BNUMBER:  B-278904.2 
DATE:  April 2, 1998
TITLE: McNeil Technologies, Inc., B-278904.2, April 2, 1998
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Matter of:McNeil Technologies, Inc.

File:     B-278904.2

Date:April 2, 1998

James L. McNeil for the protester.
Gena E. Cadieux, Esq., Patricia D. Graham, Esq., and Joseph A. 
Lenhard, Esq., Department of Energy, for the agency.
Jacqueline Maeder, Esq., and Paul Lieberman, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest that agency failed to award a contract to a small 
disadvantaged business in derogation of solicitation award provision 
is denied where the solicitation language addressing awards indicated 
only that the agency contemplated the award of contracts to a small 
business, a small disadvantaged business, and a large business, 
without making awards to all three mandatory.   

DECISION

McNeil Technologies, Inc. protests the Department of Energy's (DOE) 
failure to award the firm a contract under request for proposals (RFP) 
No. DE-RP01-97EI30000, issued by DOE for technical services for the 
Energy Information Administration (EIA).[1]   The protester contends 
that, because its proposal was the highest-ranked one submitted by a 
small disadvantaged business (SDB), the agency was required to award 
McNeil a contract in order to comply with the solicitation's award 
terms. 

We deny the protest.

DOE issued an omnibus RFP, referred to as the EIA Omnibus Procurement 
(EOP), via the Internet on July 7, 1997, along with a 27-page document 
titled "Answers Regarding Questions to Draft RFP," which provided 
responses to more than 200 questions that had been submitted 
concerning a previously disseminated draft solicitation.[2]  Under the 
EOP, DOE combined technical services that were currently being 
performed for EIA under 11 separate support services contracts.  The 
EOP sought separate proposals for three functional areas/contract line 
item numbers (CLIN) including information management and product 
production support services (CLIN 001); energy analysis and 
forecasting (EAF) support services (CLIN 002); and information 
technology support services (CLIN 003).  The EOP provided for multiple 
indefinite quantity awards with awardees becoming eligible for 
post-award competition for task orders for a 3-year base period with 
one 2-year option.  Since each contract will have cost reimbursement 
and fixed-price provisions, task orders are to be issued on both a 
cost-plus-fixed-fee and a fixed-price basis.  DOE issued two 
amendments to the RFP.  

Item 22 of the RFP cover sheet stated that the procurement was being 
conducted under full and open competition, without indicating that it 
was subject to any restrictions or set-asides.  At section L.22, 
entitled "Number of Awards," the RFP stated, in relevant part:  "The 
Government contemplates individual awards for at least one small 
business, at least one small/disadvantaged business, and at least one 
large business under each functional area of the EOP solicitation."  
In a solicitation cover letter, DOE stated:
 
     To promote small, small/disadvantaged business participation
     under the EOP, the Government anticipates at least one
     (but not limited to one) contract award to a small disadvantaged
     business, and at least one (but not limited to one) award to a
     small business under each functional area.  Also, large 
     businesses will be required to submit subcontracting plans
     pursuant to [Federal Acquisition Regulation] FAR 52.219-14.
     The basis of award to small/small disadvantaged (as well
     as large) business is best value.

The cover letter also expressly provided that it was not an integral 
part of the RFP and that, in the event of a conflict between the cover 
letter and the RFP, the RFP would control.

In the July 7 "Answers Regarding Questions to Draft RFP," in response 
to a question concerning the number of contracts to be awarded, the 
agency had stated that:

     EIA will award a minimum of 3 awards to technically
     qualified firms in each functional area:  at least one
     to a qualified 8(a), at least one to a qualified SB, and
     at least one to a technically competent large business.

At section L.15, the RFP stated that DOE would "award contracts 
resulting from this solicitation to the responsible offerors whose 
offer conforming to the solicitation will be the most advantageous to 
the Government, cost or price and other factors, specified elsewhere 
in this solicitation, considered," and advised that DOE intended to 
award on the basis of initial offers without discussions.  Section 
M-1(B) reiterated that award would be made to the offerors whose 
conforming proposals were determined to be most advantageous to the 
government.  Section M-3 of the RFP identified the following non-cost 
evaluation factors:

     1.  Business management, technical and organizational approach
     2.  Past and present experience
     3.  Corporate resource management
     4.  Videotape response/presentation
     5.  Past performance

Business management, technical and organizational approach was 
weighted 50 percent of the evaluation; past and present experience and 
corporate resource management were each weighted 20 percent; the video 
presentation was weighted 10 percent; and past performance was 
adjectivally rated.  Price proposals were to be evaluated as to 
reasonableness.    

Six offerors, including McNeil, submitted proposals on CLIN 002, EAF 
support services, under which the contractors are to provide analytic, 
modeling, and documentation support in the areas of general analysis, 
analytical/statistical analysis, model development, model 
documentation, and archiving activities and non-technical analysis and 
evaluation.  Members of the technical evaluation committee (TEC) 
individually evaluated each proposal and, in internal discussions, 
reached a consensus on the strengths and weaknesses of each proposal 
and assigned each a point score of 0, 2, 5, 8, or 10 under each 
evaluation criterion.[3]  Numerical ratings were multiplied by the 
weight for the factors and the scores were then totaled.  A proposal 
that received scores of 10 on each evaluation factor would receive a 
maximum point score of 1,000.  Past performance was assigned an 
adjectival rating of "excellent," "good," "fair" or "neutral," "poor," 
or "unsatisfactory."  
The source selection official (SSO) determined that one large business 
concern, Science Applications International Corporation (SAIC) and one 
small business concern, Decision Analysis Corporation (DAC) 
demonstrated the greatest technical understanding in the area of EAF 
support services.  Because of the large difference in technical merit 
between these two proposals and the remaining proposals, the SSO also 
determined that it was advantageous for the agency to select only 
these two top offerors for award.  McNeil was given a point score of 2 
for its videotape presentation and scores of 5 for the other three 
evaluation categories, for a total of 470 points, making McNeil's 
proposal the third-highest ranked of the six proposals.  The 
protester's past performance was rated "good" and its proposed cost 
was second low.  Technical scores, adjectival ratings for past 
performance, and evaluated ceiling prices[4] for the awardees' and the 
protester's proposals were as follows:

Offeror[5]Business Management Technical/CorporatePast 
                                            PerformanceEvaluated Price

SAIC      895                Good           $11,965,418

DAC       825                Good           $15,392,544

McNeil    470                Good           $15,261,480
On December 17, DOE notified McNeil that it had not been selected for 
award and, after a debriefing, McNeil filed this protest with our 
Office.

McNeil takes the position that the language of the RFP, the cover 
letter, and DOE's "Answers Regarding Questions to Draft RFP" requires 
DOE to make an award to at least one SDB under each of the three 
functional areas.  The protester relies primarily on the language in 
DOE's "Answers Regarding Questions to Draft RFP" which states that DOE 
"will award" to at least one small disadvantaged business in each 
functional area.  McNeil argues that this language, in conjunction 
with the RFP language and the cover letter language, can only be 
interpreted to mean "that there definitely will be a small 
disadvantaged business award in each of the three functional areas of 
the [s]olicitation."  Because McNeil's proposal was never found to be 
technically unqualified and is ranked third overall and highest for an 
SDB among all offerors on EAF support services, McNeil argues that it 
was entitled to the award of a contract for CLIN 002.  

The agency takes the position that McNeil is misconstruing the RFP 
language.  DOE asserts that it is inappropriate for McNeil to rely on 
the July 7 "Answers Regarding Questions to Draft RFP" because this 
document was not part of the RFP and the answers provided were never 
incorporated into the subsequently issued RFP.  Additionally, DOE 
argues that the language at section L.22 of the RFP which states that 
the government "contemplates" individual awards for at least one small 
business, at least one SDB and at least one large business, as well as 
the language in the RFP cover letter stating that the agency 
"anticipates" multiple awards to a small business and to an SDB under 
each functional area simply indicate that DOE may award to a small 
business, an SDB, and a large business, but that the language does not 
require such awards.  DOE also argues that McNeil's interpretation 
ignores section M.1(B), which states that awards will be based on best 
value, from which it follows that, where a proposal does not represent 
the best value to the government, award to the entity that submitted 
the proposal is not required regardless of the offeror's size or 
status.  

Evaluation and award in negotiated procurements are required to be 
made in accordance with the terms of the RFP.  Industrial Data Link 
Corp., B-248477.2, Sept. 14, 1992, 92-2 CPD  para.  176 at 4.  Where a 
dispute exists as to the meaning of solicitation language, we will 
resolve the matter by reading the solicitation as a whole and in a 
manner that gives effect to all provisions of the solicitation.  Pro 
Constr., Inc., B-272458, Oct. 10, 1996, 96-2 CPD  para.  141 at 3; Lithos 
Restoration, Ltd., 71 Comp. Gen. 367, 370 (1992), 92-1 CPD  para.  379 at 4.  
To be reasonable, an interpretation must be consistent with the 
solicitation when read as a whole and in a reasonable manner.  Lithos 
Restoration, Ltd., supra.  Applying this standard here, we conclude 
that DOE's determination to award contracts to the two offerors whose 
proposals were evaluated as presenting the best value to the 
government is consistent with the only reasonable reading of the RFP 
evaluation and award scheme.  

McNeil's interpretation of the RFP award statement is untenable.  The 
language at section L.22 of the RFP simply states that the agency 
"contemplates" making awards to a small business, an SDB, and a large 
business.  Similarly, the RFP cover letter states that DOE 
"anticipates" awards to a small business, an SDB, and a large 
business.  Nothing in this language commits or requires the agency to 
award contracts to these three types of firms, particularly in view of 
the fact that the RFP otherwise indicates that full and open 
competition is anticipated and does not provide for any sort of 
set-aside.  The word "contemplates" means simply to have in view as 
probable or as an end or intention; that is to say, it signifies that 
an outcome is being considered without mandating the imposition of a 
definite outcome.  Similarly, "anticipates" means to give advance 
thought to, or to expect.  In short, the language of the RFP and its 
cover letter are consistent:  both signify that the agency had an 
expectation that it would award contracts to each of the three types 
of businesses, without making such awards mandatory.    

We agree with DOE that the "Answers Regarding Questions to Draft RFP," 
which contains the language most heavily relied upon by McNeil, lacks 
probative value because the document, which was not part of the RFP, 
was never incorporated by amendment into the RFP, and uses language 
which is not consonant with the award language actually contained in 
the RFP.  In short, McNeil's interpretation of the RFP award 
requirement is unfounded; the agency was not obligated to make an 
award to McNeil simply because McNeil submitted the highest ranked SDB 
proposal.

The protest is denied.

Comptroller General 
of the United States
  
1. EIA is an independent statistical and analytical agency within DOE. 

2. The agency posted a draft solicitation on the Internet on April 17, 
1997.

3. As relevant here, a score of 5 reflected a proposal which appeared 
capable of meeting the RFP requirements and had few significant 
strengths or significant weaknesses.  A score of 8 reflected a 
proposal evidencing very good responses showing a high probability of 
meeting the RFP's requirements and had significant strengths and few 
significant weaknesses.  

4. Evaluated ceiling prices were calculated by doubling an offeror's 
proposed price for the functional area.

5. The technical scores for the other three offerors were 275, 190, 
and 175; past performance ratings were "good" for all three offerors; 
and prices ranged from approximately $16,000,000 to $28,000,000.