DENIED:  November 23, 1994
                                                     
 
 
                             GSBCA 12982-P
 
 
                    INTEGRATED SYSTEMS GROUP, INC.,
 
                                                Protester,
 
                                   v.
 
                      DEPARTMENT OF THE TREASURY,
 
                                                Respondent,
 
                                  and 
 
                        FEDERAL SERVICES, INC.,
 
 
                                                Intervenor.
 
 
        Shelton  H. Skolnick, Amer Syed, Amy M. Hall, Wayne Finegar,
   and  Bruce Trimble  of Skolnick  & Leishman,  P.C.,  Derwood, MD,
   counsel for Protester.
 
        James  E. Dumerer, Office of Chief Counsel, Internal Revenue
   Service, Department  of the Treasury,  Dallas, TX; and  Harold G.
   Mosher,  Office  of  Chief  Counsel,  Internal  Revenue  Service,
   Department  of   the  Treasury,   Washington,  DC,   counsel  for
   Respondent. 
        Glenn  J. Ballenger,  President of  Federal Services,  Inc.,
   Chantilly, VA, appearing for Intervenor.
 
   Before Board Judges PARKER, DEVINE, and GOODMAN. 
 
   GOODMAN, Board Judge.
 
        Integrated Systems Group, Inc.  (ISG), protests the decision
   of  the Internal  Revenue Service  (IRS) to  award a  contract to
   Federal Services, Inc. (FSI).  FSI is an intervenor of right.  We
   do  not find that the  IRS violated any  statute or regulation in
   the course of conducting the procurement and deny the protest.
 
                            Findings of Fact
 
        1.  This  procurement   is   for   two   optical   character
   recognition  (OCR)  scanning   workstations  and  also  software,
   training, support, and  maintenance on the OCR  workstations, for
   the Training and Development Branches  of the IRS Service Centers
   at Philadelphia, PA, and Ogden, UT.   Protest File, Exhibit 3  at
   4-5.  
 
        2.  Respondent issued solicitation number IRS-94-SW-030 (the
   RFP)  on  April 14,  1994,  and  two  amendments to  the  RFP  --
   amendment 1 on  May 10, 1994, and  amendment 2 on June  20, 1994.
   Protest File, Exhibits 3, 5, 14.
 
        3.  Section M.2. reads, in relevant part:
 
        M.2  EVALUATION FACTORS
 
             The evaluation factors for award are listed below.
        The  technical  factors will  be  scored; however,  the
        price  factor will not be scored  but will be evaluated
        as described in paragraph (2) of this provision.
 
        M.2.1  Technical Evaluation Factors
 
             The technical proposal will be evaluated using the
        following factors and subfactors listed in the order of
        importance.   Subfactors  cited  under Scanning  System
        Operation  bear equal  weight and  are  most important.
        Subfactors  for Organizational  Experience,   Personnel
        Qualifications, and Training Plan bear equal weight and
        are less important. 
 
   Protest File, Exhibit 3 at 56. 
 
        4.  Section M.2.1.3 of the RFP reads, in pertinent part:
 
        Personnel Qualifications:
 
             Offerors  shall  demonstrate  that  all  personnel
        appointed  to  carry   out  each  aspect   of  contract
        performance are experienced and qualified by:
 
             (a)  Designation  of   project  manager   and
             description   of   his/her   experience   and
             background in development  and implementation
             of ADP systems and support.
 
             . . . .
 
             (c)  Designation  of  training  personnel and
             descriptions of their proven expertise in the
             areas of systems operation, forms design, and
             document management.
   Protest File, Exhibit 3 at 57.
 
 
        5.  Section M.3 of the RFP reads: "The Government  will make
   award  to the  lowest  priced, technically  acceptable  offeror."
   Protest File, Exhibit 3 at 58.
 
        6.  Amendment 1 revised portions of  the RFP and attached  a
   series of sixteen  questions submitted by potential  offerors and
   respondent's answers  to each.   Protest File, Exhibit 5  at 3-8.
   Question 16 and its answer state:
 
        Q.   There   is  an   apparent  conflict   between
             paragraphs M.2 and  M.3.  In  particular, M.2
             addresses the scoring of technical proposals,
             while M.3 indicates that  award will be  made
             to the  lowest price,  technically acceptable
             offeror.   Which approach is intended  by the
             IRS?
 
        A.   Technical proposals will be evaluated against
             the stated factors to determine whether  they
             meet  the criteria;  offerors  must meet  all
             criteria   in   order   to   be   technically
             acceptable.  Award  will then be made  to the
             technically acceptable proposal  offering the
             lowest price.
 
   Id. at 7-8.
 
        7.  Section L.7 of the RFP reads, in pertinent part:
 
             The  following paragraphs  set forth  instructions
        for  proposal   preparation  and  submission   and  the
        required format.  Proposals submitted for less than the
        total  requirement of this  RFP will not  be considered
        for award.
 
        . . . .
 
        Submission of Proposal
 
             Each offeror's  proposal submitted in  response to
        this  solicitation shall  be  in  two  (2)  volumes  as
        described  below [a technical  proposal and  a business
        proposal].  .  .  .   Proposals  shall  be  prepared in
        accordance  with  these   instructions,  providing  all
        required information in the  format specified.  Failure
        of   a   proposal  to   show   compliance  with   these
        instructions  may  be  grounds  for  exclusion  of  the
        proposal from further consideration.
 
        Purpose of Instructions
 
             These   instructions  prescribe   the  format   of
        proposals and describe the  approach to be used  in the
        development and  presentation of  proposal data.   They
        are designed  to assure the  submission of  information
        essential  to   the  understanding   and  comprehensive
        evaluation  of the  offeror's proposal.    There is  no
        intent  to  limit  the  contents  of  proposals.    The
        instructions  permit  the inclusion  of  any additional
        data or information an offeror deems pertinent.
 
   Protest File, Exhibit 3 at 50.
 
        8.  Section  L.7.1 of the  solicitation, titled "Volume  I -
   Technical  Proposal,"  provides  instructions  for preparing  the
   offeror's technical proposal and reads, in pertinent part:
 
        Section 3  - Project  Management and  Support/Personnel
        Staffing
 
             Provide the overall plan for managing and staffing
        all  phases of  this  effort.   The plan  shall include
        detailed information  concerning the  offeror's ability
        to  adequately   staff  the   operation.     Particular
        attention  should   be  paid  to   training,  technical
        support,  and  management  support  requirements.    In
        addition,  the offeror  shall  describe  in detail  any
        anticipated subcontracting plans.
 
        Section 4 - Mandatory Requirements
 
             Provide  a  statement   concerning  the  offeror's
        position  with respect to each mandatory requirement as
        stated in Section C of this RFP.
 
   Protest File, Exhibit 3 at 51.
 
        9.  Section L.7.2  contains specific  requirements regarding
   the information about personnel  experience and capabilities that
   must  be included  in business  proposals  submitted.   Pertinent
   information required includes the following:
 
        Offerors shall provide a single point of contact who is
        empowered  to  make  day-to-day  decisions  and  answer
        questions concerning the contract.  (See Section G).  A
        resume  of  this  individual's  credentials  shall   be
        included with the proposal.   Offerors may also wish to
        submit resumes for training personnel and any other key
        personnel  who   will  be   instrumental  to   contract
        performance.
 
   Protest File, Exhibit 3 at 53.
 
        10.  Section G.1.3 of the RFP reads, in pertinent part:
 
             The  Contractor's designated  Project Manager  for
        this contract is:   
 
             _____________________ (TO BE NAMED BY THE CONTRACTOR)
             _____________________
             _____________________
             _____________________
 
             The telephone number for the Project Manager is:
 
             _____________________
 
             The Contractor shall provide a Project Manager for
        this contract who  shall have the authority to make any
        no-cost  contract  technical,   decisions,  or  special
        arrangement  regarding  this  contract.    The  Project
        Manager shall be responsible for the overall management
        and coordination  of this contract and shall act as the
        central point of contact with the Government.
 
   Protest File, Exhibit 3 at 19.
 
        11.  The Government received five proposals.   Protest File,
   Exhibit  6.  After  the  initial  evaluation  of  proposals,  the
   contract specialist and contracting officer determined that ISG's
   proposal  and  two  others  would  be  included  in  the  initial
   competitive range.  Id., Exhibit 12 at 1-2.  
 
        12.  In their joint Memorandum of Prenegotiation Objectives,
   the  contract specialist and  the contracting officer  noted that
   ISG's deficiencies included: "designations of project manager and
   training  personnel, and their areas of expertise and experience,
   are missing . .  . .  These  will be the subject  of negotiations
   with ISG."   Protest File, Exhibit 13 at  3; see id., Exhibits 28
   at 2, 32 at 3.
 
        13.  Respondent's  contract  specialist conducted  only  one
   round of written  discussions with each of the  three offerors in
   the initial  competitive range.   Protest File, Exhibit 32  at 3.
   Five written discussion  items were sent to ISG on June 20, 1994.
   Id., Exhibit 15.  ISG was "requested to submit proposal revisions
   to respond to  the following weaknesses and  deficiencies in your
   technical  proposal[.]"   Id. at  1.   Written discussion  item 3
   states, in its entirety:
 
        Sections  M.2.1.3(a)   and  (c)  of   the  RFP  request
        designations  of   a  project   manager  and   training
        personnel, including their experience, backgrounds, and
        areas of expertise.  A modification of your proposal is
        requested to  include these requirements.  In addition,
        please complete and  submit the information on  page 19
        of the RFP in paragraph G.1.3, Project Manager.  
 
   Id.
 
        14.  The written discussion letter  directed ISG to  provide
   its written revisions to  its proposal by June 29, 1994.  Protest
   File, Exhibit  15 at  2.   ISG responded on  June 28,  1994.   In
   paragraph  3,  ISG   repeated  discussion  item  number   4  from
   respondent's June 20, 1994, letter and its answer follows, in its
   entirety:
 
        Answer:  (a)  A project  manager is  designated  at the
        time of  award.   Attached you will  find a  resume for
        Leslie  Barry which gives an overview of the experience
        ISG  has in the  development and implementation  of ADP
        systems and support.  See attached.
 
        (c)  The  training  personnel  will  be  hired  for  an
        exclusive  training session  based  on the  Governments
        [sic]  needs and  location.    Toni  Reinhart  will  be
        incharge  [sic]  of  developing  and  implementing  the
        training specifications in the proposal.  The  training
        plan and  outline was  [sic] developed  exclusive [sic]
        for the IRS.  Attached is  Mrs. Reinhart's resume along
        with the Course Description and the Course Outline. 
 
   Id., Exhibit 17.
 
        15.  ISG's  revision to  its proposal  did  not designate  a
   project  manager or  describe the  project manager's  experience.
   The revision  also did not designate training personnel, but only
   identified  the person who  authored the ISG  proposal's training
   response.    The  contract   specialist  determined  that   ISG's
   proposal, as revised, was deficient.  Protest File, Exhibit 32 at
   3.  
 
        16.  The  contract specialist  and  the contracting  officer
   decided   not  to   redetermine  the  competitive   range  before
   requesting BAFOs.  Protest File, Exhibits 28 at 3, 32 at 4, 33 at
   2.   Their  reason was to  give ISG  yet one more  opportunity to
   comply with  discussion item  number 3  in respondent's  June 20,
   1994, discussion letter.  Id., Exhibits 28 at 3, 33 at 3.  
 
        17.  The  other two proposals were free of deficiencies, and
   ISG   had  previously   been  given   specific   notice  of   its
   deficiencies.   Protest File, Exhibits 28 at 3, 33 at 3.  The IRS
   decided not to conduct another  round of discussions just for the
   purpose of reminding  ISG of its deficiencies, as  it believed to
   do   so  would  be  considered  technical  leveling.  No  further
   discussions  occurred prior  to the  request for  BAFOs from  the
   three offerors.  Id., Exhibit 28 at 5-6, 9, Exhibit 32 at 5-6.
 
        18.  ISG's  BAFO failed to  supply both the  designations of
   project manager and training personnel and the description of the
   project manager's experience.  Therefore, the contract specialist
   and  the contracting  officer  determined  that  ISG's  BAFO  was
   technically unacceptable and eliminated  ISG from the competitive
   range.  Protest File, Exhibits 28 at 4, 32 at 4, 33 at 3.
 
        19.  By letter dated August 6, 1994, respondent informed ISG
   that:
 
        Your  firm's  proposal  has  been  eliminated  from the
        competitive  range and will no longer be considered for
        award based on the following determination:
 
             ISG's proposal failed  to provide information
             to meet  mandatory solicitation  requirements
             requested   during   discussions    and   is,
             therefore, technically unacceptable.
 
   Protest File, Exhibit 25.
 
        20.  By letter  dated August  8, 1994, ISG  filed a  protest
   with respondent stating, in pertinent part:
 
             The  Government's conclusion  that ISG's  original
        proposal  was  "deemed   technically  unacceptable"  on
        August  8  is  incorrect.   ISG  was  found technically
        compliant  and given the  opportunity to submit  a Best
        and Final  Offer (BAFO)  on July 8,  1994.   FAR 15.611
        stipulates  that only offerors who are determined to be
        technically acceptable  are invited  to submit  a BAFO.
        We submit this Agency Protest over the determination of
        non-compliance three  (3)  weeks  after  invitation  to
        BAFO.
 
   Protest File, Exhibit 27.
 
        21.  By letter  dated September 12, 1994,  respondent denied
   the agency protest.  Protest File, Exhibit 29.  
 
        22.  On  September 19,  1994, ISG  filed a  protest  at this
   Board, realleging  its allegations  in the  agency complaint  and
   also alleging that: 
 
        The IRS failed to negotiate  fairly with ISG.  If ISG's
        proposal  was not yet technically compliant when it was
        invited  to  submit  a  BAFO,   ISG  should  have  been
        informed  of that  fact and  permitted  to provide  the
        additional required information  with [its BAFO].   Had
        ISG  been permitted  an  opportunity  to  provide  that
        additional information, it could have easily solved the
        problem and would have been the lowest offerer.
 
   Complaint, Grounds for Protest    2-3.
 
        23.  The parties elected to submit the protest on the record
   for a decision on  the merits without an oral hearing pursuant to
   Board Rule 19.[foot #] 1
 
 
                               Discussion
 
        In its original  proposal, ISG did  not designate a  project
   manager  and  training  personnel,  but  represented   that  such
   personnel would be hired upon contract award.  Finding  12.  When
   respondent requested ISG  to modify its  proposal to supply  this
   information,  ISG merely reiterated that the individuals would be
   designated  or hired upon contract award.   Findings 14, 15.  ISG
   also failed to  submit the requested information  subsequently in
   its  BAFO.  Respondent  therefore eliminated ISG's  proposal from
   the competitive range.  Finding 18.     
 
        ISG contends that its representation that it would designate
   the  project manager and  training personnel upon  contract award
   was  sufficient  to render  its  proposal technically  acceptable
   because   the   technical   evaluation   factor   of    personnel
   qualifications  in Section  M  of  the RFP  was  not a  mandatory
   requirement of the RFP.  It bases  this argument on the fact that
   Section  L.7.1 of  the RFP  refers to  mandatory requirements  in
   Section C, and the technical  evaluation factor at issue is found
   in Section M.  Findings 3, 8.      
        ISG's  grounds  of  protest  are  that  the  IRS  failed  to
   negotiate fairly with ISG  and that had ISG been  informed of its
   technical noncompliance before  submission of the BAFO,  it could
   have  easily solved  the problem.    Finding 22.   ISG  therefore
   contends that the  IRS should have reduced the  technical scoring
   of its proposal  on this factor as  the result of its  failure to
   designate the project manager and training personnel, allowed ISG
   to remain in  the competitive range, and awarded  the contract to
   ISG. In the alternative, ISG argues that the IRS failed timely to
   notify ISG  that it was ineligible  for award due to  the alleged
   technical unacceptability.  
 
        Respondent  argues  that  the  submission  of  the requested
   information was a  mandatory requirement, and that  ISG's failure
   to supply  the information  when requested  after receipt of  its
   initial proposal and in  its BAFO was a valid reason  for finding
   ISG's proposal technically unacceptable. 
 
        Protester does  not prevail in  this protest.   Protester is
   correct  that  the  technical  evaluation  factor  of   personnel
   qualifications was  included in Section M  of the RFP and  not in
   Section C,  which Section L  refers to  as containing  "mandatory
   requirements."   However, the personnel qualifications factor was
   written in  mandatory language,  requiring a  designation of  the
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 1   58 Fed. Reg. 69,246, 69,260 (Dec. 30, 1993) (to
   be codified at 48 CFR 6101.19).
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   project  manager  and  his/her experience  and  a  designation of
   training  personnel and descriptions  of their  proven expertise.
   Finding 4.   Other sections of the RFP  reiterated the importance
   of this information.  Section  L of the RFP, which described  the
   format   of  proposals,   clearly   warned   offerors  that   the
   instructions contained  therein  were  "designed  to  assure  the
   submission  of  information essential  to  the  understanding and
   comprehensive  evaluation of the offeror's proposal."  Finding 7.
   Immediately  above  the  reference  in  Section  L  to  mandatory
   requirements,  offerors   were  directed  to  provide   in  their
   technical proposal the information  concerning project management
   and  support/personnel staffing.    Finding  8.    Section  G.1.3
   required  identification by name of the project manager.  Finding
   10.   Finally, amendment  1 contained a  response to  a potential
   offeror's  question  with  regard  to  the  technical  evaluation
   factors   in  Section  M  that  "[t]echnical  proposals  will  be
   evaluated  against the stated  factors to determine  whether they
   meet the criteria; offerors must meet all criteria in order to be
   technically acceptable."   Finding  6.  Thus,  ISG was  on notice
   that  the technical evaluation factor of personnel qualifications
   must be  met in order  for its proposal to  be deemed technically
   acceptable.    
 
 
        Even though  ISG may have  initially interpreted the  RFP to
   require  only designation  of its  project  manager and  training
   personnel  at  the time  of  award,  it  was clearly  advised  by
   respondent during written discussions that this information was a
   "requirement"  and  was  afforded an  opportunity  to  revise its
   proposal to  supply the  information.  Finding  13.   Having been
   notified by the IRS that  this information was a requirement, ISG
   did  not submit  the information,  but  reiterated that  it would
   designate these individuals at the time of award.  Finding 14.
 
        A  similar situation  occurred in Health  Systems Technology
   Corp.,  GSBCA  10920-P,  91-2     BCA  23,692,  1991  BPD     20.
   Protester  was  informed  during discussions  that  it  needed to
   revise its  proposal to increase  the level of effort  devoted to
   the project.   BAFOs were  requested and instead of  amending its
   proposal, protester  simply disagreed with  respondent and failed
   to increase its level of  effort.  The procuring agency thereupon
   found protester's BAFO to be technically unacceptable because the
   BAFO contained the same deficiencies  that were identified in the
   discussions.   The Board  upheld the agency's  determination that
   protester's  BAFO  was  technically  unacceptable  and  therefore
   protester should be eliminated from the competitive range.  In so
   doing, the Board stated:
 
             Having been put on notice that this was  a problem
        perceived  by  the   agency,  [protester]  nevertheless
        declined to  alter its  proposal to include  additional
        programming  and other time  needed to accommodate such
        requirements.    This  was   an  informed  decision  on
        protester's  part   --  the   discussions  sufficiently
        identified  this concern  and made  clear to  protester
 
        that  it would  have to  bolster its  proposal in  this
        regard.  Regardless  of whether the  RFP itself can  be
        said  to   state  this  criterion   clearly,  following
        discussions,  the requirement  to include  a reasonable
        amount  of  effort  for   modifications  was  known  to
        protester.  
 
   Id. at 118,641, 1991 BPD   20, at 10.
 
        In  the  instant  protest, any  misunderstanding  as  to the
   requirement of the  RFP concerning  the subject  matter at  issue
   should  have been dispelled by the  IRS written discussion letter
   which requested a modification of ISG's proposal to designate the
   project manager and  training personnel,  and informed  protester
   that this information was a requirement.  
 
        The  Federal  Acquisition  Regulation   (FAR)  contains  the
   following concerning  the determination of  the competitive range
   and discussions with offerors:
 
             (a)  The contracting officer shall determine which
        proposals  are in the competitive range for the purpose
        of   conducting   written  or   oral   discussion  (see
        15.610(b)). . . .   When there is doubt as to whether a
        proposal  is in  the  competitive range,  the  proposal
        should be included.
 
             (b)  If the  contracting officer,  after complying
        with 15.610(b),  determines that  a proposal no  longer
        has  a reasonable chance of being selected for contract
        award, it may no longer be considered for selection.
 
   48 CFR 15.609(a), (b) (1993).
 
        FAR 15.610 states, in relevant part:
 
        (b)  .  .  . [T]he  contracting  officer  shall conduct
        written  or   oral  discussion  with   all  responsible
        offerors who  submit proposals  within the  competitive
        range. The content  and extent of the  discussions is a
        matter of the contracting officer's  judgment, based on
        the  particular facts  of  each  acquisition  (but  see
        paragraphs (c) and (d) below).
 
        (c)  The contracting officer shall -- 
 
             (1)  Control all discussions; 
 
             (2)  Advise  the offeror  of deficiencies  in
             its  proposal so that the offeror is given an
             opportunity  to   satisfy  the   Government's
             requirements;
 
             (3)  Attempt  to  resolve  any  uncertainties
             concerning the  technical proposal  and other
             terms and conditions of the proposal;
 
             . . . . 
 
             (5)  Provide   the   offeror   a   reasonable
             opportunity to  submit  any  cost  or  price,
             technical, or other revisions to its proposal
             that may result from the discussions.
 
        (d)  The  contracting  officer   and  other  Government
        personnel  involved  shall  not   engage  in  technical
        leveling  (i.e.,  helping  an   offeror  to  bring  its
        proposal up  to the  level of  other proposals  through
        successive rounds of  discussion, such  as by  pointing
        out  weaknesses resulting  from the  offeror's  lack of
        diligence . . .).
 
   48 CFR 15.610(b)-(d) (1993).
 
        Respondent acted in  the instant procurement as  required by
   regulation.    ISG's  proposal  was   determined  to  be  in  the
   competitive range, and ISG was advised in written discussion that
   designation of  the project manager and training  personnel was a
   requirement  of  the  RFP.    Finding  13.    ISG  was  given  an
   opportunity to  satisfy this  requirement, as  it was  allowed to
   submit revisions  to its proposal.  Id.  The other  two proposals
   were  free of  deficiencies,  and ISG  had previously  been given
   specific  notice of  its deficiencies.   The  IRS decided  not to
   conduct  another round  of discussions  just for  the  purpose of
   reminding ISG of  its deficiencies, as it believed to do so would
   be  considered  technical  leveling.     No  further  discussions
   occurred prior to the request  for BAFOs from the three offerors.
   As ISG had  previously been put on notice as to the deficiency of
   its  failure to include the required information, the contracting
   officer decided not  to redetermine the competitive  range before
   requesting BAFOs, allowing ISG one more opportunity to supply the
   required   information.    Findings  16,  17.    Apparently,  the
   contracting officer believed  there was a reasonable  chance that
   ISG would supply the information in its BAFO.  When ISG failed to
   include  the  required   information  in  its  BAFO,   respondent
   determined  that ISG's  BAFO  was  technically  unacceptable  and
   eliminated it from the competitive range.  Finding 18.    
 
 
        ISG  has not  proven its  grounds  of protest  that the  IRS
   failed  to  negotiate fairly  with  ISG,  or  that had  ISG  been
   informed  of its technical noncompliance before submission of the
   BAFO, it  could have easily solved  the problem.  ISG  could have
   solved the  problem by simply  supplying the information  when it
   was requested during discussions,   or subsequently in its  BAFO.
   ISG  was given  notice of  the deficiency and  failure to  meet a
   requirement  of the  RFP  during  written  discussions,  and  two
   opportunities to remedy the deficiency  -- in its response to the
   written discussion questions and in its BAFO.  Accordingly, ISG's
   argument that  the IRS failed  timely to notify  ISG that  it was
   ineligible for award also lacks merit. 
 
        The Board will not disturb a competitive range determination
   unless  the protester can  demonstrate that the  determination is
   unreasonable. Phoenix Associates, Inc., GSBCA 9190-P, et al., 88-
   1  BCA    20,455,  1988  BPD     1.    Protester  has  failed  to
   demonstrate that respondent acted unreasonably  in eliminating it
   from the competitive range after the submission of its BAFO.  
 
 
                                Decision
 
 
        The protest is DENIED.  
 
                                      ________________________
                                      ALLAN H. GOODMAN
                                      Board Judge
   We concur:
 
 
 
   ________________________           ________________________
   ROBERT W. PARKER                   DONALD W. DEVINE
   Board Judge                        Board Judge