BNUMBER:  B-280521; B-280521.5 
DATE:  October 14, 1998
TITLE: Bionetics Corporation, B-280521; B-280521.5, October 14, 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:Bionetics Corporation

File:     B-280521; B-280521.5

Date:October 14, 1998

Del S. Dameron, Esq., and Jeffrey P. Hildebrant, Esq., McKenna & 
Cuneo, for the protester.
David R. Johnson, Esq., Kathleen C. Little, Esq., and Robert J. 
Rothwell, Esq., McDermott, Will & Emery, for Johnson Controls World 
Services, Inc., an intervenor.
John E. Lariccia, Esq., Martin F. McAlwee, Esq., and Marian E. 
Sullivan, Esq., Department of the Air Force, for the agency.
Linda C. Glass, Esq., and Paul I. Lieberman, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Allegation that contracting agency conducted misleading discussions 
which caused protester [deleted] is denied where the record shows that 
the protester was properly questioned about apparent shortcomings in 
its approach to meeting agency requirements with respect to 
processing, in response to which the protester made a business 
decision to [deleted]. 

DECISION

Bionetics Corporation protests the award of a contract to Johnson 
Controls World Services, Inc. (JCWS) under request for proposals (RFP) 
No. F08650-98-R-0013, issued by the Department of the Air Force for 
certain visual information end products and technical services in 
support of pre-launch, launch, post-launch, and non-launch operations, 
known as the Visual Information Technical Contract (VITC).  Bionetics 
asserts that the agency improperly and inconsistently downgraded 
Bionetics's initial proposal on the basis that the [deleted] presented 
problems with respect to required facility clearances and a 4-hour 
delivery requirement, while JCWS's proposal was not downgraded for 
[deleted], and that the agency's criticism of Bionetics's initial 
proposal during discussions misled Bionetics into proposing in its 
best and final offer (BAFO) to perform this work [deleted], thereby 
substantially increasing Bionetics's evaluated price.  In a 
supplemental protest, Bionetics also asserts that JCWS engaged in 
impermissible "bait and switch" practices with respect to certain key 
personnel identified in its BAFO.  

We deny the protest.

The RFP, issued on May 20, 1997, contemplated the award of a 
fixed-price, indefinite-delivery, indefinite-quantity, labor-hour 
contract for a base period with four 1-year options.  The contract is 
to obtain visual imaging end products for launch and non-launch events 
for the 45th Space Wing and NASA's Kennedy Space Center.  Offerors 
were to propose a fixed price per event for Basic Launch Image 
Acquisition Packages (camera/equipment setups and operations for 
missile launches and shuttle launches and landings), and Launch Image 
Acquisition Services (covering launches, landings, slips and scrubs).  
Additionally, offerors were to propose a price per hour for over and 
above image acquisition requirements (requested still, motion picture, 
and video coverage for non-launch activities and government equipment 
maintenance support).  Film, digital images, and video processing and 
print products were to be proposed on a schedule identifying 
additional products with prices for each product.  RFP  sec.  B.  The VITC 
also contained five separately priced contract data requirements 
lists.  

The RFP provided for a best value award to be determined by an 
integrated assessment of the cost criterion, the specific criteria, 
assessment criteria, proposal risk, performance risk, and general 
considerations.  RFP  sec.  M-2.a.  The RFP listed as the evaluation 
criteria technical/management factors (consisting of project 
management and image acquisition/processing/end products), cost, and 
general considerations.  All technical evaluation factors, when 
combined, were approximately equal in value to cost.  General 
considerations were of lesser importance but were to be an important 
consideration in the award decision.  RFP  sec.  M-2.a.  The RFP also 
provided that proposals would be evaluated for proposal risk, which 
would involve an assessment of the risk associated with the offeror's 
proposed approach to accomplish the requirements.  RFP  sec.  M-2.d.  
Proposals were also to be evaluated for performance risk, which would 
involve an assessment of the probability of the offeror successfully 
accomplishing the proposed effort based on the offeror's demonstrated 
relevant present and past performance.[1]  RFP  sec.  M.e.  The RFP further 
provided that for the purpose of evaluating proposals, rental charges 
for the use of non-mandatory government-owned facilities and equipment 
which the contractor proposed to use would be added to the proposal 
price.  RFP  sec.  M-900.  

Five initial proposals were received by the June 20, 1997 closing 
date.  After evaluation of the initial proposals, the Air Force 
determined that all proposals contained informational deficiencies and 
format errors.  Amendment No. 0003 was issued to clarify common 
problem areas and allow offerors an opportunity to revise their 
proposals.  Amendment No. 0003 also added clause M-901, which 
established a revised methodology for computing the total evaluated 
price for award purposes.

Each offeror submitted a revised proposal by the September 19 closing 
date.  Each revised proposal was evaluated for performance and 
proposal risk in addition to being evaluated under a color/adjectival 
rating scheme for each of the evaluation factors.[2]  After evaluation 
of the revised proposals, a competitive range determination was made.  
Bionetics's proposal was initially excluded from the competitive range 
on the basis that it did not reasonably address the essential 
requirements of the RFP and that the extent and nature of the 
deficiencies were such that to remedy them would require the 
submission of virtually an entirely new proposal.  Bionetics protested 
its exclusion to our Office, whereupon the agency took corrective 
action by including Bionetics in the competitive range. 

Discussions were held with the four competitive range offerors, 
including Bionetics, and numerous clarification requests and points 
for negotiations were issued.  On May 29, 1998, a request for BAFOs 
was issued to the competitive range offerors.  BAFOs were received 
from all four offerors and were evaluated.  Bionetics received a green 
(acceptable) rating and low performance risk rating in both the 
project management and image acquisition areas.  JCWS received a blue 
(exceptional) rating and low performance risk ratings in the same 
evaluation areas.  Bionetics's total evaluated price was [deleted] and 
JCWS's price was $134 million.  Another offeror, [deleted], also 
received a blue rating in both areas with low performance risk 
ratings, and had a total evaluated price of, [deleted].[3]  Three 
competitive range proposals, including those of JCWS, RMS, and another 
offeror (not Bionetics), were considered to represent significant 
technical strengths and low proposal risks, and were rated essentially 
technically equal (and therefore all superior to Bionetics's 
proposal).  Because JCWS's price was significantly lower than that of 
the other offerors, the source selection authority (SSA) determined, 
on June 19, that JCWS offered the best overall value to the government 
and contract award was made to JCWS on June 26.  Bionetics was 
provided a debriefing on June 30 and this protest was subsequently 
filed on July 6.

Bionetics argues that the agency misled it into proposing in its BAFO 
to perform certain work [deleted], which resulted in it being assessed 
a [deleted], substantially increasing its evaluated price.  Bionetics 
contends that, based on the agency's determination and advice that its 
initial proposal to perform [deleted], and to [deleted], constituted 
substantial technical drawbacks, Bionetics corrected these drawbacks 
in its BAFO by [deleted], which increased Bionetics's evaluated price 
by [deleted].  Bionetics also suggests that the Air Force treated it 
and JCWS unequally because the agency failed to evaluate JCWS's 
proposed use of [deleted]. 

In negotiated procurements, procuring agencies are generally required 
to conduct meaningful discussions.  In order for discussions to be 
meaningful, sufficient information must be furnished to offerors in 
the competitive range as to the areas in which their proposals are 
believed to be weak so that the offerors have a reasonable opportunity 
to address those areas of weakness which could have a competitive 
impact.  The government does not satisfy its obligation by misleading 
an offeror or by conducting prejudicially unequal discussions.  Lucas 
Place, Ltd., B-238008, B-238008.2, Apr. 18, 1990, 90-1 CPD  para.  398 at 4.  
Here, we do not find that the discussions were improper or misleading.  

The record shows that Bionetics was downgraded initially because it 
relied on government-provided support not listed in the RFP, such as 
[deleted].  In addition, Bionetics's proposal described [deleted] but 
failed to provide their commitments to and capabilities for VITC.  The 
proposal also failed to commit to 4-hour and 24-hour delivery 
requirements.  Further, Bionetics improperly proposed to rely on 
[deleted] and proposed an improper [deleted] during initial contract 
performance.  Agency Report at Tab 7.  During discussions, Bionetics 
was asked to explain "how still and motion picture film processing 
will be performed to ensure that end products will be delivered to 
customers in the required timeframes."  Bionetics Deficiency 
Report/Clarification Request (DR), DR-2 at 1.  The agency also advised 
Bionetics that its proposal failed to demonstrate that 4-hour and 
24-hour delivery requirements could be unconditionally met.  Bionetics 
was also informed that it failed to "propose a proper procedure for 
handling and processing classified film in the event [deleted]."[4]  
DR-5 at 1.

JCWS's proposal, on the other hand, demonstrated in detail how JCWS 
could meet the 4-hour and 24-hour delivery requirements, and though 
JCWS also proposed use of [deleted], the agency concluded that JCWS 
integrated the work processing both by quantity and technology.  For 
example, for routine and priority jobs [deleted], JCWS proposed a 
courier service to transport raw imagery to the laboratories and 
either wait at or return to the laboratories as necessary to meet 
deliver schedule.  JCWS proposed to perform the priority processing of 
launch and non-launch still and video requests at [deleted] during 
periods of severely congested traffic.  JCWS also explained how the 
processing capabilities of [deleted] would enable it to meet the 
delivery requirements.  While Bionetics attempts to discredit JCWS's 
delivery solutions, the record shows that JCWS provided a very 
detailed solution that the evaluators reasonably concluded would 
result in timely delivery.  The fact that Bionetics disagrees with the 
evaluators' conclusions does not make the decision unreasonable.  
Accordingly, we conclude that neither the evaluation nor the conduct 
of discussions regarding the proposals evidenced improper unequal 
treatment of the two offerors.

In response to the agency's discussion questions raising the concerns 
set out above, Bionetics chose to change its proposed technical 
strategy of [deleted].  In making this change to its proposals, 
Bionetics made a business decision.   Bionetics was not misled into 
doing so during discussions; Bionetics was properly advised of its 
proposal deficiencies and elected to correct these deficiencies with a 
solution that, while acceptable, raised its evaluated price and caused 
it to be less highly rated than those of the awardee and other 
offerors.  Accordingly, the record provides no basis to conclude that 
Bionetics was afforded improper or misleading discussions.  

Since we conclude that Bionetics was not misled during discussions and 
its proposal was properly evaluated, Bionetics is not an interested 
party to maintain its other protest issues concerning the awardee's 
proposal.  Under the bid protest provisions of the Competition in 
Contracting Act of 1984, 31 U.S.C.  sec.  3551-56 (1994), only an 
"interested party" may protest a federal procurement.  That is, a 
protester must be 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 the contract.  4 C.F.R.  sec.  21.0(a) (1998).  
Determining whether a party is sufficiently interested involves 
consideration of a party's status in relation to a procurement.  Where 
there are intermediate parties that have a greater interest than the 
protester, we generally consider the protester to be too remote to 
establish interest within the meaning of our Bid Protest Regulations.  
Panhandle Venture V; Sterling Inv. Properties, Inc.--Recon., 
B-252982.3, B-252982.4, Sept. 1, 1993, 93-2 CPD  para.  142 at 2.  The Law 
Co., B-248631, Sept. 10, 1992, 92-2 CPD  para.  165 at 4.  A protester is 
not interested if it would not be in line for award if its protest 
were sustained.  Abre Enters., Inc., B-251569.2, Mar. 16, 1993, 93-1 
CPD  para.  239 at 4.  

Here, Bionetics lacks the direct economic interest necessary to 
qualify as an interested party to maintain its other issues.  As 
explained above, Bionetics's proposal received a green (acceptable) 
rating and had the third highest evaluated price.  The proposal of 
another offeror, [deleted], was rated blue (exceptional) and its total 
evaluated price was lower than Bionetics's.  Because Bionetics has not 
protested the evaluation of [deleted] higher-rated, lower-priced 
proposal, even if we were to sustain the protest with respect to the 
awardee's proposal, Bionetics would not be next in line for award.  
Accordingly, Bionetics is not an interested party to protest JCWS's 
evaluation and award.

The protest is denied.

Comptroller General
of the United States 

1. The possible evaluation ratings for proposals risk and performance 
risk were high, moderate, and low.

2. The color/adjectival ratings were:  blue/exceptional, 
green/acceptable, yellow/marginal, and red/unacceptable.  Memorandum 
of Law at 5.

3. Bionetics in its protest submissions was under the mistaken belief 
that [deleted] total evaluated price was approximately [deleted].  
However, the agency report explains that there was an error in 
calculating [deleted] evaluated price and the actual figure is 
approximately [deleted].  Agency Report at Tab 8.

4. For subcontractors unable to obtain required clearances before the 
contract start date, Bionetics proposed to provide cleared personnel 
to process the film in the subcontractor's uncleared facility until 
the necessary clearances could be obtained.  This was considered an 
improper procedure for processing classified film.