TITLE:  Bank of America, B-287608; B-287608.2, July 26, 2001
BNUMBER:  B-287608; B-287608.2
DATE:  July 26, 2001
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Bank of America, B-287608; B-287608.2, July 26, 2001

Decision

Matter of: Bank of America

File: B-287608; B-287608.2

Date: July 26, 2001

Eugene D. Gulland, Esq., John B. Denniston, Esq., Alan A. Pemberton, Esq.,
Timothy J. Keefer, Esq., and Siobhan E. Dupuy, Esq., Covington & Burling,
for the protester.

Rand L. Allen, Esq., Philip J. Davis, Esq., Phillip H. Harrington, Esq.,
Kevin J. Maynard, Esq., and Derek A. Yeo, Esq., Wiley, Rein & Fielding, for
National City Bank of Indiana, an intervenor.

John F. Ruoff, Esq., Defense Finance and Accounting Service, for the agency.

Glenn G. Wolcott, Esq., and Michael R. Golden, Esq., Office of the General
Counsel,

GAO, participated in the preparation of the decision.

DIGEST

Where agency knew or should have known that the protester interpreted the
solicitation as limiting technical proposals to 100 pages, discussions with
the protester were not meaningful when the agency did not advise protester
that the solicitation permitted 200 page proposals, declined to advise the
protester of the agency's repeatedly expressed concerns that the protester's
proposal lacked detail, and advised the protester there were no technical
weaknesses in its proposal.

DECISION

Bank of America (BOA) protests the award of a contract by the Department of
Defense (DOD), Defense Finance and Accounting Service (DFAS), to National
City Bank of Indiana (NCB) under request for proposals (RFP) No.
MDA210-00-R-CPB3 to provide banking services for U.S. personnel stationed
overseas. BOA protests that NCB's technical proposal failed to comply with
the RFP's page limitation provision, that the agency failed to conduct
meaningful discussions, and that the agency's cost and technical evaluations
were materially flawed.

We sustain the protest due to the agency's lack of meaningful discussions.

BACKGROUND

On January 13, 2000, DFAS published the solicitation at issue, seeking
proposals to provide commercial banking services to U.S. personnel stationed
overseas under the authority of DOD's Overseas Military Banking Program
(OMBP). [1] BOA is currently the incumbent contractor and has been providing
these services since 1995; prior to that time, NCB had provided the services
under a predecessor contract.

The solicitation contemplated award of a multi-year contract with a 5-year
base period and five 1-year option periods. [2] The agency estimates that
the contract will have a total value in excess of [deleted]. [3] Contracting
Officer's Statement at 2.

The RFP provided that award would be based on the proposal offering the best
value to the government considering cost/price, past performance, and
technical factors, [4] and stated that technical factors were more important
than either cost/price or past performance, which were of equal importance.
Agency Report, Tab H, RFP sect. M-6.

The RFP was issued on January 13, 2000 and, as initially published,
explicitly advised offerors that technical proposals must not exceed 100
pages, specifically defined a "page" as being not larger than 8 ï¿½ by 11
inches, specified mandatory type-size, spacing, and margins, and stated that
each 8 ï¿½ by 11 inch page would be counted as one page. Specifically, as
initially issued, RFP sect. L-1(b) stated:

Technical proposals must be legible, double spaced (personal resumes may be
single spaced), typewritten (on one side only), in a type-size not smaller
than 12 point proportional, on paper not larger than 8 ï¿½ by 11 inches and
not to exceed 100 pages for the Technical Proposal and an additional, not to
exceed 50 pages, for the attachments and/or exhibits to the Technical
Proposal. One inch margins shall be on all sides of the paper. Pages in
excess of the aforementioned limitation shall not be read, and the proposal
shall be evaluated as if the excess pages did not exist. Some fold-out
charts or diagrams may be used within the 50-page limitation for attachments
and/or exhibits. Each 8 ï¿½ by 11 page fold-out will be counted as one page
(i.e., one fold-out with two pages will be counted as two 8 ï¿½ x 11 pages).

Agency Report, Tab I, Initial RFP at L-192-93.

On February 17, the agency conducted a pre-proposal conference during which
agency personnel responded to questions from potential offerors. During this
conference, a potential offeror asked whether proposal information regarding
innovations and the transition period must be included within the 100-page
limitation. The agency spokesperson responded in the affirmative, but noted
that the RFP provision requiring that proposals be double spaced "should
read double-sided." Agency Report, Tab I, Transcript of Pre-Proposal
Conference, at 46. At the same time, the agency spokesperson advised
offerors that they would be required to submit their technical proposals on
compact disks (CD), noting that this new requirement would not affect the
page limitation. In this regard, the spokesperson stated:

We're going to request at least one hard copy and a CD. Again, that is still
with that page limitation. Don't think that the CD allows you to do Grapes
of Wrath or something. It's still the same page limitation.

Id. at 47.

On March 9, the agency issued RFP amendment No. 1. Consistent with the
advice provided during the pre-proposal conference, that amendment required
offerors to submit two copies of their technical proposals on CDs. Also
consistent with the statements made during the pre-proposal conference, the
amendment repeated the agency spokeperson's confirmation that information
regarding innovations and the transition period was to be included within
the 100-page limitation, stating:

Question 77: . . . Request confirmation that the innovation and transition
sections are included in the 100-page limitation for the technical proposal.

Answer: Confirmed. However, the 100 pages, double spaced should read
double-sided. Double-sided also applies to the 50 pages of attachments.

RFP amend. 1, attach. 20, at 21.

Although RFP amendment No.1 effectively advised offerors that the format of
their proposals must be double-sided, nothing else altered the prior
description of a "page"; indeed, the amendment specifically repeated the
solicitation's prior reference to a 100-page limitation as well as the
provision that each 8 ï¿½ by 11 page would be counted as one page. As revised
by amendment No. 1, RFP sect. L-1(b) now stated:

Technical proposals must be legible, double spaced (personal resumes may be
single spaced), and double sided, typewritten, in type-size not smaller than
12 point proportional, on paper not larger than 8 ï¿½ by 11 inches and not to
exceed 100 pages for the Technical Proposal and an additional, not to exceed
50 pages double-sided, for the attachments and/or exhibits to the Technical
Proposal. One inch margins shall be on all sides of the paper. Pages in
excess of the aforementioned limitation shall not be read, and the proposal
shall be evaluated as if the excess pages did not exist. Some fold-out
charts or diagrams may be used within the 50-page limitation for attachments
and/or exhibits. Each 8 ï¿½ by 11 page fold-out will be counted as one page
(i.e., one fold-out with two pages will be counted as two 8 ï¿½ x 11 pages).
(The government acknowledges that the compact disk versions of the Technical
Proposal will not print double-sided and instead will print as 200 pages
with a possible 100 pages of attachments and exhibits.)

RFP amend. 1, at L-44.

Despite the fact that, as amended, RFP sect. L-1(b) repeated the reference to a
100-page limitation and also repeated the statement that each 8 ï¿½ by 11 inch
page would be counted as one page, the agency maintains that the amendment's
addition of the requirement that proposals be double-sided, along with the
final parenthetical sentence discussing the manner in which the compact disk
versions of proposals would print out, effectively put offerors on notice
that the page limitation had been doubled.

The closing date for submission of initial proposals was July 19, and BOA
and NCB each submitted proposals by that date; their proposals were the only
two submitted. BOA's technical proposal was approximately 100 pages with
approximately 50 pages of attachments; [5] NCB's technical proposal was
approximately 200 pages with approximately 100 pages of attachments. [6] In
short, BOA's proposal essentially reflected the page limitation established
in the initial solicitation, while NCB's proposal was approximately double
that limitation.

Upon receiving the proposals the agency convened a technical evaluation
board (TEB). At the hearing conducted by GAO, [7] the TEB Chair acknowledged
that, upon receipt of the two proposals, the TEB was concerned with their
differing lengths as well as with the clarity of the page limitation
requirement. [8] Upon concluding that neither proposal exceeded the
contracting officer's interpretation of the amended page limitation
provision, the TEB evaluated the proposals using an adjectival rating scheme
of "outstanding," "better," "acceptable," "marginal," and "unacceptable," as
specified in the solicitation. [9] NCB's proposal was rated as "better"
under three of the six evaluation factors and "acceptable" under the
remaining three factors. [10] BOA's proposal was rated as "acceptable" under
all six factors.

As part of the evaluation, the TEB created a "consensus evaluation report"
containing narrative support for the ratings given under each evaluation
factor. This report repeatedly criticizes BOA's proposal, commenting under
each of the six evaluation factors that the proposal should have contained
more detail and/or explanation.

For example, under the [deleted] evaluation factor, [deleted], [11] the
report criticizes BOA's proposal with regard to [deleted], stating: "[BOA]
does not address [deleted], which the standard establishes as those that
must be [deleted]. This expectation, however, is not in the RFP." [12]
Agency Report, Tab K, Consensus Evaluation Report for BOA, at 1. With regard
to [deleted], the report states: "They do not explain the [deleted]." Id. at
6. Regarding [deleted], the report states: "[BOA's] Technical Proposal does
not explain how [deleted]. The lack of detail [deleted] could increase the
risk of performing this function for the OMBP." Id. at 10. Finally, with
regard to [deleted], the report states: "[BOA's proposal] does not describe
the content of the [deleted]." Id. at 14.

Under the next evaluation factor, [deleted], [13] BOA's proposal was
similarly criticized for containing less detail and explanation than the
agency desired. For example, with regard to [deleted], the report states,
"We all know [BOA] can do [deleted]. Little explanation or facts are given
to answer the question," and, more specifically, "[BOA's] proposal doesn't
provide a [deleted]. It doesn't indicate what [deleted]." Id. at 16.
Similarly, with regard to [deleted], the agency evaluation report states:

[BOA's] proposal doesn't identify the [deleted] or the [deleted] that will
be used for implementing [deleted] throughout the network. Without this
information it is difficult to determine the risk associated with
implementation of [deleted] throughout the network.

Id. at 17.

Again, in discussing BOA's proposal to provide [deleted], the report states:

Based on what is presented it is difficult to conclude what part of the OMBP
needs [deleted]. Is it [deleted]. Is it different for [deleted]? What is the
[deleted] needed? Does this involve [deleted]? Does it [deleted]? Will I
need [deleted] or can I [deleted]? Will this improve [deleted]? All they say
is they can do it, very weak.

Id. at 17-18.

With regard to [deleted], the report states, "Only brief descriptions of the
[deleted] and the benefits that would be derived are provided." Id. at 18.
Finally, regarding BOA's proposal to [deleted], the report notes "a more
detailed explanation could have been given explaining why the proposed
[deleted]." Id.  at 20.

Regarding the next evaluation factor, [deleted], [14] the report, again,
contains multiple criticisms of BOA's proposal for failing to provide
specific information. For example, with regard to [deleted], the report
states, "BOA indicates that there are [deleted] to be considered, but does
not indicate which one they [deleted]," id. at 22, and again:

[BOA's] Technical Proposal does not provide adequate detail to evaluate the
realism of [deleted]. Although the proposal states that a [deleted] would
make the [deleted] much more efficient and [deleted], the proposal does not
provide any information to indicate the significance of the [deleted].

Id. at 23.

Regarding the next evaluation factor, [deleted], [15] the report states
[deleted]. The [proposal] does not explain how [BOA] will complete
[deleted]," id. at 27, and, with regard to [deleted], the report states,
"[BOA] can accomplish this task with little effort. It would have been
helpful to see how they proposed to do it." Id. at 29.

Regarding the next evaluation factor, [deleted], [16] the report states:

Although an easy task to accomplish, they do not attempt to explain any
detail of how this will be done. They could have estimated a [deleted].

Id. at 30.

Finally, regarding the final evaluation factor, [deleted], [17] the report
states:

The Government gave the bank [deleted] to work with and this bank [BOA]
ignored it in their reply. They talk about [deleted] but none are discussed
in enough detail for me to see that they can perform under the STANDARD.
They can [deleted] but do not tell us any more than necessary.

Id. at 31.

Similarly, under this factor, the report complains that "[BOA] did not give
a real complete answer. Yes they can do it, but I expected to be shown how
they would accomplish this." Id. at 32.

Overall, the agency explained that BOA's technical proposal was rated as
merely "acceptable," because BOA "didn't take full advantage of [the]
opportunity to describe BOA['s] solution." Agency Report, Tab Z, Debriefing
Slides, at 14. In contrast, the evaluation report repeatedly praises NCB's
proposal for the [deleted]. See Agency Report, Tab K, Consensus Evaluation
Report for NCB, at 3, 4, 5, 6, 10, 12, 13, 14, 16, 19, 26, 27, 28, 30, 33.
At the GAO hearing, the contracting officer testified that a primary
distinction between BOA's and NCB's technical proposals was the differing
levels of detail. Tr. at 27-29.

Following evaluation of initial proposals, the agency prepared discussion
questions for each offeror. Despite the fact that BOA's proposal essentially
reflected the RFP's initial 100-page limitation, and the evaluation report
repeatedly expressed concern [deleted] that BOA's proposal needed additional
detail, the agency's discussion questions did not suggest that BOA might
have misunderstood the agency interpretation of RFP amendment No. 1 as
having doubled the initial 100-page limitation, nor did the agency raise its
repeatedly-expressed concerns regarding the level of detail in BOA's
proposal. Instead, the agency advised BOA that its proposal contained "no
identifiable technical weaknesses" and characterized the agency's concerns
as relating "mainly to cost issues." Agency Report, Tab L, Minutes of
Negotiations with BOA, at 1.

Following discussions, both offerors submitted final revised proposals which
were again evaluated by the TEB. The technical ratings remained essentially
unchanged. NCB's proposal was rated "better" under the same three evaluation
factors, and "acceptable" under the remaining three factors; BOA's proposal
was rated "acceptable" under all six factors. The agency also evaluated each
offeror's cost proposal for cost realism, making various adjustments to
each. Based on its final cost evaluation, the agency concluded that NCB's
evaluated cost/price offered a [deleted] advantage over BOA's cost proposal.
[18] Both offerors' proposals were rated "better" with regard to past
performance.

Based on the conclusion that NCB's proposal was technically superior and
offered the lower cost/price, the agency selected NCB's proposal for award.
A contract was awarded on April 5. This protest followed.

DISCUSSION

BOA first protests that NCB's proposal should have been rejected as
unacceptable for failing to comply with the RFP's page limitation provision,
which BOA maintains can only be read as limiting technical proposals to 100
pages. As discussed above, the agency maintains that RFP amendment No. 1
effectively doubled the RFP's initial 100-page limitation.

Based on our review of the record we conclude that the RFP's page limitation
provision, as finally amended, contains conflicting provisions and is
patently ambiguous. There is no dispute that, as initially issued, the
solicitation specifically limited technical proposals to 100 pages and
further stated (in the context of "fold-out" pages) that each single-sided 8
ï¿½ by 11 inch page would be counted as one page. Additionally, there is no
dispute that RFP amendment No. 1 repeated the solicitation's original
reference to a 100-page limitation and also repeated the statement that each
8 ï¿½ by 11 inch page would be counted as one page. Nonetheless, as amended,
the solicitation provides that proposals be "double-sided" and contains a
parenthetical reference, in the context of discussing the manner in which
proposals submitted on CDs will print out, that clearly indicates a 200-page
limitation.

When faced with a dispute over the terms of a solicitation, we first attempt
to read the solicitation as a whole and in a manner that gives effect to all
provisions of the solicitation. Dr. Carole J. Barry, B-271248, June 28,
1996, 96-1 CPD para. 292 at 4. Here, we view the amended RFP's retention of the
reference to a 100-page limitation, along with the specific provision that
each 8 ï¿½ by 11 inch page will be counted as one page, and the agency's
pre-proposal conference statement that, despite the requirement to submit
proposals on CDs, "[i]t's still the same page limitation," as directly
conflicting with the final parenthetical sentence of RFP sect. L-1(b) which
acknowledges that CD versions of proposals will print as 200 pages.
Accordingly, the RFP is patently ambiguous.

In situations where solicitations contain patent ambiguities, an offeror has
an affirmative obligation to seek clarification prior to the first due date
for submission of proposals following introduction of the ambiguity into the
solicitation. 4 C.F.R. sect. 21.2(a)(1) (2001); American Connecting Source d/b/a
Connections, B-276889, July 1, 1997, 97-2 CPD para. 1 at 3. The purpose of our
timeliness rule in this regard is to afford the parties an opportunity to
resolve ambiguities prior to the submission of offers, so that such
provisions can be remedied before offerors formulate their proposals. Gordon
R. A. Fishman, B-257634, Oct. 11, 1994, 94-2 CPD para. 133 at 3. Where a patent
ambiguity is not challenged prior to submission of proposals, we will
dismiss as untimely any subsequent protest assertion that is based on one of
the alternative interpretations as the only permissible interpretation.

Since BOA did not seek clarification of the patently ambiguous solicitation
provision prior to submitting its proposal, it may not now assert that NCB's
proposal should have been rejected for failing to comply with BOA's
understanding of the page limitation provision. Nonetheless, since the
agency subsequently engaged both offerors in discussions, our inquiry does
not end there. BOA also protests that, on the basis of the facts presented
in this procurement, the agency's decision not to raise the agency's
concerns regarding the level of detail provided in BOA's proposal, along
with the fact that BOA was not limited by the RFP's initial page limitation,
constituted a failure to conduct meaningful discussions. We agree.

In negotiated procurements, contracting officers must generally conduct
discussions with all offerors whose proposals are within the competitive
range. 10 U.S.C. sect. 2305 (1994); Federal Acquisition Regulation (FAR) sect.
15.306. Where discussions are conducted, they must be meaningful; that is,
an agency must lead offerors into the areas of their proposals which require
amplification or correction, and this obligation is not necessarily altered
by the agency's characterization of a proposal as "outstanding,"
"acceptable," or only "susceptable to being made acceptable." Eldyne, Inc.,
B-250158 et al., Jan. 14, 1993, 93-1 CPD para. 430 at 7. While it is true that
an agency need not "spoon-feed" an offeror by directing it to each and every
item that could possibly be revised to enhance its rating, MCR Fed., Inc.,
B-280969, Dec. 14, 1998, 99-1 CPD para. 8 at 10-11, where an agency has a
central concern which affects multiple portions of an offeror's proposal and
which, if unaddressed, will effectively eliminate that offeror from
competition, fairness and equity dictate that such concern be brought to the
offeror's attention. Eldyne, Inc., supra; Price Waterhouse, B-220049, Jan.
16, 1986, 86-1-CPD para. 54, aff'd, B-220049.2, Apr. 7, 1986, 86-1 CPD para. 333.
This is particularly true where the areas of concern stem from solicitation
provisions that are not clear. Cf. Du & Assocs., Inc., B-280283.3, Dec. 22,
1998, 98-2 CPD para. 156 at 7-8 (discussions not required regarding solicitation
provisions that are detailed and clear).

Here, as discussed above, the RFP provision regarding the page limitation on
technical proposals was anything but clear. [19] At the GAO hearing, the
contracting officer acknowledged that agency personnel engaged in "quite a
bit of discussion" about the ambiguous page limitation provision and whether
BOA understood that provision. Specifically, the contracting officer
testified:

GAO: [W]hen you, the agency, received initial proposals, and essentially
what [you] received [were] proposals from one offeror for a hundred pages or
essentially a hundred pages, and the other offeror[‘s proposal] was
close to 200 pages. Did the issue--did this raise any question in your mind
as to the understanding of the parties with regard to the specific issue
that the RFP had been amended on? That is, the page limitation?

Contracting Officer: Yes, it did. After the initial technical evaluation, we
had quite a bit of discussion on the issue.

GAO: On what the parties understood[?]--

Contracting Officer: I was directly involved in that.

GAO: Whether they did or didn't understand what the page limitation was?

Contracting Officer: Yes.

Tr. at 22.

Since the agency specifically recognized that BOA might not understand the
agency's interpretation of RFP amendment No. 1, [20] it had an obligation to
raise this issue with BOA during discussions. This is particularly true in
light of the patent ambiguity created by that amendment and the fact that
the differing levels of detail formed a significant basis for distinguishing
between the two proposals. More specifically, upon receipt of BOA's
proposal, which essentially reflected the solicitation's page limitation
requirements prior to amendment, the agency could not reasonably rely on the
differing levels of detail as a significant discriminator without calling
this matter to BOA's attention during discussions.

Additionally, in light of the multiple criticisms--[deleted]--regarding the
level of detail and/or explanation contained in BOA's proposal, even if the
page-limitation provision had not been ambiguous, we reject the assertion
that the agency could reasonably decline to discuss its repeatedly-expressed
concerns with BOA because it viewed BOA's proposal as technically
"acceptable." [21] We believe BOA was not afforded a reasonable opportunity
to improve many aspects of its proposal that could have had a significant
impact on its rating. Further, based on the evaluation record, it was not
reasonable for the agency to lead BOA to believe that its proposal contained
"no identifiable technical weaknesses" and that the agency's concerns
related "mainly to cost issues." [22] Agency Report, Tab L, Minutes of
Negotiations with BOA, at 1.

In sum, in light of the agency's failure to advise BOA of its interpretation
of the ambiguous page limitation provision, its failure to advise BOA of the
agency's repeatedly expressed concerns regarding the level of detail in its
technical proposal, and the agency's statements to BOA that its technical
proposal "contained no technical weaknesses," we can only conclude that the
agency's discussions were not meaningful.

The protest is sustained. [23]

RECOMMENDATION

We recommend that the agency amend the solicitation to clearly communicate
all of the technical evaluation standards it intends to apply along with the
applicable page limitation, then conduct meaningful discussions with both
offerors which include identification of the multiple areas lacking detail,
request final revised proposals, and evaluate those proposals consistent
with the solicitation's stated requirements. If, as a result of this
reevaluation, BOA's proposal is selected for award, the agency should
terminate NCB's contract for the convenience of the government and make
award to BOA. We also recommend that BOA be reimbursed the reasonable costs
of filing and pursuing the protest, including attorneys' fees. 4 C.F.R. sect.
21.8(d)(1) (2001). 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 after receipt of this decision.

Anthony H. Gamboa

General Counsel

Notes

1. Under the OMBP, DOD provides banking services overseas for military
members, civilian employees of DOD and other government agencies, and
authorized dependent family members. The OMBP includes approximately 110
military banking facilities and 240 automated teller machines, with
operations in nine countries. The OMBP contractor is expected to maintain
approximately 170,000 customer accounts, valued at over $650 million and to
annually process approximately $30 billion in monetary transactions.
Contracting Officer's Statement at 2.

2. The solicitation also contemplated two 6-month extension options for
transition and contract administration close-out.

3. This figure includes the sum of income generated, expenses incurred, and
receipt of a fixed fee over the maximum 11-year performance period.

4. The RFP identified the following six technical evaluation factors, listed
in descending order of importance: banking operations and delivery of
products/services; proposal of new and relevant
products/technologies/processes (innovations); plan to standardize worldwide
infrastructure; transition approach; establish permanent operations center
(POC); and investment strategy. RFP sect. M-4. The RFP also established various
subfactors under each evaluation factor.

5. BOA's technical proposal contained 101 numbered pages with 58 pages of
attachments; however, the 101st page of its technical proposal contained
only a single sentence identifying the location of certain attachments.

6. NCB's technical proposal contained 192 numbered pages with 96 pages of
attachments.

7. In resolving this protest, GAO conducted a hearing on the record at which
testimony was obtained from the contracting officer, the TEB chair, and a
member of the cost review board (CRB).

8. The TEB Chair testified: "When we first came in--when the Board first
convened, we did find there was a difference in the page limitation to the
proposal, and we checked the RFP to see if there was anything wrong with the
requirement there. And we also went over and talked to the Contracting
Officer to clarify what the requirement was." Hearing Transcript (Tr.) at
188.

9. Only the ratings of "acceptable" and "better" were actually used in this
procurement. The rating of "acceptable" was defined as "[m]eets all
solicitation requirements. Complete, comprehensive, and exemplifies an
understanding of the scope and depth of the task requirements as well as the
offeror's understanding of the government's requirements." The rating of
"better" was defined as "[f]ully meets all solicitation requirements and
significantly exceed[s] many of the solicitation requirements. Response
exceeds an ‘acceptable' rating. The areas in which the offeror exceeds
the requirements are anticipated to result in a high level of efficiency or
productivity or quality." Agency Report, Tab H, RFP at M-228.

10. NCB's proposal was rated "better" with regard to [deleted]. Contracting
Officer's Statement at 11-12.

11. With regard to this evaluation factor, offerors were advised that
proposals must address, among other things, [deleted].

12. Throughout the evaluation report, there are references to certain
"standards"-- for example, the above-referenced "standard" that [deleted].
These "standards" appear to have been drawn from an internal source
selection plan, see Agency Report, Tab J; however, as the agency
acknowledges in the portion of the evaluation report quoted above, these
"standards" were not in the RFP.

13. With regard to this evaluation factor, the RFP directed offerors to
discuss their approach to [deleted].

14. Under this evaluation factor, offerors were directed to discuss their
approach to [deleted] and to discuss "at a minimum," the [deleted].

15. Under this evaluation factor, the RFP directed that offerors [deleted]
and required that [deleted].

16. Under this factor, offerors were required to propose a [deleted].

17. With regard to this factor, the RFP stated [deleted].

18. This evaluated cost advantage was based on the agency's calcuation that
NCB would generate total income of [deleted] and incur total costs, expenses
and fee of [deleted], for a total net [deleted]; and that BOA would generate
total revenues of [deleted] and incur total costs, expenses and fee of
[deleted], for a total net [deleted]. Contracting Officer's Statement
at 16-17.

19. As noted above, at the GAO hearing, the TEB Chair testified that upon
receipt of the two proposals, the TEB was concerned because of their
differing lengths and, as a result, reviewed the RFP page limitation
provision and discussed the matter with the contracting officer. Tr. at
188-89. Although we do not understand how the TEB could have failed to
recognize the conflicting provisions discussed above, it is clear that the
TEB members recognized the potential for misunderstanding the page
limitation provision.

20. Later in the hearing, the contracting officer offered testimony directly
conflicting with his prior recognition of this issue, stating:

BOA Counsel: I think you said you noticed the disparity in lengths between
the two technical proposals that were submitted by National City and BOA;
correct?

Contracting Officer: Correct.

BOA Counsel: And I thought you said that you also thought that it might have
been due to a misunderstanding on Bank of America's part on the page
limitation.

Contracting Officer: No, I never said that, and I never-that thought never
entered my mind.

Tr. at 39. Particularly in light of the contracting officer's earlier
testimony that there was "quite a bit of discussion" regarding this issue,
we view as unreasonable the contracting officer's stated failure to
recognize that BOA may have misunderstood the page limitation.

21. As noted above, an agency's obligation to lead an offeror into the areas
of its proposal which require amplification or correction is not limited to
portions of the proposal an agency labels as "deficiencies." Eldyne, Inc.,
supra. Here, despite the agency's characterization of BOA's proposal as
technically "acceptable," it is clear from the record discussed above that
the agency viewed BOA's proposal as containing informational deficiencies,
and that this was a central agency concern. Further, in creating the
evaluation record prior to conducting discussions, the agency evaluators
formulated certain specific questions which could have been presented to
BOA. Inexplicably, the agency declined to advise BOA of these
already-articulated concerns.

22. Agencies may not conduct misleading discussions. Metro Mach. Corp.,
B-281872 et  al., Apr. 22, 1999, 99-1 CPD para. 101 at 6-7; SRS Techs.,
B-254425.2, Sept. 14, 1994, 94-2 CPD para. 125 at 6; Ranor, Inc., B-255904, Apr.
14, 1994, 94-1 CPD para. 258 at 4. Here, advising BOA that its technical
proposal "had no identifiable technical weaknesses," and that the agency's
concerns related "mainly to cost issues" was directly contrary to the
agency's repeatedly expressed concerns regarding the need for additional
technical details and/or explanations.

23. BOA also protests that the agency's cost and technical evaluations were
materially flawed. As noted above, it appears that the agency's technical
evaluators relied on various "standards" which were not disclosed to the
offerors, contrary to the fundamental requirement that offerors be advised
of the bases upon which their proposals will be evaluated. See 10 U.S.C. sect.
2305(a)(2)(A) (1994); FAR sect. 15.304(d); H. J. Group Ventures, Inc., B-246139,
Feb. 19, 1992, 92-1 CPD para. 203 at 4. Additionally, with regard to the cost
evaluation, the record contains virtually no evaluator worksheets showing
the basis for the multiple cost realism calculations and adjustments that
were made. In response to the protest and GAO's request for supporting
documentation, the agency submitted various cost evaluation documents which
were prepared by agency evaluators after the protest was filed. These
post-protest documents contain multiple errors and reflect various mistakes
and/or omissions. Indeed, the agency acknowledges the "potential merit" of
BOA's assertions regarding specific cost evaluation errors which improperly
increased NCB's cost advantage by [deleted]. See Agency Post-Hearing Brief
at 41-42. In light of our decision that the procurement was otherwise
materially flawed, along with our recommendation that the agency amend the
solicitation and reopen the procurement, we need not resolve the protester's
assertions regarding the additional evaluation errors. We do, however,
expect that, in implementing our recommendation, the agency will review the
record to correct any errors and will create and retain appropriate,
contemporaneous documentation supporting its reevaluation.