TITLE:  NLX Corporation, B-288785; B-288785.2, December 7, 2001
BNUMBER:  B-288785; B-288785.2
DATE:  December 7, 2001
**********************************************************************
Decision

Matter of: NLX Corporation

File: B-288785; B-288785.2

Date: December 7, 2001

David R. Johnson, Esq., Michael K. Murphy, Esq., and Joshua D. Hess, Esq.,
Gibson, Dunn & Crutcher, for the protester.

Thomas P. Barletta, Esq., Peter L. Wellington, Esq., Paul R. Hurst, Esq.,
and Robert A. Bailey, Esq., Steptoe & Johnson, for TYBRIN Corporation, the
intervenor.

Kerri A. Cox, Esq., Gregory H. Petkoff, Esq., and Richard T. Trowbridge,
Esq., Department of the Air Force, for the agency.

Paul I. Lieberman, Esq., and Michael R. Golden, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Agency evaluation of proposals is unobjectionable where it is reasonable and
consistent with solicitation evaluation criteria, and adequately documented;
protester's substantial, inadequately explained price reduction in its final
proposal revision was reasonably assessed as introducing proposal risk.

DECISION

NLX Corporation protests the award of a contract to TYBRIN Corporation under
request for proposals (RFP) No. F42600-01-R-0003, for a mission planning
support contract (MPSC), issued as a total small business set-aside by the
Department of the Air Force, Ogden Air Logistics Center, Hill Air Force
Base, Utah. NLX contends that the Air Force's evaluation of the NLX and
TYBRIN proposals was improper and unreasonable in a multitude of respects,
all to the detriment of NLX.

We deny the protest.

BACKGROUND

The MPSC is intended to provide support services for the Air Force Mission
Support System Program Office, and combines two existing contracts, one of
which provides mission planning system support facility services for the
system support facility (SSF) at Hill AFB, and the other provides system
support representatives (SSR) services at various Air Force sites in the
United States and overseas. NLX is the incumbent under the SSF contract, and
NLX's proposed subcontractor, [deleted], is an incumbent SSR contractor, as
is NLX's other subcontractor, [deleted]. TYBRIN's proposed subcontractor,
BAE Systems, is likewise an incumbent SSR contractor. The instant RFP was
issued on April 19, 2001, for a base period award of 39 months with two
3-year option periods that the contractor could earn on an "award term"
basis. [1] The RFP solicits SSF and SSR support services on the basis of
integrated "best-value" evaluation criteria under which three technical
factors, past performance, mission capability and proposal risk, are each of
equal importance, and of greater importance than price, the fourth
evaluation factor. The mission capability factor includes four subfactors,
in descending order of importance: integrated master plan (IMP); operational
scenarios; resource management plan (RMP); and transition plan. The RFP
contemplated a fixed-price-plus-award-fee contract, and also included
options for various unpriced cost-reimbursable and cost-plus-fixed-fee
contract line items. Separate submissions for three different volumes of the
initial proposal were due on different dates, with the last volume due by
June 1, 2001. NLX and TYBRIN were the only offerors that submitted
proposals.

The proposals were evaluated by a source selection evaluation team (SSET),
within which a past performance risk assessment group (PRAG) evaluated past
performance in order to arrive at a performance confidence assessment
representing the agency's confidence in the offerors' probability of
successfully performing as proposed. RFP sect. M-903-2.1.1. In making this
assessment, as provided by the RFP, the agency specifically considered the
relevance of the particular past performance in order to ascertain how
closely the skills demonstrated in the prior contracts match the skills
necessary to successfully perform the MPSC workload. RFP sect. M-903-2.1.6. The
highest possible relevance rating was "very relevant," for past performance
involving "the magnitude of effort and complexities which are comparable to
the MPSC requirements," and the next highest rating was "relevant," for past
performance involving "less magnitude of effort and complexities comparable
to most of the MPSC requirements." Id. After reviewing the PRAG's individual
contract ratings, the source selection authority (SSA) assigned final
confidence ratings to the offerors.

The SSET performed an initial evaluation, which was presented to the SSA at
a June 5 initial evaluation briefing (IEB). The SSA determined to include
both proposals in the competitive range and to conduct discussions in the
form of the issuance of evaluation notices (EN) addressing all proposal
inadequacies and weaknesses, and face-to-face discussions with each offeror.
The discussions encompassed technical and contractual ENs, and past
performance ENs. In response to the past performance ENs, written
explanations were solicited and provided by the offerors. The evaluation
process used color codes under which, as is relevant here, green represented
an acceptable rating and blue represented an exceptional rating. Discussions
were completed in late June, and a second evaluation briefing was given to
the SSA on June 29.

The Air Force issued a request for final proposal revisions (FPR) to both
offerors on July 18, each of which included a copy of the offeror's second
evaluation briefing charts showing evaluated strengths and weaknesses, and
both offerors submitted FPRs by the July 26 closing time. After the SSET
reviewed and evaluated the FPRs, an 8-hour final evaluation briefing with
the full SSET and the SSA was held on August 17. This meeting was open to
input by all SSET members, and divergent views were presented and
considered. On August 20, the final evaluation briefing charts were refined
at the SSA's direction to reflect the determinations reached as a result of
the meeting, and a source selection decision document (SSDD) was prepared by
the SSET chair, also at the SSA's direction.

TYBRIN's FPR price was $91,182,889; NLX's price was $87,459,695. TYBRIN's
proposal received a higher technical rating. In particular, under the past
performance factor, TYBRIN's proposal received a rating of "high
confidence/no doubt," while NLX's proposal received a rating of "significant
confidence/little doubt." TYBRIN's proposal also received a slightly higher
overall mission capability rating because TYBRIN received a blue/exceptional
rating versus NLX's green/acceptable rating under the RMP subfactor. The
mission capability subfactor evaluation assessments were otherwise the same
(green for all for both offerors), and both offerors received the same
proposal risk assessments, moderate under IMP and low under the other
subfactors. The SSA signed the SSDD on August 22, in which he summarized his
determination as follows:

The proposal submitted by TYBRIN Corporation represents the best overall
value to the Air Force. I have determined that the TYBRIN Corporation
proposal offered greater mission capability, a higher past performance
rating, and a superior approach in the Resource Management Plan subfactor
that was worth the additional 4.25 [percent] price differential over the NLX
Corporation proposal. TYBRIN Corporation offered greater efficiencies based
in part upon

their plan and commitment for continuous performance improvement, enhanced
employee retention and a superior employee-training program.

Agency Report (AR), Tab 97, SSDD, at 5.

The agency provided both offerors with a preaward notice letter on August
22. NLX received a debriefing on August 29 and timely filed this protest
with our Office on August 31, which it augmented with a supplemental protest
filed on October 15.

PROTEST AND REVIEW STANDARD

NLX's core protest allegation is that "the SSA consistently gave TYBRIN the
benefit of the doubt for the objective weaknesses in its proposal, while
holding NLX to a higher standard. Conversely, the SSA brushed aside NLX's
objective proposal strengths at the same time he lauded TYBRIN's." Protest
at 13. NLX goes on to assert that "NLX, not TYBRIN, offered the stronger
technical solution, the lower program risk, and the lower price, [thus]
TYBRIN certainly did not offer a 'better value' to the Government." Protest
at 14. NLX questions the reasonableness of, and the adequacy of the
documentation for, numerous aspects of the evaluation of both proposals,
most significantly with respect to the price evaluation, the past
performance evaluation and the RMP evaluation. NLX further asserts that the
allegedly unreasonable evaluations are attributable to bias against NLX on
the part of the SSET chairperson.

An agency's method for evaluating the relative merits of competing proposals
is a matter within the agency's discretion, since the agency is responsible
for defining its needs and the best method for accommodating them. Advanced
Tech. and Research

Corp., B-257451.2, Dec. 9, 1994, 94-2 CPD para. 230 at 3. Where an evaluation is
challenged, our Office will not reevaluate proposals but instead will
examine the record to determine whether the agency's judgment was reasonable
and consistent with stated evaluation criteria and applicable statutes and
regulations. Lear Siegler Servs., Inc., B-280834, B-280834.2, Nov. 25, 1998,
98-2 CPD para. 136 at 7. Our chief concern is not the number of strengths or
weaknesses, or specific ratings, but whether the evaluation communicates the
principal strengths and weaknesses to the SSA and whether the record
supports and adequately documents the agency's conclusions. Innovative
Logistics Techniques, Inc., B-275786.2, Apr. 2, 1997, 97-1 CPD para. 144 at 9;
PRC, Inc., B-274698.2, B-274698.3, Jan. 23, 1997, 97-1 CPD para. 115 at 4. The
fact that the protester disagrees with the agency's judgment does not render
the evaluation unreasonable.

PRICE

NLX's FPR price of $87,459,695 represented a [deleted] reduction from its
initial proposed price of [deleted]. In contrast, TYBRIN's FPR price of
$91,182,889 represented a relatively minor reduction from its initial price
of [deleted]. The evaluated proposed prices consist entirely of the fully
loaded annual wage rates for the proposed staff, escalated and extended over
the contract period, including options, plus a relatively small award fee
component. While both prices were "determined reasonable through competitive
market forces," the SSA was concerned by NLX's substantial price reduction.
AR, Tab 97, SSDD, at 5. In particular, the SSA was apprehensive that the
reduction was based substantially on a decrease in the projected annual
escalation rate from NLX's initial 3.6 percent average annual escalation
rate (which substantially matched the escalation factor recommended in the
solicitation, RFP sect. H-901.2), to an average annual [deleted] percent
escalation rate. AR, Tab 97, SSDD, at 5. The SSA viewed this reduction as
raising "concerns involving consistent and efficient contract performance,
retention of qualified contractor personnel throughout the life of the
contract, and other potential performance problems." Id.

In addition, the remainder of the reduction appeared to reflect a proposed
management change as it resulted from shifting half of the program manager's
and deputy manager's salaries, and all of the security manager's salary, to
an indirect cost account. Id. at 3-4. The SSA viewed this arrangement as "a
new management structure that consists of one equivalent direct-billed
person with shared responsibilities between two individuals, the program
manager and deputy manager. These individuals would work half time direct
and half time indirect." Id. This shift caused the SSA to question the
possible impact of the apparent "shared responsibility" based on the
additional risk created because "there would be a possibility of inefficient
communication, duplicative tasking of contractor effort and questionable
lines of authority/responsibility." Id. at 4

NLX argues that since this is a fixed-price contract, under which its FPR
price is within 4.25 percent of TYBRIN's price, and was found reasonable,
the proposed price reduction provided no basis for the agency to downgrade
NLX's proposal by assessing increased risk. Protester's Comments at 24-25.
In our view, the agency reasonably considered the risks introduced by NLX's
substantial price reduction. While the solicitation stated that price
reasonableness would be determined through competition, it also provided
that an evaluation for cost reasonableness would be performed by the
government cost/price analyst. RFP sect. M-903.2.4. The solicitation
specifically warned that the agency could reject a proposal that was
evaluated as unrealistically low in cost reflecting a failure to comprehend
the complexity and risks of the program. RFP sect. M-902.c. An agency reasonably
may consider risk associated with low proposed fixed prices where, as here,
the risk appropriately relates to the offeror's understanding. SEEMA, Inc.,
B-277988, Dec. 16, 1997. 98-1 CPD para. 12 at 5. The nature and extent of the
agency's price analysis is largely a matter of agency discretion. East/West
Indus., Inc., B-278734.4, May 28, 1998, 98-1 CPD para. 143 at 5. Further, an
offeror assumes the risk that changes in its final offer might raise
questions about its ability to meet solicitation requirements. Joint Threat
Servs., B-278168, B-278168.2, Jan. 5, 1998, 98-1 CPD para. 18 at 10.

Here, NLX proposed a dramatic price reduction which the SSA determined was
not adequately addressed or justified by NLX in its FPR. AR, Tab 97, SSDD,
at 5. In particular, the SSA determined that the reduction in the annual
escalation rates from those initially used by NLX, to an unrealistically low
[deleted] percent average escalation rate over the contract life (under
[deleted] percent per year in the last 3 years), resulted in increased
performance risk. NLX's only explanation in its FPR for the escalation
decrease was that it had switched to "the use of actual labor rates rather
than corporate-wide pooled rates," and that "everyone hired for this program
will be paid at their current salary or better." AR, Tab 84, NLX FPR, at 1.
This explanation is at best applicable to the proposed first-year wage
rates, but has no relevance to the reasonableness of, or basis for, the
later-year escalation rate decrease.

Similarly, the SSA questioned the potential performance problems raised by
shifting half of proposed wages for two key positions to indirect costs. As
the SSA explained at a hearing held in conjunction with this protest:

Here's the risk. I have a contract right now where the manager was only
direct billed 20 percent and I have problems on that contract. They are now
adjusting for 100 percent. My technical support folks . . . while they are
supposed to be working full-time on my programs, I only pay for part of
their salary with direct. The other is indirect. And . . . I'm always having
to take them out of corporate meetings to come to my meetings. What NLX
stated-and there was a footnote in the price chart-they stated that these
folks would work full-time. But when they are not direct billed against that
contract, I don't have control of those guys. If they go do overhead kind of
work, there's not a lot I can do about that. There's a risk with that.

Hearing Transcript (Tr.) at 152-53.

NLX's FPR spreadsheet simply states in a footnote that "[t]wo (2) full time
Site Managers will be assigned to the program." AR, Tab 84, NLX FPR, at
Price Spreadsheet. However, NLX also stated in its FPR that the "Program
Manager and Deputy Program Manager will each be charging 50% of their time
to an indirect labor account to support general management activities. This
results in an equivalent staffing of 1 Site Manager on the [price]
spreadsheet." Id. at 1. The SSA found that NLX had not adequately explained
the change in the functioning of the two positions that appears to result
from the proposed indirect costing manipulation. In our view, the SSA
reasonably concluded that NLX's dramatic and inadequately explained
escalation decrease, coupled with unexplained apparent changes in key
management roles raised valid concerns about NLX's possible lack of
understanding, and added risk to contract performance, including possible
retention problems. [2]

PAST PERFORMANCE

The evaluation of past performance is a matter within the discretion of the
contracting agency, which our Office will review in order to ensure that it
was reasonable and consistent with the stated evaluation criteria. Sterling
Servs., Inc., B-286326, Dec. 11, 2000, 2000 CPD para. 208 at 2-3. Here, the
solicitation stated that the past performance rating is designed to gauge
the confidence that the Air Force had in an offeror's probability of
successfully performing the MPSC as proposed. RFP sect. M-903.2.1. TYBRIN's past
performance received the highest possible confidence rating, high
confidence/no doubt, while NLX's past performance received the next highest
rating, significant confidence/little doubt. NLX contends that the
difference in the agency's degree of confidence is "not warranted by the
information submitted to the Air Force. On an objective basis, NLX provided
the Air Force with greater confidence that it (and its teaming partners)
could perform the MPSC without performance difficulties." Protest at 14.
NLX's complains that the two offerors' past performance was initially
evaluated as substantially the same by the PRAG, and that during the course
of the successive evaluations, without adequate documentation, NLX's
assessment was unreasonably reduced based on the relevance consideration.
Protester's Comments at 8. NLX contends that this is implausible in view of
the fact that NLX and its subcontractor, Lockheed, are incumbents and
received favorable performance assessments on the SSF and SSR contracts that
the instant RFP is replacing. NLX takes the position that these are the most
relevant contracts for evaluation purposes since the contract at issue is a
sustainment contract for the continuation of the SSF and SSR contracts, and
not a mission planning contract.

The Air Force correctly notes that having performed these two predecessor
contracts does not by itself establish that an offeror has the most relevant
past performance, and points out that NLX's assertion that the current
contract is merely a sustainment effort is factually misplaced. The agency
accurately points out that the MPSC contract also requires integration of
the predecessor contracts, and that the RFP contains a number of software
development requirements, and thus reflects substantially more than a purely
sustainment effort. More significantly, the RFP contains specific criteria
for assessing relevance. In particular, the RFP provides that comparable
programs warranting a "very relevant" assessment include "[o]n-site mission
planning engineering/technical services," and that programs comparable to
most requirements warranting a "relevant" assessment include "[o]n-site
engineering/technical services . . . [and a]ny mission planning related
efforts." RFP sect. 903-2.1.6. Accordingly, the agency's assessment of the
relevance of an offeror's past performance properly was focused on whether
the performance in question encompassed mission planning services.

The PRAG initially evaluated past performance relevance based on the five
most relevant recent contracts about which offerors were invited in the RFP
to provide relevance information. This evaluation was limited to the
information provided by the offerors. Contracting Officer's Statement at 8.
NLX's argument is substantially based on the fact that under this initial
evaluation, all five of NLX's contracts were evaluated as very relevant, but
that four of these contracts were "mysteriously . . . downgraded to
'relevant.'" Protester's Comments at 8. The record shows that, consistent
with the RFP, the PRAG team developed additional information about a broader
range of relevant contracts by querying the contractor performance
assessment rating system (CPARS) database and conducting followup inquiries
with appropriate contract administration officials, and that the data was
assembled and presented in detail at the August 17 decision briefing.
Contracting Officer's Statement at 3-4. In order to reach the determination
that a contract was very relevant, the PRAG applied the RFP criteria, which
focused on an assessment of whether the contract included on-site mission
planning and engineering and technical services, not simply mission planning
sustainment. Id. at 8.

The PRAG recognized NLX's performance of the SSF contract, found this
contract very relevant, and assigned a blue/exceptional rating. AR, Tab 95,
Decision Briefing, at 52. The PRAG also recognized [deleted] (NLX's proposed
subcontractor's) performance of SSR contracts as very relevant, and assigned
performance ratings of green/acceptable. In the final PRAG report presented
to the SSA at the decision briefing, the PRAG reported that NLX's team's
past performance consisted of four very relevant contracts and 16 relevant
contracts. Of the four very relevant contracts, the PRAG rated one as
blue/exceptional, and the remaining three as green/acceptable. For the
TYBRIN team, there were a total of 13 contracts, nine of which were rated
very relevant. Of these nine, six received a performance rating of
blue/exceptional and the other three were green/acceptable. Id. at 52-54.
Based on these assessments, the SSA concluded that a high confidence/no
doubt rating was warranted for TYBRIN and a significant confidence/little
doubt rating was warranted for NLX. In view of the PRAG's assessments, which
are substantiated by a detailed review of the contract performance records
showing that the TYBRIN team had substantially more highly relevant
contracts with blue/exceptional ratings than did the NLX team, the record
establishes that the SSA's respective performance rating determinations were
reasonable and adequately documented. NLX's disagreement does not establish
otherwise, and we see no basis to question the reasonableness of the SSA's
past performance evaluations of the two offerors.

RESOURCE MANAGEMENT PLAN

Under this factor, TYBRIN's final evaluation was blue(exceptional)/low risk;
and NLX was evaluated as green(acceptable)/low risk. NLX complains that both
proposals were rated equal (green/low) initially, and that there was no
basis in the record to support the raising of TYBRIN's final score to blue.
Protester's Hearing Comments at 17. The RFP states that the RMP is met when
the proposal demonstrates a smooth and efficient buildup of qualified
personnel and resources to ensure no interruption of services or impact to
the mission, and the requirements include a hiring plan, sample resumes,
retention factors, a security clearance plan, and an internal training plan.
RFP sect. M-903-2.2.1.3. The SSA concluded that TYBRIN exceeded requirements and
that NLX provided lesser strengths in retention and employee incentives. AR,
Tab 97, SSDD, at 4.

At the June 5 briefing, TYBRIN's assessment under RMP was changed from green
to blue for which the briefing notes "[the SSA] directs that we raise them
to a Blue here." AR, Tab 52, IEB, at 85. NLX objects that no further
contemporaneous explanation is found, thus the change was unwarranted and
unjustified. Protester's Comments at 19. In fact, the SSDD details that the
SSA found TYBRIN to have "exceeded the minimum requirements in a beneficial
way by clearly demonstrating they understood the resource management
requirements and providing an exceptional hiring plan, internal training
plan and security clearance plan. The key strength was their ability to tie
all the plans together in an integrated resource management plan by
incorporating personnel requirements, metrics and rewards." AR, Tab 97,
SSDD, at 4. The SSA concluded that TYBRIN's "proposal demonstrates that they
would maintain the quality personnel required for this effort and that would
significantly benefit the Air Force," in contrast to NLX Corporation's
lesser strengths. Id.

While NLX disagrees with this assessment of TYBRIN's relative strength, it
is supported by the record, which establishes that TYBRIN's RMP proposed a
variety of more favorable benefits under its retirement, leave and benefits
plans. In addition, TYBRIN's security plan stated that it had obtained
permission for blanket rollover of security clearances for incumbent
personnel, which NLX had not. TYBRIN also proposed a variety of specific
employee training programs beyond those proposed by NLX. Additionally,
TYBRIN's proposal also committed to track its resource management
performance to [deleted], while NLX's did not. Source selection officials
have broad discretion to determine the manner and extent to which they will
make use of evaluation results, which are merely guides for the SSA, who
must use his own judgment to determine what the underlying differences
between proposals might mean to successful performance of the contract.
Information Network Sys., B-284854, B-284854.2, June 12, 2000, 2000 CPD
para. 104 at 12. Here, the record establishes that the SSA reasonably determined
that TYBRIN offered a better, more integrated RMP package than NLX, and
adequately documented his determination that TYBRIN's exceptional rating was
warranted.

In sum, we find without merit NLX's contention that the two proposals were
improperly evaluated. On the contrary, based on our review of the entire
record, we conclude that the Air Force's evaluation of the two proposals was
reasonable and consistent with the solicitation criteria, and adequately
documented, and does not reflect dissimilar or unequal treatment. [3] In
short, the differences in the two

proposals recognized by the SSA provide a reasonable basis for the decision
to award to TYBRIN.

The protest is denied.

Anthony H. Gamboa

General Counsel

Notes

1. The "award term" provision in the solicitation provides that the
contractor may earn an extension to the contract period of performance from
3 to 6 years on the basis of performance during the evaluation period.
Specifically, the contractor may earn up to 25 points every 6 months during
the first 2 years of the evaluation periods, with an accumulation of 70
points over 2 years required in order to earn a 3-year extension. The
evaluation periods occur during years 1 and 2 for the first award term
period and during years 4 and 5 for the final award term period. RFP sect.
H-902.

2. We also note that under NLX's FPR pricing strategy, NLX's prices exceed
TYBRIN's on an annual basis for the first 3 years, the only period for which
prices are actually fixed. AR, Tab 84, NLX FPR Price Spreadsheet; AR, Tab
83, TYBRIN FPR Price Spreadsheet. In our view, this raises a question as to
whether the government would actually obtain the benefit of NLX's lower
evaluated price. The RFP contains an escalation clause, sect. H-901, which
provides that absent an applicable ceiling, which was not present here, the
actually allowable escalation after the 3-year base period could be adjusted
based on differences in the then-current escalation rate relative to the
recommended measure of average industry escalation listed in the RFP.
Depending on the accuracy of the RFP's recommended escalation rate, NLX may
be able to obtain an increased escalation rate under this provision.
Further, if NLX instead chose to retain the proposed curtailed salary
escalation, with the attendant retention and performance risk that the Air
Force reasonably assessed, this could affect the exercise of the "award
term" options, which as noted above, the RFP specifically makes dependent on
achieving favorable performance ratings. Absent the option exercise,
TYBRIN's price would be lower since it is lower during the base period. In
either instance, there is a question as to whether NLX's price will actually
represent the lower cost to the government.

3. This decision addresses only the more relevant protest allegations raised
by NLX, specifically those relating to the evaluation areas that were
critical to the source selection trade-off determination. We have carefully
reviewed each of NLX's numerous other allegations and we find all of them
without merit. The record does not evidence that there were any meaningful
improprieties in the agency's evaluation of the respective proposals. In
view of this determination, NLX's allegation of bias on the part of the SSET
chair provides no basis to sustain the protest. In order to establish bias,
the protester must show both that the procurement official in question
specifically intended to harm the protester, and that this translated into
action which unfairly affected the protester's competitive position. Arctic
Slope World Servs., Inc., B-284481, B-284481.2, Apr. 27, 2000, 2000 CPD para. 75
at 12. Where, as here, we conclude that the respective evaluations were
reasonable and adequately documented, there is no basis to conclude that the
protester's competitive position was affected by any possible bias.

In a supplemental protest filed on October 15, NLX added a contention that
an improper organizational conflict of interest resulted from the award
because "TYBRIN developed the mission planning software that it will be
fielding, testing and fixing under this Contract." Supplemental Protest at
10. This allegation is untimely and not for consideration on the merits
since it was filed more than 10 days after NLX's August 29 debriefing, at
which time NLX knew or should have known all of the information which formed
the basis for this protest ground. LeBoeuf, Lamb, Greene & MacRae, B-283825,
B-283825.3, Feb. 3, 2000, 2000 CPD para. 35 at 11-12.