GRANTED: November 3, 1992
                                                  
 
 
                             GSBCA 12109-P
 
 
                      VALIX FEDERAL PARTNERSHIP I,
 
                                           Protester,
 
                                   v.
 
                 NATIONAL TRANSPORTATION SAFETY BOARD,
 
                                           Respondent.
 
        Shelton H. Skolnick, Derwood, MD, counsel for Protester. 
 
        Ronald Battocchi and  Vivian Wiesner, Office of  the General
   Counsel, National  Transportation Safety  Board, Washington,  DC,
   counsel for Respondent.
 
   Before Board Judges DANIELS, PARKER, and VERGILIO.
 
   DANIELS, Board Judge. 
 
        Valix  Federal  Partnership  I  (Valix)  protests  that  the
   National Transportation Safety Board (NTSB) violated requirements
   of statute  and regulation  in the conduct  of a  procurement for
   microcomputers.   Protester has  two principal objections  to the
   agency's actions: NTSB did  not achieve competition for  its true
   requirements,  and  the  agency  misevaluated  the  firm's   cost
   proposal.   In  addition, Valix  contends  that NTSB's  notice of
   award was defective.
 
        NTSB  has  moved  the  Board  to  dismiss   the  protest  as
   frivolous.  Valix has  filed a reply  in opposition.  Relying  on
   admissions contained  in the  motion and  the  answer to  Valix's
   complaint, we deny the motion and grant the protest.
 
                               Background
 
        1.   On August 4,  1992, NTSB issued a  solicitation seeking
   proposals to supply microcomputers to  the agency.  Protest File,
   Exhibit  II  at  10.    The items  involved  were  two  different
   configurations of 80386DX/33MHZ  computers and one version  of an
   80486DX/33MHZ.  Each  configuration was a separate  contract line
   item.  Id. at 17 (  B.2).
 
        2.   NTSB announced  in the  solicitation that  any contract
   resulting from this procurement would be of the firm-fixed price,
   indefinite delivery-indefinite quantity  variety.  Protest  File,
   Exhibit II at 17  (  B.2), 79 (  H.3), 110 (  L.17).   The agency
   guaranteed  that  it  would  purchase  a  minimum  of  forty-five
   computers --  twenty-five of contract line item  number (CLIN) 1,
   ten of CLIN 2, and five  of CLIN 3 -- on or before  September 30.
   It said that it might buy as many as 105 additional  computers --
   seventy-five of CLIN 1, fifteen of CLIN  2, and fifteen of CLIN 3
   -- during an "option period" from October 1, 1992, to January 28,
   1993.  Id. at 17, 79.
 
        3.   NTSB says  that the  minimum and  maximum numbers  were
   selected for the following reason:
 
             At the time of the request for proposals, the
             government  realistically  believed  that  FY
             [fiscal year] 1992  funds would be  available
             to  order at least 40, but  not more than 145
             units.   Although there was [a] desire within
             the agency for more computers than 145, based
             on information  available ON THE DATE  OF THE
             RFP [request for proposals], no more than 145
             computers were intended to  be ordered during
             the contract period.
 
   Motion at 3.
 
        4.   Notwithstanding   this   statement,   NTSB   continues,
   "because the RFP  was issued so  close to the  end of the  fiscal
   year,  it  was  anticipated that  other  end-of-year  funds could
   possibly become  available."  Answer  at 3.  NTSB  maintains that
   this   anticipation  led  the  agency  to  incorporate  into  the
   solicitation by  reference Federal  Acquisition Regulation  (FAR)
   clause  52.215-34, "Evaluation of Offers for Multiple Awards (Mar
   1990)."   Id.;  Protest File, Exhibit  II at  105 (  L.7).   This
   clause  states that "[i]n addition to  other factors, offers will
   be evaluated on the basis  of advantages and disadvantages to the
   Government  that might  result from  making more  than  one award
   (multiple awards)."  48 CFR 52.215-34 (1991) (FAR 52.215-34). 
 
        5.   Each offeror was  to propose two  unit prices for  each
   CLIN -- one  for the guaranteed minimum quantity  and another for
   the option period.  Protest File, Exhibit II at 17 (  B.2).
 
        6.   Section  M of the solicitation, "Evaluation Factors for
   Award," states in pertinent part:
 
             It is the intent of the Government to award a
             contract,  to the  responsible offeror  whose
             proposal, conforming to this solicitation, is
             determined to be the most advantageous to the
 
             Government,  price/cost  and   other  factors
             considered.
 
             . . . .
 
             Evaluation Factors of relative importance (in
             priority order).
 
                  (a)  Quality (per Section B.)
                  (b)  Price/Cost
                  (c)  Delivery
 
   Protest File, Exhibit II at 111 (  M.1).
 
        7.   Hi-Tec   Computers   &    Electronics   (Hi-Tec),   Win
   Laboratories, Ltd.  (Win), and  Valix were  among the  forty-four
   firms that submitted  proposals in response to  the solicitation.
   Protest File, Exhibits II, IV at  208, VII.  Hi-Tec and Win  each
   proposed two  unit prices for  each CLIN  -- one for  the minimum
   quantity and one for  the option period.  Id., Exhibit  II at 18,
   122.   Valix submitted a  more complex pricing proposal.   Within
   each  CLIN, for  the option  period,  Valix offered  "stair-step"
   pricing -- one unit price for one  group of units (e.g., units 26
   through 50  in CLIN 1),  a second unit  price for a  second group
   (e.g., units 51-75),  and, in CLIN 1,  a third price for  a third
   group (units  76-100).  Valix  also offered a discount  per unit,
   "which is applicable with an award for all line items proposed by
   Valix."  In  addition, Valix proposed a  completely different set
   of  prices, organized  as  described  above,  with  the  caption,
   "Should the Government choose to make multiple awards, the prices
   below are to be used."  Id., Exhibit VII at 294.
 
        8.   NTSB  admits  that  it evaluated  prices  and  selected
   offerors for  award  on the  basis  of minimum  quantities  only.
   Answer,    5.     According  to  an  unsworn   statement  by  the
   contracting   officer's   technical   representative,  evaluation
   occurred  as late as  September 22.  Protest  File, Exhibit IV at
   183.   NTSB is  not willing  to concede  that at  that date,  the
   agency  knew  that  any  particular  number  of  computers  would
   ultimately be ordered.  Motion at 6 n.5.
 
        9.   The agency  made two awards  on September 28 --  one to
   Win and one to Hi-Tec.  Protest File, Exhibit I.  Hi-Tec proposed
   the lowest evaluated prices of all offerors, and Win proposed the
   second lowest.   Id.,  Exhibit  IV at  208.   NTSB  provides  the
   following explanation of why two awards were made:
 
             The respondent admits that at the time of the
             award it was considered likely that more than
             145 units would be  purchased before the  end
             of the  option  period. . . .    [O]ne  award
             would not  have allowed  for the  purchase of
             additional  units during  the option  period.
             It  was  only  after award,  at  the  time of
 
             ordering,  that it  was  determined that  231
             units could be  purchased because of  end-of-
             year money  which would  have otherwise  been
             returned to the Treasury.
 
   Motion at 6 n.7.
 
        10.  By letter dated October 5, NTSB informed Valix that  it
   was not the successful  offeror.  Answer,   13.  Valix  says that
   it  received the letter on October  7.  Complaint,   13.  Valix's
   vice president for marketing says that his firm did not learn the
   identity of  the awardees,  and their prices,  until he  spoke by
   phone with an  agency employee on October 9.   Board's Memorandum
   of Conference of Oct. 15, 1992 (Conf. Memo.) at 2.  NTSB does not
   deny the veracity of this statement.  Answer,    13.  The protest
   was filed  on October 13.  At a  conference convened by the Board
   on  October  15,  NTSB  counsel  stated  that  the  agency   will
   voluntarily  suspend   performance  under  the   Hi-Tec  and  Win
   contracts  until the  protest  has  been resolved;  consequently,
   items ordered by NTSB are not being delivered.  Conf. Memo. at 2.
 
                               Discussion
 
        The  solicitation at issue  requested proposals to  supply a
   minimum of  forty and  a maximum of  145 microcomputers  to NTSB.
   Finding 2.   At the time of award, the  agency decided to buy 231
   computers,  or fifty-nine percent  more than the  stated maximum.
   Finding  9.   The reason  for this decision  was that  the agency
   realized, just before  the end  of the  Government's fiscal  year
   (September  30), that  it had  money which,  if not  spent, would
   revert to the  Treasury.  Id.   To acquire 231 computers,  though
   each offeror proposed to supply only 145, NTSB made awards to two
   separate firms.   Id.   Two awards  were permissible,  the agency
   believes,  because the  solicitation warned that  multiple awards
   might be made.  See Finding 4.
 
        NTSB's   reasoning   is   defective.      The  presence   of
   unanticipated sums of money in an agency's account at the  end of
   a  fiscal year  is not  license to spend  that money  in unlawful
   ways.  The FAR clause regarding multiple awards permits an agency
   to  make more  than one  award  where doing  so is  "economically
   advantageous  to  the Government."    FAR  15.407(h).   The  term
   "multiple awards," in this context, refers to awards of contracts
   to  more than  one offeror  for different  portions of  the total
   being  purchased; it  is not  understood  to authorize  duplicate
   awards of the entirety  of the goods or services described in the
   solicitation.  FAR 15.605(f); Rocky Mountain Trading Co.--Systems
   Div., GSBCA  8845-P, 87-2 BCA    19,725, at  99,876-77, 1987  BPD
     42,  at 6-7  (citing  Comptroller  General  decisions  to  like
   effect);  Wordplex Corp., GSBCA  8193-P-R, 86-2 BCA    18,820, at
   94,835, 1986 BPD   42, at 3.
        The reason  for this  conclusion is that  if an  agency were
   allowed to  make awards for  quantities greater than stated  in a
   solicitation,  the Government would satisfy its needs without the
   benefit of  true competition --  in contravention of  statute, 41
   U.S.C.     253(a)(1)  (1988),  and   regulation,  FAR  6.101  and
   10.002(a)(1).   By making two  awards, NTSB  now has  contractual
   relationships which establish  that the agency will buy  at least
   eighty, and as  many as 290, microcomputers in the configurations
   specified.   NTSB  did not  solicit  offers to  supply this  many
   computers,  however.  Consequently,  it has  no idea  what prices
   might be offered  for the right to provide  these quantities, and
   cannot know whether either Hi-Tec's proposal or Win's is actually
   "most  advantageous  to  the  United  States."    See  41  U.S.C.
     253b(d)  (1988).   Indeed,  NTSB  does know  that  even at  the
   smaller quantities  on which offers  were made, Win's  prices are
   higher than Hi-Tec's.   See Finding 9.   NTSB was thus  on notice
   that if quantities were doubled, and each offeror simply proposed
   the  same prices  (without reference  to  quantity discounts  one
   might  generally expect), the  agency would  have saved  money by
   purchasing from Hi-Tec alone.  The awards therefore cannot stand.
 
 
 
        NTSB's  statement   that   when   the   agency   wrote   the
   solicitation, it  did not  intend to buy  more than  the quantity
   specified, is irrelevant  to the predicament in which  the agency
   finds itself now.  When  NTSB realized that it had  increased its
   requirements,  it  should   have  issued  an  amendment   to  the
   solicitation  --  or,  if  it  believed  that   this  change  was
   substantial, cancelled  the solicitation  and issued  a new  one.
   FAR 15.606(a),  (b)(4).  In  either event, it should  have sought
   true  competition  to fill  the  real  requirements.   41  U.S.C.
     253a(a)(1)(A) (1988).
 
        Because  we decide  that no  award  was permissible  in this
   procurement,  we  need  not  consider  whether  NTSB misevaluated
   Valix's  proposal or whether (as the agency contends) protester's
   pricing  structure was  so at  variance  with the  solicitation's
   mandate that it should not have been  evaluated at all.  Now that
   the  agency knows  that  at  least one  vendor  desires to  offer
   "stair-step" pricing and a discount for award of all three CLINs,
   however, we urge NTSB, when it requests new proposals, to specify
   whether either  of these  forms of pricing  is permissible.   See
   Finding  7; Motorola Computer  Systems, Inc., GSBCA  9170-P, 88-1
   BCA   20,324, at 102,753, 1987 BPD   247, at 8.  We also urge the
   agency to specify -- as it has  not explicitly done heretofore --
   whether it will evaluate pricing proposals on the assumption that
   minimum, maximum,  or some  other quantities  will be  purchased.
   See  Finding 6.   The  Federal  Information Resources  Management
   Regulation  provides that generally,  an evaluation of  the total
   cost  of  proposals  should include  prices  for  "the basic  and
   optional quantities [and]  basic and optional  contract periods."
   41 CFR 201-39.1501-1(a) (1991).  
 
        NTSB's notification to  Valix that it had  not been selected
   for award  was both  late and inadequate.   Notification  must be
   made "[p]romptly after award."  FAR 15.1001(c)(1).  NTSB made the
   awards here  on September 28,  but did  not tell  Valix about  it
   until  October 7 (given  two-day  mail delivery).    This is  not
   sufficiently  fast,  particularly in  light of  the need  to tell
   offerors of  adverse  decisions  in  enough time  that  they  may
   protest within ten days of award and thereby secure the statutory
   right  to  a  suspension  of  contract  performance  while  their
   complaint  is being  resolved.   Berkshire  Computer Products  v.
   Department  of the  Navy, GSBCA  11989-P,  1992 BPD    257, at  4
   (Sept. 17, 1992); Locom  Corp., GSBCA 8951-P, 87-2  BCA   19,940,
   1987  BPD   111.    Any  prejudice to  Valix  has been  remedied,
   however,  by  the  agency's   voluntary  suspension  of  contract
   performance  while  the  protest is  pending.    See Finding  10.
   Notification must  include certain  information, as  specified by
   regulation:  the  number  of offerors  solicited;  the  number of
   proposals   received;  the  name  and  address  of  each  offeror
   receiving an  award; the  items, quantities,  and unit  prices of
   each award (if practicable); and in general terms, the reason the
   offeror's  proposal was  not accepted.   FAR 15.1001(c).   NTSB's
   notification did not contain this information.  Finding 10.
 
 
                                Decision
 
        NTSB's motion to dismiss the protest is DENIED.  The protest
   is  GRANTED.   NTSB shall  terminate for  the convenience  of the
   Government the contracts  that it has awarded to  Hi-Tec and Win;
   the contracts are  presumed valid as to any  computers which were
   delivered  and accepted  prior  to  the  agency's  suspension  of
   contract  performance, however.  40 U.S.C.   759(f)(5)(B), (6)(B)
   (1988).  If NTSB  continues to have a need  for microcomputers in
   the configurations specified  in this solicitation, it  may amend
   the  solicitation or  issue  a new  one, requesting  proposals to
   supply  the  number  of computers  that  represents  the agency's
   requirement.
 
                                      _________________________
                                      STEPHEN M. DANIELS
                                      Board Judge
 
   We concur:
   _________________________          _________________________
   ROBERT W. PARKER                   JOSEPH A. VERGILIO
   Board Judge                        Board Judge