TITLE:  Lockheed Martin Simulation, Training & Support, B-292836.8; B-292836.9; B-292836.10, November 24, 2004
BNUMBER:  B-292836.8; B-292836.9; B-292836.10
DATE:  November 24, 2004
**********************************************************************
   Decision

   Matter of: Lockheed Martin Simulation, Training & Support

   File: B-292836.8; B-292836.9; B-292836.10

   Date:            November 24, 2004

   Thomas C. Papson, Esq., Richard B. Oliver, Esq., Alison L. Doyle, Esq.,
Jason N. Workmaster, Esq., Stephen M. Lastelic, Esq., Kevin J. Slattum,
Esq., and Joseph S. Beemsterboer, Esq., McKenna Long & Aldridge LLP, for
the protester.

   Rand L. Allen, Esq., Philip J. Davis, Esq., Paul F. Khoury, Esq., Michael
S. Caldwell, Esq., William J. Grimaldi, Esq., Adam J. Rogers, Esq., and
Steven N. Tomanelli, Esq., Wiley Rein & Fielding LLP, for Electronic Data
Systems Information Services, LLC, an intervenor.

   Peter F. Pontzer, Esq., Kenneth M. Hyde, Esq., Kimberly Y. Nash, Esq., and
Angela T. Puri, Esq., Department of Housing and Urban Development, for the
agency.

   Scott H. Riback, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1.  Protest that agency improperly engaged in post-final proposal revision
(post-FPR) discussions only with awardee is sustained where record shows
that post-FPR exchange resulted in material changes to awardee's proposal.

   2.  Protest that agency failed to engage in meaningful discussions with
protester is sustained where record shows that agency failed to discuss
weaknesses first identified in a reevaluation of proposals that were based
on earlier proposal language, and also was unreasonably vague in areas
where agency did conduct discussions. 

   DECISION

   Lockheed Martin Simulation, Training & Support, a business unit of
Lockheed Martin Corporation (LMC), protests the award of a contract to
Electronic Data Systems Information Services, LLC (EDS) under request for
proposals (RFP) No. R-OPC-21970, issued by the Department of Housing and
Urban Development (HUD) to acquire information technology (IT) services. 
LMC asserts that the agency committed various errors in conducting
discussions, misevaluated proposals, and made an unreasonable source
selection decision.

   We sustain the protest.

   BACKGROUND

   This is the third occasion where we have been called upon to review HUD's
actions in connection with this acquisition.  In August 2003, HUD awarded
a contract to EDS under the subject RFP and LMC filed a protest relating
to that award.  We sustained the protest, finding that the agency
misevaluated the proposals in numerous respects and appeared to have
applied a double standard in its evaluation; as a consequence, the
agency's source selection decision was not reasonable.  We recommended
that the agency reopen the acquisition, engage in discussions with the
offerors, obtain and evaluate revised proposals (being sure to apply a
consistent standard in its evaluation) and make a new source selection
decision.  Lockheed Martin Info. Sys., B-292836 et al., Dec. 18, 2003,
2003 CPD P 230. 

   During the pendency of the initial protest, the agency determined that
proceeding with performance of the EDS contract in the face of the protest
was in the government's best interest.  The agency therefore began
transitioning its IT requirements from LMC, which had been the incumbent,
to EDS.  At the time of the agency's original decision to proceed with
performance, LMC did not challenge the agency's actions.  Subsequently,
and at approximately the same time that the agency initiated its
corrective action, LMC pursued injunctive relief at the United States
Court of Federal Claims, seeking to prevent the further transition of IT
activities from LMC to EDS.  The Court did not rule on that dispute
because the parties arrived at a negotiated settlement that suspended
further transition activities until a new award decision could be made. 
Thus, following these actions, EDS was performing a portion of HUD's IT
requirements, and LMC the remainder. 

   In response to our earlier decision, the agency amended the RFP in
numerous significant respects and afforded the offerors an opportunity to
submit revised proposals.  Thereafter, both LMC and EDS filed pre-closing
protests, each maintaining that the terms of the reopened competition
provided the other offeror an unfair competitive advantage.  Our Office
conducted an alternative dispute resolution (ADR) session in an effort to
settle the protests and allow the agency to proceed with its acquisition. 
The ADR session resulted in the agency's making several amendments to the
RFP in response to the protest allegations, and EDS and LMC withdrawing
their respective protests.

   The Solicitation

   As explained in more detail in our first decision, HUD issued the RFP to
acquire a wide range of IT services to support all of the agency's
requirements for information processing, telecommunications and other
related needs for a base (transition) period of up to 1A year, with nine
1-year options.  The RFP contemplated a single award for the HUD
Information Technology Solution (HITS) contract, which is a follow-on
contract for the HUD Integrated Information Processing Service (HIIPS)
contract.  (As noted, LMC was the incumbent for the HIIPS contract, but as
a consequence of the agency's transition activities, EDS also currently
performs a portion of the agency's requirements.)  The solicitation
contemplated the award of a hybrid contract including both fixed-price and
cost-reimbursement contract line item numbers (CLINs). 

   The requirement--essentially all of HUD's information processing,
telecommunications and related needs on a nationwide, agency-wide
basis--was organized around 24 core functions reflecting the agency's
various service needs.  For example, the first core function, "hardware,"
includes the provision, management, storage, maintenance, upgrade, backup
and operation of all computer hardware, including mainframe computers,
servers, printers and peripheral devices.  Another core function relates
to the provision of all of the agency's desktop computing requirements,
another to notebook computing requirements, and so on. 

   The RFP reflected a performance-based contracting approach, and thus did
not include substantive specifications or a statement of work.  Instead,
the RFP set forth a statement of objectives, outlined in general terms the
various core functions, and presented information relating to HUD's
current computing environment.[1]  Offerors were required to include in
their proposals two primary items--performance work statements (PWS) (one
for each CLIN), which were intended to embody the contract terms that
would govern the rights and obligations of the parties; and one or more
service level agreements (SLA), which were to include both minimum and
higher standards of performance, as measured by various performance
metrics (essentially, empirical standards against which a firm's
performance would be measured).  (Other information was required--such as
a quality assurance surveillance plan and past performance
information--but the PWSs and SLAs were the documents that would outline
the central substantive elements of the firms' HITS solution, and govern
the contractual rights and liabilities of the parties.)

   The RFP advised firms that the agency intended to make award to the firm
submitting the proposal found to offer the "best value" to the government,
considering both cost/price and several non-cost/price considerations. 
The first and most important evaluation factor, capability, was further
divided into the following subfactors (in descending order of
importance):  technical/management solution, performance metrics,
transition approach, and small business strategy.  The second evaluation
factor was past performance.  The RFP provided that the agency would
assign adjectival ratings--exceptional, good, satisfactory, marginal or
poor (or neutral for a lack of past performance)--for these factors and
subfactors.  These two factors combined were significantly more important
than the third factor, cost/price.  Finally, the RFP advised that the
agency would assign each of the non-cost/price considerations a risk
rating of high, medium or low. 

   The Proposals

   As noted, the agency initially called for revised proposals in an effort
to implement our earlier-recommended corrective action.  HUD conducted
detailed debriefings for the offerors (LMC's debriefing occurred at the
time of the original award, in AugustA 2003, while EDS was provided its
debriefing as part of the agency's effort to implement our recommended
corrective action), and also engaged in discussions with the firms.  On
March 31, 2004, prior to our conducting the ADR session to resolve the
pre-closing protests, the agency received revised proposals.  After the
agency amended the solicitation in response to the ADR procedure, LMC and
EDS were afforded the opportunity to submit limited revisions to their
proposals.  (HUD was unwilling to open discussions on a general basis at
that time.)  Final proposal revisions (FPR) were submitted on June 18.

   On June 28, the agency sent communications to both firms.  In its letter
to LMC, the agency asked it to verify that certain non-local equipment
moves were included in its fixed price, and to calculate the outcome (the
payment of a financial incentive or disincentive) in the application of
one of its SLAs using sample data.  Agency Report (AR), exh. 109.  In its
letter to EDS, the agency raised two questions--it asked EDS to calculate
the outcome of an SLA using sample data, and also asked the firm to
clarify an aspect of its technology refresh solution (also referred to in
the record as its technical refresh plan) as it related to the replacement
of government-furnished equipment (GFE).  AR, exh. 112.  The firms
provided responses to these questions on June 29 and 30. 

   The agency evaluated the proposals and assigned the following ratings
(concluding that the proposals were "essentially equal" with respect to
cost/price):

   +------------------------------------------------------------------------+
|A                            |LMC                  |EDS                 |
|-----------------------------+---------------------+--------------------|
|Overall Technical Rating/Risk|Marginal/High        |Good/Medium         |
|-----------------------------+---------------------+--------------------|
|Capability Factor/Risk       |Satisfactory/High    |Good/Medium         |
|-----------------------------+---------------------+--------------------|
|Tech./Mgmt. Subfactor/Risk   |Satisfactory/Medium  |Exceptional/Low     |
|-----------------------------+---------------------+--------------------|
|Perf. Metrics Subfactor/Risk |Marginal/High        |Satisfactory/Medium |
|-----------------------------+---------------------+--------------------|
|Transition Subfactor/Risk    |Marginal/High        |Good/Low            |
|-----------------------------+---------------------+--------------------|
|Small Business Subfactor/Risk|Exceptional/Low      |Good/Low            |
|-----------------------------+---------------------+--------------------|
|Past Perf. Factor/Risk       |Good/Low             |Good/Low            |
|-----------------------------+---------------------+--------------------|
|Evaluated Price              |$745,364,142         |$743,731,579        |
+------------------------------------------------------------------------+

   AR, exh. 116, at iii, iv, 15.  On the basis of these evaluation results,
the agency made award to EDS.  This protest followed.

   LMC raises a number of assertions, including several relating to the
conduct of discussions.  We conclude that the discussions were flawed, and
sustain LMC's protest on this basis.

   EDS POST-FPR EXCHANGE

   Technical Refresh Plan

   Both offerors included as part of their proposals technical refresh plans,
that is, a plan for periodically replacing computing and
telecommunications assets with new assets.  (For example, an offeror might
propose to replace desktop computers every 30 months, and servers every 50
months.)  HUD had on hand a vast array and quantity of computing and
telecommunications equipment of varying age and functionality, which it
made available to the offerors as GFE to be used under their respective
HITS solutions.  GFE is to be utilized during the initial stages of the
contract, and then be replaced with contractor-owned assets in the
subsequent years of the contract.  EDS's technical refresh plan, as
presented in its FPR, provided:

   The contractor solution shall provide provisioning, management, storage,
maintenance, backup, and operation of all computer hardware (including
printers and peripherals) to meet or exceed HITS objectives.  Throughout
the delivery of core function services, the contractor shall provide for
the procurement, delivery, installation, and maintenance of new equipment
in accordance with the technology refresh plan defined in Exhibit 3.1-5.

   As illustrated in Exhibit 3.1-5, equipment replacement is scheduled when
systems reach the operational reorder age, and refresh is planned for
completion before the equipment reaches its maximum operating age.

   AR, exh. 111, at C-43.  EDS's proposal exhibit 3.1-5, referred to in the
above-quoted text, is a table with a comprehensive list of the various
categories of hardware to be used under the contract, with a "reorder age"
and "maximum operating age" (MOA) for each category of equipment expressed
in months (for example, the table lists desktop computers and shows a
reorder age of [deleted]).  Id.  The exhibit also includes several
footnotes relating to some of the details of EDS's technical refresh
plan.  As is relevant here, footnote 6 provides "[r]eorder age is defined
from the date of installation into HITS environment."  Id.

   The agency evaluators apparently were unsure how GFE was being treated
under the EDS technical refresh plan.  Accordingly, on June 28, the agency
posed the following question to EDS:

   Reference Exhibit 3.1-5, Page C-43, Maximum Operating Age.  Please clarify
whether the "maximum operating age" of GFE will be measured from the date
of contract award or date of installation into the *as-is' operating
environment.

   AR, exh. 112.  EDS's June 30 response provided as follows:

   The "Maximum Operating Age" used in Exhibit 3.1-5 refers to the EDS
estimate for the useful operating life by the category of equipment, and
is to be counted from the date of installation by EDS into the HITS
solution.  The categories of equipment in Exhibit 3.1-5 that have
projections for "Reorder Age" (which is the point at which EDS will begin
the ordering process to replace a unit) and "Maximum Operating Age"
[deleted].  The footnotes #1-#5 in the exhibit discuss the migration path
for some of the categories of existing GFE . . . .

   The process to assess the age and replace the existing HUD owned GFE in
place at the time of HITS transition will be accomplished in several steps
as detailed below:

   AR, exh. 112.  The response went on to note EDS's offer to provide
[deleted] during the transition phase of the contract, and EDS's
commitment to achieving the goal of having [deleted], thereby removing
some legacy GFE computers from use.  The response then described an
"[deleted]."  Id.

   LMC asserts that EDS's June 30 response made three material changes to
EDS's proposal:  (1) it declared for the first time that [deleted].  LMC
concludes that the agency's communication with EDS constituted
discussions, and that LMC therefore was entitled to the same opportunity
to revise its proposal.

   The agency asserts that EDS's response made no material change to its
proposal.  According to HUD, the discussion question posed was designed
merely to clarify EDS's intent with respect to the reorder age concept
already included in the firm's proposal, because the evaluators could not
understand how already-installed GFE would be "installed" into the HITS
environment.  HUD maintains that the plain language of the proposal
already made it clear that the MOA concept applied to all equipment and
dictated that GFE would be replaced by the time it reached the MOA.  HUD
supports its position with an affidavit in which the program manager for
the HITS procurement states:

   "Maximum operating age" generally means the maximum amount of time that
the device should be in operation.  *Reorder age' generally means the age
of the device when the reorder process begins.  We viewed the EDS proposal
as providing a clear maximum operating age, but it was unclear what the
reorder age was for [GFE] because footnote 6 to the table in the EDS
proposal (Exhibit 3.1-5) discussed the date the equipment is installed in
HITS.  We understood that the reorder age could go up to the maximum
operating age, but we wanted EDS to confirm this understanding.  We also
knew that performance would be measured by the SLAs.  We considered the
EDS approach as acceptable because we knew the maximum operating age and
the SLA would ensure good performance.

   Agency Legal Memorandum, Sept. 30, 2004, attach. 2, at P 13. 

   EDS offers a wholly different explanation regarding its June 30 response. 
According to EDS, its proposal never made the [deleted], and the
explanation it provided in the June 30 response therefore did not change
its proposal in any way; it was perfectly consistent with its proposal. 
EDS states that the technical refresh schedule outlined in exhibit 3.1-5
was always applicable [deleted], and cites as support the statement in its
proposal that:  "[t]hroughout the delivery of core function services, the
contractor shall provide for the procurement, delivery, installation, and
maintenance of new equipment in accordance with the technology refresh
plan defined in Exhibit 3.1-5."  AR, exh. 111, at C-43.  EDS asserts that
this language made clear that the technology refresh plan outlined in
exhibit 3.1-5 was only [deleted].  EDS explains further that its proposal
always contemplated the replacement of [deleted] outlined in clause H.4 of
its proposal, and that its June 30 discussion response merely directed the
agency's attention to that provision of its proposal without elaborating
on it.  EDS asserts that the reference to [deleted] was merely the result
of calculating the MOA of selected GFE based on its original date of
installation. 

   As a general rule, discussions occur where the government communicates
with an offeror for the purpose of obtaining information essential to
determine the acceptability of a proposal, or provides the offeror an
opportunity to revise or modify its proposal in some material respect. 
Priority One Servs., Inc., B-288836, Ba**288836.2, Dec. 17, 2001, 2002 CPD
P 79 at 5.  In situations where there is a dispute regarding whether
communications between an agency and an offeror constituted discussions,
the acid test is whether an offeror has been afforded an opportunity to
revise or modify its proposal.  TDS, Inc., B-292674, Nov.A 12, 2003, 2003
CPD P 204 atA 6.  Where an agency engages in discussions, it must afford
all offerors in the competitive range an opportunity to engage in
meaningful discussions.  Federal Acquisition Regulation (FAR)
S15.306(d)(1).  Where an agency reopens discussions with one offeror after
the receipt of FPRs, it must afford all offerors in the competitive range
an opportunity for reopened discussions.  International Resources Group,
B-286663, Jan. 31, 2001, 2001 CPD P 35 at 6. 

   We agree with LMC that the agency's exchange with EDS resulted in material
changes to EDS's proposal regarding the technical refresh plan.  In its
June 18 proposal, EDS offered to procure, deliver and install new
equipment.  AR, exh. 111, at C-43.  While this provision describes the
equipment that will be deployed during technical refreshes (new
equipment), it is [deleted].  Thus, contrary to EDS's assertion, we find
no support for the position that this language in the technical refresh
plan [deleted].  The next provision in the proposal specifically addresses
equipment replacement, providing:  "As illustrated in Exhibit 3.1-5,
equipment replacement is scheduled when systems reach the operational
reorder age, and refresh is planned for completion before the equipment
reaches its maximum operating age."  AR, exh.A 111, at C-43.  As with the
prior provision, this clause [deleted] in describing what is being
replaced.  Since nothing in the remainder of the proposal suggests that
EDS's technical refresh plan [deleted], we conclude that EDS's refresh
plan, as proposed, [deleted].  This apparently also was the agency's
understanding, as revealed by the manner in which it phrased its
discussion question to EDS:  "Please clarify whether the *maximum
operating age' of GFE will be measured from the date of contract award or
date of installation into the *as-is' operating environment."  AR, exh.
112.  

   Contrary to the agency's asserted understanding, we agree with LMC that
the June 30 response changed the proposal by providing, essentially, that
the concepts of [deleted].  AR, exh. 112.  As a result, EDS no longer
would be obligated to [deleted].  The fact that HUD did not understand
that EDS's June 30 response had this effect does not support a finding
that the change did not occur.  Given that there was a large amount of
GFE, we conclude that this change in the treatment of GFE constituted a
material change in EDS's proposal.[2] 

   GFE Refresh Through the [deleted] Process

   EDS's June 30 response changed its proposal, not only by [deleted]
technical refresh plan for the first time, but also by [deleted] process
outlined in the proposal, and adding several new features to the process. 
Under EDS's June 18 proposal, the [deleted] process was described solely
as a mechanism to establish a [deleted].  The RFP included various
listings of GFE on hand that would be available for use under the HITS
contract.[3]  EDS's proposal stated that:

   The contractor proposes a post award [deleted].

   AR, exh. 111, at H-2-H-2a.  (The clause also stated that the [deleted].) 
The final portion of the clause set forth the [deleted].  Id.  The clause
concluded with the declaration that "[t]he results of this [deleted]." 
Id.  Contrary to EDS's characterization of the [deleted] described in its
proposal, it does not purport to be--indeed, it makes no mention of--a
mechanism for establishing the [deleted]. 

   The JuneA 30 response changed the proposal to establish the [deleted]. 
Based on the June 30 response:  (1) the results of the [deleted] report
would be used by EDS to make an [deleted].  In establishing this method
for [deleted] and also adding significant features not present in its
proposal, EDS materially changed its proposal.[4] 

   We conclude that the agency's June 30 communication with EDS constituted
discussions, and that the agency was required to reopen discussions with
LMC to provide it the same opportunity to revise its proposal.

   DISCUSSIONS WITH LMC

   LMC asserts that discussions with it were inadequate because the agency
failed to bring to LMC's attention various evaluated weaknesses that LMC
maintains prevented it from having a reasonable chance of receiving the
award.  In this regard, the record shows that the agency identified some
51 individual weaknesses, which resulted in LMC's proposal receiving an
overall rating of marginal/high risk.  AR, exh.A 114, at 17-25.

   In order for discussions to be meaningful, agencies must, at a minimum,
point out to competing firms deficiencies, significant weaknesses, and
adverse past performance information to which the firm has not previously
had an opportunity to respond.  FAR S 15.306(d)(3).  The FAR also
encourages contracting officers to discuss other aspects of a firm's
proposal that could, in the opinion of the contracting officer, be altered
or explained to enhance materially the proposal's potential for award. 
Id.  Discussions must be meaningful, equitable and not misleading;
discussions cannot be meaningful unless a firm is led into those
weaknesses, excesses or deficiencies that must be addressed in order for
it to have a reasonable chance for award.  TDS, Inc., supra, at 6-7.

   LMC asserts that the agency identified 11 weaknesses in its proposal that
were based on language from the earlier, pre-corrective action, version of
its proposal.  LMC maintains that the agency was required to discuss these
11 weaknesses with the firm pursuant to our decision in DevTech Sys.,
Inc., B-284860.2, Dec. 20, 2000, 2001 CPD PA 11 in which we held that,
where an agency identifies new weaknesses in a proposal during a
reevaluation of that proposal in an acquisition where discussions have
previously occurred, it is required to discuss those new weaknesses with
the offeror.  The agency responds that, with respect to 6 of the 11
alleged weaknesses arising from proposal language that predated the
current FPRs, the agency did not assign a weakness to the LMC proposal
during its evaluation, and thus was not required to raise the matter in
discussions.  Agency Legal Memorandum, Sept. 30, 2004, atA 118a**33. 

   While the agency is correct that the six weaknesses to which LMC refers
were not identified as weaknesses in the technical evaluation report on
LMC's proposal, all six are specifically identified in the agency's final
evaluation and tradeoff analysis report as weaknesses and as bases for
distinguishing between the LMC and EDS proposals.  AR, exh. 116,
atA viia**x,A xiv. [5]  Given that they ultimately were listed in the best
value analysis--they related to 6 of the agency's 10 identified best value
items--and that they contributed in some manner to the proposal's
receiving an overall marginal/high risk rating, we do not think the fact
that they were captured in the best value determination, rather than the
technical evaluation report, provided a basis for concluding that these
issues were not significant weaknesses.  Further, while it is not clear
how significant they were, given that they played a large part in the best
value determination--and therefore presumably were among the most
important reasons for downgrading LMC's proposal--absent some clear
showing by the agency that they were not significant, since they were
based on information in LMC's original proposal, and the agency had not
previously discussed the issues with LMC, it was obliged to do so. 
DevTech Sys., Inc., supra, atA 4-5.

   LMC also asserts that, in numerous instances where the agency claims to
have had discussions, the discussion materials did not meaningfully lead
LMC into those portions of its proposal requiring revision. 

   We agree that, in some instances, the agency did not adequately bring the
identified weakness to LMC's attention.  For example, one of the
weaknesses identified in LMC's proposal was a lack of definitiveness in
describing processes.  This weakness was listed in the agency's final
evaluation and tradeoff report, which in turn referenced the agency's
technical evaluation report of the LMC proposal.  AR, exh. 116, at 16. 
HUD takes the position that it addressed this issue in a communication
dated December 13, 2002, when it advised LMC that it was responsible to
make its proposal responsive, clear and accurate; that it had to respond
to HUD and HITS goals; and that its responses had to be strategic, not
just tactical, and had to demonstrate how LMC would achieve the strategic
goal.  Agency Legal Memorandum, Sept. 30, 2004, at 136; AR, exh. 23, at
15.

   We find no merit to the agency's position.  The referenced discussion
materials were presented to LMC after it submitted its initial proposal in
May 2002, long before it revised its proposal in January 2003, and again
in March 2004.  To suggest that this provided any useful information by
March 2004 is unreasonable, since both the RFP and the proposals had
changed so significantly by that time.  Second, and more to the point,
these comments are so vague as to be meaningless within the context HUD's
particular criticism of the LMC proposal. 

   RECOMMENDATION

   In view of the foregoing, we sustain LMC's protest on grounds that the
agency improperly engaged in post-FPR discussions with EDS, but not LMC,
and otherwise failed to provide LMC with meaningful discussions.  We
recommend that the agency reopen the acquisition and afford both offerors
meaningful discussions.  At the conclusion of those discussions, the
agency should solicit revised proposals and make a new source selection
decision on the basis of the revised proposals.[6]  We further recommend
that, should HUD determine that LMC is in line for award, it should
terminate EDS's contract for the convenience of the government and make
award to LMC, if otherwise proper.  Finally, we recommend that LMC be
reimbursed the costs associated with filing and pursuing its protest,
including reasonable

   attorneys' fees.  4 C.F.R. S 21.8(d)(1) (2004).  LMC's certified claim for
costs, detailing the time spent and the costs incurred must be submitted
to the agency within 60 days of receiving of our decision.  4 C.F.R.
SA 21.8(f)(1).

   The protest is sustained.

   Anthony H. Gamboa

   General Counsel

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

   [1] One of the changes made to the RFP as a consequence of the ADR
procedure was the inclusion of a comprehensive inventory of all of HUD's
IT hardware and software.

   [2] It is not clear what effect this change would have had on the
evaluation of EDS's proposal had the agency taken it into account. 
However, it is clear that the agency's belief that EDS's technical refresh
plan [deleted] carried some weight in the evaluation.  As stated by HUD's
HITS program director in her affidavit where she is discussing the GFE
refresh question "[w]e considered the EDS approach as acceptable because
we knew that the maximum operating age  and the SLA would ensure good
performance."  Agency Legal Memorandum, Sept. 12, 2004, Attach. 2 at P 13
(italics added). 

   [3] The various listings relied upon by EDS in its proposal are recited in
its Government Property clause, and include:  attachments 1 and 2 to the
RFP provided by HUD in amendment Nos. 8 and 10; a HUD e-mail dated March
4, 2004 that provided further clarification, as well as a listing of
existing government licenses and quantities for Oracle products available
to the offerors; and an April 19 compact disc that included the latest
inventory of HUD field assets.  AR, exh. 111, at H-1.

   [4] We point out that the [deleted] appears to contemplate a potential
[deleted] that was nowhere accounted for in the agency's evaluation of
proposals.  As noted, the [deleted] is elsewhere described in the
deliverables section of the firm's proposal.  In describing the data items
to be provided in the report, the proposal states:  "[deleted]."  AR, exh.
110, at C-13.  This provision would appear to [deleted].

   [5] The six items at issue are:  proposing to use a proprietary mainframe
computer (AR, exh. 116, at vii, best value item No. 1); proposing to
provide software at the N-2 level (AR, exh. 116, at viii, best value item
No. 2); proposing a fixed ratio of desktop computers to notebooks (AR,
exh. 116, at ix, best value item No. 4); not proposing a dedicated data
center (AR, exh. 116, at x, best value item No. 5); not proposing a data
center compliant with National Institute of Standards and Technology
requirements (AR, exh. 116, at x, best value item No 5); and not proposing
an SLA to measure performance during transition (AR, exh. 116, at xiv,
best value item Nos. 8 and 10).

   [6] LMC's protest also challenged the reasonableness of the agency's
evaluation and source selection decision.  These issues are academic,
since the agency will necessarily be performing an entirely new evaluation
in the wake of receiving revised proposals.