THE COMPTROLLER GENERALDECISION . OF THE UNITED STATES

i t&WASHINGTON. D. C . 20548

FILE: B-192454 DATE: April 26, 1979

MATTER OF: CompuScan, Inc.

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1. RFP required Tempest certified equipment.After receipt of best and final offers,agency determined that no offeror proposedtechnically acceptable system that couldmeet Tempest certification requirement.Agency then deleted requirement but did notnotify competitors and other qualifiedofferors. GAO views relaxation of require-ment as substantial change in agency's needsand agency's failure to amend RFP violatedapplicable procurement regulations and soundprocurement policy.

2. Contention that RFP specified only off-the-shelf equipment is without merit where RFPstates that if any item in the performancespecification precludes off-the-shelf equip-ment, offeror is requested to propose solu-tion for evaluation.

3. Protester argues that awardee's proposal didnot describe how proposed equipment willsatisfy each specification as required byRFP. While agency report does not respondto this protest basis, GAO reviewed awardee'sproposal and observes that explanation wasprovided for each specification. In view ofaward, agency obviously viewed awardee'sdescription as compliant. After reviewingboth protester's and awardee's explanations,GAO has no basis to disturb agency's deter-mination.

4. Protest that awardee is not capable ofmeeting search time of 4 seconds as statedin its proposal is matter related to awardee'sresponsibility. GAO will not consider meritsof protest against agency's affirmativeresponsibility determination, absent cir-cumstances not present here.

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5. Protester, after reviewing qualificationsof agency's sole technical evaluator,challenges his technical competency. Whereprotester essentially contends that anevaluator is appointed in bad faith, priordecisions indicated that GAO will makesubjective judgment on evaluator's qualif-ications. Absent such allegation, GAO'sstandard of review is whether technicalevaluation is rationally based. Here, afterconsidering merits of protester's contentions,GAO has no basis to conclude that technicalevaluation was not reasonably based.

6. Protester contends that awardee cannot meetdelivery schedule and should not have receivedfavorable evaluation for proposed timelydelivery. Proposals must be evaluated assubmitted; therefore, GAO has no basis toquestion awardee's point score for proposedtimely delivery. Further, awardee's capabilityto deliver timely is matter relating to agency'saffirmative determination of responsibilityand, in circumstances, will not be questionedby GAO.

7. Contention that protester proposed timelydelivery in initial proposal but-was notafforded proper point score is withoutmerit where offeror's best and final offerstated that required paper tape punchcould not Ye timely delivered.

CompuScan, Inc., protests- the Defense Com-OVI munication Agency's (DCA) award of contract Jpb O,6701

No. DCA200-78-C-0023 to Sperry Univac, a divisionof the Sperry Rand Corporation (Univac), for thelease of up to 50 Optical Character Recognition(OCR) Terminals and maintenance support for useat multiple locations worldwide. The initialaward was for 20 terminals with maintenance inthe amount of $4,212,640. CompuScan essentially

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contends that (1) Univac's technical proposalwas improperly evaluated and did not offer tomeet mandatory solicitation requirements, (2)Univac's proposed delivery schedule was unrealisticand, thus, improperly evaluated, and (3) CompuScan'sproposed delivery schedule should have receivedmore points in the evaluation scheme. CompuScanrequests that DCA terminate Univac's contract,reject Univac's unacceptable proposal, reevaluatethe remaining proposals, and make a new award.

I. EVALUATION OF UNIVAC'S TECHNICAL PROPOSAL

The request for proposals (RFP), as amended,revealed that proposals would be evaluated byconsidering technical sufficiency (includingengineering design,-software, maintenance, andhuman engineering), delivery schedule, and price.The amended RFP disclosed that technical sufficiencywas the most important factor and it was more thantwice as important as either delivery or price,and delivery was more important than price.

CompuScan contends that Univac's proposalwas not technically acceptable because the equip-ment offered did not satisfy these mandatory RFPrequirements: (a) Tempest certification prior toaward; (b) off-the-shelf equipment; (c) completedescription of how the system would work, and(d) capability of searching 8,000 plain languageaddresses (PLA) on line.

A. Tempest Certification Prior to Award

The amended RFP expressly provided that theOCR device or system must receive Tempest certifi-cation prior to contract award. CompuScan believesthat Tempest tests are vital to the security ofany sensitive information contained in messagesprocessed through the system and to prevent orsuppress any compromising emanations from leakingto potential enemies. CompuScan states that systemscan only be said to meet Tempest requirementswhen they have been tested to the: appropriate

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Government specification in a certified laboratory,and the tests show that all required resultshave been met. In this regard, the RFP statedthat the OCR device or system shall meet Tempestrequirements of the National COMSEC/EMSEC Infor-mation Memoranda (NACSEM) 5100 series.

CompuScan notes that Univac's proposalstates that its equipment is Tempest certified,but elsewhere requests $50,000 for software develop-ment; from this, CompuScan concludes that Univacdid not have the required software at the timeof award and obviously Univac could not havepassed the Tempest requirements as a completesystem, since such tests must be made on an actualoperating, total-tested system with integratedhardware and softwarie in place.

CompuScan learned, pursuant to the Freedom ofInformation Act, that the person who performedthe technical evaluation stated:

"My basic evaluation criteria werefor a complete system meeting alltechnical specifications withTempest certification to followat a later date if necessary."

CompuScan concludes that the "basic evaluationcriteria" used by the evaluator failed to meetthe ground rules and requirements laid down bythe solicitation and that his error resulted ina grossly unfair award to Univac.

In response, DCA reports that none of theofferors could meet the specification calling forTempest certification; accordingly, the Governmenthad to delete this requirement and provide foralternate testing and certification procedures.

In reply, CompuScan first notes that at notime prior to contract award was CompuScan evernotified of any change in the ground rules whichcalled for Tempest-certified systems. CompuScan

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disagrees with DCA's decision to delete thatrequirement as a peril to the security of thecommunications of our Armed Forces. CompuScanalso contends that if there was no requirementfor Tempest, the RFP should have been amended topermit CompuScan to have proposed an alternatesystem at a fraction of the cost. In addition,CompuScan notes that many other OCR manufacturerscould have submitted offers and the Governmentwould have saved millions of dollars.

Secondly, CompuScan argues that while theUnivac system does not meet the Tempest requirement,the CompuScan system does. CompuScan states thatits equipment has been Tempest-certified and haspassed all tests on an individual basis and ona system based with hardware and software in placeand that the test results are available at SCOCE,a subsection of the National Security Agency.CompuScan further states that its systems havebeen shipped to Government agencies, such as theDefense Intelligence Agency (DIA).

CompuScan states that the Tempest certifica-tion for its system was approved by DIA in April1978 and filed with SCOCE by the testing labora-tory, National Scientific Laboratories, on April 25,1978.

In rebuttal, DCA reports that the contractingofficer informally deleted the Tempest requirementprior to award when evaluation of proposals demon-strated that no offeror had a Tempest-certifiedsystem which met all other requirements. DCA reportsthat Univac must meet Tempest levels of NACSEM5100 but Univac's minicomputer had not passed Tempesttesting.

DCA further reports that CompuScan has noTempest certification for a system configured tomeet the RFP's performance requirements and thatthe user military department has not certifiedeven the unacceptable CompuScan system. In thatregard, DCA states that CompuScan was "nonrespon-sive" to the RFP because its offered system (which

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could meet the delivery date) could not meet therequirements for expandability from 500 to 8,000PLA, and for a paper punch speed of 110 charactersper second (CPS); CompuScan could only offera system meeting the specifications approximatelya month after the required initial delivery date.DCA contends that Univac agreed to meet the requireddelivery date with a responsive system; thus, ratherthan being unfairly treated, CompuScan was givenevery conceivable advantage and kept in the com-petition and was not being rejected initially asbeing "nonresponsive."

Finally, DCA argues that "prerequisite software"does not require the software's existence priorto award, in fact, CompuScan also would have hadto modify software to expand 500-PLA to 8,000-PLAcapability.

Defense Acquisition Regulation (DAR)§ 3-805.4 (1976 ed.) governs the manner in whichchanges in Government requirements are to be com-municated to offerors and potential offerors. Itprovides that when, either before or after receiptof proposals, changes occur in the Government'srequirements or a decision is made to relax arequirement, such change shall be made in writingas an amendment to the RFP. It also providesthat no matter what stage the procurement is in,if substantial changes are made, a new solicitationshould be issued and any other qualified firmsshould be added to the mailing list. Here,because of the RFP's mandatory Tempest-certification-prior-to-award requirement, competition was narrowlyrestricted and excluded all OCR manufacturerswho could not meet that requirement. In thesecircumstances;, the decision to relax that require-ment was a substantial change and should havebeen communicated to all offerors and all otherqualified potential offerors in a new solicitation.By not doing so, DCA violated the DAR.

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We note that DCA's informal decision to relaxthat requirement was based on its conclusion thatCompuScan's proposed equipment was not acceptable.DCA's conclusion is based on CompuScan's revisedtechnical proposal dated June 28, 1978, whichstated as follows:

"CompuScan can ship Systemscontaining 500 PLAs by July 1978.We can ship Systems containing8000 PLAs within four (4) monthsafter Award of Contract. Similarly,we can ship Paper Tape Puncheswith a speed of 75CPS by July 1978.We can ship Paper Tape Punches witha speed of 110 CPS..within four (4)months after Award of Contract."

Since the RFP required (1) "the capabilityto expand to at least 8000 PLA's" (amendment datedApril 17, 1978); (2) a "high speed (110-300 CPSpaper tape punch" (paragraph 4.1, section "F," partII, RFP); and (3) delivery at the rate of four systemsin the month of September 1978, CompuScan's deliverycompliant proposal was clearly technically unac-ceptable. Nevertheless, while that establishes thatCompuScan would not be entitled to award underthe RFP, that did not provide a basis for DCAto ignore the applicable DAR requirements to amendthe solicitation and provide all qualified offerorsan opportunity to compete because CompuScan andothers may have been able to meet the- RFP's tech-nical requirements with non-Tempest-certifiedequipment at lower cost. Accordingly, this aspectof the-protest is sustained.

B. "Off-the-shelf"-equipment

CompuScan contends that the RFP specifiedonly off-the-shelf equipment. The relevant portionof the RFP states:

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"Development: This specification isto be met with off-the-shelf equipment. If anyitem in this performancespecification precludesoff-the-shelf equipment,the vendor is requested topropose a solution forevaluation."

CompuScan argues that since Univac's proposalrequested $50,000 for software development, Univaccould not have had the required off-the-shelfequipment. CompuScan also states that until afew days before the deadline for submission ofoffers, Univac was negotiating with CompuScan tobuy software for this sy'stem and Univac informedCompuScan that it did not have any software packageof itsown that would meet the RFP requirements.

CompuScan's argument is without merit becausethe RFP, as quoted above, expressly permittedofferors "to propose a solution for evaluation"when off-the-shelf-equipment would not satisfythe requirement.

C. Functional Description of System

The RFP's Instructions for Preparationstated that the vendor must describe how theproposed equipment will satisfy each paragraphor subparagraph of the specifications and state-ments that the vendor is fully compliant withthe requirements of paragraph or word-for-wordparroting of paragraphs would not be acceptable.CompuScan contends that Univac's proposal failsto comply with this instruction since Univacsupplies general puffery about its hardware withno description at all about how the software works.Univac also states that it will meet the RFP'srequirements, but does not describe how it woulddo it.

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As an example, CompuScan points to one partof the RFP which describes the message formatting,editing, and file updating requirements of thesystem. CompuScan contends that Univac's proposaladdresses none of these specific technical pointsbut simply states that Univac is competent anddescribes in general terms the proposed hardware,by saying, "Univac offers you speed, power,reliability, availability and opportunity forfuture growth at a sensible price," and "Univac'sproposed system is fully competitive, both in costsand in high standards of the components proposed."CompuScan argues that Univac's failure to describethe software makes its proposal unacceptable.

Although the DCA report. does not addressthis basis of protest- DCA provided a copy ofUnivac's proposal which we reviewed. We notethat in response to paragraph 7 of the specifica-tions entitled, "Specific Requirements - Software,"Univac devotes five full pages of its proposaldescribing how its software would meet the RFP'srequirements. Whether Univac's description com-plied with the RFP's description requirement isprimarily a matter of proposal evaluation. Here,DCA, in view of the award to Univac, obviouslyconcluded that Univac's software description andother specification descriptions were compliant.In our review of DCA's determination, our Officewill not substitute our judgment and will notdisturb DCA's determination unless it is shownto be artibtrary or in violation of procurementstatutes or regulations. See Ads Audio VisualProductions, Inc., B-190760, March 15, 1978,78-1 CPD 206. After considering Univac's andCompuScan's explanations in their proposals, wehave no basis to disturb DCA's determination.

D. Capability to expand to at least 8,000 PLA'sEfficiently

The amended RFP stated that the file shallcontain as a minimum 500 PLA's and associated

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RI's "with the capability to expand to at least8,000 PLA's and associated RI's." In this regard,CompuScan states that the system must be capableof searching 8,000 PLA's on line; since 8,000 PLA'shave an average of 40 characters each, the totalsize of the PLA table will exceed 300,000 characters.CompuScan contends that Univac proposed to meetthis requirement by means of a cassette unit whichcan read and write at a rate of 600 charactersper second and can search at 120 inches persecond; therefore, a complete search of 300,000characters will require 500 seconds not 4 seconds,as stated by Univac. CompuScan concludes thatit would take about 30 hours using the Univacproposed equipment to look up all the PLA'son a given 200-address message, worst case, whichis far slower than the manual system.

In response, DCA reports-that in its estimate,at the maximum utilization rate, the Univac systemcould perform the required tasks in only a veryfew minutes. Univac contends that the CompuScanestimates are wrong, in part, because CompuScanerroneously assumed a serial search and a singletape read.

CompuScan is not contending that Univac failedto propose a system capable of satisfying the RFP'sexpansion requirement. CompuScan is contendingthat Univac's system cannot and will not be able toperform in the time stated in Univac's proposal.Because Univac stated that its proposed systemcould perform certain tasks within certain time--constraints, its proposal was evaluated on thatbasis and award was made on that basis. Theawardee is contractually bound to providea system that will perform as offered underpenalty of breach of contract. Under our BidProtest Procedures, we do not consider mattersof contract administration relating to whetherthe awardee will deliver the proposed system.Neither do we consider matters related to affirma-tive determinations of responsibility, that is,whether the awardee can deliver the proposedsystem, with the exception of alleged fraud or badfaith, which is not the case here. Virginia-Maryland Associates, B-191252, March 28, 1978,78-1 CPD 238. Accordingly, this basis of protestis dismissed without consideration on the merits.

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E. Alleged Improper Technical Evaluation ofCompuScan's Proposal Relative to Univac's

Consistent with the RFP's disclosed evalua.-tion factors, DCA used a weighted evaluation schemeand the two offeror's proposals received the fol-lowing scores:

RFP'sFactors Weight Univac CompuScan

[60] Technical

Sufficiency [58] [57]

EngineeringDesign 21 20 *

Software 17 16 16

Maintenance 13 13 *

HumanEngineering 9 9 *

[25] Delivery 25 25 10

[Timely deliverygets maximum1/2 point penaltyper day of delay]

[15] Price 15 15 13.2

[1001 Total 100 98 80.2

*/ not disclosed in record.

CompuScan argues that Univac's proposal:

(a) did not have a Tempest-certified system;

(b) did not have the prerequisite software;

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(c) presented parroting of phrases andpuffery, rather than the required technicaldiscussion and description; and

(d) required up to 30 hours to process asingle message.

From this, CompuScan concluded that it is beyondcomprehension how Univac was awarded a score of58 points out of 60 for technical sufficiency,as compared with CompuScan's 57 points. CompuScanbelieved, therefore, that the technical evaluationwas improper and must not have been performed byanyone with technical competence. After some effort,CompuScan learned that the technical evaluationwas performed by one Navy ensign, whose "mostsignificant civilian and military educationincluded High School, Radioman School, TeletypeMaintenance School, Speedkey Operator School andCryptographic School;" he also was an experiencedteletype repairman and radioman.

CompuScan essentially contends that the evaluationof a highly technical and complex computer terminalsystem:

(1) that employs advanced state-of-the-arttechniques in the field of optical characterrecognition and telecommunications micro-processor message processing;

(2) that is to be used by the Navy--(and laterby the Air Force) is bases all over theworld to transmit a large part of theircommunications traffic;

(3) that requires the most advanced techniquesto suppress any compromising emanationsand radiation in order to protect thesecurity of the messages from the enemy;and

(4) that is supposed to process and to protectcommunications affecting the national securityof the United States,

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requires the technical evaluation of a skilledelectrical engineer with a deep expertise in com-puters and not someone whose technical trainingdoes not go beyond the repair of a radio ora teletype machine.

DCA reports that its technical evaluatorhad over 15 years' experience in Navy Communications,was a Senior Chief Radioman, was Chief-in-Chargeat the Naval Telecommunication Center at Agnano,Italy (18 months) (and while there used an opera-tional CDC MENS II, a stand-alone OCR), had a tourat Communications Area Master Station (Norfolk)as Analysis Officer dealing with hardware andsoftware aspects of the major automated messageprocessing system installed there, and his hobbiesinclude minicomputer-software programming.

In response, CompuScan contends that a CDCMENS II OCR is extremely simple and elementaryand belongs to an earlier technological generation;it not only lacks a computer, but it has almostnothing to do with the new intelligent terminalcontaining a built-in computer with sophisticatedstorage devices. CompuScan also contends thata hobby of computer software programming does notadequately replace engineering schooling, training,and experience in Stand-Alone Intelligent Terminalsand computer technology required to evaluate amultimillion dollar procurement that affects thesecurity and the vital interests of the UnitedStates and its Armed Forces.

In reply, DCA reports that the CDC MENS IIis functionally the same as the OCR required bythe specification and it employs a CDC 1700(32K byte) computer and two 1.5 byte disk drivesplus a paper tape punch and printer. DCA alsopoints out that the specification was directedtoward off-the-shelf equipment. DCA states thatthe offeror's systems must meet essential opera-tional requirements including man-machine inter-face and the evaluator's background lent itselfexplicitly to the evaluation of those aspects.

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With regard to the qualifications of thetechnical advisers and evaluators, as a generalrule, we will not become involved in appraisingthe qualifications of contracting agency personnel.See Ads Audio Visual Product-ions,-Inc., supra;Joseph Legat Architects, B-187160, December 13,1977, 77-2 CPD 458. Further, we have held thatthe important and responsible positions held byagency evaluators constitute a prima facie showingthat they are qualified and with nothing morethan a protester's unsubstantiated allegationsregarding an evaluator's qualifications, we wouldhave no basis to examine or question the evaluator'squalifications. Ads Audio Visual Productions,Inc., supra.

In the matter of Dil'ewood Service Company,56 Comp. Gen. 188 (1976), 76-2 CPD 520, the pro-tester challenged, as unusual, the number ofchanges made to the composition of the technicalevaluation board personnel and alleged that well-qualified individuals were removed in favor ofless qualified individuals. GAO investigatorsreviewed the personnel files of the individualsconcerned and interviewed all but one of theevaluators. We concluded that all persons con-cerned were well qualified and we found nosubstantial difference between the qualificationsof the evaluators removed from the board and thosewho remained. We are unaware of any decision con-cluding that an evaluator was not qualified.

The Dikewood Service Company decision andother decisions represent this Office's implicitrecognition that (1) agencies have a statutory-and regulatory-based duty to fairly evaluate pro-posals, and (2) technically qualified agencypersonnel are required to perform the evaluation.

The Dikewood Service Company decision andother decisions of this Office may have led pro-testers to believe that we would generally conductan audit of an evaluator's qualifications to deter-mine his or her competency to evaluate particular

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proposals; however, we believe that the auditapproach should be reserved to situations wherea protester has made some showing of bad faithin the appointment of an evaluator. Here, therehas been no such showing. In this case, we willnot audit to subjectively judge the evaulator'squalifications. Instead, we will employ a moreobjective standard, i.e., we will review thetechnical evaluation to determine whether it isrationally based. Here, the objective standardis the better approach because it matters notwhether the evaluator is qualified "on paper";what matters is the reasonableness of the evalua-tion. Furthermore, we note that, as in agencyaffirmative determinations of responsibility,performance and costly contractual changes maybe required to compensate for such improper tech-nical evaluations; therefore, it is in an agency'sown interest to select qualified evaluators andperform proper evaluations.

To apply the objective test here, we mustlook to the protester's specific contentions ofimproper technical evaluation. Each was discussedat length above and none were found to be improper.Accordingly, we have no basis to question thetechnical evaluation.

II. UNIVAC'S DELIVERY SCHEDULE

CompuScan notes that only one contractor,Univac, stated that it could deliver as scheduled,and thus obtained the maximum points (25) fordelivery. CompuScan argues that, in light ofall of the above facts, there was no way in theworld for Univac to make any of the deliveriesrequired and it should have been penalized25 points for this factor.

When an offeror proposes to meet the Govern-ment's required delivery schedule, its proposalis acceptable and deserving of an appropriatescore. When award is made based on that offeror'sproposed delivery schedule, the Government has

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the right to demand delivery as scheduled in thecontract. The awardee must deliever as requiredby the contract or be in breach. Accordingly, tothe extent that CompuScan's contention, relatesto Univac's capability to deliver as proposed,the matter relates to responsibility. Where, ashere, the contracting agency has affirmativelydetermined that an offeror is responsible, ourOffice will not object, absent limited circum-stances not present here. Unitron Incorporated,B-191273, July 5, 1978, 78-2 CPD 7 (successfulbidder's capability to meet delivery requirementwas not to be questioned in similar circumstances).Therefore, this aspect of CompuScan's protestis dismissed.

III. COMPUSCAN'S DELIVERY SCHEDULE

CompuScan argues that it did not state thatdelivery would be 30 days late but its initialproposal stated that it was capable of performingall the requirements of the solicitation includingall delivery schedules. Again, in its coverletter of its best and final offer, it stated,"CompuScan can deliver one system in July 1978,one system in August 1978, four systems in Sept-ember 1978, and two or more systems per monththereafter."

We note that although CompuScan stated inone section of its best and final offer that itcould meet the delivery requirement in anothersection, it stated that it could not deliver papertape punches with the required speed until afterthe RFP required delivery. DCA interpretedCompuScan's specific exception to the deliveryrequirement as overriding its prior general offerto timely deliver. We cannot disagree with thereasonableness of DCA's interpretation.

IV. CONCLUSION AND RECOMMENDATION

Protest sustained in part. We conclude that DCA'srelaxation of mandatory RFP requirements without

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notifying all potential offerors violated theprovisions of DAR § 3-805.4. By letter of today,we are bringing this matter to the attention ofthe Director, DCA, so that corrective action can betaken to avoid this impropriety in future procure-ments. Further, we are recommending that thecontract with Univac be limited to the 20 basicsystems in the award and that the optional 30systems, if required, be the subject of a fullycompetitive procurement.

We may not recommend any additional correctiveaction because at the time the matter was readyfor our Office to consider the merits, under thecontract's terms, the contract was to be 40 percentcomplete (DCA advised that Univac was on schedule)and, because of the contractor's need to incurcosts for the balance of the items requiredunder the contract in order to meet deliveryrequirements, the cost of termination for conveniencerelative to the total price of the contract was toohigh. Accordingly, a termination for conveniencerecommendation would not be in the best interestsof the Government.

Deputy Com ro eneralof the United States