TITLE:  Mnemonics, Inc., B-290961, October 28, 2002
BNUMBER:  B-290961
DATE:  October 28, 2002
**********************************************************************
Mnemonics, Inc., B-290961, October 28, 2002

   DOCUMENT FOR PUBLIC RELEASE                                                
The decision issued on the date below was subject to a GAO Protective      
Order.  This redacted version has been approved for public release.        

   Decision
    
Matter of:    Mnemonics, Inc.
    
File:             B-290961
    
Date:              October 28, 2002
    
John R. Kancilia, Esq., Gray, Harris & Robinson, for the protester.
Maj. Robert B. Neill and Wayne J. Van Kauwenbergh, Esq., Department of the
Army, 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 solicitation provided that technical evaluation factors would be
evaluated against specified requirements on a *pass/fail* basis, and
agency concluded that protester's proposal met all the stated *pass/fail*
requirements, agency improperly excluded protester's proposal from the
competitive range [deleted] because protester's proposal was *not among
the most highly rated,* where the agency's determination was based on an
assessment of proposals' *strengths* *weaknesses* and *deficiencies* under
the factors that the solicitation indicated would be evaluated on a
*pass/fail* basis, as well as under other undisclosed evaluation factors.
DECISION
    
Mnemonics, Inc. protests the Department of the Army's exclusion of
Mnemonics' proposal from the competitive range under request for proposals
(RFP) No. USZA95-02-R-0017 for the development and production of Intel
Broadcast Receivers (IBR) to be used in MH-47 and MH-60 helicopters. 
Mnemonics' protests, among other things, that the agency's exclusion of
Mnemonics' proposal, and the retention of [deleted] proposal in the
competitive range, were based on the agency's application of unstated
evaluation factors.
    
We sustain the protest.
    
BACKGROUND
    
The RFP was issued on February 15, 2002, seeking proposals to develop,
test, and produce IBRs for use with MH-47 medium lift and H‑60
utility helicopters.[1]  Agency Report, Tab 3, RFP at 6.  The value of the
resulting contract is expected to be [deleted].  Agency Report, Tab 2,
Contracting Officer's Statement, at 1-2. 
    
As amended, the solicitation provided that proposals would be evaluated on
the basis of technical, business, and past performance factors, and that
technical factors were *of paramount importance.*  Agency Report, Tab 3,
RFP at 54.  Section M of the solicitation listed 17 technical evaluation
factors, provided that evaluation under 14 of these 17 factors would be
performed on a *pass/fail* basis, [2] and stated that proposals would be
subjectively *graded* under the 3 remaining technical factors. [3]  Id. at
55-58.  The solicitation also provided that an evaluation of *proposal
risk* would be integrated into the rating of each technical evaluation
factor.[4]  Id. at 54.
    
For each of the 14 *pass/fail* factors, section M of the solicitation
listed the factor and, beside that listing, described the specific
requirements proposals must meet.  For example, the solicitation stated,
in part:
    
       a.  Receive Capability      The IBR shall have a cPCI [compact
Peripheral
Component Interface] ENTR [Embedded National Tactical Receiver] card to
receive four (4) receive channels with spare capability to insert another
cPCI ENTR card to increase to eight (8) receive channels.  Channels shall
be processed simultaneously.  IBR must receive and process Tactical
Related Applications Program (TRAP) Data Dissemination Systems (TDDS),
Tactical Information Broadcast Service (TIBS), and On-Board
Processing/Direct Down Link (OBP/DDL), previously called Tactical Data
Information Exchange Subsystem B (TADIXS-B).  The user must be able to
select and/or change preloaded frequencies for all channels, threats,
filter settings, and other pertinent IBR settings via the 1553 or Ethernet
interface.  The IBR shall provide status on the operation of each channel
via the 1553 and Ethernet interface.  Data rates shall be adjustable up to
19.2 Kilobits Per Second (kbps).
    
.     .     .     .     .
    
       f.  COMSEC                       Provide embedded COMSEC for all data
channels.
           (Communications         (COMSEC will be determined by IBS
requirements
            Security Function)       as reflected in IBS Broadcast JORD.) 
The IBR
must have an internal power backup of crypto keys that can provide a
minimum of 24 hour backup.  The IBR must provide crypto loading at the LRU
and an external connector for remote crypto loading capability via a
remotely located fill panel.  The IBR shall receive *black* or
unclassified traffic keys for training and/or maintenance functions.
    
.     .     .     .     .
    
       g.  Data Processing           Data filtering and output message
formatting must
            Functions                     be independently selectable. 
Provides discrete
serial, 1553 bus, and Ethernet bus communications.
              
       h.  Bus Control                  IBR shall be controllable by CAAS
using Ethernet
and MIL-STD-1553B messages in flight.
    
Agency Report, Tab 3, RFP at 54-56.
    
On or before the May 6, 2002 closing date, proposals were submitted by
[deleted] offerors--Mnemonics, [deleted].[5]  Following requests for
clarification, the agency evaluated the offerors' technical proposals,
finding that [deleted] Mnemonics' and [deleted] proposals met all of the
stated requirements for each of the 14 *pass/fail* factors; accordingly,
[deleted] proposals received ratings of *pass* for each of these factors. 
Agency Report, Tab 49, Briefing for Source Selection Authority (SSA) at
28, 42.  Nonetheless, the agency also performed a qualitative assessment
of proposal *strengths,* *weaknesses* and *deficiencies* related to each
of the 14 *pass/fail* factors.   
    
Specifically, the agency evaluated [deleted] proposal as containing
various *strengths* because it proposed to exceed the stated requirements
for the *pass/fail* factors.[6]  For example, the agency credited
[deleted] proposal with a *strength* under one *pass/fail* factor,
[deleted], stating:  *[deleted].  This was not a requirement.*  Agency
Report, Tab 49, Briefing to SSA, at 30.  Similarly, the agency credited
[deleted] proposal with a *strength* under another *pass/fail* factor,
[deleted], because [deleted] proposed *[deleted] over and above what was
required.*  Agency Report, Tab 46, Technical Evaluation Summary [deleted],
at 4.  Again, with regard to [deleted], also a *pass/fail* factor, the
agency credited [deleted] proposal with a strength, stating:  *[deleted]
proposed [deleted] that exceed the requirements.  [deleted] were
proposed.*  Agency Report, Tab 49, Briefing to SSA, at 31.  Overall, the
evaluation record shows that the agency credited [deleted] proposal with a
total of [deleted] strengths under [deleted] of the *pass/fail* evaluation
factors.[7]  Agency Report, Tab 46, Briefing to SSA, at 30‑33.
    
In contrast, while acknowledging that Mnemonics' proposal met every stated
requirement under each of the *pass/fail* factors, the agency evaluated
Mnemonics' proposal as reflecting certain *weaknesses* and *deficiencies*
under these factors.  Most significantly, in evaluating Mnemonics'
proposal under the *pass/fail* factor for [deleted], the agency assessed a
*major deficiency* to Mnemonics' proposal on the basis that Mnemonics had
proposed to [deleted].[8]  Agency Report, Tab 49, Briefing to SSA, at 48. 
The agency does not dispute that use of the [deleted] will, in fact,
comply with the requirements stated by the solicitation regarding
[deleted].  Rather the agency states that [deleted] rendered Mnemonics'
proposal *deficient* because [deleted].*  Agency Report, Tab 49, Briefing
to SSA, at 48.  One of the individual evaluators' worksheets candidly
states:  *The contractor[']s proposal [deleted] makes a significant
departure from the intent of the government to [deleted].  The [deleted]
is planned as the new [deleted] standard.*  Agency Report Tab 34,
Individual Evaluator Worksheet, at 2.   
    
Following the agency's completion of its technical evaluation, and
evaluation of the offerors' cost and past performance,[9] the agency
determined to eliminate Mnemonics' proposal from the competitive range
[deleted] *on the basis of its [Mnemonics'] technical proposal not being
among the most highly rated.*[10]  Agency Report, Tab 55, Letter from
Contracting Officer to Mnemonics (July 1, 2002).  Upon being advised that
it had been eliminated from the competition, Mnemonics filed this
protest.     
    
DISCUSSION
    
Mnemonics protests that its proposal was improperly eliminated from the
competition on the basis of unstated evaluation factors.  More
specifically, Mnemonics maintains that the agency's evaluation of
[deleted] Mnemonics' and [deleted] proposals under the 14 *pass/fail*
technical evaluation factors reflected the agency's consideration and
application of material, undisclosed criteria.  We agree.
    
Although procuring agencies have broad discretion regarding selection of
the evaluation criteria to be applied, see, e.g., TRW, Inc., B-234558,
June 21, 1989, 89-1 CPD P: 584 at 4, they are required to disclose all
evaluation factors and significant subfactors, along with their relative
importance, in order for offerors to meaningfully compete on an equal
basis.  41 U.S.C. S: 253a(b)(1) (1994); Federal Acquisition Regulation
(FAR) S: 15.203(a)(4).  An agency may not induce offerors to prepare and
submit proposals based on one premise, then make source selection
decisions based on another.  Hattal & Assocs., B‑243357; B-243357.2,
July 25, 1991, 91-2 CPD P: 90.  Accordingly, once offerors are informed of
the evaluation criteria against which proposals will be evaluated, the
agency must adhere to the stated criteria, or inform all offerors of all
significant changes.  DynCorp, B-245289, B-245289.2, Dec. 23, 1991, 91-2
CPD P: 575 at 5.   
    
Here, the agency clearly advised offerors that proposals would be
evaluated under 14 of the 17 technical evaluation factors based on an
objective assessment as to whether or not the proposed IBR would meet the
stated performance requirements.  The agency's stated basis of evaluation
for these factors was specifically described in contrast to the subjective
grading by which the remaining three technical factors would be
evaluated.  Notwithstanding these publicly stated ground rules for the
competition, the agency proceeded to make qualitative distinctions between
the two proposals based on factors which were neither disclosed, nor
reasonably subsumed within the stated requirements.  Ultimately, the
agency concluded that [deleted] *among the most highly rated* based on
these distinctions.   
    
As noted above, despite the undisputed fact that Mnemonics' proposed
[deleted] met the solicitation's stated requirements, the agency concluded
that this aspect of Mnemonics' proposal rendered its proposal *deficient*
because this approach was *a significant departure from the intent of the
government [deleted].*  Agency Report, Tab 34, Individual Evaluator
Worksheet, at 2.  On this basis alone we find the agency to have clearly
applied an unstated evaluation factor.[11]  The agency asserts that, by
advising offerors of the agency's intent to perform a *proposal risk*
assessment, the agency fulfilled its obligation to disclose all of the
evaluation criteria that it subsequently applied.  We disagree.
    
While agencies are not required to identify each and every individual
element encompassed within a stated evaluation factor/subfactor, unstated
individual elements must be reasonably subsumed within the stated
factors/subfactors.  Israel Aircraft Indus., Ltd. MATA Helicopters Div.,
B-274389, et al., Dec. 6, 1996, 97-1 CPD P: 41.  This was not the case
here.  Specifically, nothing in the solicitation's stated requirements
reasonably put offerors on notice that a proposal incorporating anything
other than [deleted] would be evaluated as contrary to the *intent of the
government* and that such a proposal would be evaluated as containing a
*major deficiency.*      
    
Additionally, the agency's assessment of *strengths* in [deleted] proposal
under the *pass/fail* evaluation factors was inconsistent with the
solicitation statement that proposals would be evaluated against the
stated performance requirements on a *pass/fail* basis.  Nothing in the
solicitation reasonably notified offerors that, in addition to evaluating
whether or not a proposal met the stated *pass/fail* requirements,
proposals would be credited with *strengths* for exceeding those
requirements in various undisclosed ways.  Offerors whose proposals were
excluded from the competitive range might have proposed enhancements had
they been advised of the agency's intent in this regard.  In our view, the
agency's failure to disclose its intent created an unfair competition.
    
The protest is sustained.
    
RECOMMENDATION
    
Based on the record, as discussed above, the existing solicitation appears
to be defective in two respects.  First, the RFP does not disclose the
Army's apparent conclusion that a proposal based on [deleted] does not
meet its needs.  Second, the solicitation describes a *pass/fail*
evaluation methodology for the majority of the technical evaluation
factors, while the Army apparently desires to evaluate relative strengths,
giving credit for proposed enhancements that exceed minimally acceptable
performance levels.  Accordingly, we recommend that the agency review its
requirements and amend the solicitation in a manner which clearly
discloses the applicable requirements and evaluation methodology.  Upon
amending the solicitation, the agency should seek new proposals and
evaluate those proposals in a manner consistent with the solicitation
provisions.  We also recommend that the agency reimburse the protester for
its costs of filing and pursuing the protest, including reasonable
attorneys' fees.  Bid Protest Regulations, 4 C.F.R. S: 21.8(d)(1) (2002). 
In accordance with section 21.8 of our Regulations, Mnemonics' certified
claim for those costs, detailing the time expended and the costs incurred,
must be submitted directly to the agency within 60 days after receipt of
this decision.
    
Anthony H. Gamboa
General Counsel
    

   ------------------------

   [1] The function of the IBRs is to allow receipt of real time intelligence
information up to and during missions.  Agency Report, Tab 2, Contracting
Officer's Statement, at 2.   
[2] The fourteen *pass/fail* factors were:  receive capability, weight,
form/fit, system start up, classification level, COMSEC (Communications
Security Function), data processing functions, bus control, zeroize
functions, self test, software, electrical interfaces, cooling, and
operating environment.  Id. at 55-57.
[3] The three *graded* factors were:  date for first article delivery,
processor and memory, and maintenance and support.  Id. at 57.
[4] *Proposal risk* was defined as *those risks associated with an
offeror's proposed approach in meeting the Government requirements.*  Id.
at 54.
[5] Because the agency's evaluation of [deleted] is not relevant to
resolution of Mnemonics' protest, our decision does not further discuss
[deleted].
[6] The agency's source selection plan, which was not disclosed to
offerors, defined a *strength* as *a feature, item, technique or
methodology, which stands out as a significant benefit to enhance the
effective execution of the program.*  Agency Report, Tab 16, Source
Selection Plan, at 5.
[7] The agency credited [deleted] proposal with [deleted] strengths under
the *pass/fail* factor, [deleted], and [deleted] each under each of the
following *pass/fail* factors:  [deleted].  Id. 
[8]  The [deleted] are [deleted] which [deleted].
[9] Our decision does not further address the agency's evaluation of cost
and past performance because the contracting officer expressly states: 
*Mnemonics was not excluded from the competitive range based upon cost or
past performance.* Agency Report, Tab 2, Contracting Officer's Statement,
at 10.
[10] More specifically, the contracting officer stipulates that Mnemonics'
proposal of [deleted] *was a primary reason for elimination from the
competitive range.*  Agency Report, Tab 2, Contracting Officer's
Statement, at 15.  [Deleted]. 
[11] We also note that the existing record contains virtually no
documented support for the agency's stated concerns regarding Mnemonics'
ability to obtain [deleted].  Specifically, Mnemonics responded to the
agency's clarification requests concerning the availability of the
[deleted] by stating that Mnemonics currently possesses [deleted] to meet
initial delivery requirements, and provided the agency with correspondence
between itself and the [deleted] would be available.  Agency Report, Tab
29, Mnemonics' Response to IBR Clarification Questions.  Nothing in the
record refutes Mnemonics' representations in this regard.  The agency's
estimation of a total contract value [deleted] is based on purchasing
production quantities of 800 IBR units.  Agency Report, Tab 3, RFP at 2,
contract line item numbers 3, 4.  Further, the agency upwardly adjusted
Mnemonics' proposed price by [deleted] to reflect the [deleted]
acquisition of [deleted].  Agency Report, Tab 48, Business Report
Memorandum, at 2.