BNUMBER:  B-278105.2; B-278105.3 
DATE:  November 13, 1997
TITLE: OMNIPLEX World Services Corporation--Reconsideration and, B-
278105.2; B-278105.3, November 13, 1997
**********************************************************************

Matter of:OMNIPLEX World Services Corporation--Reconsideration and 
          Protest

File:     B-278105.2; B-278105.3

Date:November 13, 1997

Katherine S. Nucci, Esq., Timothy Sullivan, Esq., and Martin R. 
Fischer, Esq., Adduci, Mastriani & Schaumberg, L.L.P., for the 
protester.
Stuart B. Nibley, Esq., Trisa J. Thompson, Esq., Fredric S. Singerman, 
Esq., and Ronald L. Sigworth, Esq., Seyfarth, Shaw, Fairweather & 
Geraldson, an intervenor.
Philip Luci, Jr., Esq., Central Intelligence Agency, 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.  Request for reconsideration of dismissal of earlier protest on the 
basis that the protester is not an interested party is denied where 
the protester's proposed and evaluated costs exceeded the available 
funding for this project, and the proposed and evaluated costs of at 
least one other eligible offeror are below the funding limitation. 

2.  Contention that agency was required to alert offerors to the 
presence of a limitation on available funding is denied as there is no 
requirement for agencies to reveal budgetary information in 
solicitations.  

DECISION

OMNIPLEX World Services Corporation requests reconsideration of our 
dismissal of its protest challenging award of a contract to HRB 
Systems, Inc. pursuant to request for proposals (RFP) No. 97-W004, 
issued by the Central Intelligence Agency (CIA) to support its Records 
Declassification Program.  OMNIPLEX argues that our Office wrongly 
concluded that it was not an interested party to challenge the award 
to HRB.  In addition to asking reconsideration of our earlier 
decision, OMNIPLEX also contends that the CIA improperly failed to 
disclose in the solicitation the amount of the funding limitation that 
OMNIPLEX exceeded in its initial proposal.    

We deny the request for reconsideration and the protest.

Our Office dismissed OMNIPLEX's initial protest after the CIA 
explained that it had a fixed amount budgeted for the Records 
Declassification Program, and that the evaluated costs of four of the 
seven proposals received--including the proposal submitted by 
OMNIPLEX--exceeded the amount funded.  Since there were three eligible 
offerors whose proposals were within the funding limitation for this 
effort, we concluded that OMNIPLEX lacked the requisite economic 
interest to pursue its protest.  See Eagle Mktg. Group, B-242527, May 
13, 1991, 91-1 CPD  para.  459 at 2-3 (protester found to be an interested 
party despite the fact that its price exceeded available funds because 
there were no other offerors eligible for award other than the awardee 
and the protester would be eligible to participate in a resolicitation 
if its protest was upheld); Consolidated Constr., Inc., B-219107.2, 
Nov. 7, 1985, 85-2 CPD  para.  529 at 3 (same).  

OMNIPLEX requests reconsideration of our dismissal of its protest on 
the basis that its protest challenged the acceptability of two of the 
three proposals with evaluated costs beneath the funding limitation, 
and that the CIA's request for dismissal did not clearly establish 
that the remaining offeror was eligible for award.  

Under the Competition in Contracting Act of 1984, 31 U.S.C.  sec.  3553(a) 
(1994) and our Bid Protest Regulations, 4 C.F.R.  sec.  21.1(a) (1997), a 
protester must qualify as an interested party in order to have its 
protest considered by our Office.  An interested party is "an actual 
or prospective bidder or offeror whose direct economic interest would 
be affected by the award of a contract or by the failure to award a 
contract."  4 C.F.R.  sec.  21.0(a).  Determining whether a party is 
sufficiently interested to maintain a bid protest involves 
consideration of a variety of factors, including the nature of the 
issues raised, the benefit or relief sought by the protester, and the 
party's status in relation to the procurement.  Four Seas and Seven 
Winds Travel, Inc., B-244916, Nov. 15, 1991, 91-2 CPD  para.  463 at 3.  

In our view, OMNIPLEX's economic interest in this procurement is too 
remote to support a bid protest under our interested party 
requirements.  We reach this conclusion for the reasons set forth 
below.

In its initial protest filed with our Office on September 19, 1997, 
OMNIPLEX challenged the evaluation of both its own proposal and the 
proposal submitted by the awardee, HRB.  Of particular relevance here, 
OMNIPLEX argued that the CIA had failed to perform a reasonable cost 
realism review of HRB's proposed costs because HRB had been permitted 
to improperly classify its employees as independent contractors.  As a 
result, OMNIPLEX argued, the CIA wrongly permitted HRB to bypass 
payment of statutory taxes and insurance, and fringe benefits.  

On October 3, the agency requested dismissal of the protest on the 
basis that OMNIPLEX was not an interested party because OMNIPLEX was 
not next in line for award even if its challenge to the evaluation of 
HRB's proposal were successful, and because OMNIPLEX's proposed costs 
exceeded the funding available for the Records Declassification 
Program.  OMNIPLEX was not next in line for award because another 
offeror--referred to by the agency as "offeror A"--was rated second in 
overall value, and had lower proposed costs than HRB.  In addition, 
the CIA explained that, unlike HRB, offeror A's proposed costs were 
based on using its own employees.  Further, the agency explained that 
there was another offeror--referred to as "offeror B"--whose proposal 
was under the funding limitation.  Thus, the CIA contended that with 
three proposals under the funding limitation, OMNIPLEX lacked the 
direct economic interest necessary to pursue this protest.

On October 10, OMNIPLEX amended its bid protest with two new issues:  
(1) it argued that the funding limitation in this procurement was a 
latent solicitation defect; and (2) it claimed, in essence, that 
offeror A could not possibly have complied with the solicitation using 
its own employees, while proposing lower costs than HRB and OMNIPLEX.  
On October 15, our Office dismissed the initial protest and one of the 
issues in the supplemental protest on the basis that OMNIPLEX is not 
an interested party.  We agreed that OMNIPLEX could pursue its 
contention that the solicitation was defective for its failure to 
advise offerors of the funding limitation.  This request for 
reconsideration followed.

Our conclusion that OMNIPLEX's economic interest in this procurement 
is too remote to support a bid protest is based on the multiple 
hurdles between OMNIPLEX and the award.  In contrast to its detailed 
challenge to the awardee's evaluation, OMNIPLEX's challenge to offeror 
A's evaluation is very general in nature.  In essence, OMNIPLEX 
appears to be arguing that if the awardee's proposed and evaluated 
costs were too low to adequately perform this effort--as OMNIPLEX 
argued in its initial protest--then offeror A's even lower proposed 
and evaluated costs are even more suspect.  Moreover, even if OMNIPLEX 
prevailed in its cost realism challenges to the evaluation of both the 
awardee and offeror A, there would remain a third offeror, offeror B, 
in line for award with proposed and evaluated costs beneath the 
funding limitation.

Although OMNIPLEX contends that offeror B is ineligible for award 
without discussions because its proposal received an overall rating of 
marginal, we disagree.  Under the evaluation scheme here, unacceptable 
proposals were to be rated unsatisfactory.  The agency explains that 
although offeror B's proposal received a marginal rating and contained 
significant weaknesses, the proposal was "responsive from a 
technical/management perspective" and contained no deficiencies.  
Source Selection Authority Affidavit, Oct. 23, 1997 at 2.  In short, 
we are unaware of any bar to an agency's decision to award to an 
offeror with a rating of marginal, and therefore we find no basis for 
OMNIPLEX's contention that the proposal was ineligible for award.  The 
presence of offeror B--and the fact that, at this juncture, offeror 
B's "acceptable" proposal priced below the funding limitation appears 
closer in line for award than does OMNIPLEX's proposal--leads us to 
conclude that OMNIPLEX lacks the direct economic interest necessary to 
pursue a bid protest.
4 C.F.R.  sec.  21.1(a); see Four Seas and Seven Winds Travel, Inc., supra.  
Accordingly, we deny the request for reconsideration.

With respect to the merits of OMNIPLEX's remaining protest issue, 
i.e., that the solicitation was defective for failure to advise 
offerors of the funding limitation, we deny the protest.  The 
pleadings here show that the agency had a 5-year funding limit for its 
Records Declassification Program.  Three of the offerors submitted 
proposals with evaluated costs below this level; four submitted 
proposals with evaluated costs above it.  In its supplemental protest 
on this issue, OMNIPLEX contends that "[b]y not fully informing 
offerors of the actual funding limitation, or at least of an estimated 
ceiling, the CIA misled offerors and deprived them of the opportunity 
to prepare proper, intelligent and fully-conforming proposals."[1]  
OMNIPLEX Supplemental Protest, Oct. 10, 1997, at 5.  

To the extent that OMNIPLEX is arguing that the funding limitation 
here was an unstated evaluation factor, we have held that such 
limitations are not evaluation factors within the meaning of the 
Federal Acquisition Regulation.  Energy and Envtl. Research Corp., 
B-261422, B-261422.2, Aug. 23, 1995, 95-2 CPD  para.  81 at 9.  In addition, 
there is no requirement that an agency include budgetary information 
in a solicitation.  Computer One, Inc.--Recon., B-249352.7, Sept. 27, 
1993, 93-2 CPD  para.  185 at 6; Charles Trimble Co., B-250570, Jan. 28, 
1993, 93-1 CPD  para.  77 at 3.  As in Trimble, the agency here has decided 
that its needs can be met within the amount budgeted, and the record 
shows that several offerors submitted initial proposals with proposed 
costs below the budgeted figure.  Id. at 4.

The request for reconsideration and the protest are denied.

Comptroller General
of the United States

1. Despite this language, in its final reply to the agency request for 
summary dismissal or denial OMNIPLEX argues that it "is not contending 
that the CIA had a legal obligation to disclose its funding limitation 
in the RFP for, indeed, no such obligation is imposed on agencies."  
OMNIPLEX Reply to Agency Request for Dismissal, Oct. 29, 1997, at 15.  
Instead, OMNIPLEX argues that the RFP did not reflect the agency's 
true needs, which OMNIPLEX describes parenthetically as calling for 
"award to the best 'technically acceptable' offeror within a certain 
price ceiling."  Id.  In our view, this is no different from an 
assertion that agencies must include budgetary information, which 
OMNIPLEX concedes is not the case.  Further, such limitations are 
inherent in every procurement, since all procurements are subject to 
some kind of budgetary ceiling.