BNUMBER:  B-274289.2
DATE:  December 19, 1996
TITLE:  Professional Services Group, 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:Professional Services Group, Inc.

File:     B-274289.2

Date:December 19, 1996

Stan Hinton, Esq., and Paul W. Searles, Esq., Baker & Botts, for the 
protester.
Rand McMains, Esq., International Boundary and Water Commission United 
States and Mexico, for the agency.
Charles W. Morrow, Esq., and James A. Spangenberg, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Agency failed to conduct meaningful discussions with the protester 
where during discussion the agency did not reasonably inform the 
protester that its proposed staffing was considered inadequate.

DECISION

Professional Services Group, Inc. (PSG) protests the award of a 
contract to Wheelabrator EOS, Inc. under request for proposals (RFP) 
No. 96-11, issued by the United States Section of the International 
Boundary and Water Commission (USIBWC), for operation and maintenance 
of the South Bay International Wastewater Treatment Plant.[1]  PSG 
protests that it did not receive meaningful discussions.

We sustain the protest.

The RFP, issued on March 14, 1996, contemplated the award of a firm, 
fixed-price, contract, for a base period with 4 option years.  The 
evaluation scheme in the RFP provided for a best value award with 
technical/management worth more than cost/price.  The technical merit 
factors were as follows:[2]

     Merit Factor 1 - Professional qualifications necessary for 
     satisfactory performance of the required services/past 
     performance.

     Merit Factor 2 - Specialized experience and technical competence 
     in the type of work required.

     Merit Factor 3 - Technical proposal quality and responsiveness to 
     the scope of work.

     Merit Factor 4 - Capacity to accomplish the work in the required 
     time.

     Merit Factor 5 - Financial stability and professional reputation 
     of the firm.

In addition to these factors, the RFP listed several subfactors under 
each merit factor.  Under Merit Factor 3, the RFP listed "Adequacy of 
the Staffing Plan" as the most important subfactor.

USIBWC received [DELETED] proposals by the closing date for the 
receipt of initial proposals on April 29.  Both Wheelabrator and PSG 
submitted proposals.  The proposals were evaluated by a proposal 
evaluation board (PEB), which determined all proposals to be 
technically acceptable and within the competitive range.  
Wheelabrator's proposal with a score of [DELETED] points was the 
highest rated, and PSG's proposal with a score of [DELETED] points was 
the third highest rated.
 
In letters dated June 25, USIBWC initiated discussions, in which each 
offeror was requested to clarify and provide more detail regarding 
their price proposals, and to provide a detailed staffing plan, 
including a schedule indicating all personnel, including operations 
and maintenance personnel, and the shifts during the day which they 
work.[3]  Offerors were requested to submit revised proposals by July 
12.  After the revised proposals were reviewed, telephonic discussions 
were conducted with all offerors regarding their price proposals.  
USIBWC then announced that "discussions" were "concluded" and that 
best and final offers (BAFO) were to be submitted by August 1.  
Wheelabrator's BAFO failed to include cost details deemed essential by 
the agency, which led the agency to conduct a third round of 
discussions with all offerors to allow Wheelabrator to address the 
problem; none of the other offerors received discussion questions 
during this round.  The revised BAFOs were received on August 5.  
Wheelabrator's revised BAFO priced at [DELETED] received the same 
[DELETED] score and PSG's revised BAFO priced at [DELETED] received a 
[DELETED] score. 

USIBWC then prepared a "source selection determination" which set 
forth the technical scores and prices of the five proposals.  
Wheelabrator had the highest technical rating and PSG the third 
highest rating.  The determination reported "significant differences 
in the technical and management proposals," particularly in the area 
of staffing.  The determination noted that Wheelabrator proposed a 
staff of [DELETED], whereas PSG proposed a staff of [DELETED], and 
concluded that in the agency's "best business judgment, the plant 
cannot be operated effectively with only [DELETED]."  For this reason, 
and those involving the other offerors, USIBWC determined 
Wheelabrator's proposal to represent the best value and awarded the 
contract to it on August 13.  After a debriefing, this protest was 
filed on September 12 with PSG protesting, among other things, that 
USIBWC failed to conduct meaningful discussions.[4]

In negotiated procurements, contracting agencies generally must 
conduct discussions with all offerors whose proposals are within the 
competitive range.  Federal Acquisition Regulation (FAR)  sec.  15.610(b) 
(FAC 90-31); E.L. Hamm & Assocs., Inc, B-250932, Feb. 19, 1993, 93-1 
CPD  para.  156.  Although discussions need not be all-encompassing, they 
must be meaningful; that is, an agency is required to point out 
weaknesses or deficiencies in a proposal as specifically as practical 
considerations permit so that the agency leads the offeror into areas 
of its proposal which require amplification or correction.  E.L. Hamm 
& Assocs., Inc., supra; Northrop Worldwide Aircraft Servs., Inc., 
B-262181, Oct. 27, 1995, 95-2 CPD  para.  196.  Discussions cannot be 
meaningful if an offeror is not advised, in some way, of the 
weaknesses, excesses, or deficiencies in its proposal that must be 
addressed in order for the offeror to be reasonably in line for award.  
Ogden Support Servs., Inc., B-270354, Feb. 28, 1996, 96-1 CPD  para.  175.  
Here, USIBWC failed to conduct meaningful discussions with PSG because 
the agency conducted several rounds of discussions, but never once 
hinted to PSG that its proposed staffing was considered inadequate.  

USIBWC first argues that the communications with the offerors did not 
constitute discussions but clarifications, and thus the requirement 
for meaningful discussions did not apply.  This argument has no merit.  
Even assuming the three rounds of communications as to the offerors' 
pricing could not be considered discussions, a request for BAFOs 
constitutes discussions.  Price Waterhouse, B-254492.2, Feb. 16, 1994, 
94-1 CPD  para.  168.  

USIBWC next argues that it had no obligation to point out any concerns 
with regard to PSG's staffing because it was not considered a 
deficiency, but only a relative weakness.  The record does not support 
this argument.  PSG's initial proposal did not contain a detailed 
staffing plan.  Under the pertinent adequacy of the staffing plan 
subfactor, PSG's proposal was assigned a score in the "deficient" 
range.[5]  PSG submitted a detailed staffing plan in response to the 
June 25 letter.  However, according to the contracting officer, PSG's 
staffing plan of [DELETED] personnel "revealed inferior staffing" and 
was "inadequate when compared to those offered by the other offerors," 
and it was therefore decided not to raise PSG's score for this 
subfactor.  PSG's proposal was rated in the "deficient" range for this 
subfactor up to award selection and ultimately PSG's proposed 
staffing, which was considered inadequate to effectively operate the 
facility, caused its proposal to be rejected in the award selection 
decision.  Thus, although the agency couched its evaluation narrative 
in relative or comparative terms, in fact it numerically scored and 
otherwise treated this aspect of PSG's proposal as deficient, such 
that PSG's staffing had to be addressed if PSG were to have a 
reasonable chance for award.  Accordingly, the agency was obligated to 
bring this matter to PSG's attention in order to satisfy its 
obligation to conduct meaningful discussions.  Ogden Support Servs., 
Inc., supra.

The agency also argues that it did not have to make this matter the 
subject of discussions because PSG made its own business decision to 
propose such a low staff level.  This argument has no merit.  Since 
the staffing level proposed was considered to be a deficiency, the 
agency was required to provide PSG with the opportunity to either 
change its staffing level or persuade the agency that its lower level 
of staffing could satisfy the agency's requirements.  Ogden Support 
Servs., Inc., supra; Columbia Research Corp., B-247631, June 22, 1992, 
92-1 CPD  para.  539.  

The agency argues that the June 25 letter to PSG requesting a detailed 
staffing plan  satisfied its obligation to conduct meaningful 
discussions.  However, in this letter, PSG (and the other offerors) 
were informed that "all firms" were requested to provide a detailed 
staffing plan in a particular format.  Such a generic request for more 
detailed information hardly advises PSG that the agency had concerns 
about PSG's level of staffing, particularly where it has been advised 
that the same request has been made of the other offerors.  See 
Advanced Sciences, Inc., B-259569.3, July 3, 1995, 95-2 CPD  para.  52.  

Finally, USIBWC claims that pointing out the weakness in PSG's 
proposal could have resulted in prohibited technical leveling since 
the other offerors initially proposed sufficient staffing levels.  
Technical leveling occurs where the agency conducts successive rounds 
of discussions to help an offeror to bring its proposal up to the 
level of other proposals by continuing to point out the same concern.  
FAR  sec.  15.610(d).  Since there were no technical discussions, it would 
not have constituted technical leveling for the agency to bring PSG's 
evaluated deficient staffing to its attention at least one time, 
particularly where, as here, the agency did seek further detail from 
Wheelabrator regarding its cost proposal, despite having done so 
previously.  Price Waterhouse, supra; Columbia Research Corp., supra.

We recommend that USIBWC reopen and conduct appropriate discussions 
with the competitive range offerors, request revised BAFOs, and make a 
new source selection.  If award to other than Wheelabrator is 
appropriate, USIBWC should terminate the contract with Wheelabrator 
and make award to that offeror.  In addition, we recommend that the 
protester be reimbursed its costs of filing and pursuing its protest, 
including reasonable attorneys' fees.  Bid Protest Regulations, 
section 21.8(d)(1), 61 Fed. Reg. 39039, 39403 (1996) (to be codified 
at 4 C.F.R.  sec.  21.8(d)(1)).  The protester should submit its certified 
claim for costs to the contracting agency within 60 days of receiving 
this decision.  Bid Protest Regulations, section 21.8(f)(1), 61 Fed. 
Reg. 39039, 39403 (1996) (to be codified at 4 C.F.R.  sec.  21.8(f)(1)).

The protest is sustained.

Comptroller General
of the United States 
   
1. The plant is a 25 million gallon per day facility located in San 
Diego County, California that treats wastewater originating in 
Tijuana, Baja California del Norte, Mexico, under the authority of the 
USIBWC. 

2. The RFP stated that merit factor 1 is at least three times the 
importance of merit factors 4 and 5, merit factors 2 and 3 are 
approximately equal in importance and merit factors 4 and 5 are equal 
in importance.

3. PSG's initial proposal did not contain a detailed staff plan.

4. While PSG's protest raises a number of issues concerning the 
proposal evaluation, we need not consider them because we recommend 
below that revised proposals be obtained and reevaluated.

5."Deficient" is defined in agency's evaluation plan as:

            "Does not meet minimum requirement with major but 
            correctable deficiency.  Poor understanding with high risk 
            to the [g]overnment."