BNUMBER:  B-275057.2
DATE:  March 5, 1997
TITLE:  American Combustion Industries, Inc.

**********************************************************************

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:American Combustion Industries, Inc.

File:     B-275057.2

Date:March 5, 1997

John S. Pachter, Esq., Krista L. Pages, Esq., Jonathan D. Shaffer, 
Esq., and Christina M. Pirrello, Esq., Smith, Pachter, McWhorter & 
D'Ambrosio, P.L.C., for the protester.
Gerard P. Sunderland, Esq., and Michael A. Stover, Esq., Whiteford, 
Taylor & Preston, L.L.P., for Green Contracting Company, the 
intervenor.
Kenneth A. Lechter, Esq., and Alden Abbott, Esq., Department of 
Commerce, for the agency.
Ralph O. White, Esq., and Christine S. Melody, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1.  Contention that awardee's proposal offered noncompliant equipment 
and had to be rejected is denied where the record, as a whole, shows 
that nothing in the solicitation required an offeror to identify any 
specific equipment in its proposal; the solicitation clearly 
anticipated that offerors would be required to seek post-award 
approval of the equipment at issue--even if they offered equipment 
from an approved source; and the agency's request that the offerors 
identify the sources for certain key pieces of equipment prior to 
award was an act of contract administration begun in advance of award 
to streamline the eventual approval of the needed equipment.  

2.  Contention that agency was required to advise protester of 
concerns about an individual the agency perceived was being offered as 
the project manager is sustained where the record shows that:  (1) 
neither the initial proposal nor the best and final offer indicated 
that the individual would be the project manager; (2) the agency 
concluded that an individual it believed to be poorly qualified was 
being substituted because the project manager identified in the 
proposal was unavailable on the day the agency held oral discussions; 
and (3) by not revealing its conclusion--or the fact that the agency 
considered the perceived substitute to be poorly qualified--the 
protester was unable to either correct the conclusion, or address the 
agency's concerns.   

3.  Contention that agency violated Federal Acquisition Regulation  sec.  
15.610(c)(6) by not advising protester of adverse past performance 
information received from one of protester's references is sustained 
as the regulation clearly requires such discussions if the protester 
has not otherwise had an opportunity to reply to the information and 
the record shows that protester was likely prejudiced as a result of 
the agency's omission.

DECISION

American Combustion Industries, Inc. (ACI) protests the award of a 
contract to Green Contracting Company, Inc. under request for 
proposals (RFP) No. 52SBNB6C9165, issued by the National Institute of 
Standards and Technology (NIST), Department of Commerce, for two 
boilers and a structure to house those boilers.  ACI argues that the 
agency failed to conduct meaningful discussions; failed to reasonably 
evaluate proposals; wrongly awarded to Green given Green's proposed 
use of an unapproved boiler; and improperly relied on past performance 
information about ACI provided by a competitor with a conflict of 
interest.

We sustain the protest.

BACKGROUND

Issued on July 15, 1996, the RFP here sought all labor, equipment and 
material for the supply and installation of two 82,000 pounds per hour 
boilers--and construction of an addition to an existing building to 
house the boilers--for the NIST facility in Gaithersburg, Maryland.  
The RFP anticipated award of a fixed-price construction contract to 
the offeror whose proposal's "technical/price relationship is most 
advantageous to the government."  RFP  sec.  M.3.

Section M.4 of the RFP set forth six technical evaluation factors, 
which were assigned the following specific evaluation weights:

     1.  Past Performance on Building Construction30 percent
     2.  Past Performance on Phased Refurbishing  20 percent
     3.  Past Performance of Personnel            20 percent
     4.  Past Performance of Construction Schedule Adherence10 percent
     5.  Critical Path Method                     10 percent
     6.  Quality Control Plan                     10 percent

Under each factor, evaluators assigned a score between 1 and 10, which 
was then multiplied by the relative weight for that factor to produce 
a maximum total score of 1,000 points.  As shown above, past 
performance--in one form or another--accounted for 80 percent of the 
available points in the technical evaluation. 

The construction specifications appended to the RFP stated that "[t]he 
boilers shall be a Babcock and Wilcox Model FM, Nebraska, Volcano 
packaged watertube boiler or an approved equal."  Specification for 
the Boiler Capacity Upgrade Construction, section 15554,  para.  2.2.1.1.  
The RFP did not require offerors to identify a boiler in their 
proposals, and no provision in the evaluation scheme anticipated an 
assessment of an offeror's boiler selection.  In addition, the RFP's 
pricing schedule sought only a total price for the labor, 
construction, and equipment necessary to install the boilers; there 
was no requirement to separately price the boiler equipment offered.  

Five proposals were received by the closing date of August 16.  Upon 
completion of an initial review, the contracting officer determined 
that only two of the proposals--those submitted by ACI and Green--were 
within the competitive range.  Both the ACI and Green proposals 
received relatively high initial scores and were very close in price.  
By letters dated August 20, the contracting officer asked both ACI and 
Green to participate in "clarifications/discussions" of their 
proposals.  Both offerors were asked to provide written answers to 
certain questions by August 23, and both were requested to participate 
in oral discussions on August 27.  

The agency's August 20 letters asked the offerors to identify the 
manufacturer and model number of the boilers (as well as four other 
items) to be installed.  In response, ACI identified for installation 
either a Nebraska Boiler Company, Model NS-E-77 boiler, or a Babcock 
and Wilcox Company, Model FM 103-97 boiler.  Green identified an 
English Boiler & Tube, Inc., Model APP-80-250 boiler.  Both companies 
provided their responses prior to the oral discussions.  During oral 
discussions, agency representatives told Green that the identified 
English boiler was not an approved product and advised Green to 
substitute another boiler.  Written notes by agency representatives 
present during discussions indicate that Green was advised to provide 
this information with its best and final offer (BAFO).  Other matters 
raised during oral discussions will be set forth, as relevant, in 
greater detail below.  

By the September 4 due date set for submission of BAFOs, both ACI and 
Green submitted revised technical proposals, and revised prices.  The 
cover letter to Green's BAFO indicated that the offer was in "full 
compliance" with the specifications, but also indicated that the BAFO 
included "submittal data for an English boiler . . . ."  However, the 
attachment including the data for the English boiler was received 
after the closing time set for receipt of BAFOs.  The agency placed 
the technical information in an envelope and did not review it as part 
of its evaluation.

After evaluation of BAFOs, ACI's initial score was [deleted], and 
Green's initial score was [deleted].  The following table shows the 
initial and BAFO scores for each of the six evaluation factors:

   EVALUATION FACTORS              GREEN               ACI

                             InitialBAFO InitialBAFO

Past Perf. on Building Construction*   *     *      *

Past Perf. on Phased Refurbishing*     *     *      *

Past Perf. of Personnel         *      *     *      *

Past Perf. of Construction Schedule Adherence***    *

Critical Path Method            *      *     *      *

Quality Control Plan            *      *     *      *

             TOTAL              *      *     *      *
                  (* numerical scores deleted)

After comparing the proposed prices offered by ACI and 
Green--[deleted], respectively--the contracting officer concluded that 
the additional technical capabilities of Green reflected in its 
[deleted] justified Green's [deleted].  Thus, the agency awarded to 
Green, and this protest followed.  Work on the project here was 
suspended by the agency pending the outcome of this protest.

ACCEPTABILITY OF GREEN'S PROPOSED BOILER

A threshold issue in this protest is ACI's contention that the agency 
could not properly award to Green because Green proposed to provide an 
unapproved boiler.  According to ACI, offerors were required to obtain 
approval of their boilers prior to award.  Alternatively, ACI argues 
that Green's identification of an unapproved boiler followed by its 
failure to substitute an approved boiler--or to submit approval 
information prior to the closing time set for receipt of 
BAFOs--renders its proposal ineligible for award.  For the reasons 
stated below, we disagree.

The solicitation here was for a construction contract, not for 
supplies.  In keeping with the emphasis on construction, the agency 
designed its RFP and its evaluation scheme to focus on price, past 
performance, and construction-related issues.  There is no requirement 
in the RFP for an offeror to identify any particular boiler model in 
its proposal, and there is no provision in the evaluation scheme for a 
relative assessment of an offeror's boiler.[1]  The absence of these 
provisions alone strongly undercut the protester's assertion that an 
offeror's intended boiler had to be approved prior to award.  

In addition, the RFP here included a detailed approval process that 
clearly anticipates approval after award.  For example, clause H.9 of 
the RFP requires the successful offeror to provide a list of all 
materials and/or equipment to be used in this construction contract 
prior to making any purchase commitments.  The clause also states that 
the contracting officer's technical representative (COTR) will give 
tentative approval for such purchases, which will not become final 
until submission of samples and/or shop drawings.  Further, since 
clause G.1 provides that the COTR will not be named until contract 
award (precluding his or her input into the approval process until 
after that time), there is no evidence that the agency has a process 
in place to approve boilers prior to award.

Finally, with respect to the boilers here, the specifications stated 
that "[t]he boilers shall be a Babcock and Wilcox Model FM, Nebraska, 
Volcano packaged watertube boiler or an approved equal."  
Specification, Section 15554,  para.  2.2.1.1.  Nothing in this provision 
identifies a specific model of boiler; instead, the specification 
identifies only manufacturers of boilers, or in the case of Babcock 
and Wilcox, a boiler model line.[2]  Thus, we conclude that the RFP 
required that before any boiler could be installed--even one from a 
model line identified in the specification--the contractor was 
compelled to seek approval of the specific boiler model.[3]
  
Although pre-award boiler approval was not envisioned by this RFP, the 
agency began that approval process during discussions, and thus the 
relevant issue is whether, in light of Green's response, its proposal 
could be accepted.  Given Green's identification of an unapproved 
boiler during the negotiation process and the agency's indication that 
the boiler was either unacceptable--or would require further 
documentation to establish its acceptability--ACI argues that the 
agency could not reasonably award to Green when Green's BAFO neither 
offered an approved boiler nor tendered additional support for the 
English boiler in time for the agency's consideration.    

While we recognize that the agency's request that ACI and Green 
identify the sources for certain key pieces of equipment prior to 
award appears inconsistent with the structure of the RFP and the 
specifications, we consider the agency's request that the offerors 
identify their boilers (and other major components) an act of contract 
administration begun in advance of award to streamline approval of the 
needed equipment.  This situation is similar to one reviewed in our 
decision Hughes Georgia, Inc., B-244936; B-244936.2, Nov. 13, 1991, 
91-2 CPD  para.  457.  There, an invitation for bids (IFB) asked for a list 
of potential subcontractors requiring Equal Employment Opportunity 
(EEO) pre-award clearance pursuant to Federal Acquisition Regulation 
(FAR)  sec.  52.222-28; and the low bidder listed two potential suppliers 
of source-controled components for the missiles at issue that were not 
approved sources of the components.  After reviewing the supplied list 
and its relationship to the IFB, our Office concluded the information 
requested by the agency was to be used solely in administering the 
agency's EEO program, and that the list of potential subcontractors 
furnished did not limit, reduce, or modify the low bidder's obligation 
to deliver the items in accordance with the terms of the solicitation, 
"including the . . . requirement to obtain components and materials 
from only approved sources."  Id. at 5-6.  

Here, as in Hughes Georgia, Green remains obligated to perform the 
work in accordance with the specifications.  Green's initial proposal 
was completely silent on the subject of the boiler, and took no issue 
with any promise required by the solicitation.[4]  Although Green's 
written response to the agency's August 20 letter identified an 
unapproved boiler, Green did not refuse to comply with the 
solicitation if the boiler is not approved.  Likewise, Green's mention 
of the boiler in its BAFO cover letter--answering a request by the 
agency that Green either name a new boiler, or provide documentation 
for the English boiler--does not alter its concurrent promise to 
comply with the solicitation if the English boiler is not approved.  
In fact, the submission of the boiler data--even though 
late--demonstrates Green's understanding of the ongoing requirements 
of the approval process.  We conclude that the agency properly 
determined that the Green proposal did not take exception to the 
specification's boiler requirements and that the agency's right to 
approve proposed boilers prior to installation was not compromised 
under the circumstances here.    

MEANINGFUL DISCUSSIONS AND EVALUATION OF ACI'S PROPOSAL

ACI argues that on several different issues the agency reached 
unreasonable conclusions about its proposal, and failed to advise ACI 
of its concerns during discussions.  These contentions fall into three 
categories:  (1) agency concerns about ACI's key personnel; (2) agency 
concerns about perceived technical weaknesses in ACI's proposal; and 
(3) adverse reports about ACI's past performance.  

In considering a protest against an agency's evaluation of proposals, 
we will examine the record to determine whether the agency's judgment 
was reasonable and consistent with stated evaluation criteria and 
applicable statutes and regulations.  ESCO, Inc., 66 Comp. Gen. 404 
(1987), 87-1 CPD  para.  450.  In addition to the evaluation issues, we will 
review the adequacy of agency discussions to ensure that agencies 
point out weaknesses that, unless corrected, would prevent an offeror 
from having a reasonable chance for award.  Department of the 
Navy--Recon., 72 Comp. Gen. 221 (1993), 93-1 CPD  para.  422.  There is no 
requirement that an agency advise an offeror of a minor weakness that 
is not considered significant, even where the weakness subsequently 
becomes a determinative factor when two closely-ranked proposals are 
compared.  Volmar Constr., Inc., B-270364; B-270364.2, Mar. 4, 1996, 
96-1 CPD  para.  139.  

Personnel

With respect to ACI's personnel, the agency's greatest concern appears 
to be in the area of ACI's proposed project manager.  The record shows 
that ACI's initial proposal identified a project manager who was 
well-regarded by the agency.  However, when the agency scheduled 
negotiations with ACI, and requested that ACI bring its proposed 
project manager and superintendent to the discussions, ACI's  proposed 
project manager was unavailable.  As a result, ACI sent its president, 
a vice-president, and one of the proposed construction supervisors to 
the negotiations.  Although the transcript from the hearing reflects 
different understandings about what was said regarding the absence of 
the project manager, the record clearly reflects that by the end of 
the meeting, the agency was concerned that the vice-president who 
attended the meeting would be substituted for the proposed project 
manager during the initial months of contract performance.  

The record on this subject also shows the following:  (1) the 
individual perceived to be the substitute project manager was viewed 
as a poor choice because of negative references; (2) the agency did 
not mention its concerns during discussions; (3) ACI did not amend its 
proposal to change its project manager; and (4) because of concerns 
about the substitute project manager (and the construction supervisor, 
discussed below) the agency downgraded ACI's proposal under the past 
performance of personnel evaluation factor by [deleted] points.

ACI argues that it was unreasonable to assume that it was replacing 
the project manager named in its proposal simply because the proposed 
project manager could not attend the negotiations on the day they were 
scheduled.  In addition, ACI contends that the agency should have 
advised ACI of its concerns during discussions.

In the hearing convened for this protest, we took testimony from four 
individuals--two representing the protester, two representing the 
agency--on the subject of what was said during negotiations regarding 
the absence of the proposed project manager.  Based on our review of 
this testimony, we find that the agency reasonably concluded that the 
proposed project manager would be unavailable during the initial 
months of performance, even though we recognize that ACI did not 
substitute a new project manager in its BAFO.  On the other hand, we 
cannot ignore the evidence in the record that the agency considered 
the perceived substitute a poor choice.  This assumption that ACI 
intended to substitute another ACI employee for the named project 
manager--which ACI says was incorrect--had a significant negative 
impact on ACI's evaluation.

In our view, the agency's failure to advise ACI of this 
assumption--and of the negative evaluation results that accompanied 
it--unreasonably deprived ACI of an opportunity to resolve any 
question about the availability of its proposed project manager, or 
substitute another individual for the position.  At the conclusion of 
the oral negotiations, or even in the letter calling for BAFOs, the 
agency could have easily asked ACI to address this issue.  Given that 
the agency's assumption appears to have accounted for the largest 
portion of the [deleted]-point deduction from ACI's initial rating 
under this factor--we think the agency was required to raise this 
issue during discussions.  E.L. Hamm & Assocs., Inc., B-250932, Feb. 
19, 1993, 93-1 CPD  para.  156 at 4-5.

The record shows that the agency was also concerned about ACI's 
proposed construction supervisor.  Although the evaluation materials 
reflect very favorably on this individual in his capacity as a 
supervisor with another firm, they also reveal some concerns that he 
lacked experience with ACI and with boiler installation projects, as 
required by the RFP.  ACI does not challenge the reasonableness of 
these conclusions, but claims that the agency was required to raise 
them during discussions.  We disagree.  Our review of the evaluation 
materials reveals an assessment of the construction supervisor that 
includes both strengths and weaknesses.  There is nothing to indicate 
that the proposed supervisor strongly influenced the selection 
decision, and we see no reason that the agency had to discuss its view 
of his relative strengths and weaknesses during discussions.  Cygnus 
Corp., B-275181, Jan. 29, 1997, 97-1 CPD  para.  63 at 10-11.

Technical Proposal

ACI next argues that the agency was required to raise during 
discussions two negative assessments about ACI's technical 
proposal--i.e., the agency's conclusion that ACI's quality control 
plan showed little evidence of back-up support for day-to-day project 
management, and the agency's conclusion that ACI's responses to 
questions raised during oral negotiations did not demonstrate a clear 
understanding of certain of the difficulties associated with this 
project.  We deny both contentions.  In neither case can ACI claim 
that the comments reflect a major concern about ACI's proposal.  In 
addition, nothing in the record suggests that either of these concerns 
would have caused the agency not to select ACI.  While the record 
shows that both of these assessments were used to help the agency 
discriminate between the offerors, it also shows that, in the agency's 
view, both offerors submitted very good proposals, either of which 
could have been selected for award.  Id.

Past Performance

Finally, ACI argues that the agency failed to hold meaningful 
discussions on past performance because it did not advise ACI of a 
negative report provided by one of ACI's references.  In this regard, 
ACI cites FAR  sec.  15.610(c)(6) (FAC 90-31), which requires agencies 
holding discussions to permit offerors to respond to past performance 
information on which they have had no previous opportunity to comment.  
For the reasons set forth below, we agree with ACI on this issue, and 
we conclude that ACI was prejudiced by the agency's actions.

FAR  sec.  15.610(c)(6) states that a contracting officer shall:

     "[p]rovide the offeror an opportunity to discuss past performance 
     information obtained from references on which the offeror had not 
     had a previous opportunity to comment.  Names of individuals 
     providing reference information about an offeror's past 
     performance shall not be disclosed."

The RFP here required offerors to provide references on past 
construction projects.  RFP  sec.  L.13.  On two of the prior construction 
projects identified by ACI in its proposal--one for the National 
Aeronautics and Space Administration (NASA), and one for James Madison 
University in Virginia (JMU)--ACI was given at least partially 
unfavorable past performance reviews on the basis of delays.  With 
respect to the NASA project, the record shows that NASA advised the 
agency that ACI was 100 days late in beginning work and that NASA 
experienced problems with ACI's project manager--the same individual 
the agency believed was being substituted here.  With respect to the 
JMU project, the record shows that JMU advised the agency that ACI was 
"not on time--5 months late--due to slow delivery of boiler and part 
due to ACI."  Otherwise, the JMU reference was good.

There is no dispute here regarding the facts:  the agency and ACI 
agree that the agency asked ACI why it was late beginning the NASA 
contract; however, the agency asked no questions about ACI's 
performance of the JMU contract.  Instead, the agency argues that it 
was not required to raise this issue because FAR  sec.  15.610(c)(6) has no 
application until the past performance reporting system anticipated by 
this provision is in place; because the information is historical in 
nature and no response by ACI could change the facts related to the 
delays; and because the information was received from references 
identified by ACI, and ACI could have addressed the criticisms in its 
initial proposal.  

First, while the agency is correct in its assertion that the FAR 
anticipates eventual implementation of a past performance reporting 
network, see generally FAR subpart 42.15, we have no basis to conclude 
that the current language of the FAR--which plainly mandates an 
opportunity for replying to past performance information if 
discussions are held[5]--is somehow inapplicable until the past 
performance reporting network is in place.  If the drafters of the FAR 
had intended that this requirement be held in abeyance until that 
time, they could have so stated.  

Also, while NIST points to prior decisions of our Office denying 
protests of an agency's failure to raise adverse reports of past 
performance during discussions because the information was historical 
and could not be changed (Teledyne Brown Eng'g, B-258078; B-258078.2, 
Dec. 6, 1994, 94-2 CPD  para.  223 at 7-8); or because the adverse 
information was received from a reference provided by the protester 
who could have addressed the information in advance in its proposal 
(Bendix Field Eng'g Corp., B-241156, Jan. 16, 1991, 91-1 CPD  para.  44 at 
6-7), these cases were decided before the language of FAR  sec.  
15.610(c)(6) became effective.  Since the addition of this provision 
to the FAR on March 31, 1995, via Federal Acquisition Circular 90-26, 
agencies have been on clear notice that offerors must be given an 
opportunity during discussions to respond to past performance reports 
to which they have had no previous opportunity to comment.  

Finally, because a showing of competitive prejudice is required to 
sustain a protest, Lithos Restoration Ltd., 71 Comp. Gen. 367 (1992), 
92-1 CPD  para.  379, we note that the record shows that the agency 
expressly included its concerns about ACI's ability to perform on time 
in its initial and BAFO evaluations.  This concern was directly pegged 
to the unfavorable reports from NASA and JMU and is reflected in the 
agency's decision to award ACI only [deleted] of the [deleted] 
available points under the past performance on construction schedule 
adherence evaluation factor.  If ACI had been permitted to respond to 
the reports of delay on the JMU project, it may have been able to 
succeed in restoring some portion of the [deleted] withheld points 
under this evaluation factor.  

Our conclusions on the past performance issue must also be considered 
together with our conclusions on the perceived substitute project 
manager issue.  As stated above, with discussions, ACI may have been 
able to retain some portion of the [deleted] points deducted from its 
score under the past performance of personnel factor.  While we do not 
believe ACI would have received all [deleted] of the available points 
in these two areas, we cannot assume that restoration of a significant 
portion of the available points at issue would have no effect on the 
earlier price/technical tradeoff decision, wherein NIST elected to pay 
Green approximately [deleted] on the basis of the [deleted]-point 
difference between the proposals.  Accordingly, we find that ACI was 
prejudiced by the agency's actions and we sustain the protest on this 
ground.  See Lockheed Aeronautical Sys. Co., B-252235.2, Aug. 4, 1993, 
93-2 CPD  para.  80 at 7.

CONFLICT OF INTEREST

As part of a supplemental protest filed after receipt of the initial 
agency report here, ACI alleged that the agency improperly considered 
input from the architect-engineer (A-E) firm used by NIST to oversee 
this construction effort.  Specifically, ACI claimed that the A-E 
firm's participation in agency deliberations about ACI's past 
performance was improper because the firm was competing with ACI on 
unrelated outside business.  

Prior to the closing of the record in this case, and prior to ACI's 
submission of its final comments summarizing all of its arguments in 
this protest, Green submitted a response to ACI's allegation showing 
that there was no evidence of any conflict between the A-E firm used 
by the agency and ACI.  In this filing, Green showed that none of the 
events alleged occurred until significantly later than the award 
decision here--and more than a month after this protest was filed.  

We conclude that the Green submission disposes of this contention, 
especially in light of ACI's failure to counter Green's filing, even 
though ACI submitted a comprehensive summary filing after the 
hearing--and nearly a month after Green's filing--in which ACI failed 
to dispute any of Green's arguments, or mention this issue in any way.  
Atmospheric Research Sys., Inc., B-240187, Oct. 26, 1990, 90-2 CPD  para.  
338 at 4.
  
RECOMMENDATION

For the reasons stated above, we conclude that the agency's failure to 
discuss with ACI its past performance on a prior contract and its 
failure to discuss concerns about the individual the agency believed 
was being substituted for the proposed project manager violated 
applicable procurement regulations.  We recommend that the agency 
reopen discussions, request a second round of BAFOs, and reevaluate 
proposals.  If, at the conclusion of the agency's reevaluation, the 
revised best value determination shows that ACI's proposal, and not 
Green's, represents the best value to the government, the agency 
should terminate the contract awarded to Green--performance of which 
has been suspended pending the outcome of this protest--and award to 
ACI.  We also recommend that the protester be reimbursed the 
reasonable costs of filing and pursuing its protest including 
attorneys' fees.  Bid Protest Regulations,  sec.  21.8(d)(1), 61 Fed. Reg. 
39039, 39046 (to be codified at 4 C.F.R.  sec.  21.8(d)(1)).  In accordance 
with section 21.8(f)(1) of our Regulations, 61 Fed. Reg. supra (to be 
codified at 4 C.F.R. sec.  21.8(f)(1)), ACI's certified claim for such 
costs, detailing the time expended and the costs incurred, must be 
submitted directly to the agency within 60 days after receipt of this 
decision.  

The protest is sustained.

Comptroller General
of the United States

1. In fact, neither the protester nor Green made any mention of a 
specific boiler in their initial proposals.

2. In a hearing convened by our Office to consider the boiler issue, 
and other issues in this protest, the protester's president testified 
that the "boilers" listed in the specification were in fact boiler 
model lines, and that not all models sold by any one of these 
manufacturers would necessarily meet the specification's technical 
requirements.  Hearing Transcript, January 31, 1997 at 32.  (Tr. II at 
32.)  (The hearing in this case lasted 2 days and two transcripts were 
produced.  For clarity, we will refer to the transcript from January 
30 as Tr. I, and the transcript from January 31 as Tr. II.)

3. The protester's contention that approval was required prior to 
award is undercut by the fact that the protester's president testified 
at the hearing that (1) if he had received a good quote on the English 
boiler he would have asked for its approval, Tr. II at 34; and (2) ACI 
contacted English for a price while preparing its BAFO.  Tr. II at 
47-48.  Based on this evidence, it appears that the protester had no 
doubt that it could seek approval for an English boiler, if it chose 
to do so.  Also, asking for a price during the short window allowed 
for preparation of BAFOs appears inconsistent with a belief that ACI 
would have to complete the approval process prior to submitting its 
BAFO.

4. In contrast, the precedent the protester claims should control 
involved an offeror's proposal that specifically took issue with key 
clauses set forth in the solicitation.  In that case--Environmental 
Tectonics Corp., B-225474, Feb. 17, 1987, 87-1 CPD  para.  175, aff'd, 
B-225474.2 et al., Apr. 9, 1987, 87-1 CPD  para.  391--the awardee was asked 
to withdraw its qualifications to the RFP, but failed to do so in its 
BAFO.  When the agency accepted a letter withdrawing the 
qualifications after the closing date, we sustained the protester's 
challenge to that action.  Environmental Tectonics Corp., supra at 
3-5.  Here, there was no exception taken to the solicitation.

5. The requirements of FAR  sec.  15.610(c)(6) are not triggered if the 
agency does not otherwise hold discussions.  Int'l Data Prods., Corp. 
et al., B-274654 et al., Dec. 26, 1996, 97-1 CPD  para.  34 at 17-18.