TITLE:  Northeast MEP Services, Inc., B-285963.9, March 8, 2001
BNUMBER:  B-285963.9
DATE:  March 8, 2001
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Northeast MEP Services, Inc., B-285963.9, March 8, 2001

Decision

Matter of: Northeast MEP Services, Inc.

File: B-285963.9

Date: March 8, 2001

William A. Shook, Esq., Kelley P. Doran, Esq., and Gary J. Campbell, Esq.,
Preston Gates Ellis & Rouvelas Meeds, for the protester.

Jay P. Urwitz, Esq., Barry J. Hurewitz, Esq., and Aimen Mir, Esq., Hale and
Dorr, for the Center for Technology Commercialization, the intervenor.

Bernard J. Roan, Esq., National Aeronautics and Space Administration, for
the agency.

Guy R. Pietrovito, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

An agency's exchange with the awardee in a negotiated procurement to clarify
whether all costs related to certain proposed services were already included
in the awardee's cost proposal did not constitute discussions, where the
agency's request clarified information already present in the awardee's
proposal and the awardee was not presented with an opportunity to revise its
proposal.

DECISION

Northeast MEP Services, Inc. (NEMEP) protests the award of a contract to the
Center for Technology Commercialization (CTC) under request for proposals
(RFP) No. RFP2-37066-CDT, issued by the National Aeronautics and Space
Administration (NASA) for the operation and maintenance of the Northeast
Regional Technology Transfer Center (RTTC). NEMEP contends that NASA
improperly conducted discussions with CTC and not NEMEP. [1]

We deny the protest.

Under its Commercial Technology Program, NASA seeks to disseminate and
encourage the commercialization of the agency's technology and information.
To accomplish this, NASA operates a national network of six RTTCs, each of
which has responsibility for an assigned region (i.e., Northeast,
Mid-Atlantic, Southeast, Midwest, Mid-Continent, and Far West). The RTTCs
link with affiliated organizations (federal, state, and local entities and
non-profit institutions) having similar technology transfer and industrial
development objectives, and establish relations with industry and trade
groups to promote and make available the transfer of technology and
information.

The RFP provided for the award of multiple contracts to operate and maintain
the six RTTCs. Offerors were informed that NASA intended to award a separate
contract for each region. The RFP stated that award would be based upon a
cost/technical tradeoff without conducting discussions. The following
evaluation factors were identified: mission suitability, past performance,
and cost. With respect to the cost factor, the RFP provided for a cost
realism evaluation to assess the probable cost and a "level of confidence"
for each proposal.

Three proposals, including those of NEMEP and CTC (the incumbent
contractor), were submitted for the Northeast RTTC contract. The proposals
for each region were evaluated by a regional source evaluation committee
(SEC). Proposals for the Northeast RTTC were evaluated at the Goddard Space
Flight Center, which administers the Northeast RTTC contract. Each member of
the SEC for the Northeast region individually evaluated NEMEP's, CTC's, and
the third offeror's proposals. The evaluators documented their evaluation by
completing evaluation and rating forms by hand. The SEC then met to discuss
their findings and arrive at a consensus judgment regarding the proposals.
The consensus judgment was documented in a summary evaluation report for
each offeror. NEMEP proposal for a $[DELETED] contract was significantly
lower-rated than CTC's proposal for a $7.13 million cost-no-fee contract.

The source selection authority (SSA) was briefed as to each of the regional
SECs' findings. Among other things, the Northeast region SEC informed the
SSA that CTC in its technical proposal had identified certain special
services to "clients" as being "fee-based services" and that there was
disagreement within the SEC as to whether the government would be
responsible for these fees. Agency Report, Memorandum of SEC Chair (Jan. 29,
2001), at 2. Although the SSA "indicated" that CTC would be selected for
award, the SSA directed that the agency clarify whether all the costs to the
government were included in CTC's cost proposal. Agency Legal Memorandum at
6.

By letter of June 8, 2000, the contracting officer stated to CTC that the
firm had proposed three categories of services (standard, selected, and new
and expanded services) and requested that the firm

clarify whether all of the above-listed proposed services have been included
in your cost proposal. If any of these services are to be provided at
additional cost to the Government, please identify them and their associated
costs.

Letter from NASA to CTC (June 8, 2000). By letter of June 19, CTC responded
"[y]es, all costs associated with your citations are included in our
estimated costs."

CTC's proposal was determined to be the most advantageous to the government,
and award was made to that firm. NEMEP and others protested to our Office
(file numbers B-285963; B-285963.2; B-285963.3; B-285963.4). Prior to the
receipt of the agency's report on these protests, NASA informed us that it
was withdrawing its selection decision for the Northeast region and would
reassess the offerors' proposals. On September 1, 2000, we dismissed the
protests as academic.

The reassessment of proposals in the Northeast region resulted in some
changes in the evaluation of CTC's and NEMEP's proposals, although CTC's
proposal remained significantly higher-rated than NEMEP's. NASA states that
discussions were not conducted with the offerors. The SSA was again briefed
as to the evaluation findings in the Northeast region. The SSA accepted the
SEC's findings, again concluding that CTC's proposal was the most
advantageous to the government.

NEMEP complains that NASA improperly conducted discussions with only CTC.
Specifically, NEMEP states that NASA improperly allowed CTC to modify its
proposal without providing NEMEP with the same opportunity. NASA responds
that its communication with CTC did not constitute negotiations but was a
clarification, and that CTC was not provided with an opportunity to revise
its proposal.

Clarifications are "limited exchanges" between the government and offerors
that may occur when award without discussions is contemplated. FAR sect.
15.306(a)(1). Such exchanges may allow offerors to clarify certain aspects
of proposals or to resolve minor or clerical errors. FAR sect. 15.306(a)(2).
Discussions, on the other hand, occur when a contracting officer indicates
or discusses with each offeror still being considered for award, significant
weaknesses, deficiencies, and other aspects of its proposal that could be
altered or explained to enhance materially the proposal's potential for
award. FAR sect. 15.306(d)(3); Wellco Enters., Inc., B-282150, June 4, 1999,
99-1 CPD para. 107 at 7. If a procuring agency holds discussions with one
offeror, it must hold discussions with all offerors whose proposals are in
the competitive range. FAR sect. 15.306(d)(1); Strategic Analysis, Inc.,
B-270075, B-270075.4, Feb. 5, 1996, 96-1 CPD para. 41 at 4.

We find here that NASA's exchange with CTC was merely a clarification of
that firm's proposal and did not constitute discussions. As indicated above,
the SEC was unsure as to whether the government would be liable for
additional costs (beyond that proposed in CTC's cost proposal) for certain
special services CTC offered in its technical proposal. For example, in its
technical proposal, CTC noted:

Since Standard Services alone are occasionally inadequate to meet a
particular client's needs, CTC has developed specific value added services
based upon the unique information needs of clients served over the past
eight years.

[DELETED]: The first value-added service utilized when the database search
is inadequate and requires the [DELETED] staff to obtain and review other
types of information sources . . . . CTC has developed this service into
[DELETED]. This service is performed under a fee for service contract and is
customized to meet the needs of the firm. These fees are used to expand the
capabilities and services of the [Northeast ] RTTC.

CTC Mission Suitability Proposal at 23. Similarly, CTC proposed under
"Research Studies" that

The [DELETED] when requested by a client can also conduct in-depth research
studies, which are tailored to the client's requirement. These research
studies often span months or, where critical information is demanded, can be
performed on a "rush" basis. Again, due to the specialization of research
study, this is also a fee-based service.

Id. at 24.

We do not think that CTC's proposal was ambiguous or provided that the
government would be liable for these fees for particular specialized
services; rather, the proposal indicated that it is the client firms that
order the specialized services that would be liable for the fees.
Nevertheless, because some members of the SEC were unsure whether the
"client" that would be liable for the fee could be the government, CTC was
asked whether its cost proposal contained all costs related to these
services for which the government would be liable. Thus, this question
requested clarification of information already contained in CTC's proposal
and did not provide the firm with an opportunity to revise its proposal. See
MG Indus., B-283010.3, Jan. 24, 2000, 2000 CPD para. 17 at 8-9 (exchange between
the agency and the awardee, which clarified whether the awardee's proposed
pricing accepted the solicitation requiremen8ts, was not discussions where
the request clarified information already present in the awardee's proposal
and the awardee was not presented with an opportunity to modify its
proposal); see also Dresser Indus., Inc., B-227904, Sept. 11, 1987, 87-2 CPD
para. 237 at 3 (clarification of proposal pricing was not discussions where it
merely confirmed information already in awardee's proposal). Moreover, the
information obtained was not essential to determining the acceptability of
CTC's proposal, which took no exception to the solicitation

requirements. See J. A. Jones/IBC Joint Venture; Black Constr. Co.,
B-285627, B-285627.2, Sept. 18, 2000, 2000 CPD para.  161 at 6. In sum, NASA's
exchange with CTC was limited and not discussions.

The protest is denied.

Anthony H. Gamboa

Acting General Counsel

Notes

1. NEMEP previously challenged NASA's evaluation of proposals and selection
of CTC for award. We denied that protest. Northeast MEP Servs., Inc.,
B-285963.5 et al., Jan. 5, 2001, 2001 CPD para. ___.