DENIED:  December 6, 1994
                                                      
 
 
                             GSBCA 12993-P
 
 
                     TELCOM SYSTEMS SERVICES, INC.,
 
                                                Protester,
 
                                   v.
 
                      DEPARTMENT OF THE INTERIOR,
 
                                                Respondent.
 
        Sam Zalman Gdanski, Suffern, NY, counsel for Protester.
 
        Alton E. Woods and James L. Weiner, Office of the Solicitor,
   Department   of  the   Interior,  Washington,  DC,   counsel  for
   Respondent.
 
   Before Board Judges NEILL, HYATT, and GOODMAN.
 
   GOODMAN, Board Judge.
 
        This  preaward protest was filed by Telcom Systems Services,
   Inc.   (Telcom),  with  regard   to  a  solicitation   issued  by
   respondent, Department of the  Interior, U.S. Geological  Survey.
   As discussed below, we deny the protest.
 
                            Findings of Fact
 
        1.  On  July 22, 1994, respondent issued solicitation number
   4-5610-1288,  a  request  for proposals  (RFP)  for  the "design,
   furnishing, engineering, installation, testing, cutover, training
   and  maintenance of a  completely operational non-blocking, fully
   digital, new telephone system .  . . to provide on-premise and/or
   off-premise service to the  U.S. Geological Survey  . . . located
   at . .  . Sioux Falls, SD."   This was a  negotiated procurement,
   and proposals were due on August 25, 1994.  Protest File, Exhibit
   2 at 1, 9.
 
        2.  Section  M of  the RFP,  EVALUATION  FACTORS FOR  AWARD,
   read, in relevant part:
 
        M2320  Technical and Price Evaluation Factors (Modified)
 
        (a)  The  Contracting Officer will screen  proposals to
        identify  and  eliminate  any  proposals  that  are  so
        incomplete  as  to  preclude   a  meaningful  technical
        evaluation.
 
        (b)    The  remaining  proposals  will  be  technically
        evaluated by government and/or contractor personnel and
        will be based upon the following factors:
 
        . . . . 
 
        All  items contained  in the  Statement  of Work  under
        C380.II  and C380.III  have been  identified  as either
        mandatory items  in  a "pass  or fail"  category or  as
        desirable   item/features  in   the  "points   awarded"
        category.   . .  . For those  elements in  the "Points"
        category,  the vendor  will receive  points based  upon
        level of compliance . . . .   
 
   Protest File, Exhibit 2 at 84-85.
 
        3.  The items in  the statement of work  (SOW) under C380.II
   and C380.III, which are referenced in the above-quoted section of
   the RFP, were enumerated in Section C  of the RFP.  Protest File,
   Exhibit 2 at 9-21.
 
        4.  The RFP  contained instructions  to offerors  concerning
   the preparation of  technical proposals and the  determination of
   the competitive range.  The RFP read, in relevant part:
 
        L2150 Proposal Format and Submission Instructions:
 
        (a)   Proposals . . .   shall set forth full, accurate,
        and  complete   information   as   required   by   this
        solicitation.    . .  .  Failure  to furnish  full  and
        complete information requested may cause an offer to be
        determined unacceptable.
 
   The cover  sheet to  the RFP  stated, in  part:   "EXAMINE CLAUSE
   L2160  TECHNICAL  PROPOSAL   INSTRUCTIONS  CAREFULLY,  ESPECIALLY
   PARAGRAPH (b)."  That section of the RFP read as follows:
 
        L2160 Technical Proposal Instructions
 
        . . . . 
 
        (b)   Important  Note:   Offerors  must   address  each
        paragraph  of  the  Statement of  Work  in  sequence by
        listing  the paragraph/subparagraph  number and  title,
        and  the   response.    The  response   shall  indicate
        compliance  and explain  in  sufficient detail  how the
        offeror  proposes to  meet  each  requirement.   Simply
 
        repeating   or  paraphrasing   the  specifications   or
        statement of  work  does not  constitute an  acceptable
        technical proposal.   General  statements such  as "the
        offeror understands", "the offeror can or will comply",
        "standard procedures  will be used" or  statements that
        merely paraphrase the Statement of  Work in whole or in
        part will  be  awarded only  a  "poor" rating  and  the
        offeror shall only earn 20% of the point value for that
        one item.  Technical proposals must demonstrate how the
        offeror proposes to meet  stated requirements or goals,
        and that  the offeror has  the necessary understanding,
        expertise,  facilities,  personnel, and  experience  to
        successfully accomplish the proposed work.
 
        . . . . 
     
        (d)    The main  body  of the  technical  proposal must
        provide sufficient information and detail (AS STATED IN
        PARAGRAPH  (b) ABOVE) to permit the evaluators to score
        the proposal on each  of the factors listed  in Section
        M, Clause 2320.
 
        M2330 Competitive Range Determination 
 
        Following  the   technical  and  price   evaluation  of
        proposals,  the  Contracting Officer  will  establish a
        competitive  range   of  offerors  to   participate  in
        negotiations.    A proposal will be  regarded as within
        the competitive  range unless it receives a technically
        failing rating  in Category I  or II, contains  a major
        technical  deficiency,  is   so  deficient  in  overall
        technical content  or merit as  to preclude  meaningful
        evaluation   or     negotiations,  or   is  not   price
        competitive,   such  that   the   proposal  stands   no
        reasonable  chance   of  being   selected  for   award.
        Technical  proposals  which are  marginally  acceptable
        will not  automatically be excluded  from consideration
        if  they  are  reasonably  susceptible  to  being  made
        acceptable and otherwise competitive.  When the  nature
        and extent  of revisions  required to  make a  proposal
        acceptable would be  tantamount to submission of  a new
        proposal,  the  proposal  will  be  excluded  from  the
        competitive range.
 
   Protest File, Exhibit 2 at 77-78, 88.
    
        5.  On  August  25,  1994, Telcom  submitted  a  proposal in
   response to the RFP.  Protest File, Exhibit 3.
                           
        6.  Telcom's  technical   proposal  did   not  address,   in
   sequence, by listing the paragraph/subparagraph number  and title
   and  the    response,  the evaluation  factors  under  Section C,
   DESCRIPTION/  SPECIFICATION/WORK  STATEMENT,  C380.III.E (Station
   Equipment),  F (Training), G  (Operation and Maintenance),  and H
   (Installation),  as instructed  under  L2160, Technical  Proposal
   Instructions,  paragraphs  (b)  and  (d).     Telcom's  technical
   proposal   ended  at   the   discussion   of  evaluation   factor
   C380.III.D.9 of the solicitation.  Protest File, Exhibit 3 at 34.
 
 
 
        7.  By  letter  dated September  15,  1994,  the contracting
   officer informed Telcom that pursuant to clause M2330 of the RFP,
   its proposal  was determined not  to be in the  competitive range
   because  the proposal   "was  so deficient  in overall  technical
   content  as to  preclude  meaningful evaluation  or negotiation."
   The  deficiencies  cited   were  failure  to  address   the  four
   evaluation  factors of station equipment, training, operation and
   maintenance, and installation,  and also a failure to address the
   principal period of maintenance.  Protest File, Exhibit 7.
 
        8.  Telcom responded to the contracting officer's letter  of
   September 15, 1994, by letter dated  September 28, 1994.  In  the
   letter,  Telcom  set forth  its  position  that the  proposal  as
   submitted   was  not  so  deficient  as  to  preclude  meaningful
   discussion.  Complaint, Exhibit A.   
 
        9.  After the  evaluation  of initial  proposals,  only  one
   offeror remained in the competitive range.  Protest File, Exhibit
   5.
 
        10.  Telcom filed a protest with this Board on September 29,
   1994,  alleging that  respondent improperly  rejected protester's
   bid  as nonresponsive.   The  protester  states:   "From a  legal
   perspective,  the  solicitation  has  included  as  a  matter  of
   'responsiveness'  factors which  properly  relate  to matters  of
   'responsibility'."   The protest also  incorporates by  reference
   protester's letter dated  September 28, 1994, in  which protester
   states its  position that its proposal was not so deficient as to
   preclude meaningful evaluation.  Complaint at 1-2.
 
        11.  Respondent filed a motion for summary  relief, alleging
   that  protester's  proposal  was  not  and   could  not  be  made
   acceptable without a major revision.  Protester responded  with a
   sworn affidavit  alleging the  omissions were  not material,  and
   that  the information  which  respondent  alleged  had  not  been
   addressed  had been included elsewhere in its proposal, resulting
   in only a two percent omission of technical information required.
   The Board declined  to rule  on the  motion on the  record as  it
   existed at  that time.  The parties elected to submit the protest
   for a decision on the record.  
 
        12.  Protester's record  submission included  a sixteen-page
   document from Telcom which purported to demonstrate that although
   Telcom had  not responded to  the four evaluation factors  as the
   result of a  "software error with our  computer," the information
   contained  in the  proposal as  submitted  rendered the  proposal
   materially  complete and  therefore  acceptable without  a  major
   revision,  since its  omission accounted  for only "4.67%  of the
   technical  issues."   With respect  to the  evaluation factor  of
   station equipment, Telcom  did respond in  other portions of  its
   proposal to several requested details, such as whether the system
   was fully digital  and had message lights.   However, with regard
   to most of  the information requested  for station equipment  and
   the  other three  evaluation factors  for  which information  was
   omitted,  Telcom  supports  its assertion  that  it  supplied the
   information in  other parts  of  the proposal  by citing  general
   statements  such  that   "Telcom  would  provide  the  design and
   furnish  all facilities, labor  and materials in  accordance with
   the  terms  and conditions  of  the specification,"  or  that the
   "telephones can be configured in a variety of ways."  Protester's
   Record Submission at 10-12.
 
 
        13.  Respondent's record  submission contained  an affidavit
   from one of  the technical evaluation panel members,  in which he
   stated  the significance  of the evaluation  factors for  which a
   response was omitted:
 
             1)  Section C380.III.E., Station  Equipment, asked
        for  detailed  information   concerning  the  telephone
        equipment  which  would  be installed  on  the user[']s
        desk.  This included not only a physical description of
        the   equipment  but   detailed   information  on   the
        functionality  of same.   This is vitally  important as
        this is what  the system user sees on  their [sic] desk
        and will use everyday.
 
             2)  Section  C380.III.F,  Training,  addresses the
        training  the offeror will provide for the system users
        and  the  USGS  personnel assigned  to  administer  the
        system.   Again, this is  a very important part  of the
        acquisition for  without  adequate  training  for  both
        users  and administrators the  system at best  would be
        inadequate and at worst useless.
 
             3)  Section C380.III.G, Operation and Maintenance,
        pertains to how the offeror is expected to maintain the
        system,   both   preventative   and   remedial,   after
        installation  is  completed.    This  is  an  essential
        ingredient  with  any  electronic   system  as  ongoing
        maintenance of the  system will be a major  part of its
        longevity   and  usefulness  to  the  USGS.    This  is
        particularly important with  telephone systems as  they
        are  essential  tools  in the  operations  of  all USGS
        offices. 
 
             4)  Section C380.III.H., Installation, as with the
        Operation and Maintenance  of a  telephone system,  the
        installation of  a telephone system is directly related
        to   its  longevity  and   usefulness  and   almost  as
        important.
 
        Without   complete   and   detailed  replies   to   the
        requirements as detailed in the missing Sections, it is
        virtually impossible to evaluate an offeror's  proposal
        with any assurance that either the system complies with
        the  technical  requirements  or  whether  the  offeror
        understands them.  
 
   Declaration  of  John  C. O'Donnell  (Nov.  14,  1994) (O'Donnell
   Declaration)   5.  
 
        14.  The technical evaluation panel member commented further
   with  regard to respondent's review of  the proposal to ascertain
   if  the proposal  was capable  of  being made  acceptable without
   material revision:
 
        Telcom's  omission   was  significant.     Without  the
        information,  the  panel   had  to  consider   Telcom's
        proposal unacceptable.  However, before recommending to
        the  contracting  officer  that  Telcom's  proposal  be
        rejected, we carefully reviewed it to determine whether
        Telcom  had  addressed  the  factors  under  C380.III.E
        through H elsewhere.
 
        There were some places where Telcom partially responded
        to  the factors, such  as whether the  system was fully
        digital, had  message waiting  lights and  a few  other
        items  in the Station Equipment section, but these were
        not  addressed  in  an  organized,  clear  and  concise
        manner.    Furthermore,  Telcom  did  not  address  the
        Training, Maintenance  or  Installation  issues.    The
        complexity of [Telcom's] letter [Telcom's attachment to
        its  record  submission]   and  the  herculean   effort
        involved  in   ferreting  out  this   information  only
        demonstrates  why it was  essential to comply  with the
        solicitations [sic] instructions.
 
        [Protester's]  statement  that  Telcom only  omitted  a
        small percentage (about 4%) of the technical discussion
        is   incorrect.    While  it  is  difficult  to  assign
        percentages . .  .  I would assign a percentage of 22%+
        to the amount of information omitted . . . .
 
   O'Donnell Declaration    6-8.  
 
        15.   The  preponderance of  the  evidence establishes  that
   protester failed to  supply most of the information  for the four
   evaluation factors in the detail required by the RFP.  The sparse
   and incomplete data which was found elsewhere in the proposal, in
   conjunction  with protester's general statements of its intent to
   comply,  was not sufficient  to demonstrate its  understanding of
   the requirements of  the RFP as to these evaluation factors.  The
   proposal was  incapable of  being made  acceptable without  major
   revision, and protester's  proposal had no reasonable  chance for
   being selected  for contract award.  Respondent's decision not to
   include  protester's   proposal  in  the  competitive  range  was
   reasonable.
 
 
                               Discussion
 
        In  its   complaint,  protester   alleged  that   respondent
   improperly  rejected  protester's  bid  as  nonresponsive.    The
   protester  states:  "From  a legal perspective,  the solicitation
   has  included as  a  matter  of  'responsiveness'  factors  which
   properly relate to  matters of 'responsibility'."   The complaint
   also incorporates by reference protester's letter dated September
   28,  1994,  in  which  protester  states  its  position that  its
   proposal  was  not   so  deficient  as  to   preclude  meaningful
   evaluation.
 
        While protester uses  the term "responsiveness,"   this term
   is    more  accurately  applied  to  "sealed  bid"  rather   than
   negotiated   procurements.    See  48  CFR  14.301  (1993),  (FAR
   14.301.)[foot #] 1      The   gist   of   protester's   complaint
   is that respondent  erred in concluding that its  proposal was so
   technically  deficient  as to  preclude meaningful  evaluation or
   negotiation so as  to justify the exclusion of  the proposal from
   the  competitive range.  Despite  its failure to include sections
   in its  proposal directly  addressing the  evaluation factors  of
   station  equipment,  training,   operation  and  maintenance  and
   installation, Telcom  contends that the information  contained in
   other portions of its proposal  was sufficient to comply with the
   requirements of these evaluation factors. 
 
        In  its motion for summary relief, respondent contended that
   as  a  result of  Telcom's  failure  to  address four  evaluation
   factors in sequence by listing the paragraph/subparagraph  number
   and  title and  the  response as  instructed,  Telcom provided  a
   materially  incomplete  proposal  which the  contracting  officer
   properly regarded  as unacceptable  and incapable  of being  made
   acceptable  without major  revision.    The  contracting  officer
   therefore excluded the  proposal from the competitive  range.  In
   response to the motion for summary relief, protester submitted an
   affidavit purporting to establish that the information  contained
   in the  proposal as  submitted rendered  the proposal  materially
   complete and therefore  acceptable without a major revision.  The
   Board declined to  rule on the motion on the record as it existed
   at that time.   The parties elected  to submit the protest  for a
   decision on the record.  The Board directed protester to submit a
   detailed  document indicating  how  it  contends the  information
   required in the four evaluation  factors had been supplied in the
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 1   Protester's    legal    theory    of   improper
   designation   of    responsibility   factors   as    matters   of
   responsiveness in the  solicitation was not further  addressed by
   protester.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   proposal. The parties then agreed  to file further submissions so
   that the protest could be decided on the written record.   
 
 
        Respondent eliminated  four out of  five offerors responding
   to  the  subject   solicitation,  leaving  one  offeror   in  the
   competitive range.   Finding  9.   Although contracting  officers
   have broad discretion in determining whether to  place a proposal
   in  the  competitive  range,  a  decision  which  results  in the
   inclusion  of  only  one  offeror  will  be  subjected  to  close
   scrutiny.    Birch & Davis  International, Inc., 4 F.3d 970 (Fed.
   Cir. 1993);  Denro, Inc.  v. Department  of Transporation,  GSBCA
   11736-P, et  al., 93-1 BCA   25,315,  1992 BPD   196;  APT Corp.,
   GSBCA 9237-P,  88-1 BCA    20,411, 1987  BPD    284.  Even  under
   circumstances  when only one  offeror remains in  the competitive
   range,  it is  proper to  exclude from  the competitive  range an
   unacceptable initial proposal which could be made acceptable only
   if major  modifications or  revisions  must be  undertaken.   APT
   Corp.[foot #] 2  
 
        In Peqrab Business Systems v. Department  of the Navy, GSBCA
   12124-P, 93-2 BCA    25,638, 1992 BPD   390, an offeror failed to
   provide the detail necessary to enable the contracting officer to
   determine whether the offeror could meet maintenance requirements
   called  for by  the  solicitation, and  its  proposal was  deemed
   technically  unacceptable.    The  Board  upheld  the contracting
   officer's  determination,  stating  that   "offerors  who  ignore
   solicitation  instructions act at  their peril as  such proposals
   face  rejection as  technically unacceptable."    In the  instant
   protest,  as  the  result  of  protester's failure  to  submit  a
   proposal   in  compliance  with  the  instructions  of  the  RFP,
   respondent  found protester's  proposal so  deficient in  overall
   technical  content  as  to  preclude  meaningful  evaluation   or
   negotiation. Finding 7.  Respondent therefore did not include the
   proposal  in the competitive  range, as respondent  concluded the
   proposal could be made acceptable only if major modifications  or
   revisions were undertaken.  Finding 13.    
 
        Even  though  respondent's   actions  in  this   procurement
   resulted in only one offeror remaining in the  competitive range,
   its actions  survive close  scrutiny.  FAR  15.609 requires  that
   "the competitive  range .  . . shall  include all  proposals that
   have a reasonable chance  for being selected for award."   48 CFR
   15.609 (1993).
 
        A  review of  the solicitation  and  protester's failure  to
   comply  supports  respondent's  actions  in  not  including   the
   proposal in  the competitive range.   In  the cover sheet  to the
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 2   This requirement of  close scrutiny contributed
   to  the Board's  declining  to rule  on  respondent's motion  for
   summary  relief and request for additional supplementation of the
   record  in order  to determine if  protester's proposal  could be
   made acceptable only by a major modification or revision. 
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   solicitation,  offerors were  specifically cautioned  to "EXAMINE
   CLAUSE   L2160   TECHNICAL   PROPOSAL   INSTRUCTIONS   CAREFULLY,
   ESPECIALLY PARAGRAPH (b)."  Finding 4.   There is no dispute that
   protester failed to follow the instructions in this clause of the
   RFP which  required offerors  to "address  each paragraph of  the
   Statement    of    Work    in    sequence    by    listing    the
   paragraph/subparagraph number and  title, and  the response.  The
   response  shall  indicate  compliance and  explain  in sufficient
   detail how the  offeror proposes to meet each  requirement."  Id.
   Protester omitted a response to four evaluation factors.  Finding
   6.
 
 
        Respondent  has  explained the  significance  of these  four
   evaluation factors.  Finding 13.  Protester's sixteen-page letter
   does not support its contention that the information for the four
   evaluation  factors  was  sufficiently presented  throughout  the
   proposal as submitted.   While protester did include  some of the
   detailed information requested for the four evaluation factors in
   other parts  of its proposal,  the information which it  cites as
   previously submitted and allegedly fulfilling the requirements of
   the RFP as  to the evaluation factors  at issue is, for  the most
   part, composed of general statements  as to its intent to comply,
   rather than a description  of how it intends to comply.   This is
   especially true for the evaluation factors of training, operation
   and maintenance, and installation.  Finding 12.    
 
        The RFP  instructs  offerors  that  "[s]imply  repeating  or
   paraphrasing the  specifications or  statement of  work does  not
   constitute   an   acceptable   technical   proposal"   and   that
   "[t]echnical proposals must demonstrate how the  offeror proposes
   to meet  stated requirements or  goals, and that the  offeror has
   the  necessary understanding,  expertise, facilities,  personnel,
   and  experience to  successfully accomplish  the proposed  work."
   Finding 4.   As  respondent's technical  evaluation panel  member
   notes, such  general statements as offered by  protester were not
   sufficient  to provide respondent "with any assurance that either
   the  system complies with  the technical requirements  or whether
   the offeror understands them."  Finding 13.      
 
        Protester argues that it omitted information concerning only
   4.6%   of   the   technical    requirements,   while   respondent
   characterizes the  omission as  concerning more  than 22%  of the
   technical  requirements.  A  resolution of  the protest  does not
   depend  on a  determination as to  the percentage  of information
   omitted.  Protester failed to  supply most of the information for
   the four  evaluation factors in  the detail required by  the RFP.
   The sparse and  incomplete data which was found  elsewhere in the
   proposal, in conjunction  with protester's general  statements of
   its  intent to  comply,   was not  sufficient to  demonstrate its
   understanding  of  the  requirements  of  the  RFP  as  to  these
   evaluation factors.  Accordingly, we conclude, as did respondent,
   that the proposal was incapable of being  made acceptable without
   major  revision,  and  find  that  protester's  proposal  had  no
   reasonable chance of being selected for contract award.   Finding
   15.     Accordingly,   respondent's  decision   not   to  include
   protester's proposal in the competitive range was reasonable.
 
 
        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
   protester from the competitive range.  
 
                                Decision
 
        The protest is DENIED.  
 
                                     ________________________
                                     ALLAN H. GOODMAN
                                     Board Judge
   ________________________          ________________________
   EDWIN B. NEILL                    CATHERINE B. HYATT
   Board Judge                       Board Judge