BNUMBER:  B-280700 
DATE:  November 9, 1998
TITLE: Spectrum Sciences & Software, B-280700, November 9, 1998
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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:Spectrum Sciences & Software

File:     B-280700

Date:November 9, 1998

Hoke Smith, III, Esq., Powell & Strom, for the protester.
Lt. Col. Kevin J. Corcoran, Department of the Air Force, for the 
agency.
Charles W. Morrow, Esq., and James A. Spangenberg, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Exclusion of proposal from the competitive range is improper where the 
determination to exclude the proposal was based upon an admitted 
defective evaluation and it is not possible to determine that the 
proposal without the defective evaluation would not have been among 
the most highly rated proposals.

DECISION

Spectrum Sciences and Software, Inc. protests the exclusion of its 
proposal from the competitive range under request for proposals (RFP) 
No. F02604-98-R-0001, a total small business set-aside, issued by the 
Department of Air Force, Luke Air Force Base, Arizona, for operation 
and maintenance of Gila Bend Air Force Auxiliary Field and Barry M. 
Goldwater Range Complex.  Spectrum contends that the Air Force 
improperly evaluated its proposal, which resulted in its elimination 
from the competitive range.

We sustain the protest.

The RFP was issued on February 6, 1998, to obtain operations and 
maintenance services under a fixed-price contract for a 12-month base 
period with four 12-month options.  The services to be performed at 
Gila Bend field and Goldwater range complex include range operations, 
civil engineering, fire protection, security forces, logistics, 
lodging, air traffic control, meteorological, custodial, trash and 
refuse collection, environmental engineering, and range maintenance 
and communication-electronics.  RFP, Performance Work Statement  sec.  1.1.  

The RFP provided for the award to "be made on the basis of the lowest 
evaluated price of proposals meeting or exceeding the acceptability 
standards for non-cost factors."  RFP  sec.  M-999(a).  Technical 
acceptability was to be measured under the following criteria:  
Acknowledgement and Understanding of Contract Requirements, Past 
Performance History and Experience with Government Contracts of this 
Type and Magnitude, Contract Management, Management Plans and 
Programs, and Subcontracting Plan.  RFP  sec.  M-16C(a)(i).  

Nine proposals, including Spectrum's, were received in response to the 
RFP.  [DELETED].  A 21-member technical evaluation team (TET) 
evaluated the proposals using an adjectival rating scale.[1]   The TET 
determined the five lowest-priced proposals, including Spectrum's, 
were susceptible to being made technically acceptable.[2]  Technical 
Evaluation Summary at 1-2.  The TET also determined that the next 
three highest-priced proposals "could have been susceptible to being 
made technically acceptable with major proposal revisions," such that 
their prices would become even higher, and that the remaining proposal 
was unacceptable, and that all of these proposals were outside of the 
competitive range.  Id. at 2.       

Before making a competitive range determination, the Air Force 
conducted exchanges with the two [DELETED] offerors, including 
Spectrum because they "had a lot of" clarification requests (CR) and 
deficiency requests (DR), [DELETED].[3]  Id.  Each of these offerors 
was sent a list of clarification requests (CR) and deficiency requests 
(DR) related to their technical proposals.  Spectrum received 28 CRs 
and 9 DRs.  In evaluating these responses, the Air Force determined 
that Spectrum answered only 20 of the CRs and 3 of the DRs "well 
enough to demonstrate understanding."  Id.  The agency found:

     Manning shortages in the range tracking, security forces and fire 
     department functions are recurring areas of concern for the Air 
     Force.  In their clarifications, Spectrum maintained the 
     contention that they were staffed well enough.  However, Air 
     Force technical experts are able to demonstrate where manning is 
     deficient when they account for scheduled and unscheduled leaves, 
     travel times to the manned ranges, and protection of aircraft on 
     the ramp.  At no point in the clarifications did the offeror 
     acknowledge the possible need to increase manning or allude to 
     the resulting price adjustments an increase would necessitate.

Id.

The record further shows that other areas of concern with regard to 
Spectrum's proposal included its staffing for vehicle maintenance and 
its trash disposal approach.  Contracting Officer's Statement at 2.  
Spectrum's proposal was thus determined to be technically unacceptable 
and excluded from the competitive range on July 15.  Id. at 1.  The 
[DELETED] proposal was similarly found unacceptable after the 
exchanges and excluded from the competitive range.  Preliminary 
Narration of Contract Action at 6.

The competitive range was comprised of the three remaining proposals, 
which had been found susceptible to being made acceptable.  The Air 
Force sent each of the competitive range offerors a list of CRs and 
DRs related to their proposals, and conducted discussions with these 
offerors between July 17 and 20.  Following discussions and the 
receipt of revised proposals, the TET determined each competitive 
range proposal to be technically acceptable.  Id. 6-7.  

Meanwhile, Spectrum requested a pre-award debriefing that was held on 
July 22.  During the debriefing, the Air Force admitted that several 
of the areas of concern with regard to Spectrum's manning (e.g., in 
range tracking and vehicle maintenance) in fact met the contract 
requirements and that Spectrum's proposal should be considered 
acceptable in those areas.  Contracting Officer's Statement at 2.  
Nevertheless, the Air Force advised that the proposal failed to 
address the security requirement to provide a two-member alarm 
response team which rendered the proposal unacceptable.  The record 
evidences that this is the sole remaining reason that Spectrum's 
proposal should be considered unacceptable and excluded from the 
competitive range.  Contracting Officer's Statement at 3-5; Agency 
Memorandum of Law at 7-10.  

Spectrum protests that the Air Force improperly excluded the proposal 
from the competitive range based upon the Air Force's admitted 
defective evaluation of its proposal.[4]  Spectrum claims that the 
remaining evaluated proposal deficiency resulted from a misevaluation 
of its security manning and that in any case this was relatively a 
minor problem that could be easily addressed in discussions.  

FAR  sec.  15.306(c) provides that:

     Agencies shall evaluate all proposals . . . and, if discussions 
     are to be conducted, establish the competitive range.  Based on 
     the ratings of each proposal against all evaluation criteria, the 
     contracting officer shall establish a competitive range comprised 
     of all the most highly rated proposals, unless the range is 
     further reduced for purposes of efficiency . . . .

The determination of whether a proposal is in the competitive range is 
principally a matter within the reasonable exercise of discretion of 
the procuring agency, and in considering an agency's evaluation of 
proposals and subsequent competitive range determination we will not 
evaluate the proposals anew in order to make our own determination as 
to their acceptability or relative merits.  However, we will examine 
the record to determine whether the agency's evaluation was fair and 
reasonable and consistent with the evaluation criteria, and in 
particular, consider whether the documentation and analysis supports 
the agency's technical conclusions.  See Dynalantic Corp., B-274944.2, 
Feb. 25, 1997, 97-1 CPD  para.  101 at 4.

The record indicates that the agency established the competitive range 
on the basis that the three proposals included in the competitive 
range were considered the most highly rated proposals and that 
Spectrum's proposal was evaluated as unacceptable and therefore not 
among the most highly rated proposals.  The record shows that at the 
time of this evaluation, the TET determined a variety of areas in 
Spectrum's proposal that were unacceptable primarily because of 
perceived manning shortages.  The agency now admits that its 
evaluation of Spectrum's proposal that served as the basis for the 
competitive range determination was defective because several of 
concurrently stated reasons for finding Spectrum's proposal 
unacceptable were unsupported, and that only the security aspect of 
Spectrum's proposal is now regarded as unacceptable.  None of the 
proposals included in the competitive range was found to be 
technically acceptable, but all were rated susceptible of being made 
acceptable (the same rating that was initially assigned to Spectrum's 
proposal).  Thus, we cannot find from this record that Spectrum would 
not have been among the most highly rated proposals on the 
procurement, which contemplated award to the low-priced acceptable 
offeror.  [DELETED].

The Air Force nevertheless argues that the security deficiency 
contained in Spectrum's proposal, including its answer during 
exchanges, would have required a major revision to the proposal in 
order for it to be considered acceptable.  Agency's Memorandum of Law 
at 5-6.  The agency asserts that Spectrum did not recognize or 
understand that it was required to provide a two-person external 
security response team unit that could respond within 5 minutes to 
priority emergencies, as well as a two-person internal alarm response 
team dedicated to a restricted area to respond, within 5 minutes, to 
alarms or incidents within the restricted area.  Contracting Officer's 
Statement at 3-4.  Spectrum responds that, although it believes that 
its proposal was acceptable with regard to the security area, to 
address the agency's evaluated security requirements would only have 
required an increase of 2 staff personnel to its current 22-member 
security force to perform the restricted area security in addition to 
the roving external security team, and this cannot reasonably be 
considered a major revision or rewrite of its proposal.  Protester's 
Opposition to the Memorandum of Law at 1-3.  Based on our review, it 
is not apparent that Spectrum's satisfactory addressing of the 
security problem in its proposal required a major revision or 
rewrite.[5]  In any case, as indicated, we cannot determine on this 
record that Spectrum's proposal would not have been among the most 
highly rated proposals had it been properly evaluated.  

We recommend that the agency make a new competitive range 
determination that includes Spectrum's proposal.  We also recommend 
that Spectrum be reimbursed the cost of filing and pursuing its 
protest, including reasonable attorneys' fees.  4 C.F.R. 21.8(d)(1) 
(1998).  The protester should submit its certified claim for such 
costs, detailing the time expended and the costs incurred, directly to 
the contracting agency within 60 days of receiving this decision.

The protest is sustained. 

Comptroller General
of the United States        

1. The possible ratings were acceptable, unacceptable, and susceptible 
to being made acceptable.

2. This rating is defined in the technical evaluation plan as follows:  
"[f]ails to meet minimum evaluation standards.  Deficiencies require 
minor revisions to the proposal to be made acceptable."

3. Pursuant to Federal Acquisition Regulation (FAR)  sec.  15.306(b) (FAC 
97-02), an agency may communicate with offerors, which are defined as 
exchanges between the government and offerors, after receipt of 
proposals, leading to establishment of the competitive range.  These 
communications may enhance the government's understanding of the 
proposal but may not be used to cure proposal deficiencies or material 
omissions, materially alter the technical or cost elements of the 
proposal, and/or otherwise revise the proposal.  FAR  sec.  15.306(b)(2).

4. The agency has withheld performance pending disposition of this 
protest.

5. We note that the argument that this deficiency would have required 
a major revision to the proposal is one the agency developed to defend 
excluding the proposal from the competitive range at the debriefing 
and in response to the protest.  There is no contemporaneous 
evaluation documentation that supports a determination that this 
evaluated deficiency in Spectrum's proposal was, in itself, so 
significant as to justify Spectrum's elimination from the competitive 
range.  While we consider the entire record, including statements and 
arguments made in response to a protest in determining whether an 
agency's procurement action is supportable, we accord greater weight 
to contemporaneous source selection materials rather than judgments 
made in response to protest contentions.  Boeing Sikorsky Aircraft 
Support, B-277263.2, B-277263.3, Sept. 29, 1997, 97-2 CPD  para.  91 at 15.