decision to Invite Price Proposals, at H0011.
On April 5, the contracting officer decided to invite the three most
highly rated vendors to submit price proposals. The contracting officer
notified CLW that same day that it was not being considered further for
selection. GSA ultimately issued the task order to EDS, the highest
technically rated vendor, with the lowest evaluated price of $66,379,641.
After learning of GSA's decision, CLW requested a debriefing. GSA provided
CLW with a "post-award briefing" in which it detailed CLW's evaluated
strengths and weaknesses under each of the non-price evaluation
factors.[9] Thereafter, CLW filed this protest with our Office.
DISCUSSION
CLW raises two principal issues. First, CLW argues that EDS was not
eligible for selection because its solution did not meet mandatory
solicitation requirements. In this regard, CLW contends that when vendors
submitted their technical solutions on February 16, the RFQ required that
a vendor's end-to-end solution (CLINs 1 and 2) had to be composed of only
approved products and services--that is, products and services listed on
the APL. According to CLW, it was the only vendor with a system composed
entirely of APL products and services. In support of this contention, CLW
indicates that it was the only vendor utilizing Gemalto "graphical
personalization" and "electronic personalization" products and services,
which were the only such products and services listed on the APL. Second,
CLW contends that GSA improperly evaluated its proposal under the
solicitation's technical criteria. CLW takes issue with GSA's findings
regarding its performance during the OCD, and concerns that CLW did not
address other requirements in its proposal. Closely tied to this issue is
CLW's contention that, because it did not have access to the e-Buy system,
it did not obtain critical RFQ modifications, notwithstanding the fact
that the contracting officer "promised" to provide CLW with the amendments
and updates to the RFQ. Protest at 6 n.1.
As an initial matter, GSA argues that CLW is not an interested party for
the purpose of filing its protest.[10] Under our Bid Protest Regulations,
a party will not be deemed to have the necessary economic interest to
maintain a protest if it would not be in line for selection if its protest
were sustained. See 4 C.F.R. sect. 21.0(a) (2007). GSA argues that the
procurement was limited to Schedule 70, SIN 132-62 contract holders, that
CLW did not hold a Schedule 70 contract as of February 16, the date
"technical proposals" were due, and thus that CLW was not eligible to
participate in the procurement.[11]
In analyzing this issue, the record clearly reflects that CLW was not a
Schedule 70 contract holder until after the date vendors were required to
submit their technical proposals and, as a consequence, CLW was unable to
submit its proposal through the e-Buy system as required by the RFQ. The
record further reflects that while CLW did not use the e-Buy system to
submit its technical proposal, GSA did in fact consider and evaluate CLW's
submission.[12]
We find implicit support for the agency's argument that CLW was not an
interested by virtue of the fact that GSA required use of the e-Buy
system, which was limited to schedule contract holders, for the purpose of
soliciting and obtaining vendors' proposals. On the other hand, GSA's
position is not supported by the express terms of the RFQ. In this regard,
no version of the RFQ specified that a vendor had to be a Schedule 70
contract holder at the time set for submission of technical proposals for
the purpose of participating in the procurement. Rather, the final version
of the RFQ simply stated that the "Contractor must be a schedule 70
contract holder," without any indication of the time at which the vendor
had to be a Schedule 70 contract holder. RFQ amend. 4, at 116. Moreover,
statements in the RFQ indicating that "no open market items" (items not on
Schedule 70, SIN 132-62) would be allowed on the task order do not
establish that a vendor had to be a Schedule 70 contract holder in order
to submit a technical proposal. RFQ amend. 4, at 132. GSA's argument in
this regard is undermined by the fact that express language in the RFQ
stated that vendors did not have to have any of their products and
services on the schedule until "Price Proposals are submitted," which was
after technical proposals were due. Id. Since a vendor did not have to
have the items required under the RFQ on its Schedule 70, SIN 132-62
contract until the submission of price proposals, it is not clear why a
vendor would have had to have been a schedule 70 contract holder in order
to submit a technical proposal.
Given the conflicting indications on the record--i.e., the agency's use of
the e-Buy system, contrasted with the absence of explicit language
establishing the time at which a vendor had to be a Schedule 70 contract
holder--we view the issue of CLW's interested party status as a close
question. We need not resolve the issue, however, because, even assuming
CLW is an interested party, we find that the underlying bases of protest
are without merit.
APL Compliance
In challenging GSA's issuance of a task order to EDS, CLW maintains that
EDS and other vendors in the competition failed to comply with the RFQ
requirements by incorporating in their technical proposals "graphical
personalization" and "electronic personalization" services that were not
on GSA's APL at the time they submitted their technical proposals. More
specifically, CLW maintains that at the time technical proposals were due,
only one firm, Gemalto, had been approved by GSA and listed on the APL for
the purpose of providing graphical personalization and electronic
personalization services, and that none of the vendors (other than CLW)
incorporated the Gemalto services as part of their bundled solutions.
The crux of CLW's argument revolves around its interpretation of the RFQ
as requiring vendors to incorporate in their end-to-end solutions, at the
time technical proposals were due, only FIPS 201 approved graphical
personalization and electronic personalization products and
services--those listed on the APL. In support of this interpretation, CLW
principally relies on section 6 of the RFQ, stating that "only
products/services on the GSA FIPS 201 Approved Product List may be
offered" as well as the statement in the RFQ that "[o]nly Graphical
Personalization, Electronic Personalization (product), and/or Electronic
Personalization (services), as appropriate, as approved on the GSA
FIPS-201 Approved Product List (APL) may be offered." RFQ amend. 4, at 20,
32.
GSA, however, articulates a different interpretation of the RFQ. According
to GSA, the RFQ established that FIPS 201 categories of services and
products, which were necessarily part of a vendor's end-to-end solution
(under CLINs 1 and 2) did not have to be on the APL at the time technical
proposals were due; rather, they had to be on the APL by Milestone 1. This
was in contrast to FIPS 201 category products or services identified as
stand-alone items under an individual CLIN (not part of a vendor's
end-to-end solution), which had to be on the APL at the time price
proposals were due. Since graphical personalization and electronic
personalization products and services were solely included within vendors'
bundled end-to-end solutions under CLINs 1 and 2, these products and
services only had to be listed on the APL by Milestone 1. As a
consequence, failure to propose Gemalto for these products and services
did not render EDS, or other vendors', proposals technically unacceptable.
When an agency conducts a formal competition under the FSS program, we
will review the agency's evaluation of vendor submissions to ensure that
the evaluation was reasonable and consistent with the terms of the
solicitation. SI Int'l, SEIT, Inc., B-297381.5; B-297381.6, July 19, 2006,
2006 para. CPD 114 at 11; COMARK Fed. Sys.,B-278343; B-278343.2, Jan. 20,
1998, 98-1 CPD para. 34 at 4-5. Where a protester and agency disagree over
the meaning of solicitation language, we will resolve the matter by
reading the solicitation as a whole and in a manner that reasonably gives
effect to all its provisions. Solec Corp., B-299266, Mar. 5, 2007, 2007
CPD para. 42 at 2. We will not read a provision restrictively where it is
not clear from the solicitation that such a restrictive interpretation was
intended by the agency. Id.
Here, we conclude that CLW does not advance a reasonable interpretation of
the solicitation. As noted above, CLW's interpretation of the RFQ is
derived from section 6 of the RFQ providing that "only products/services
on the GSA FIPS 201 Approved Product List [to include graphical
personalization and electronic personalization] may be offered." RFQ
amend. 4, at 20, 32. In analyzing this issue, we note that these
statements, standing alone, may have introduced some ambiguity in the RFQ
regarding the timing of APL compliance;[13] CLW's interpretation of the
APL compliance requirement, however, does not withstand scrutiny when one
reviews questions and answers 45-47, which subsequently were incorporated
in the RFQ through modification 5, and directly speak to the question of
the timing of APL compliance in an effort to clarify vendor confusion
regarding this issue.[14]
Specifically, in response to vendor question 45, which asked whether all
products needed to be on the APL at the time of proposal submission or
whether products could still be undergoing evaluation for the purpose of
being listed on the APL, GSA explained that all products in a vendor's
"end-to-end" solution "must be on the APL at the time of system
certification and accreditation document submission in Milestone 1A,"
which was well after the time for the submission of technical
proposals.[15] RFQ, Mod. 4, at 6. GSA referenced this answer in responding
to question 46, which expressly asked whether GSA would consider and
accept products that were not on the APL but were in the process of
undergoing the FIPS 201 evaluation and obtaining approval. Furthermore,
consistent with its statement that the products and services incorporated
in vendors' end-to-end solutions had to be on the APL at Milestone 1, in
its answer to question 47, GSA explained that a vendor's bundled system
solution "must be comprised of only GSA-approved products/services from
the APL at the time of delivery." Id. Given that the vendors' questions
specifically raised the question of timing of APL compliance, and GSA's
responses indicated that, with regard to a vendor's end-to-end solution,
all products must be on the APL at Milestone 1, CLW's contrary
interpretation of the RFQ is not reasonable.
Throughout this case there has been much discussion of whether GSA's
interpretation of the solicitation is reasonable. Based on the record, we
find that GSA's interpretation of the timing for APL compliance, as
reflected in the questions and answers incorporated in the RFQ through
modification 5, is reasonable in light of the underlying objectives and
acquisition scheme GSA established as the executive agency for the
government-wide acquisition of the products and services necessary to
implement HSPD-12.
As explained above, in implementing the HSPD-12 acquisition program, GSA
developed a bifurcated approval process, differentiating between the
approval of individual products and services falling within the 22
categories of products and services requiring FIPS 201 compliance, and the
acquisition of contractor-managed services for bundled, integrated HSPD-12
solutions, which entailed a qualification process. These separate
processes resulted in GSA's listing of individual products and services
that were FIPS 201 compliant on the APL, as well as a separate listing of
firms which were qualified to provide integration services. Depending on
their approach to meeting the mandate, agencies could use either of these
lists to aid in their efforts to obtain the products and services they
needed to meet the HSPD-12 mandates.
GSA then took the next step of establishing Schedule 70, SIN 132 in order
to further facilitate the ability of agencies to acquire the various
products and types of services needed to implement the HSPD-12 mandate. In
establishing Schedule 70, SIN 132, GSA incorporated the bifurcated process
in its procedures for listing products on Schedule 70, SIN 132-62. In this
regard, there is no dispute that when a vendor sought to obtain a schedule
contract for a product or service that required FIPS 201 compliance, the
vendor had to demonstrate that its product or service was on the APL. As
more fully discussed below, the record also reflects that when a vendor
sought to list its services as a contractor-managed service provider of
bundled HSPD-12 solutions, a vendor could be awarded a schedule contract,
notwithstanding the fact that the components of its underlying bundled
solution were not yet then on the APL.
This bifurcated process is consistent with GSA's interpretation of the
RFQ's requirements for the timing of APL compliance. In this regard, the
RFQ contained CLINs for separately-priced products and services requiring
FIPS 201 compliance, as well as CLINs for end-to-end integrated
services--i.e., bundled solutions (principally CLINs 1 and 2). In
addition, the RFQ also required vendors to have all their CLINs on
Schedule 70, SIN 132-62 by the time price proposals were due. As explained
above, in order for a vendor to list its FIPS 201 products and services on
the schedule, they had to be on the APL. Not so, however, for bundled
solutions, which merely required a vendor to obtain a certificate
approving its solution; as also noted above, this process did not look
behind the solution to determine whether it was comprised of component
products and services from the APL. Rather, GSA relied on the vendor's
commitment under its certification and under its schedule contract to only
utilize APL products and services in its solution--thereby making APL
listing for the vendor providing integrator services a matter of contract
performance.
As explained by GSA, the bifurcated scheme established under the schedule
was reflected in the RFQ. For CLINs comprising a vendor's end-to-end
solution, GSA did not look behind the solution to determine whether it was
composed of products from the APL, but rather considered it to be a matter
to be addressed during contract performance. This is consistent with GSA's
responses to vendor questions 45-46 which stated that "GSA anticipates
that the configuration of products for the end-to-end solution . . . must
be on the APL . . . in Milestone 1A." RFQ, Mod. 4, at 6. Moreover, in
response to question 47, GSA clearly indicated that a vendor's end-to-end
solution "must be comprised of only GSA-approved products/services from
the APL at the time of delivery." Id.
CLW argues that GSA's position is based on a false factual premise--that a
vendor did not have to have the components of its end-to-end solution on
the APL in order to receive an integrator services contract under SIN
132-62. According to CLW, in order to be listed on the schedule a vendor
had to demonstrate that its bundled solution was composed entirely of
products and services from the APL. Because APL compliance was a predicate
for being listed on Schedule 70, SIN 132, and because the RFQ required
vendors to have all their CLINs on schedule 70, SIN 132 prior to the
submission of price proposals, CLW argues that the agency's interpretation
of the RFQ as requiring APL compliance at Milestone 1 is inconsistent with
the underlying structure of the Schedule 70 acquisition process and merely
a post-hoc rationalization.[16] CLW maintains that this conclusion is
confirmed by two letters (dated March 7 and March 15) it received from
GSA, which required CLW to demonstrate that its end-to-end solution was
composed entirely of products and services from the APL. We find that
CLW's factual arguments in this regard are not supported by the record.
First, testimony from GSA witnesses directly supports GSA's position that
components of bundled solutions were not examined for APL compliance as
part of the process of listing a certified integrator's contractor-managed
bundled solution on Schedule 70, SIN 132. In this regard, GSA's director
of Identity Policy and Management for the Office of Government-wide Policy
testified as follows:
GAO ATTORNEY: . . . [F]or a contractor to have a product listed under
SIN 132-62, that product . . . would have to be an approved product
before it is listed?
THE WITNESS: Yes.
GAO ATTORNEY: For sale under SIN 132-62?
THE WITNESS: Correct.
GAO ATTORNEY: Now, for an integrator under the integrator category to be
listed on SIN 132-62, the integrator would have to meet qualification
requirements?
THE WITNESS: Correct.
GAO ATTORNEY: And those requirements don't look at . . . the actual
products that they would be using, necessarily?
THE WITNESS: That's correct. We required as a qualification requirement
that the integrators must commit to use approved product list products
in their systems that are delivered in the qualification requirements
which were published in June 2006. . . .
GAO ATTORNEY: An integrator may be qualified, notwithstanding the fact
that there might not be any products for them to use in providing
integrated services to the government because . . . there are no
products at that time on the APL?
THE WITNESS: Right. So we were approving integrators as of that time
based on their commitment to use only approved products on the approved
products list for the systems that they deliver.
Hearing Transcript, at 29-32.
In support of this understanding, a GSA Schedule 70 contracting officer
also testified that before she would award individually priced products
under SIN 132-62, the vendor was required to confirm that the specific
item was on the APL. The process for awarding integration services or
bundled solutions, however, was different. "We do not look at each
individual [component] because we are not the technical experts. . . . We
would require a letter . . . indicating that they are qualified to provide
. . . integration services, then that letter . . . will be sufficient for
us . . . to place [the vendor's services] on Schedule 70 [SIN 132-62]."
Hearing Transcript at 38-39. Moreover, GSA's Director of the Center for
Smartcard Solutions submitted a declaration confirming that when he and
his staff reviewed vendors' SIN 132-62 bundled solutions for the purpose
of providing vendors and the Schedule 70 contracting office with the
necessary "Certificate of Bundled Services Approval," the "[p]roducts and
services incorporated in the bundled offerings were not required to be on
the Approved Products List in order to be approved, nor did the review
process include verifying whether the aforementioned products and services
were on the Approved Products List." GSA's Post Hearing Comments, Exh. 1,
Declaration of Director of the Center for Smartcard Solutions, July 9,
2007
In addition, GSA's position is consistent with its answer to a question
posted on its FIPS 201 evaluation program website in which GSA explained
that delivery is the critical time for APL compliance with respect to
integrator provided end-to-end solutions. Specifically, the question
asked, "If my offering is on the SINs, do I need to be on the NIST or GSA
approved lists?" and GSA answered, "If you are offering products, the
answer is yes. If you are offering integrated solutions, you must be
qualified by GSA and you must commit to delivering only products which
have been approved and appear on the Approved product List." EDS Hearing
Exh., at 4.
Second, CLW is misplaced in its reliance on the March 7 and March 15
letters as definitive proof of GSA's requirement that vendors' end-to-end
solutions had to be composed entirely of APL products and services before
proposals were due. Setting aside the fact that neither letter was part of
the RFQ or purported to alter the RFQ, the March 7 letter appears to
merely serve as a reminder that under the RFQ, vendors' CLIN offerings
must also be listed on their Schedule 70, SIN 132-62 contracts by the time
price proposals were due. To the extent the letter also required vendors
to submit "GSA Approval Letter[s] associated with each product/ service"
that "support the offeror's proposed CLIN structure", this statement is
ambiguous and can be reasonably read to require approval letters solely
for those CLINs for individual items by the time price proposals were due,
as opposed to CLINs comprising a vendor's end-to-end solution--consistent
with GSA's interpretation of the RFQ. AR, Tab O, CLW Approval Letters, at
O0037.
Moreover, the March 15 letter does not appear to support CLW's
contentions. Rather, this letter supports GSA's explanation of the
distinction between the process for listing individual products and
services on SIN 132-62, and the process for listing contractor-managed
services, or bundled solutions. In the letter, GSA explains that in order
for CLW to have its individual products and services listed on SIN 132,
CLW had to demonstrate that they were on the APL. In addition, the letter
explained that for "bundled solutions," CLW had to submit its certificate
of approval from GSA's Center for Smartcard Solutions. Of significance,
GSA did not, through this letter, require CLW to provide APL letters for
each of the components comprising its bundled solution.
CLW also argues that GSA's interpretation is contrary to OMB policy
prohibiting agencies from acquiring products and services that are not on
the APL since it results in a system whereby agencies can place orders for
contractor-managed end-to-end solutions which are composed of products and
services that are not FIPS 201 compliant. See OMB Memorandum,
Implementation of Homeland Security Presidential Directive (HSPD) 12 --
Policy for a Common Identification Standard for Federal Employees and
Contractors, M-05-24, Aug. 5, 2005 (stating "all departments and agencies
must acquire products and services that are approved to be compliant with
the [FIPS-201] Standard and included on the approved products list"). As
explained by GSA, however, under the RFQ, agencies did not actually
"acquire" any products or services that are subject to the FIPS 201
compliance requirement. Rather, the RFQ sought contractor-managed services
(an end-to-end solution) whereby the vendor would supply a complete
identity management system. In this regard, all elements of the system
would be owned and operated by the selected vendor. Moreover, later-issued
OMB guidance also explicitly drew the distinction between the acquisition
of individual product items versus complete contractor managed services
and provided that "vendors offering contractor managed services . . . must
ensure that only approved products . . . are acquired and incorporated
into delivered system solutions." OMB Memorandum, Acquisition of Products
and Services for Implementation of HSPD-12, June 30, 2006. This language,
which emphasizes delivery of the system, is consistent with GSA's
interpretation that, with regard to contractor-managed systems, APL
compliance was viewed as a matter to be addressed during Milestone 1 of
contract performance.
In conclusion, we find that CLW's interpretation of the RFQ as requiring
APL compliance of all products and services comprising vendors' end-to-end
solutions at time of proposal submission is not reasonably supported when
the RFQ is read as whole and that GSA's less restrictive
interpretation--that APL compliance for end-to-end components was a matter
to determined during Milestone 1 of the task order--is reasonable.
CLW's Technical Evaluation
When an agency issues a solicitation under the FSS program, we will review
the agency's evaluation of vendor submissions to ensure that the
evaluation was reasonable and consistent with the terms of the
solicitation. SI Int'l, SEIT, Inc., supra; COMARK Fed. Sys., supra. In
this regard, a protester's mere disagreement with the agency's judgment or
its belief that its quotation deserved a higher technical rating alone is
not sufficient to establish that the agency acted unreasonably. Worldwide
Language Res., Inc., B-297210 et al., Nov. 28, 2005, 2005 CPD para. 211 at
3.
CLW challenges GSA's evaluation of its proposal under each of the
technical evaluation factors. We conclude that these challenges are
unsupported and amount to little more than disagreement with GSA's
evaluation. As an initial matter, we note that of the six vendors in the
competition, CLW was ranked last. Under factor 1, the OCD, GSA rated CLW
as "poor" and "high risk," finding that CLW failed to demonstrate 11
sub-use cases required under the OCD. CLW asserts that it did in fact
demonstrate 9 of the 11 sub-use cases, however, in its protest, it
specifically addresses its demonstration of only three of the sub-use
cases at issue and merely states it is "certain that the other sub uses
were demonstrated." Supplemental Protest at 2. Moreover, to the extent CLW
challenges GSA's additional findings that "[i]t was difficult to discern
if all processes worked as single business process," its "demonstration
seemed disconnected at times making it difficult to determine if the
expected and desired results were met," "the RFQ requires . . . largely
automated processes but [CLW's] solution required continuous manual
intervention," and "the overall pervasiveness of problems throughout the
demonstrations was indicative to the government that [CLW's] solution
would require significant government oversight in order to meet the RFQ
requirements," AR, Tab N, CLW Evaluation, at N0001-N0002, its arguments
are simply unsupported or present little more than CLW's disagreement with
the agency's evaluation. For example, CLW bases its challenge to GSA's
determination that it did not demonstrate a "single business process" on
the unsupported assertion that this conclusion was due to "an apparent
misperception by an evaluator based on CLW's use of [DELETED]."
Supplemental Protest at 2. As a consequence, we find that CLW's challenge
to its evaluation in this regard does not provide a basis for sustaining
its protest.
CLW also challenges its evaluation under factor 2, understanding of and
capability to perform technical requirements; factor 3, project
management; and factor 4, past performance. In evaluating CLW's proposal
under factor 2, GSA found no strengths and numerous weaknesses and rated
CLW as "poor" under 3 of the 10 elements considered. Specifically, GSA
rated CLW "poor" with regard to its "Understanding or Requirements and Use
Cases," "Quality of Training Approach," and "Understanding of Help Desk
Requirements and Ability to meet them." AR, Tab N, CLW Evaluation, at
N0004. Specifically, GSA noted that CLW did not demonstrate an overall
understanding of the technical requirements, finding that CLW failed to
state that "a PKI SSP [Public Key Infrastructure Shared Service Provider]
is a component of their solution as required by the RFQ," its "detailed
descriptions of the functions and capabilities required for each component
`station' are not in compliance with either the RFQ or FIPS 201," and its
"detailed descriptions of the roles and responsibilities are not in
compliance with either the RFQ or FIPS 201." Id. at N0005. In addition,
GSA found that CLW did not address minimum solicitation requirements,
specifically, "training for government role holders", "requirement to meet
[Shareable Content Object Reference Model] compliance," "Section 508
compliance," and "the requirement to implement an automated call
distribution center," and that CLW failed to "provide details for
providing a tiered approach to help desk services to manage level 1 and
level 2 trouble calls," and did not "specifically address help desk
support . . . as required." Id.
Under the third factor, project management, GSA rated CLW's proposal as
"average" with "moderate risk," noting one strength, and two principal
weaknesses, specifically, that there was no work breakdown structure or
description of how it planned to meet all the milestones and that CLW's
project manager did not appear to have experience "related to projects of
similar size and scope." AR, Tab N, CLW Evaluation, at N0007. In addition,
GSA noted that because CLW's project manager had a current commitment to
the Army War College, there was a moderate risk to the government relating
to meeting Milestone 1A. Under the past performance factor, GSA found that
several of CLW's projects were of "low relevance." AR, Tab N, CLW
Evaluation, at N0008.
In challenging its evaluation under the above factors, CLW addresses only
a handful of the weaknesses assessed by GSA, and with regard to those few
issues, its challenges are conclusory in nature and reflect mere
disagreement with GSA's evaluation. By way of example, in challenging its
past performance evaluation, CLW states that it "disagrees with the
characterization and ratings assigned in the Past Performance area" and
that its "projects are highly relevant and entitled CLW to a higher
rating." Supplemental Protest at 3. We conclude that the record reasonably
supports GSA's evaluation, and that CLW's allegations regarding GSA's
evaluation do not provide a basis for sustaining CLW's protest.
CLW further argues that many of the weaknesses attributed to its proposal
under these factors were the direct result of its failure to receive
Amendment 4 to the RFQ. For example, CLW indicates that its failure to
address certain help desk support requirements was due to the fact that
they were incorporated in Amendment 4 and GSA did not provide CLW with the
amendment as the contracting officer had "promised" he would do. The
record reflects, however, that the reason CLW did not obtain Amendment 4
was entirely due to CLW's inability to access the e-Buy system, which was
not the fault of GSA, but rather simply due to the fact that CLW was not a
Schedule 70 vendor at the time Amendment 4 was issued.[17] Nor is there
any support for CLW's assertion that the contracting officer "promised" to
provide CLW with any changes or updates to the RFQ on an ongoing basis.
Rather, the record reflects that in response to a request from CLW's
subcontractor that it be included on the "distribution list" for
solicitation materials, the contracting officer informed CLW's
subcontractor that solicitation material would only be published through
e-Buy, but agreed to provide copies of then-current solicitation
documents. AR, Tab S, E-mail from Contracting Officer to CLW
Subcontractor, Jan. 14, 2007, at S0001. We note that CLW made no timely
objection to the agency's use of the e-Buy system to disseminate the RFQ
and amendments, we think the agency's actions here were unobjectionable.
The protest is denied.
Gary L. Kepplinger
General Counsel
------------------------
[1] As it has developed, one feature of the contemplated common
identification card is the inclusion of a biometric verification element,
specifically, the incorporation of fingerprint verification.
[2] These 22 categories relate to the following areas: PIV smart cards,
smart card readers, fingerprint scanners, fingerprint capture stations,
fingerprint template generation and matching equipment, facial image
capture stations, card printing stations, and graphical and electronic
personalization products and services.
[3] A "turn-key" solution is characterized as one where the contractor
transfers ownership of an integrated system to the government and the
government operates the system. In contrast, under a contractor-managed
system, the contractor retains ownership of all equipment and manages
operation of the system for the government.
[4] While OMB has established GSA as the HSPD-12 executive agency and
other agencies are encouraged to acquire their HSPD-12 requirements
through GSA, they are not required to do so. Thus, IT Schedule 70 SIN
132-62 is not a mandatory source for agencies.
[5] Although the solicitation is identified on its cover page as an RFQ,
the term "proposal," as opposed to "quotation," repeatedly appears in,
among other places, the solicitation's descriptions of the evaluation
factors and selection scheme, as well as the parties' submissions. Given
this, we refer to the firms' submissions as proposals in several instances
for the sake of consistency, notwithstanding the fact that they are more
properly referred to as quotations.
[6] By way of example, one of the use cases identified for testing
involved the "enrollment" function and specifically the ability of the
vendor's system to support new enrollment and re-enrollment activities.
[7] GSA issued Modification 5 as Amendment 4 to the RFQ.
[8] Federal Acquisition Regulation (FAR) sect. 8.402(d) states that
"'e-Buy,' GSA's electronic Request for Quotation (RFQ) system, is a part
of a suite of on-line tools which complement GSA Advantage!. E-Buy allows
ordering activities to post requirements, obtain quotes, and issue orders
electronically."
[9] While CLW had requested a "debriefing", GSA informed CLW that because
the procurement was conducted under the procedures established by FAR Part
8.4 as opposed to those under FAR Part 15, it was not required to provide
CLW with a formal debriefing as described under FAR sections 15.505 and
15.506. Rather, GSA was only required to provide CLW with "a brief
explanation of the basis for the award decision." FAR sect. 8.405-2(d)
[10] GSA also argued that CLW's protest challenging EDS's proposal as
non-compliant is untimely since it should have raised this issue when it
was eliminated from the competition. According to GSA, CLW should have
known at that time that it was the only vendor with an end-to-end solution
composed entirely of FIPS 201 products and services from the APL. We
disagree, notwithstanding the existence of press reports indicating that
EDS had been invited to submit its price proposal, GSA did not officially
announce the names of the firms from which price proposals were requested.
Moreover, according to CLW it only learned that EDS did not offer Gemalto
products after GSA announced its selection. As a consequence, in our view,
CLW did not have a sufficient basis of information to file its protest
until it learned of GSA's selection of EDS.
[11] GSA also argued that because CLW had the lowest ratings of all six
vendors under the non-price factors it does not have a reasonable prospect
of selection and therefore is not an interested party. This argument is
without merit. In its protest CLW argues that it was the only vendor to
submit an acceptable technical proposal. In addition, CLW challenges the
results of GSA's underlying technical evaluation. If our Office were to
sustain either aspect of CLW's protest, at a minimum, reopening the
competition or reevaluating vendors' proposals would be appropriate. Since
CLW would be in a position to either submit a revised proposal or possibly
receive higher technical ratings, it has a sufficient economic interest to
qualify as an interested party eligible to maintain a protest challenging
the issuance of a task order to EDS.
[12] GSA maintains that the contracting officer only considered CLW's
technical proposal as a consequence of misleading statements made by CLW,
which led the contracting officer to believe that CLW had an existing
Schedule 70 contract at the time it submitted its technical proposal. CLW
argues that the contracting officer knew its status when it submitted its
technical proposal. Because, as discussed below, we need not resolve the
question of CLW's interested party status, we likewise need not resolve
this issue.
[13] Implicit in CLW's reading of the cited RFQ provisions is its
assumption that use of the term "offer" was coextensive with a vendor's
submission of its technical proposal and that a vendor's technical
proposal was its "offer" to the government. As an initial matter, we note
that use of the term "offer" in the RFQ was inherently ambiguous since a
vendor's submission in response to an RFQ is not technically an "offer"
since it is not a submission for acceptance by the government to form a
binding contract; rather, vendor submissions are purely informational.
Computer Assocs. Int'l, Inc.--Recon., B-292077.6, May 5, 2004, 2004 CPD
para. 110 at 3. Moreover, CLW's assumption is not consistent with the fact
that the RFQ was structured as a two-step process with the initial
submission of technical proposals followed by price proposals. Here, given
the two-step proposal submission process, prior to submission of a price
proposal there could not have been an actual "offer" for acceptance.
[14] It is understandable that CLW based its interpretation of the RFQ
solely on the language initially incorporated in the RFQ since, at the
time CLW submitted its technical proposal, CLW was not aware of the
questions and answers issued under modification 4 and later incorporated
through modification 5. As previously explained, CLW did not have access
to the e-Buy system and therefore never obtained modifications 4 or 5 to
the RFQ and thus did not have the benefit of the questions and answers for
the purpose of preparing and submitting its proposal.
[15] While CLW argues that GSA's statement "merely confirms the
prohibition in Section 6.1 that a contractor cannot substitute products in
its written response after award," CLW's contention is not reasonable
given the context of the answer, which was in response to a question
regarding the timing of APL compliance, not product substitutions during
performance of the task order. CLW's Post-hearing Comments at 8.
[16] We also note that CLW's argument in this regard does not support its
underlying interpretation of the RFQ as requiring APL compliance at the
time technical proposals were due. Following CLW's logic, APL compliance
was due by price proposal submission since the RFQ only required vendors
to have their products and services on Schedule 70, SIN 132 by the time
price proposals were due.
[17] To the extent CLW asserts that its inability to access e-Buy was due
to GSA's failure to award its Schedule 70 in a timely manner, its
contentions are not supported by the record. The record demonstrates that
the delay in awarding CLW's underlying schedule contract was the result of
CLW's failure to provide the Schedule 70 contracting officer with
requested information in a timely manner.