BNUMBER:  B-272093; B-272093.2
DATE:  September 12, 1996
TITLE:  CDA Investment Technologies, Inc.

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DOCUMENT FOR PUBLIC RELEASE
A protected decision was issued on the date below and was subject to a 
GAO Protective Order.  This version has been redacted or approved by 
the parties involved for public release.
Matter of:CDA Investment Technologies, Inc.

File:     B-272093; B-272093.2

Date:September 12, 1996

Kenneth B. Weckstein, Esq., and Raymond Fioravanti, Esq., Epstein 
Becker & Green, P.C., for the protester.
Kenneth S. Kramer, Esq., and Catherine E. Pollack, Esq., Fried, Frank, 
Harris, Shriver & Jacobson, for Disclosure, Inc., an intervenor.
George Conril Brown, Esq., Valerie G. Preiss, Esq., and Angela E. 
Clark, Esq., Securities and Exchange Commission, for the agency.
Aldo A. Benejam, Esq., and Christine S. Melody, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1.  Protester was not prejudiced by any errors that may have occurred 
in the evaluation of awardee's proposed use of a subcontractor for 
manual data processing where the record shows that, given that the 
task at issue comprises a relatively minor portion (less than 2 
percent) of the overall effort and will become obsolete early in the 
life of the contract, there is no reason to conclude that the proposal 
ratings would have materially changed. 

2.  Protester's contention that agency improperly evaluated its past 
performance is denied where the record shows that the agency evaluated 
proposals in accordance with the criteria announced in the 
solicitation, and the record reasonably supports the technical 
evaluation panel's decision to downgrade the protester's proposal in 
this area.

3.  Contention that agency improperly conducted discussions only with 
awardee is denied where the record shows that, although at time of 
award agency sought to confirm that awardee intended to perform 
consistent with its proposal submitted approximately 1-1/2 years 
earlier, the agency reasonably concluded that the awardee did not make 
any material changes to its proposal.

DECISION

CDA Investment Technologies, Inc. protests the award of a contract to 
Disclosure, Inc. under request for proposals (RFP) No. 
SECHQ1-94-R-0013, issued by the Securities and Exchange Commission 
(SEC) for processing various forms required to be filed with the SEC.  
The protester contends that the SEC improperly evaluated Disclosure's 
proposal; that the SEC's evaluation of CDA's past performance was 
unreasonable; and that the agency conducted improper discussions.

We deny the protest.

BACKGROUND

The RFP, issued October 31, 1994, contemplated the award of a 
fixed-price contract for the required services for a base period with 
up to four 1-year option periods.  Section C of the RFP required the 
contractor to perform several tasks, including keying in and 
processing data filed with the SEC on Forms 13F, 3, 4, 5, and 144.[1]  
The successful offeror is also required to provide computer readable 
tapes and printouts, including official summaries of the information 
filed on those forms, to the SEC and to maintain an "on-line" database 
for use by the SEC.

Offerors were required to submit separate technical and business 
(i.e., price) proposals.  Section M of the RFP stated that technical 
proposals would be evaluated on the basis of the following factors 
(the subfactors within each factor are shown in parentheses and were 
of equal importance):  (1) technical qualifications (demonstrated 
ability including past performance on similar contracts; reliability 
and maintainability of the computer system; computer flexibility to 
respond to requests for special projects; understanding of contract 
requirements); (2) experience and references of key individuals 
(demonstrated ability of key personnel); (3) past performance (quality 
of the offeror's past work for government and nongovernment 
customers); and (4) facilities (adequacy of the physical plant and 
equipment, and flexibility of physical plant and equipment to handle 
special projects).  The technical qualifications factor was more 
important than the other three, which were of equal importance.

As for price, the RFP stated that the agency would award the maximum 
number of available points to the proposal offering the lowest total 
price, including options, and proportionately lower scores to 
higher-priced proposals.  Of the total number of points available in 
the evaluation, technical and price were worth 75 and 25 percent, 
respectively.  Award was to be made to the offeror whose proposal was 
deemed to be most advantageous to the government.

A technical evaluation panel (TEP) rated the six proposals the agency 
received by the time set on January 12, 1995, for receipt of initial 
proposals.  The TEP concluded that no discussions were necessary with 
any offeror, but directed the contracting specialist to ask the 
offerors to clarify their intent with respect to their proposed use of 
subcontractors.  Out of a maximum possible score of 75 weighted 
points, CDA's technical proposal received 69.3 points; while 
Disclosure's proposal earned 70.3 points.  Of the six technical 
proposals, Disclosure's was ranked first and CDA's second, based on 
these scores.  Both proposals received the maximum number of points in 
the price area.[2]  Based on the combined technical and price scores, 
Disclosure's and CDA's proposals were ranked first and second, 
respectively (95.3 points for Disclosure's proposal, 94.3 points for 
CDA's).  The TEP recommended that award be made to Disclosure.

Based on the TEP's recommendation, the contracting officer offered the 
contract to Disclosure on May 1, 1996, expressly incorporating its 
January 1995 proposal.  Disclosure signed the contract on May 1 and 
returned it to the SEC with a cover letter dated May 2, the contents 
of which are discussed further below.  On May 2, the contracting 
officer signed the contract on behalf of the government.

PROTESTER'S CONTENTIONS

CDA contends that the evaluation of Disclosure's proposal was 
unreasonable because it was based on inaccurate information regarding 
Disclosure's proposed use of subcontractors.  CDA also argues that the 
TEP's evaluation of its past performance was unreasonable because the 
TEP downgraded its proposal for performance problems for which CDA 
contends it was not responsible.  Finally, CDA argues that prior to 
award the SEC improperly held discussions only with Disclosure, 
thereby permitting Disclosure to modify its proposal, without giving 
CDA a similar opportunity.  

ANALYSIS

Evaluation of Disclosure's Proposal

CDA contends that the TEP's evaluation of Disclosure's proposal was 
unreasonable because it was based on inaccurate information regarding 
Disclosure's proposed use of subcontractors. 

The record shows that in response to a request from the TEP, the 
contract specialist contacted all offerors on August 24 and 25, 1995, 
and asked each whether it "[planned] to utilize any subcontractors in 
the performance of any of the requirements stated in the 
solicitation."  The contemporaneous notes of the responses show that 
on August 24, Disclosure answered that it "believes all work will be 
done in-house"; the next day, Disclosure stated that the firm would 
not be using any subcontractors, "except for some outside data entry 
services."  In this connection, Disclosure's proposal stated that the 
firm "is considering the use of an outside vendor for keying the 13F 
filings . . . ."  

With respect to CDA, while the firm's proposal stated that it planned 
to use "external keyers" to key in Form 13F data primarily during the 
quarterly filing deadlines, the contract specialist's notes state that 
in reply to the clarification question CDA stated that the firm "does 
not use subs"; this notation is followed by the remark:  "(Not sure 
proposal states that)."  Further, it appears from the contract 
specialist's notes that at least one other offeror responded that it 
might use outside temporary help to input Form 13F data during peak 
periods.  Nevertheless, the contract specialist summarized the 
offerors' responses to the TEP as if all offerors had answered in the 
negative.

CDA contends that the SEC failed to identify and evaluate the 
subcontractors Disclosure intends to use to perform the data-entry 
services and instead improperly evaluated Disclosure's proposal under 
the assumption that the firm would perform all work in-house.  Since 
Disclosure indicated its intent to use a subcontractor for some data 
entry, and since the TEP failed to evaluate this aspect of the 
proposal, CDA concludes that the evaluation was unreasonable.  CDA 
maintains that had the TEP been aware that Disclosure intended to use 
a subcontractor, its proposal would have been downgraded because of 
the firm's failure to properly manage subcontractors under a previous 
contract.

Section L of the RFP required offerors to "identify any proposed 
subcontractors and provide evidence of their ability to fulfill the 
contract requirements."  Although section M of the RFP does not 
specifically include a factor for the evaluation of proposed 
subcontractors, such evaluation clearly would be logically encompassed 
by the "technical qualifications" evaluation factor.  See Laidlaw 
Envtl. Servs. (GS), Inc., B-271903, Aug. 6, 1996, 96-2 CPD  para.  75.  In 
fact, the source selection plan developed for this procurement 
instructed the TEP that when evaluating "demonstrated ability" under 
the "technical qualifications" evaluation factor, if an offeror 
proposed a subcontractor, the TEP was to "consider evidence of the 
subcontractor's ability to perform."  As explained below, however, we 
need not decide whether the SEC should have inquired further as to 
Disclosure's statement in its proposal that it was "considering the 
use of an outside vendor for keying the 13F filings" or whether the 
TEP improperly failed to evaluate that vendor's capabilities.

The agency states that the volume of Forms 3, 4, and 5 processed over 
the last year has been approximately 16,000 per month, while the 
volume of Form 144 is approximately 3,000 per month, for a total of 
approximately 19,000 forms processed per month or 57,000 forms per 
quarter (about 228,000 forms per year).  On the other hand, the agency 
states that the volume of Form 13F--which is only filed on a quarterly 
basis--is approximately 1,100 per quarter (or about 4,400 forms per 
year).  Based on these figures, it is clear that manual processing of 
Form 13F (i.e., keying in data from paper forms), constitutes less 
than 2 percent of the total work contemplated under the contract.[3]

In addition, the agency states, and the protester does not dispute, 
that keying in paper Form 13F data will soon be obsolete.  The SEC 
explains that it is moving towards requiring that all Form 13F filings 
be made electronically by the end of 1996, rendering manual data entry 
unnecessary.  Consistent with this move toward electronic filings, the 
SEC anticipates that the volume of paper Form 13Fs filed will decrease 
over time as electronic filing of that form becomes mandatory.[4]

Competitive prejudice is an essential element of a viable protest.  
Lithos Restoration Ltd., 71 Comp. Gen. 367 (1992), 92-1 CPD  para.  379.  
Where no prejudice is shown, or is otherwise evident, our Office will 
not disturb an award, even if some technical deficiency in the award 
process arguably may have occurred.  Merrick Eng'g, Inc., B-238706.3, 
Aug. 16, 1990, 90-2 CPD  para.  130, aff'd, B-238706.4, Dec. 3, 1990, 90-2 
CPD  para.  444.  

To show prejudice here, CDA must at a minimum show, or it must 
otherwise be evident from the record, that the evaluators would have 
deducted more than 3 raw points from Disclosure's numerical score 
under the "technical qualifications" evaluation factor.[5]  Given that 
this evaluation factor encompassed several elements unrelated to 
subcontractor use, and given that manual Form 13F processing is 
expected to account for less than 2 percent of the total effort and 
that this task will soon become obsolete, there is no reasonable basis 
upon which to conclude that the TEP, had it been advised by the 
contract specialist that Disclosure intended to use a subcontractor to 
key in Form 13F data, would have downgraded Disclosure's proposal[6] 
by any meaningful amount.  Accordingly, we conclude that CDA was not 
prejudiced by any deficiencies that may have occurred in the 
evaluation in this regard.

Evaluation of Past Performance

The tasks required by the RFP are currently being performed under two 
separate contracts--one contract that the SEC awarded to CDA for 
processing Form 13F, and one contract awarded to Disclosure for 
processing Forms 3, 4, 5 and 144.  In addition to being a prime 
contractor for processing Form 13F, CDA is a subcontractor under 
Disclosure's contract, whereby CDA also processes Forms 3, 4, 5, and 
144.

CDA argues that the agency improperly evaluated its proposal under the 
past performance factor.  In this regard, CDA contends that the TEP 
improperly assigned a weakness to its proposal under this area 
primarily because of a recent backlog of unprocessed forms under CDA's 
subcontract.  Although CDA does not dispute that processing delays 
occurred, the protester contends that the TEP unreasonably evaluated 
its proposal because the delays in processing Form 5 were not entirely 
CDA's fault; in fact, CDA maintains, since Disclosure was the prime 
contractor, that firm's proposal also should have been downgraded in 
the past performance area.

In reviewing a protest challenging an agency's technical evaluation, 
we examine the record to ensure that the agency's evaluation was 
reasonable and consistent with the stated evaluation criteria.  See 
Abt Assocs., Inc., B-237060.2, Feb. 26, 1990, 90-1 CPD  para.  223.  Where a 
solicitation requires the evaluation of offerors' past performance, an 
agency has discretion to determine the scope of the offerors' 
performance histories to be considered, provided all proposals are 
evaluated on the same basis and consistent with the solicitation's 
requirements.  See, e.g., Federal Envtl. Servs., Inc., B-250135.4, May 
24, 1993, 93-1 CPD  para.  398.  Based on our review of the record, we find 
no basis to object to the evaluation of proposals in this area.

Although the evaluators found that CDA had a good performance history 
overall, the TEP downgraded CDA's proposal under past performance 
primarily because of problems the SEC had recently experienced in 
connection with processing Forms 3, 4, 5, and 144.  The TEP final 
evaluation report shows that the evaluators were uniformly critical of 
CDA's past performance as a subcontractor to Disclosure.  The TEP 
chairman summarized several recent problems in CDA's performance, 
specifically noting CDA's inaccurate classification of Forms 3 and 4, 
and incorrectly marking Forms 3, 4, and 5 as "inconsistent," leading 
to several complaints from filers affected by the errors; "significant 
problems" in the working relationship between CDA, Disclosure, and the 
SEC with respect to Forms 3, 4, 5, and 144; persistent delays in the 
publication of official summaries of securities transactions; and a 
long-term backlog in CDA's processing Forms 3, 4, and 5.

CDA argues that the TEP unreasonably downgraded its proposal under 
past performance more severely than it did Disclosure's proposal, and 
that some of the difficulties noted by the TEP under the prior 
contract were improperly attributed solely to CDA.  These arguments 
are without merit.  The record shows that the evaluators deliberated 
as to both firms' contribution to the delays and performance problems 
under the prior contract, and rated both CDA's and Disclosure's 
proposal 
consistent with their perception of each firm's responsibility for 
processing the forms.  For instance, the record shows that one 
evaluator specifically attributed some of the performance problems 
with Forms 3, 4, 5, and 144 to Disclosure as the prime contractor.  
Another evaluator downgraded Disclosure's proposal because the firm 
had displayed an inability to properly manage CDA's subcontract.  All 
three evaluators agreed, however, that both Disclosure and CDA should 
share some of the responsibility for the performance problems and 
adjusted both offerors' final scores accordingly.  

While CDA argues that it was not responsible for processing one of the 
forms (Form 5) until October 1994, and explains that the delays 
associated with processing that form were primarily due to an 
unanticipated increase in filings, that is only one of several forms 
CDA processed as a subcontractor to Disclosure with which the SEC 
experienced problems; CDA does not deny that performance problems also 
existed with the other forms.  CDA's argument that the TEP downgraded 
its proposal out of proportion to its blame for the backlogs in 
processing the forms essentially reflects CDA's disagreement with the 
individual evaluators' judgment, based on their personal experience 
with the prior contract, on the degree of responsibility to be placed 
on CDA and Disclosure for the problems.  CDA's disagreement with this 
aspect of the evaluation does not establish that the evaluation of 
CDA's proposal was unreasonable.  See Sarasota Measurements & 
Controls, Inc., B-252406.3, July 15, 1994, 94-2 CPD  para.  32.

Alleged Revisions to Disclosure's Initial Proposal

As explained above, Disclosure signed the contract on May 1.  
Disclosure returned the signed contract to the SEC with a cover letter 
dated May 2, stating in relevant part that:

     "We note that Disclosure's offer dated January 12, 1995, has been 
     incorporated [into the contract] by reference. . . .  However, 
     given the period of time between the date of that offer, and now, 
     when the selection of the contract has been finalized, we would 
     like to inform the [SEC] that several changes have occurred with 
     regard to our operations.  In summary, these changes related to 
     certain personnel who are no longer with the company but for whom 
     equal or more capable staff have been employed, to the exact 
     technical solutions and methodologies to be used, and the use of 
     subcontractors, which have impacted our approach today versus the 
     1995 proposal.

     These updates in no way alter the material terms and conditions 
     of our offer, particularly as they relate to the services 
     contemplated, tasks, and prices.  We intend to fulfill the 
     requirements indicated in the contract completely, albeit in a 
     different, more capable manner than had been initially proposed. 
     . . ."

According to CDA, this letter is evidence that Disclosure made 
material changes to its proposal prior to award with respect to its 
use of subcontractors, and that the SEC improperly conducted 
discussions with Disclosure by making award on the basis of the 
revised proposal without giving the other offerors an opportunity to 
revise their proposals.

Discussions occur when an offeror is given an opportunity to revise or 
modify its proposal, or when information requested from and provided 
by an offeror is essential for determining the acceptability of its 
proposal.  Federal Acquisition Regulation  sec.  15.601 (FAC 90-31); 
Paramax Sys. Corp.; CAE-Link Corp., B-253098.4; B-253098.5, Oct. 27, 
1993, 93-2 CPD  para.  282.  If a procuring agency holds discussions with 
one offeror, it must hold discussions with all offerors whose 
proposals are in the competitive range.  See HFS Inc., B-248204.2, 
Sept. 18, 1992, 92-2 CPD  para.  188.
  
As discussed in greater detail below, we disagree with the protester's 
contention that Disclosure's cover letter made material changes to the 
firm's proposal with respect to the use of subcontractors.  
Accordingly, the agency was not required to hold discussions with all 
the offerors before making award to Disclosure.

Subsequent to the SEC's receipt of Disclosure's May 2 letter, the 
contracting officer informed Disclosure that "the [SEC] cannot accept 
changes to an offeror's proposal after proposals are received, unless 
revisions are invited."  The contracting officer explained that 
Disclosure's proposal had been evaluated and selected for award 
according to the terms of the RFP and Disclosure's initial proposal, 
and requested Disclosure to confirm in writing its willingness to 
accept and perform the contract under the terms of the RFP and in 
accordance with Disclosure's proposal as submitted.

In a May 29 letter, Disclosure's president responded to the 
contracting officer's request, assuring the SEC that the firm was 
committed to performing the contract consistent with the terms of its 
proposal.  Disclosure's president stated that nothing in the May 2 
letter diminished the firm's commitment, "nor modified any term or 
condition" of its proposal. 

Disclosure further explained that its statement with respect to the 
use of subcontractors is consistent with its technical approach as 
stated in its initial proposal.  In this regard, as stated earlier, 
Disclosure's proposal stated that "Disclosure is considering the use 
of an outside vendor for keying the 13F filings. . . ."  Disclosure 
reaffirmed that statement in its response to the contracting officer, 
explaining that the firm was still considering that option.  
Disclosure's letter further assured the SEC that it had "no other 
plans, intentions, or agreements to use subcontractors to produce the 
data required by the contract."

Subsequently, to further assure himself that Disclosure agreed to be 
bound by the terms of its proposal as it was evaluated and selected 
for award, the contracting officer held a telephone conference with 
Disclosure.  The record shows that the conference included a 
representative of Disclosure and SEC's Director of the Office of 
Filings and Information Services (OFIS) (the division within the SEC 
responsible for processing the forms covered by the contract).  The 
record contains a document dated June 3 memorializing that telephone 
conference, in which the contracting officer affirms that based on 
their inquiry, both he and the OFIS Director were satisfied that 
Disclosure "had made no changes to its proposal and was contemplating 
performance in accordance with the terms of the contract and its 
proposal."

Contrary to the protester's contentions, the record does not show that 
Disclosure made any material changes to its initial proposal with 
respect to the use of subcontractors through the May 2 letter, or 
through subsequent communications with the SEC.  As noted above, 
Disclosure's proposal stated that the firm was considering the use of 
a subcontractor for keying in the Form 13F filings; the record 
indicates that it is not an uncommon practice for the contractor to 
supplement its work force during the peak periods corresponding to the 
regulatory quarterly filing deadlines.  The May 2 letter, with its 
general reference to the use of subcontractors, cannot reasonably be 
read as materially changing the approach set out in Disclosure's 
proposal.  To the extent the May 2 letter raised any uncertainty about 
Disclosure's intent, the record shows that, in light of the responses 
to his inquiries, the contracting officer reasonably concluded that 
the awardee did not make any material changes to its proposal.

The cases relied on by CDA[7] in support of its argument that, the May 
2 letter modified the terms of Disclosure's proposal, are inapplicable 
here.  In those cases, the offeror or bidder either took exception to 
material terms of the solicitation, or conditioned its offer on terms 
inconsistent with those in the solicitation.  Here, as already 
explained, there is nothing in Disclosure's May 2 letter to the SEC 
that suggests that the firm took exception to any material term of the 
solicitation, or that Disclosure conditioned its offer on the SEC's 
acceptance of changes to its proposal. 

Based on our review of the record, we conclude that the contracting 
officer properly determined that award was made on the basis of 
Disclosure's proposal as it was evaluated and selected, and that the 
May 2 letter made no material changes to the proposal.  Accordingly, 
there is no basis for us to conclude that the SEC conducted improper 
discussions with Disclosure such that it was required to give the 
other offerors an opportunity to revise their proposal before making 
award.[8]

The protest is denied.

Comptroller General
of the United States

1. SEC rules require securities holdings by certain "insiders," such 
as officers and directors, to be reported to the SEC on Form 3; 
subsequent transactions are reported on Form 4; and an annual report 
is submitted on Form 5.  Form 144 is a notice of intent to sell 
restricted securities.  Form 13F is a report of securities holdings 
filed quarterly by institutional investment managers.  See 17 C.F.R.  sec.  
240.13f-1, 240.16a-3 (1996).

2. Both CDA and Disclosure offered proposals at no cost to the 
government, and thus each proposal earned 25 points for price, the 
maximum number of points available.

3. While these figures vary slightly from those provided in the RFP in 
response to offerors' questions, the figures in the solicitation yield 
results consistent with our analysis and conclusion.

4. Recognizing that electronic filing of Form 13 is the wave of the 
future, CDA stated in its proposal that "[t]oday, approximately 13 or 
one [percent] of Form 13F filings are received on tape and process[ed] 
via the [Electronic Data Gathering Analysis and Retrieval] system.  
This number is expected to grow materially over the period of the 
contract."  

5. As explained above, CDA's and Disclosure's weighted scores differed 
by 1 point.  The weighted scores were based on raw technical scores of 
234.3 (Disclosure) and 231 (CDA).  Thus, for CDA's proposal to be 
ranked higher than Disclosure's, its raw score would have to increase 
by more than 3.3 points.

6. With respect to Form 13F, since CDA proposed to use "external 
keyers predominantly to meet the four peak [quarterly filing 
periods]," any rescoring involving subcontractors could also affect 
CDA's score.

7. Ameriko, Inc., B-266034.2, Mar. 18, 1996, 96-1 CPD  para.  176 (Ameriko's 
cover letter to its best and final offer specifically took exception 
to a material term of the RFP; relying on our decision in Emerald 
Maint., Inc., 70 Comp. Gen. 355 (1991), 91-1 CPD  para.  320, the agency 
properly determined that Ameriko's offer could not be accepted); New 
Dimension Masonry, Inc., B-258876, Feb. 21, 1995, 95-1 CPD  para.  102 
(bidder included statements in cover letter conditioning the bid); 
Minuteman Aviation, Inc.--Recon., B-231504.2, Oct. 13, 1988, 88-2 CPD  para.  
348 (cover letter from agency requiring inclusion of a safety proposal 
in contract was rejected by intended awardee, and thus agency properly 
rejected bid); Environmental Tectonics Corp., B-225474, Feb. 17, 1987, 
87-1 CPD  para.  175 (agency improperly awarded contract to offeror that 
failed to delete certain material qualifications from its proposal 
until after the closing date for receipt of best and final offers).

8. CDA also argues that the award was improper because Disclosure's 
offer had expired.  It is not improper for an agency to accept an 
expired offer without opening negotiations where, as here, acceptance 
is not prejudicial to the competitive system.  See The Fletcher 
Constr. Co., Ltd., B-248977, Oct. 15, 1992, 92-2 CPD  para.  246.  Since we 
conclude that Disclosure made no material changes to its proposal, and 
all offers had expired by the May 1996 award date, the SEC properly 
allowed Disclosure to waive the expiration of its proposal acceptance 
period since a waiver under such circumstances is not prejudicial to 
the competitive system.  See Sublette Elec., Inc., B-232586, Nov. 30, 
1988, 88-2 CPD  para.  540.