TITLE:  Intellectual Properties, Inc., B-280803.2, May 10, 1999
BNUMBER:  B-280803.2
DATE:  May 10, 1999
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Intellectual Properties, Inc., B-280803.2, May 10, 1999

Decision

Matter of: Intellectual Properties, Inc.

File: B-280803.2

Date: May 10, 1999

John C. McIntosh and Robert G. McIntosh for the protester.

William S. Zanca, Esq., and Maj. Gerald Brown, Ballistic Missile Defense
Organization, for the agency.

John L. Formica, Esq., and James Spangenberg, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Agency's determination not to award the protester phase II funding for a
project proposed under the Department of Defense Small Business Innovation
Research program on the basis that the proposal is not innovative and lacks
technical merit was not reasonably justified where the contemporaneous
documentation references only the negative comments of the evaluators, and
neither the contemporaneous documentation nor the arguments, explanations,
and testimony in the record adequately explain the basis for the
determination in light of the numerous positive comments made by the
evaluators about the proposal's innovativeness and technical merit.

DECISION

Intellectual Properties, Inc. (IPI) protests the Ballistic Missile Defense
Organization's (BMDO) determination not to award it phase II funding for a
project IPI proposed under the Department of Defense (DOD) Small Business
Innovation Research (SBIR) program. IPI contends that its proposal to
perform research on "Passive Multistatic Hitchhiking Array for Search and
Track" was improperly evaluated.

We sustain the protest.

The SBIR program is conducted pursuant to the Small Business Innovation
Development Act, 15 U.S.C. sect. 638 (1994 & Supp. II 1996), which requires
certain federal agencies to reserve a portion of their research and
development funds for awards to small businesses. The program is made up of
three phases.

The program description set forth in the solicitation provided that "[p]hase
I is to determine, insofar as possible, the scientific, technical, and
commercial merit and feasibility of ideas submitted under the SBIR program."
DOD Fiscal Year 1997 SBIR Program Solicitation 97.1 at 1. The solicitation
added with regard to phase I that "[p]roposals should concentrate on that
research or research and development which will significantly contribute to
proving the scientific, technical, and commercial feasibility of the
proposed effort, the successful completion of which is a prerequisite for
further DOD support in Phase II." Id.

Firms that receive phase I awards may submit proposals for further
development work under phase II of the SBIR program. The solicitation's
program description provided that "[s]ubsequent Phase II awards will be made
to firms on the basis of results of their Phase I effort and the scientific,
technical, and commercial merit of the Phase II proposal." Id.

Phase III contemplates that non-SBIR funds will be used to pursue commercial
applications of research and development. 15 U.S.C. sect. 638(e)(4)(C);
Microexpert Sys., Inc., B-233892, Apr. 13, 1989, 89-1 CPD para. 378 at 1.
Specifically, the program description on page 1 of the solicitation stated
with regard to phase III that "[u]nder Phase III, the small business is
expected to use non-federal capital to pursue private sector applications of
the research or development."

Section 4.3 of the solicitation set forth the following evaluation criteria
for phase II proposals:

  a. The soundness and technical merit of the proposed approach and its
     incremental progress toward topic or subtopic solution.
  b. The potential for commercial (government or private sector) application
     and the benefits expected to accrue from this commercialization.
  c. The adequacy of the proposed effort for the fulfillment of requirements
     of the research topic.
  d. The qualifications of the proposed principal/key investigators
     supporting staff and consultants. Qualifications include not only the
     ability to perform the research and development but also the ability to
     commercialize the results.

IPI received a phase I award for its proposal submitted under the BMDO topic
entitled "sensors," and subsequently submitted a proposal seeking phase II
funding.

The record of the agency's initial evaluation of IPI's phase II proposal
consisted of two completed evaluation forms. One of the evaluators
recommended the acceptance of IPI's phase II proposal for funding, and the
other evaluator recommended the rejection of IPI's proposal. IPI was
subsequently informed by letter from the cognizant BMDO Program Manager that
its phase II proposal had not been approved for funding.

After requesting and receiving a debriefing, IPI filed a protest with our
Office, arguing that the agency did not properly apply the evaluation
criteria stated in the SBIR program solicitation in determining not to fund
IPI's phase II proposal. Specifically, IPI argued that BMDO's decision not
to fund IPI's proposal was based solely on IPI's lack of private sector
funding for its phase II proposal, rather than a reasoned evaluation of
IPI's proposal under the criteria set forth in the SBIR program
solicitation.

In Intellectual Properties, Inc., B-280803, Nov. 19, 1998, 98-2 CPD para. 115,
we sustained IPI's protest, concluding that the agency's reliance on IPI's
lack of private sector funding for its phase II proposal as the primary
basis for the agency's determination not to fund IPI's proposal, without
consideration of whether there were other indicators of commercial potential
for IPI's proposal, was inconsistent with the terms of the solicitation. We
also rejected the agency's argument, based upon a reevaluation of IPI's
phase II proposal prepared during the course of the protest, that IPI was
not prejudiced by the flawed evaluation because the reevaluation assertedly
showed that IPI's proposal lacked technical merit. We were not persuaded by
the agency's reevaluation because it was prepared in the heat of the
adversarial process and justified the rejection of IPI's proposal on an
entirely different basis than that previously asserted, and thus may not
have represented the fair and considered judgment of the agency. We
recommended that the agency reevaluate IPI's phase II proposal in a
reasonable manner consistent with the evaluation criteria set forth in the
solicitation, and reconsider whether IPI's phase II proposal should be
funded.

In response to our recommendation, the agency reevaluated IPI's phase II
proposal. In this regard, the BMDO Program Manager forwarded IPI's proposal
and an evaluation form to be completed to 22 individuals in BMDO and other
DOD activities who have radar expertise and have previously supported BMDO's
SBIR program in the evaluation of radar technology proposals. Agency Report,
Tab 12, Declaration of the Program Manager, at 1-2. The evaluation form
includes a number of questions, and provides spaces for the evaluator to
respond to the questions as well as spaces for the evaluator to recommend
the acceptance or rejection of the proposal.1[1]

(1) How does the technology support BMDO?
(2) What (and how much) is the novelty?
(3) Did Phase 1 succeed?
(4) What technology will BMDO programs be able to leverage during/after
Phase 2?
(5) What's the future market potential and the firm's market attitude?

Agency Report, Tab 9. Five of the 22 individuals responded to the agency's
request, with four evaluators recommending the conditional acceptance of
IPI's phase II proposal for funding, and one evaluator recommending the
rejection of the proposal.

The BMDO Program Manager considered the five new evaluations, as well as the
two evaluations that had been completed during the agency's initial
consideration of IPI's phase II proposal, and again determined that IPI's
proposal should not be funded because IPI's phase II proposal was not
innovative, in that it duplicated previous research efforts, and lacked
technical merit. Agency Report, Tab 11, Letter from the Program Manager to
IPI (Jan. 21, 1999). After being informed by the agency that its phase II
proposal had again been rejected, IPI filed this protest.

IPI first protests that the reevaluation of its entire proposal as well as
consideration of the results of that reevaluation was precluded by our
Office's prior decision, where we found the agency's reevaluation of the
technical merits of IPI's phase II proposal unpersuasive because, in part,
it was prepared in the heat of the adversarial process. Protest at 4.

The details of implementing our protest decision recommendations for
corrective action are within the sound discretion and judgment of the
contracting agency. DynaLantic Corp., B-274944.5, Aug. 25, 1997, 97-2 CPD
para. 75 at 4. Our Office will not question an agency's ultimate manner of
compliance, so long as it remedies the procurement impropriety that was the
basis for the decision's recommendation. QuanTech, Inc., B-265869.2, Mar.
20, 1996, 96-1 CPD para. 160 at 2. For example, an agency may conduct a new
evaluation of proposals where the record shows that the agency made the
decision to reevaluate proposals in good faith, that is, without the
specific intent of changing a particular offeror's technical rating or
avoiding an award to a particular offeror. See PRC, Inc., B-233561.8,
B-233561.9, Sept. 29, 1992, 92-2 CPD para. 215 at 3.

We note that the reference in Intellectual Properties, Inc., supra and other
decisions of our Office to the "heat of an adversarial process" applies only
to that period in time where our Office is actively considering a bid
protest and has yet to render a decision. As explained in Boeing Sikorsky
Aircraft Support, B-277263.2, B-277263.3, Sept. 29, 1997, 97-2 CPD para. 91 at
15, our concern is that reevaluations performed in the heat of an
adversarial process may not represent the fair and considered judgment of
the agency. That being said, the reevaluation of IPI's proposal, performed
in response to the decision issued by our Office sustaining IPI's protest
and recommending the reevaluation of its proposal, was not performed "in the
heat of an adversarial process." Rather, the reevaluation was performed at a
time when the agency was in a position to fully and fairly consider the
merits of IPI's phase II proposal and arrive at a reasonable decision.

With regard to the agency's decision to reevaluate IPI's proposal in its
entirety rather than simply using the initial evaluation, the agency
explains that, as reflected by the reevaluation it prepared during the
pendency of the initial protest, it "was on notice of some concerns about
the technical viability of [IPI's] proposal and simply desired to review
that question . . . in more detail before deciding what the appropriate
course of action was." Agency Report at 7. Given the agency's concerns,
which appear to be reasonably based, we have no basis to object to the
agency's decision to reevaluate IPI's phase II proposal in its entirety.

IPI argues that the agency's evaluation and decision not to fund its phase
II proposal were unreasonable. IPI contends that the ultimate conclusion of
the Program Manager, as well as certain of the views expressed by the
evaluators, that IPI's phase II proposal lacked technical merit and was not
innovative, are erroneous.

As a preliminary matter, the agency argues that its "evaluator and selection
authority technical conclusions must be upheld absent demonstrated fraud or
bad faith." Agency Post-Hearing Comments at 3. BMDO notes here that "[w]hen
the GAO reviews SBIR decisions, invariably there is some mention that
agencies have broad discretion in award determinations," id. at 2, and that
our decisions in the area generally state that our Office reviews agency
determinations regarding which proposals will be funded under the SBIR
program to see whether the determinations were made consistent with the
terms of the solicitation and any applicable statutes or regulations, or
whether the agency acted fraudulently or in bad faith. See, e.g.,
Microexpert Sys., Inc., supra, at 2. BMDO argues that because of this, our
Office should only consider whether BMDO acted fraudulently or in bad faith
in determining not to fund IPI's phase II proposal, rather than employing
the "more onerous standard" of reasonableness. Agency Post-Hearing Comments
at 2, 4.

Our Office has reviewed and issued decisions in response to numerous
protests objecting to agency actions regarding the SBIR program and as noted
by BMDO, has repeatedly recognized in those decisions that "agencies have
broad discretion to determine which proposals will be funded under the SBIR
program." Deborah Bass Assocs., B-257958, Nov. 9, 1994, 94-2 CPD para. 180 at 3;
Microexpert Sys., Inc., supra, at 2. However, our recognition that agencies
have "broad discretion" in a particular context, including the SBIR program,
does not equate to a statement that such actions will be reviewed only for
fraud or bad faith. For example, our Office has recognized that agencies
have "broad discretion" in evaluating proposals, 51 Comp. Gen. 743, 749
(1972); determining whether to place a proposal within the competitive
range, Pharmaceutical Sys., Inc., B-221847, May 19, 1986, 86-1 CPD para. 469 at
8; determining the reasonableness of a bidder's price, Satin Am. Corp.,
B-261068, Aug. 16, 1995, 95-2 CPD para. 70 at 4; evaluating the realism of an
offeror's proposed costs, Burns & Roe Indus. Servs. Co., B-233561, Mar. 7,
1989, 89-1 CPD para. 250 at 3; determining the manner and extent to which source
selection officials will make use of technical and cost evaluation results
in a negotiated procurement, GTE Hawaiian Tel. Co., Inc., B-276487.2, June
30, 1997, 97-2 CPD para. 21 at 16-17; and selecting firms for consideration for
award of energy savings performance contracts (which are not subject to
competitive procedures), Strategic Resource Solutions Corp., B-278732, Mar.
9, 1998, 98-1 CPD para. 74 at 4-5. Although in each of these decisions it was
noted that the contracting agency had "broad discretion" regarding its
actions, that discretion was nevertheless subjected to the test of
reasonableness. Accordingly, BMDO's reliance on our Office's use of the
phrase "broad discretion" in bid protest decisions involving the SBIR
program as indicating that BMDO's actions here will not be reviewed for
reasonableness is misplaced.

We similarly find erroneous BMDO's insistence that statements in our bid
protest decisions that determinations regarding which proposals the agency
will fund under the SBIR program will be reviewed to see whether they were
made consistent with the terms of the solicitation and any applicable
statutes or regulations, or whether the agency acted fraudulently or in bad
faith, indicate that our Office restricts its review of such determinations
to consideration of whether the agency acted fraudulently or in bad faith.
These statements clearly provide that our Office will review protested
agency determinations regarding whether the agency will fund a SBIR phase II
proposal to ensure that they were compliant with applicable statutes or
regulations, as well as for fraud or bad faith. As indicated in a number of
decisions concerning SBIR contract awards or non-awards, our review for
statutory or regulatory compliance includes a determination as to the
reasonableness of the contracting agency's exercise of its discretion under
those statutes and regulations. See I.S.Grupe, Inc., B-278839, Mar. 20,
1998, 98-1 CPD para. 86 at 4; Quantum Magnetics, Inc., B-257968, Nov. 30, 1994,
94-2 CPD para. 215 at 4; Deborah Bass Assocs., supra, at 4; S&H Sys., B-250561,
Feb. 4, 1993, 93-1 CPD para. 102 at 3; Noise Cancellation Techs., Inc.,
B-246476, B-246476.2, Mar. 9, 1992, 92-1 CPD para. 269 at 4. To hold otherwise
would be to effectively abdicate legal review of these determinations
altogether. See Four-Phase Sys., Inc.--Second Recon., B-201642.3,
B-201642.4, Oct. 21, 1983, 83-2 CPD para. 473 at 5.

In sum, while our Office recognizes that agencies have broad discretion to
determine which proposals will be funded under the SBIR program, we will
review such determinations to ensure that they were made consistent with the
terms of the solicitation and applicable statutes or regulations and that
the agency did not act fraudulently or in bad faith. Agency discretion,
though broad, is not unfettered, and continues to be subject to the test of
reasonableness. As explained in detail below, we cannot conclude, based upon
the entire record, including the explanations and testimony elicited at a
hearing, that the agency's decision not to fund IPI's phase II proposal was
reasonably based.

The BMDO Program Manager's letter to IPI informing that firm that its phase
II proposal had been reevaluated and would not be funded stated, among other
things, that IPI's proposal "appears to duplicate an almost identical
research effort in a paper published in 1995," and that because of this the
Program Manager had concluded that "no innovation was demonstrated."2[2]
Agency Report, Tab 11, Letter from the Program Manager to IPI 2 (Jan. 21,
1999). The Program Manager further explained the basis for his conclusion
that IPI's phase II proposal lacked innovation in a declaration submitted to
our Office with the agency report. Agency Report, Tab 12, Declaration of the
Program Manager, at 4th-6th unnumbered pages. In this declaration, the
Program Manager again references the research paper, and refers to
statements made by certain of the evaluators on their evaluation sheets
which, in the Program Manager's view, indicate that IPI's proposal lacked
innovation. Id. at 4th-5th unnumbered pages. However, as explained below,
neither the Program Manager's declaration, nor his letter to IPI, accurately
reflects the record regarding the evaluators' views as to the degree of
innovation demonstrated in IPI's phase II proposal.

First, although both the letter and declaration reference only evaluator
statements which indicate that IPI's phase II proposal lacks innovation, the
record shows that the evaluators had differing views in this regard, which
were not discussed in the letter or declaration. For example, evaluator 1,
although recommending the rejection of IPI's proposal, characterized that
proposal as "a very interesting and novel concept."3[3] Agency Report, Tab
4. Evaluator 2 also appeared to find IPI's phase II proposal innovative,
stating in his evaluation sheet, for example, that IPI was "trying to
develop an innovative technology." Id. Evaluator 3 appeared to find certain
aspects of IPI's proposal innovative, as did evaluator 6, who in describing
the novelty of IPI's proposal wrote that "I've never seen anything like this
proposal." Agency Report, Tab 9. When the Program Manager was given the
opportunity at the hearing to explain why his conclusion that IPI's phase II
proposal lacked innovation was reasonable in light of the above evaluator
comments (which he conceded indicated that evaluators 1, 3 and 6 thought
that the proposal was innovative, videotape transcript (VT) at 11:04:22;
11:31:21; 11:39:06), the Program Manager stated that he understood the
problem caused by the agency's failure to address these evaluator comments,
but was unable to state why he did not agree with these evaluators'
judgments, or why they were wrong or should not be given weight. VT at
11:58:05.

The Program Manager explained, and the record reflects, that the Program
Manager's determination that IPI's proposal lacked innovation was based in
large part on the views of evaluator 5. The Program Manager testified that
evaluator 5 was familiar with BMDO programs, and was viewed as more credible
by the Program Manager because it was evaluator 5 who had provided the
research paper referenced above.4[4] VT at 11:42:21; 11:54:25; 11:56:07.
However, with regard to the research paper, the Program Manager conceded
that, while the paper reflected an effort at detecting targets using global
positioning satellite (GPS) signals, IPI's proposal was found to be
innovative by the evaluators mentioned above because IPI proposes the use of
GPS signals to track targets, as well as to detect them. VT 11:58:30.
Although the agency was requested to address, through testimony or written
comments, the reasonableness of its conclusion that IPI's phase II proposal
to develop a system to both detect and track targets using GPS signals
lacked innovation because it was duplicative of an effort apparently aimed
only at detecting targets, the agency did not do so.

The record also reflects that certain of the evaluator statements referenced
by the Program Manager in his declaration are taken out of context or
speculative to such an extent they cannot reasonably be said to support the
Program Manager's view that IPI's phase II proposal was not innovative. For
example, the Program Manager refers to the evaluation of evaluator 3 as
support for his determination that IPI's proposal lacked innovation.
However, although evaluator 3's evaluation sheet provides that "[t]here may
be work related to this proposal being sponsored by other defense
organizations," Agency Report, Tab 9, there is no indication in the
worksheet or the declaration that evaluator 3 submitted in response to the
protest that he was actually aware of any other programs doing related work.
Rather, it appears clear from the statement--in context--that evaluator 3
was only speculating as to the existence of other related work.

Similar problems exist with regard to the Program Manager's conclusion that
IPI's Phase II proposal lacked technical merit. The Program Manager's letter
to IPI informing it that its phase II proposal would not be funded in part
because of the proposal's lack of technical merit did not provide any
reasons why this was the case. The Program Manager's declaration referenced
only negative evaluator statements about IPI's phase II proposal, stating
that they were "serious" with no explanation or assertion that they could
not be explained or resolved, or should otherwise preclude a phase II award
to IPI.5[5]

Moreover, as indicated previously, the evaluators' conclusions varied, with
some apparently concluding that IPI's phase II proposal had technical merit.
However, here too there was no discussion in the record as to why these
evaluators' views should not be given weight or were not valid. For example,
evaluator 1 stated that it seemed as if IPI's phase I proposal had
succeeded. Evaluator 2, who was most familiar with IPI's efforts because of
his position as the technical monitor of the work IPI performed as a result
of its phase I award, VT 1:48:55, stated that IPI's phase I proposal had
"exceeded its requirements."6[6] Agency Report, Tab 4. Evaluator 2 referred
here to IPI's performance of a "hardware-in-the-loop" experiment that
apparently demonstrated the viability of IPI's proposal. Id. Evaluator 3
wrote in response to the question "Did Phase I succeed?" that "Progress
during Phase I gives sufficient promise to warrant continuing this
research," and added that if IPI's proposed technology worked, it "would
indeed be a prize." Agency Report, Tab 9. Additionally, evaluator 6 noted
that "Phase I seems to indicate that this is a viable concept," with
evaluator 7 adding in response to the question concerning the success of
phase I that "phase I was done well."7Evaluator 7 also noted that the copy
of IPI's phase II proposal provided for evaluation by the Program Manager
was in black and white and gray, and that the "data in color could not be
read." Agency Report, Tab 9. IPI explained here that its phase II proposal
as provided to the agency included graphs done in color which would have
been difficult or impossible to understand if they had been reproduced in
black and white. VT at 1:01:15. Id.

The agency has not reasonably explained why IPI's phase II proposal lacked
technical merit in light of the significant number of positive comments made
by the evaluators regarding the proposal's technical merit. In this regard,
the Program Manager was unable to reasonably explain why the comments are
either invalid or overcome by the other evaluator determinations or agency
findings. Because of this, we cannot find that there was a reasonable basis
for the Program Manager's conclusion that IPI's phase II proposal lacked
technical merit.

The Program Manager also testified at the hearing that one of the primary
reasons IPI's phase II proposal was rejected for funding was the Program
Manager's understanding that there were other programs being pursued by BMDO
which were technologically similar to IPI's phase II proposal and further
along in development. VT 1:57:40; 2:21:19. In support of this assertion, the
Program Manager pointed to a statement made by evaluator 5 that "the BMDO
programs that could benefit [from IPI's efforts] are ahead of this proposed
research effort."8[8] VT 1:58:54. The agency asserts in its post-hearing
comments (at 13) that "[t]his decision basis, even if all others fail for
whatever reasons, would render [the Program Manager's] overall non-selection
decision reasonable and rational." However, the agency has not identified
these BMDO programs.

We are not persuaded by the agency's position here, not only because no
evidence has been presented to support this assertion, but also because it
was in essence raised for the first time during the hearing on the protest.
That is, there is no indication in the agency's letter to IPI informing it
that its phase II proposal had not been selected for funding that the
nonselection was based in part or in whole on the existence of similar BMDO
efforts. Further, the agency's 16-page legal memorandum does not appear to
contain any mention of the existence of similar BMDO efforts as a basis for
the rejection of IPI's phase II proposal, and the six-page declaration of
the Program Manager contains only one sentence (that consists primarily of a
quote from evaluator 5's evaluation sheet) that raises this concern.9[9]

Additionally, the negative evaluator who provided the reference to the
[research paper] . . . indicated that this proposed research was "an almost
identical research effort." Moreover, [this evaluator said that] potential
"BMDO programs that could benefit are ahead of this proposed research
effort."

Agency Report, Tab 12, Declaration of the Program Manager, at 5th unnumbered
page.

As noted in the first protest, we accord lesser weight to post-protest
judgments such as the Program Manager's conclusion that the protester's
proposal was duplicative of other BMDO programs. Intellectual Properties,
Inc., supra, at 7; Boeing Sikorsky Aircraft Support, supra. In this case,
irrespective of the weight given to the belated basis for rejection, without
evidence supporting the conclusion of duplicative research (such as an
identification of the BMDO programs that are technically similar) we are
unable to find this decision basis reasonable.

Accordingly, we sustain the protest. We recommend that, since we have twice
sustained IPI's protests, the agency appoint a new source selection official
to reconsider and document its determination as to whether IPI's phase II
proposal should be funded. We also recommend that IPI be reimbursed the
costs of filing and pursuing its protest. Bid Protest Regulations, 4 C.F.R.
sect. 21.8(d) (1999). IPI's certified claim for such costs, detailing the time
and costs incurred, should be submitted within 60 days after receipt of this
decision. 4 C.F.R. sect. 21.8(f)(1).

The protest is sustained.

Comptroller General
of the United States

Notes

1. The questions set forth on the forms are as follows:

(1) How does the technology support BMDO?
(2) What (and how much) is the novelty?
(3) Did Phase 1 succeed?
(4) What technology will BMDO programs be able to leverage during/after
Phase 2?
(5) What's the future market potential and the firm's market attitude?

Agency Report, Tab 9.

2. This letter also stated that the fact that many individuals whose
evaluations were requested did not respond is "an indication that the
proposed effort did not support their work as it relates to the BMDO
mission." Agency Report, Tab 11, Letter from the Program Manager to IPI 1
(Jan. 21, 1999). However, when the legitimacy of this conclusion was
challenged by the protester, the agency stated that this "indication" was
not considered in the reevaluation. Agency Report at 10; Agency Report, Tab
12, Declaration of the Program Manager, at 3rd unnumbered page.

3. The two evaluators who initially reviewed IPI's phase II proposal are
referred to in this decision as evaluators 1 and 2, and the five evaluators
who reviewed IPI's phase II proposal after we rendered our prior decision
are referred to as evaluators 3, 4, 5, 6 and 7.

4. In its report, in response to the protest argument that the views of
evaluator 2, who was most familiar with IPI's Phase I effort, should be
accorded weight, the agency asserted that all of the evaluators were treated
as equals. Agency Report at 9-10. After the hearing, the agency stated that
the Program Manager gave evaluator 5's views "controlling weight." Agency
Post-hearing Comments at 11.

5. IPI has provided detailed responses to each of the negative comments
regarding its proposal's technical merit. Protest, Tab C; Protester's
Comments at 10-12.

6. The Program Manager testified that in considering a phase II proposal
under evaluation factor 1, which consists primarily of the consideration of
a proposal's technical merit, the agency reviews whether the phase I work
was successfully performed. VT at 10:24:31.

8. As noted above, the Program Manager explained that he placed considerable
weight on the conclusions of evaluator 5 because this evaluator was employed
by BMDO and thus had unique knowledge of BMDO programs.

9. The Program Manager's declaration stated the following:

Additionally, the negative evaluator who provided the reference to the
[research paper] . . . indicated that this proposed research was "an almost
identical research effort." Moreover, [this evaluator said that] potential
"BMDO programs that could benefit are ahead of this proposed research
effort."

Agency Report, Tab 12, Declaration of the Program Manager, at 5th unnumbered
page.