BNUMBER:  B-277801.4 
DATE:  June 1, 1998
TITLE: Advanced Data Concepts, Inc., B-277801.4, June 1, 1998
**********************************************************************

DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective 
Order.  This redacted version has been approved for public release.
Matter of:Advanced Data Concepts, Inc.

File:     B-277801.4

Date:June 1, 1998

Cyrus E. Phillips IV, Esq., and Christopher H. Jensen, Esq., 
Kilcullen, Wilson & Kilcullen, for the protester.
Stuart I. Young, Esq., DynCorp EENSP, Inc., an intervenor.
Gena E. Cadieux, Esq., and Beth Kelly, Esq., Department of Energy, 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.  Protester's contention that one of its evaluated weaknesses was 
double-counted under one of two personnel subcriteria is upheld where 
the record shows that the protester's proposal was downgraded under 
the subcriterion for a matter not reasonably within the scope of the 
subcriterion, and where the other personnel subcriterion clearly 
indicated an intent to consider this matter, and reasonably did so.

2.  Argument that evaluation of past performance was unreasonable 
because none of the protester's properly-identified references 
returned the past performance questionnaire is denied where the agency 
followed the procedure identified in the solicitation of awarding a 
neutral rating for such unreturned references, and where there is no 
showing that the evaluators had some independent basis for knowing of 
the protester's allegedly excellent past performance, because, absent 
such a showing, there is no legal requirement that all past 
performance references be included in a valid review of past 
performance.

3.  Where record shows that the protester cannot reasonably claim 
that, but for the agency's actions, it would have had a substantial 
chance of receiving the award, the General Accounting Office will not 
sustain a protest, even though, in some areas, the contentions raised 
have merit.

DECISION

Advanced Data Concepts, Inc. (ADC) protests the award of a contract to 
DynCorp EENSP, Inc., d/b/a DynMeridian by the Department of Energy 
(DOE), pursuant to request for proposals (RFP) No. DE-RP01-97NN50008, 
issued to procure technical, analytical and administrative services 
for DOE's Office of Declassification.  ADC argues that DOE's 
evaluation of its proposal was unreasonable in the areas of personnel, 
past performance, and uncompensated overtime, and also contends that 
the agency failed to hold meaningful discussions with ADC and was 
biased in favor of the incumbent.

We deny the protest.

BACKGROUND

The RFP here was issued on April 1, 1997, and anticipated award of a 
fixed-rate labor-hour contract for a 2-year base period, with three 
1-year options.  RFP  sec.  L.16 (as modified by amend. 3 at 3).  Offerors 
were instructed to prepare two proposal volumes and an oral 
presentation, as follows:  a volume for the offer and other documents 
(RFP  sec.  L.29); a volume for the price proposal (RFP  sec.  L.31); and oral 
presentation slides and materials for the technical portion of the 
proposal (RFP  sec.  L.30).  

Offerors were advised that award would be made to the offeror whose 
proposal was considered most advantageous to the government.  RFP  sec.  
M.1.  The RFP explained that the oral technical proposal would be more 
important than price in determining which proposal was most 
advantageous.  RFP  sec.  M.2.  The solicitation identified four technical 
evaluation criteria, each of which was comprised of additional 
subcriteria.  Although the RFP did not specifically identify the 
available points for the evaluation criteria, the criteria and the 
points used to evaluate them, are set forth below:[1]

        Personnel Qualifications and Availability  333
        Technical Approach                     317
        Past Performance                       250
        Organization and Management Capabilities  100
          TOTAL                              1,000
          
RFP  sec.  M.3; Rating Plan, Feb. 4, 1997, at 2.  (We need not set forth 
here all of the subcriteria and their relative weights, but will 
discuss them below, as needed.)  In assessing the criteria and 
subcriteria, evaluators assigned a score of 0, 2, 5, 8, or 10, which 
was then multiplied by preestablished weights to determine the actual 
score.  Rating Plan, supra.

After receiving and evaluating initial proposals, the agency made an 
award without discussions, which was challenged by ADC in two protests 
to our Office.  Both protests were dismissed after the agency agreed 
to take corrective action in the form of rescinding its initial award 
decision, making a competitive range determination, and convening 
discussions with the offerors whose proposals were included in the 
competitive range.  Advanced Data Concepts, Inc., B-277801, 
B-277801.2, Sept. 16, 1997.  

At the conclusion of discussions with the three competitive range 
offerors in the renewed competition, best and final offers (BAFO) were 
received from DynMeridian and ADC on November 17.  (The third 
competitive range offeror elected not to submit a revised proposal, 
and asked to be considered based on its initial submission.  Since it 
did not participate here, and since its scores were lower than those 
of the protester and the awardee, we will not discuss it further.)  
After completing its review of the BAFOs, the technical evaluation 
committee (TEC) assigned the following scores to DynMeridian's and 
ADC's proposals:

Evaluation Criteria                         Dyn.       ADC

Personnel Qualifications and Availability [deleted] [deleted]

Technical Approach                        [deleted] [deleted]

Past Performance                          [deleted] [deleted]

Organization and Management Capabilities  [deleted]  [deleted]

     TOTAL                                   970      644.9
Upon reviewing DynMeridian's evaluated price of $15.9 million, and 
ADC's price of $12.6 million, the TEC recommended, and the source 
selection official (SSO) concluded, that DynMeridian's superior 
technical proposal was worth its higher evaluated price.  TEC Report, 
Nov. 26, 1997 at 3; Source Selection Statement, Jan. 30, 1998, at 3.  
The agency made award to DynMeridian on January 30, 1998, and this 
protest followed.

ANALYSIS

Personnel

ADC argues that the agency improperly evaluated personnel in two ways.  
First, it argues that DOE misapplied the RFP's stated evaluation 
weights in assessing proposals under the personnel qualifications and 
availability criterion.   Next, it argues that the agency wrongly 
imposed an unstated requirement and double-counted one of ADC's 
weaknesses under both of the criterion's subcriteria.  

With respect to the protester's contention that DOE misapplied the 
RFP's stated evaluation weights, there is no dispute.  The RFP advised 
offerors that subcriterion A (availability of personnel) would be 
accorded approximately twice the weight of subcriterion B (key 
personnel qualifications).  RFP  sec.  M.3.  DOE concedes that it reversed 
the stated weights for subcriteria A and B, and accorded subcriterion 
B about 50 percent more weight than subcriterion A.  The only dispute 
in this area is whether DOE's remedy was sufficient to correct the 
problem.

DOE's agency report included a supplemental Source Selection 
Statement, dated March 17, which admitted the error and explained that 
under the scheme stated in the RFP--as opposed to the scheme the 
agency initially used--ADC's score would increase by 20.1 points to a 
total score of 665, and DynMeridian's score would remain unchanged at 
970.[2]  The supplemental Source Selection Statement affirms the 
agency's selection of DynMeridian over ADC (despite its revised score) 
because of the technical superiority of the DynMeridian proposal.

ADC argues in its comments that DOE's attempted remedy is insufficient 
to correct the error, and should be rejected as a reevaluation 
prepared in the heat of the adversarial process.  We disagree on both 
counts.  First, ADC's contention that it would have written a 
different proposal had it known of the agency's true priorities is not 
dispositive.  The adjustment made in the revised Source Selection 
Statement corrected the agency's error by recalculating the scores 
using the relative weights stated in the RFP.  Thus, the weights 
ultimately used are those ADC claims were pivotal in preparing its 
proposal.  Once DOE recalculated the scores of the proposal under the 
RFP's stated scheme--and scrapped the earlier erroneous relative 
weights--DOE returned ADC to the ground on which it stood when it 
prepared its proposal.

In addition, while we are generally skeptical of reevaluations 
prepared in the heat of the adversarial process, Boeing Sikorsky 
Aircraft Support, B-277263.2, B-277263.3, Sept. 29, 1997, 97-2 CPD  para.  
91 at 15, we conclude that the agency's position on this issue is 
reasonable.  The mistake here was a mathematical error.  As such, the 
error was straightforward, easily corrected, easily verified by all 
parties and by our Office, and addressed by the agency in its first 
filing after the issue was raised.  There is nothing in the record 
here to support a conclusion that the resulting 20-point change in 
ADC's score, standing alone, would alter the agency's cost/technical 
tradeoff decision.  Instead, the resulting increase of 20 points, on a 
1,000-point scale, is sufficiently de minimis that we do not conclude 
that this issue alone compels us to sustain ADC's protest.  See 
Textron Marine Sys., B-243693, Aug. 19, 1991, 91-2 CPD  para.  162 at 12-13.  
In terms of the concerns that we raised in Boeing, the limited impact 
of the error here was apparent even without the supplemental 
submission from the agency, so that the revised decision was fairly 
clearly discernible from the contemporaneous record.

In contrast, the Boeing case involved a post hoc reevaluation and 
cost/technical tradeoff late in the protest process where no tradeoff 
had been made during the initial source selection.  Further, the 
agency continued to assert there was no error, but, in order to 
immunize itself against losing a protest, submitted a reevaluation 
that it argued was not necessary.  We opted not to permit the agency 
to both defend its erroneous action and prepare after-the-fact 
decisional materials for the sole purpose of ensuring that our Office 
would conclude there was no prejudice to the protester.  Boeing 
Sikorsky Aircraft Support, supra.  Unlike the situation here, the 
substantial nature of the agency's errors and the resulting closeness 
of the proposals meant that, after the errors were corrected in 
Boeing, the outcome was not clear.

ADC's second challenge to the personnel evaluation is that the agency 
abandoned the RFP's stated evaluation scheme when it assessed a 
weakness against the proposal for a limited number of "classification 
professionals" under the availability of personnel subcriterion.  ADC 
argues that the agency double-counted this weakness under both of the 
personnel subcriteria.

Section M.3 of the RFP defined the two personnel subcriteria as 
follows:

     Subcriterion A:  Availability of Personnel.  The availability of 
     key personnel and administrative/clerical personnel will be 
     evaluated in terms of offeror's current employees and those 
     committed to the project, and the availability of subcontractors 
     and consultants.  Availability of qualified key and 
     administrative clerical personnel to cover peak work loads, 
     overlapping or simultaneous assignments, and sick or vacation 
     leave, will also be evaluated.

     Subcriterion B:  Key Personnel Qualifications.  Key management 
     and technical personnel proposed by the offeror will be evaluated 
     on their educational background, directly related work 
     (classification) experience, professional development, and 
     performance record.  Of these, years of classification experience 
     will be weighted most heavily.  In particular, key staff will be 
     evaluated on recent experience in planning and executing support 
     services to Headquarters type organizations; demonstrated 
     understanding of technical issues relative to classified and 
     unclassified sensitive information control; and competence in 
     technical program support.  Administrative clerical support will 
     not be evaluated in this sub criterion.

In DOE's evaluation of ADC's BAFO, the agency cites two strengths and 
two weaknesses under the availability of personnel subcriterion, and 
three strengths and two weaknesses under the key personnel 
qualifications subcriterion.  TEC Report, supra, Attach. 1 at first 
unnumbered page.  Under the availability of personnel subcriterion, 
one of the two weaknesses cited is:

     Limited availability of "classification professionals", i.e., 
     personnel who have direct experience in the development of 
     classification policy (e.g., writing guides) as opposed to merely 
     the application of classification policy (e.g., using guides to 
     review documents as an authorized derivative classifier).

Id.  Under the key personnel qualifications subcriterion, one of the 
two weaknesses cited is:

     Of the proposed key personnel, only the proposed Senior Policy 
     Analyst has experience as a classification professional, i.e., an 
     individual with at least some experience in the development of 
     classification policy and guidance.  However, the claimed 
     experience of that individual was limited to the development of 
     one chapter in one guide in a narrowly specialized technical 
     area.

Id.    

As stated above, ADC argues that the availability of personnel 
subcriterion, as defined in the RFP, does not encompass the 
classification experience of non-key personnel, especially when one 
compares the two definitions.  DOE responds that the agency reasonably 
evaluated the classification experience of non-key employees under the 
availability of personnel subcriterion because the key personnel 
qualifications subcriterion was, by definition, limited to key 
personnel.  Thus, the other subcriterion necessarily encompassed the 
classification experience of non-key personnel.  We disagree.

Our review shows that the RFP offered a significant level of detail 
regarding the agency's intended evaluation approach under these two 
subcriteria.  The key personnel qualifications subcriterion not only 
identifies classification experience as one of the issues to be 
evaluated, but advises that this experience will be the most important 
element of the assessment.  In contrast, the RFP's explanation of the 
availability of personnel subcriterion makes no mention of 
classification experience.  In our view, the availability subcriterion 
cannot reasonably be read to encompass more than the availability of 
people in terms of whether they are current employees, are committed 
to the project, and are available to meet peak workloads.  We see 
nothing in the description of this subcriterion to advise offerors 
that the agency will assess classification experience, and we find 
this omission to be telling when compared with the RFP's clear 
indication that the key personnel subcriterion will consider this 
issue.

With respect to the impact of this issue on ADC's score, ADC received 
8 of 10 available points under this subcriterion.  While we cannot 
discern with certainty whether ADC would have received the highest 
rating of 10 points if this weakness were removed from its 
evaluation--especially since ADC's proposal would still be assessed as 
having a remaining weakness under this subcriterion[3]--we note that 
DynMeridian received a rating of 10 points under one of the evaluation 
subcriteria while also having a weakness identified.  Compare TEC 
Report, supra, Attach. 2 at second unnumbered page with TEC Report, 
supra, Attach. 3.  If we assume that ADC's rating might have been 
raised from 8 to 10 under this subcriterion (10 being the next highest 
increment in the 0, 2, 5, 8, 10 rating scheme used here), its total 
score under the personnel qualifications and availability criterion 
rises another 40 points, from 665 (as set forth in the revised Source 
Selection Statement) to 705.  

Past Performance

ADC argues that DOE's evaluation of its past performance was 
unreasonable because DOE assigned the company a neutral rating when 
none of the identified contact points for ADC's three references--two 
of whom are DOE contracting officers, while the third is a contracting 
officer for the Bonneville Power Administration--returned the past 
performance questionnaire sent them by the DOE contracting officer 
here.  ADC argues that DOE's contracting officers should be required 
to return such requests for information, and contends that offerors 
should not bear the burden of an unfavorable evaluation when agency 
employees fail to perform their duties.  DOE argues that the 
evaluation was reasonable because offerors were advised in advance 
that a neutral rating would result from unreturned questionnaires, and 
that the point score assigned for a neutral rating here was so high 
that ADC cannot reasonably claim to have been prejudiced.  

The RFP for this procurement required each offeror to identify past 
contracts for review under the past performance evaluation criterion, 
worth 250 of the 1,000 available points.  For each contract identified 
by the offeror, the offeror was to provide the name of the contracting 
activity; the contract number, value, and type; a description of the 
statement of work; and the name and telephone number of the 
contracting activity's contracting officer, program manager, and 
administrative contracting officer.  RFP  sec.  L.30 at 86.  In addition, 
offerors were specifically advised not to provide general information 
about their performance of these contracts, as the contracting agency 
would obtain such information from the references directly.  Id.  To 
this end, attachment 7 to the RFP includes the contractor performance 
report sent by the contracting officer here to the references, and 
attachment 6 includes a sample authorization letter that offerors can 
use to prod their references to respond to the request for 
information.  However, the process set forth in the RFP does not 
envision any further role for the offerors in obtaining information 
from the identified references.  Finally, the RFP advises that "if an 
offeror's client is unwilling to provide the Government requested 
information in support of the Government's past performance 
evaluation, that experience will be given a neutral rating."  Id. at 
87.

In response to this requirement, DynMeridian identified three prior 
DOE contracts for review; ADC identified two prior DOE contracts, and 
one contract with the Bonneville Power Administration.[4]  The record 
shows that in each case, the contracting officer here prepared a 
letter and facsimile to the identified reference.  The record further 
shows that all of DynMeridian's DOE references returned the past 
performance questionnaire, while neither ADC's DOE references, nor its 
Bonneville Power Administration reference, responded to the request 
for information.

In the evaluation of this information, DynMeridian received a total 
rating of [deleted] points.  For ADC, however, since none of the 
references responded to the contracting officer's request for 
information, the TEC assigned a neutral rating to ADC's proposal.  
Contracting Officer's Statement, Mar. 18, 1998, at 22.  The TEC then 
converted the neutral rating to a point score by assigning ADC a 
rating of 8 under each of the 5 past performance subcriteria, which 
translated to a total rating of [deleted].  Id.

Federal Acquisition Regulation (FAR) Subpart 42.15 requires that 
federal agencies establish and maintain a past performance reporting 
network.  Agency contracting officers are to prepare past performance 
reports--either on an interim basis (voluntary), or at the conclusion 
of a contract (mandatory)--for all contracts valued in excess of $1 
million, regardless of the date of contract award.[5]  See generally 
FAR Subpart 42.15.   This requirement has been effective since May 30, 
1995.  60 Fed. Reg. 16,720 (Mar. 31, 1995).  To ensure the effective 
use of this reporting network, the FAR states:

     Departments and agencies shall share past performance information 
     with other departments and agencies when requested to support 
     future award decisions.  The information may be provided through 
     interview and/or by sending the evaluation and comment documents 
     to the requesting source selection official.

FAR  sec.  42.1503(c).

Here, ADC argues that the agency has violated the letter and spirit of 
FAR subpart 42.15 by failing to take steps to ensure that the 
references ADC identified in its offer--relating to two DOE contracts 
and one contract with the Bonneville Power Administration--returned 
the past performance questionnaires.  DOE counters that the FAR 
provisions should not be interpreted to create rights for protesters 
where their references fail to respond to requests for information 
from a contracting officer.

Under the circumstances of this case, we need not decide whether DOE 
violated the FAR provisions at issue here because none of ADC's 
references fall within the requirements of the subpart.  First, ADC 
admits that its Bonneville Power Administration reference falls 
outside the subpart because that organization is not covered by the 
FAR, and thus the requirement to share information, quoted above, does 
not apply.  See International Line Builders, B-227811, Oct. 8, 1987, 
87-2 CPD  para.  345 at 4.  DOE also points out that the remaining two 
contracts referenced by ADC are not yet completed.  Since interim past 
performance reports are voluntary, not mandatory, DOE contends, and we 
agree, that there was no requirement for it to have information 
related to these contracts.[6]

The remaining issue here is whether the agency evaluation was 
unreasonable because ADC was assigned a rating of neutral, in lieu of 
the actual ratings that could have been used had the DOE employees 
complied with the agency's request to provide past performance 
information.  ADC argues that its past performance of DOE contracts 
was evaluated very favorably, and contends that the actual ratings 
would likely have exceeded the neutral ratings awarded by the agency.  

Despite ADC's arguments to the contrary, there is no legal requirement 
that all past performance references be included in a valid review of 
past performance.  Dragon Servs., Inc., B-255354, Feb. 25, 1994, 94-1 
CPD  para.  151 at 8; Questech, Inc., B-236028, Nov. 1, 1989, 89-2 CPD  para.  407 
at 3.  For our Office to sustain a protest challenging the failure to 
obtain or consider a reference's assessment of past performance, a 
protester must show unusual factual circumstances that convert the 
failure to a significant inequity for the protester.  International 
Bus. Sys., Inc., B-275554, Mar. 3, 1997, 97-1 CPD  para.  114 at 5.  The 
record here shows that the agency contacted each of ADC's references, 
and made at least an initial attempt to obtain the information 
properly identified by ADC in its proposal.  When the agency did not 
receive responses, the agency followed the RFP-described procedure of 
assigning a neutral rating in this area.  In addition, DOE translated 
its neutral rating to a favorable numerical score of 8 out of 10 
available points.  Thus, we cannot say that ADC was harmed in any 
significant way by the neutral rating.  In short, without a showing 
that the DOE evaluators here should have been aware of the assessments 
that would have been received, and without some other showing that the 
agency's evaluation was unreasonable, we deny this protest ground. 

Evaluation of Uncompensated Overtime

RFP  sec.  L.88 permitted offerors to make use of uncompensated overtime in 
preparing their proposals, but required full disclosure of, and 
accounting support for, the use of such time.  In their initial 
proposals, neither ADC nor DynMeridian proposed the use of 
uncompensated overtime.  In its BAFO, however, DynMeridian proposed 
that its professional employees would provide [deleted] hours of 
uncompensated overtime each week.  While DOE's final price negotiation 
memorandum considered (and accepted) DynMeridian's offer of 
uncompensated overtime, there is no mention of this issue in either 
the original Source Selection Statement, or in any of the technical 
evaluation materials.  Price Negotiation Memorandum, Feb. 18, 1998, at 
3.

ADC argues that DOE was required to consider the impact of the 
awardee's uncompensated overtime on its technical evaluation and that 
its failure to do so was unreasonable; that the agency's failure to 
mention the issue in the original Source Selection Statement--and the 
preparation of the Price Negotiation Memorandum almost 3 weeks after 
the original Source Selection Statement--shows it was not properly 
considered; and that the discussion of the issue in DOE's supplemental 
Source Selection Statement--prepared in response to the 
protest--should not be allowed.  We disagree on all counts. 

First, although ADC is able to point to prior decisions of our Office 
where offerors were properly downgraded in their technical evaluations 
because of offers of uncompensated overtime--see, e.g., Combat Sys. 
Dev. Assocs. Joint Venture, B-259920.2, June 13, 1995, 95-2 CPD  para.  162 
at 10, 11; Quantum Research, Inc., B-242020, Mar. 21, 1991, 91-1 CPD  para.  
310 at 5-6--we are aware of no per se requirement that offers of 
uncompensated overtime must always be reflected in the technical 
evaluation, as well as the price evaluation.  In addition, the level 
of uncompensated overtime in at least one of the cases identified 
above was significantly higher than the [deleted]-hour level proposed 
by DynMeridian.  See, Quantum Research, Inc., supra, at 5.  Given the 
relatively small amount of overtime proposed here, we see nothing 
unreasonable about the fact that the agency did not downgrade 
DynMeridian's proposal in the technical area because it relied on 
uncompensated overtime.

Second, just as we accept the agency's explanation that it did not 
believe it was necessary to reflect the use of uncompensated overtime 
in its technical evaluation, we also see nothing unreasonable in the 
fact that, under the circumstances here, the original Source Selection 
Statement makes no mention of the issue.  Similarly, the fact that the 
Price Negotiation Memorandum (PNM) was prepared after the original 
Source Selection Statement does not compel the conclusion urged by 
ADC.  DOE explains that the analysis in the PNM was begun prior to the 
award decision, and informed that decision.  Not only do we have no 
reason to believe otherwise, but the omission of a discussion about 
this issue from the original Source Selection Statement is consistent 
with the agency's view that an offer of [deleted] hours of 
uncompensated overtime from the awardee's professionals was not likely 
to have a significant impact on the company's ability to attract and 
retain employees.  

Finally, we see nothing improper in the agency's decision to now 
include a discussion of this issue in its supplemental Source 
Selection Statement, dated March 17.  Since we conclude that the issue 
need not have been addressed by the original Source Selection 
Statement, we fail to see how ADC has been harmed by its inclusion 
now.

Meaningful Discussions

ADC argues that the questions used by DOE during discussions did not 
accurately communicate the agency's concerns, and as a result, ADC had 
no meaningful opportunity to address the agency-perceived weaknesses 
in its proposal.  In support of its contention, ADC points to a 
document in the agency record that lists each evaluation concern and 
the corresponding discussion question.  In four areas, ADC claims this 
document shows that discussions were misleading.  

DOE responds that ADC was not misled and was thoroughly apprised of 
the agency's concerns.  First, DOE notes that it elected to advise ADC 
of all of the proposal's evaluated weaknesses, not just those that 
were significant or major, and it contends that the discussion 
questions accurately reflected those concerns.  DOE also claims that 
ADC's argument misleadingly relies upon neither the primary evaluation 
document, nor the questions provided to the company during 
discussions.  Instead, the document was a management tool prepared to 
ensure that a question was asked for each identified weakness.

It is a fundamental precept of negotiated procurement that 
discussions, when conducted, must be meaningful and must not 
prejudicially mislead offerors.  SRS Techs., B-254425.2, Sept. 14, 
1994, 94-2 CPD  para.  125 at 6; Ranor, Inc., B-255904, Apr. 14, 1994, 94-1 
CPD  para.  258 at 4.  Specifically, an agency may not mislead an 
offeror--through the framing of a discussion question or a response to 
a question--into responding in a manner that does not address the 
agency's concerns; misinform the offeror concerning a problem with its 
proposal; or misinform the offeror about the government's 
requirements.  Price Waterhouse, B-254492.2,
Feb. 16, 1994, 94-1 CPD  para.  168 at 9; DTH Management Group, B-252879.2, 
B-252879.3, Oct. 15, 1993, 93-2 CPD  para.  227 at 4.

For each of the four areas where ADC claims it was misled by the 
discussions, we have reviewed in detail the agency's evaluation 
materials, discussion questions, and its management control sheet, as 
well as the protester's responses to the questions and its arguments 
here.  In each case, we conclude that the questions asked were not 
misleading and that ADC was adequately and fairly apprised of the 
agency's evaluation concerns.  To illustrate our conclusion, we set 
forth in detail below one of the four areas where ADC claims it was 
misled by the agency.

ADC argues that it was misled by the agency's technical discussion 
question regarding the adequacy of its proposed senior technical 
analyst.  Specifically, ADC contrasts the agency's technical 
discussion question number 9, with the stated concern on the 
management control sheet.  Compare DOE Letter to ADC, Oct. 29, 1997, 
Attach. 1 at first unnumbered page with Untitled Chart, undated, 
second unnumbered page, Agency Report, Tab 12.  The chart states the 
agency's concern as follows:

     Proposed senior technical analyst technical experience is limited 
     to Materials Control and Accountability and computers.  No 
     demonstrated expertise in weapons design, development or testing.

The chart lists the related question:  "Does your proposed senior 
technical analyst have the required education."  ADC argues that it 
appropriately addressed the education of its proposed senior technical 
analyst, and as a result, was deprived of the opportunity to address 
the agency's true concern.

When the stated concern and related question shown above are viewed 
apart from the context of other discussion questions asked of ADC, one 
might reasonably conclude that ADC was deprived of a fair opportunity 
to address DOE's actual evaluation concerns.  However, ADC's 
contention overlooks other, related questions that were asked of the 
company.  Our review shows that ADC was given ample notice of 
precisely the agency's concern about its senior technical analysts's 
technical experience in a different question.  Specifically, DOE 
asked:

     Position qualifications require that the document reviewer, the 
     senior technical analyst, and the technical analyst positions, 
     have experience in two or more of the following areas:  

     a.Nuclear Weapons Design, Development, Testing and 
Productionb.Production Reactor Operations (fissile material fuel 
processing, isotope separation and SNM accountability)
     c.Nuclear Weapons Safeguards and Security
     d.SNM Production/Processing

     Please explain how the ADC team adequately covers all of these 
     four technical areas.  In addition, demonstrate that your 
     proposed senior technical analyst has the expertise in at least 
     two of the four areas.  Materials control and accountability 
     experience is not sufficient by itself to cover production 
     reactor operations.

Discussion question No. 10, DOE Letter to ADC, Oct. 29, 1997, Attach. 
1 at first and second unnumbered pages.

Simply put, question 10 raised the agency's concerns about ADC's 
senior technical analyst.  The fact that ADC can claim that question 9 
did not adequately raise the agency's concerns--when question 10 
clearly did--does not show that the discussions were misleading.  This 
protest contention is denied.

Bias

As a final matter, ADC argues that DOE was biased against awarding the 
contract here to any offeror other than the incumbent, DynMeridian.  
Our review of this record has not shown any evidence of agency bad 
faith, nor has the protester submitted proof of any sort to support 
its claim of bias.  Since contracting officials are presumed to act in 
good faith, and since no evidence has been presented to lead us to 
conclude otherwise, we deny the allegation.  See Indian Affiliates, 
Inc., B-243420, Aug. 1, 1991, 91-2 CPD  para.  109 at 5.

CONCLUSION

While we conclude that the evaluation of ADC was unreasonable in one 
area--and while DOE itself concedes that in a second instance the 
protester's score should be increased by 20 points--our Office will 
not sustain a protest unless the protester demonstrates a reasonable 
possibility of prejudice, that is, unless the protester demonstrates 
that, but for the agency's actions, it would have had a substantial 
chance of receiving the award.  McDonald-Bradley, B-270126, Feb. 8, 
1996, 96-1 CPD  para.  54 at 3; see Statistica, Inc. v. Christopher, 102 
F.3d 1577, 1581 (Fed. Cir. 1996).

In this procurement, the agency originally concluded that 
DynMeridian's higher-rated (970 points), higher-priced ($15.9 million) 
proposal represented a greater value to the government than ADC's 
lower-rated (644.9 points), lower-priced ($12.6 million) proposal.  In 
its initial report, the agency reconfirmed its selection decision 
based on its concession that the ADC proposal would have received a 
rating of 665 points had the agency not used an erroneous weighting 
scheme.  Despite our agreement with ADC in one other area--which we 
assume could raise ADC's score as high as 705 points--we cannot 
conclude that ADC was prejudiced here.  

Our review of the Source Selection Statement reveals that the decision 
to select DynMeridian's higher-rated, higher-priced proposal was 
driven by the conclusion that DynMeridian's personnel qualifications 
significantly exceeded those of ADC.  Specifically, the selection 
official focused on experience shortfalls for ADC's key personnel, and 
on areas of technical approach and understanding.  None of these 
concerns is called into question by our findings here, and our 
findings do not suggest any significant change in the relative 
standing of these two offerors.  Given these circumstances, and the 
significant remaining difference between the scores reasonably awarded 
these competing proposals, we cannot conclude that the limited errors 
identified in the conduct of this procurement support a reasonable 
finding that, but for the agency's actions, ADC would have had a 
substantial chance of receiving the award.

The protest is denied.

Comptroller General
of the United States

1. Instead, the RFP explained that the criteria were listed in 
descending order of importance and provided that criteria 1 and 2 
(each approximately equal) were each approximately weighted three (3) 
times the weight of criterion 4, and that criterion 3 was weighted two 
and a half (2.5) times the weight of criterion 4.  RFP  sec.  M.3.

2. For the record, we note that correction of the weighting error 
requires more than simply reversing the weights assigned to the 
subcriteria, as the agency has done.  Simple reversal of the weights 
does not completely capture the relative weights as set forth in 
section M.3.  The RFP stated that subcriterion A was approximately 
twice the weight of subcriterion B; thus, instead of relative weights 
of 20 and 13.3 for subcriteria A and B, respectively, it appears that 
the agency should have used weights of 22.2 and 11.1.  This more 
accurate adjustment would have an immaterial effect on ADC's corrected 
score.

3. For the record, ADC's second weakness under this subcriterion was:  
"Not clear of the relevance of the nationwide pool of potential staff 
since Offeror states that emphasis will be on local talent still to be 
hired."   TEC Report, supra, Attach. 1 at first unnumbered page.

4. For the record, DynMeridian also identified non-DOE contracts for 
review in its proposal.  ADC's subcontractors identified non-DOE 
contracts; ADC identified only the references mentioned above. 

5. Effective January 1, 1998, the reporting threshold dropped from $1 
million to $100,000.  FAR  sec.  42.1502(a).

6. Although none of ADC's three contracts are technically within the 
requirements of FAR subpart 42.15, ADC correctly argues that agency 
personnel charged with the responsibility of answering past 
performance inquiries are required to provide such information when 
asked by the procuring office.   See FAR  sec.  42.1503(c).  Since none of 
the DOE references named by ADC returned the procuring contracting 
officer's questionnaire--while all of DynMeridian's DOE references did 
so, giving rise to the claim of inequity here--DOE should consider 
whether measures to ensure compliance with the requirements of this 
regulation are necessary.