BNUMBER:  B-266273
DATE:  February 9, 1996
TITLE:  Dunn Engineering Associates

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Matter of:Dunn Engineering Associates

File:     B-266273

Date:     February 9, 1996

Robert A. Reiss for the protester.
Kathryn Weathers Belger, Esq., and Jean Maxwell, Department of 
Transportation, for the agency.
Peter A. Iannicelli, Esq., and Michael R. Golden, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest that discussions were not meaningful because the agency did 
not inform the protester that evaluators were concerned that the 
protester's proposed level of  effort was too low and that the 
protester had a history of performance problems is denied where the 
record of oral and written discussions shows that the agency led the 
protester to reexamine the amount of professional hours it proposed 
and advised the protester that the evaluators were concerned with the 
possibility of late delivery, and the protester had the opportunity to 
respond in a best and final offer. 

DECISION

Dunn Engineering Associates protests award of a contract to Texas A & 
M Research Foundation by the Federal Highway Administration (FHWA) 
pursuant to request for proposals (RFP) No. DTFH61-95-R-00128.  The 
protester contends that the agency's negotiations with it were not 
meaningful and led it to unnecessarily increase its offered price.

We deny the protest.

Issued on April 27, 1995, the RFP solicited proposals for developing a 
new, updated freeway management handbook that included current 
technologies and procedures on a variety of topics such as conceptual 
development, design, construction, operations, maintenance, work 
zones, and system expansion.  The handbook will be used by asset 
owners as a reference document and training aid for freeway operations 
and management.  The RFP contemplated award of a fixed-price contract 
and delivery of the handbook within 18 months after award.  The RFP 
stated that proposals would be evaluated on two technical factors:  
(1) responsiveness to the RFP's technical requirements and (2) 
sufficient resources to complete the job satisfactorily and on 
schedule, and on cost.  The RFP stated that technical merit was 
considered more important than cost in the award decision.  The RFP 
also stated that past performance would be reviewed but was considered 
less important than technical merit or cost.  

Four proposals were received by the June 8, 1995, closing date.  After 
evaluating initial proposals, the agency determined that three were 
technically acceptable and included them in the competitive range.  
Negotiations were held with all competitive range offerors in July, 
and best and final offers (BAFO) were received from all three firms by 
the July 27 closing.  After BAFOs were evaluated, the agency 
determined that Texas A & M's proposal represented the most 
advantageous offer because the proposal had received the highest 
technical score and offered the lowest total price.  Accordingly, the 
contract was awarded to Texas 
A & M. 

Dunn contends that the agency's discussions with it were not 
meaningful.  Dunn states that in its letter notifying Dunn of the 
award the agency criticized the firm's proposal because the 
professional resources allocated to the effort were insufficient to 
satisfactorily fulfill the contract requirements on schedule.  Dunn 
contends, however, that it was not told during discussions that this 
was a concern of the agency's evaluators.  Dunn also states that, 
during negotiations, the agency requested more effort from Dunn's 
principal investigators, thus causing Dunn to unnecessarily increase 
its price.[1]

Agencies are required to conduct meaningful discussions with all 
competitive range offerors.  Stone & Webster Eng'g Corp., B-255286.2, 
Apr. 12, 1994, 94-1 CPD  para.  306.  Discussions are considered meaningful 
where contracting officials advise offerors of deficiencies in their 
proposals and afford offerors an opportunity to revise their proposals 
to satisfy the government's requirements.  Id. 

The agency in this case did hold meaningful discussions with the 
protester.  The record shows that the evaluators prepared a number of 
discussions questions/requests for clarification for Dunn and based 
their discussions on them.  Among other things, FHWA asked Dunn: 

     "Please discuss your rationale regarding the proposed 
     professional staffing.  The Government position is to request 
     more effort from the PIs [principal investigators]." 

FWHA also asked Dunn:

     "Your company's past performance with FWHA has demonstrated 
     problems with performance schedules and timeliness of 
     deliverables.  What actions have [you] taken to correct these 
     deficiencies, and how would the Government's interests be 
     protected if your company were to receive award."

Furthermore, Dunn stated in its protest letter to our Office that, 
during oral discussions, the contracting officer's technical 
representative stated

     "I feel more comfortable with the addition of 240 hours in the 
     Principal Investigator category, especially when added to the 
     190 hours contributed . . .  at no cost to the government."

Thus, it is clear that, during written and oral discussions, FWHA 
properly led Dunn to reexamine the amount of professional hours it 
proposed and advised Dunn that the evaluators were concerned with the 
possibility of late delivery.  

Moreover, Dunn's price increase was occasioned by the offeror's 
decision, in responding in its BAFO, to increase the number of hours 
its key employees would contribute to the contract effort, as opposed 
to trying to explain how it would complete the handbook on time with 
the staffing originally proposed.  As a result, Dunn's proposed price 
also increased (from the $245,798 total initially proposed to 
$273,605); the evaluation record shows that Dunn's technical rating 
increased as well.  While Dunn contends that it was coerced into 
unnecessarily increasing its price, as noted above an agency in 
conducting discussions is supposed to advise the offeror of 
deficiencies in its proposal, and through the BAFO process invite the 
offeror to revise its proposal in response.  Stone & Webster Eng'g 
Corp., supra.  That is all that happened here. 

The protest is denied.

Comptroller General 
of the United States

1. Dunn also asserts that the procurement should have been set aside 
for exclusive small business participation.  Dunn raised this issue 
for the first time when it filed its protest with our Office.  Under 
our Bid Protest Regulations, 4 C.F.R.  sec.  21.2(a)(1) (1995), a protest 
alleging an impropriety in a solicitation that is apparent prior to 
the time set for receipt of initial proposals must be filed before 
that time.  Because Dunn did not protest that the RFP should have been 
set aside for small businesses until after the contract was awarded, 
this protest issue is untimely.