TITLE:  Spherix, Inc., B-294572; B-294572.2, December 1, 2004
BNUMBER:  B-294572; B-294572.2
DATE:  December 1, 2004

**********************************************************************

   Decision

   Matter of:   Spherix, Inc.

   File:            B-294572; B-294572.2

   Date:              December 1, 2004

   Eric J. Marcotte, Esq., Nathan C. Guerrero, Esq., and  Scott A. Schipma,
Esq., Winston & Strawn, for the protester.

   Robert S. Metzger, Esq., Michael K. Murphy, Esq., Mary Ita Snyder, Esq.,
and Keith R. Szeliga, Esq., Gibson, Dunn & Crutcher, for ReserveAmerica
NY, Inc., the intervenor.

   Daniel N. Hylton, Esq., Department of Agriculture, for the agency.

   Henry J. Gorczycki, Esq., and Guy R. Pietrovito, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1.  Protest challenging an agency's evaluation and source selection
decision that found the awardee's staffing and proposed marketing approach
to be significant proposal strengths and discriminators in the selection
decision is sustained, where the protester and awardee both addressed
staffing and marketing approach, though not specifically requested by the
solicitation, and the agency did not fairly consider the protester's
similar proposed staffing and marketing approach.

   2.  Where the agency's evaluation identified significant weaknesses in the
protester's proposal, but failed to identify them for the offeror during
discussions, discussions were not meaningful.

   DECISION

   Spherix, Inc. protests the award of a contract to ReserveAmerica NY, Inc.
under request for proposals (RFP) No. WO-04-06VM, issued by the Department
of Agriculture, Forest Service, for the National Recreation Reservation
Service (NRRS).  Spherix challenges the agency's conduct of discussions,
evaluation of proposals, and source selection decision.

   We sustain the protest.

   BACKGROUND

   Federal agencies and private concessionaires or lessees currently operate
and maintain recreational facilities and activities for public uses; these
facilities and activities are located on federal lands, National
Recreation areas, Wilderness areas, water resource development projects,
historic sites, and National Monuments.  RFP S C, at 201.[1]  Previously,
the National Park Service operated the National Park Reservation Service
(NPRS) to provide reservation and management services for National Park
Service facilities; Spherix was the incumbent contractor for the NPRS. 
Id. at 202; Agency Report (AR), Tab 96, Spherix Project Agreement
Response, at 1,908.  The Forest Service, in partnership with the U.S. Army
Corps of Engineers and the Bureau of Land Management, operated the NRRS,
providing reservation services for other federal facilities and activities
at 1,987 field locations; ReserveAmerica was the incumbent contractor for
NRRS.  RFP S C, at 202; AR, Tab 76, ReserveAmerica Project Agreement
Response, at 967.  These systems operated independently.  Contractor
Officer's Statement at 1.

   As part of an "E-Government Initiative," the government seeks to
consolidate its reservation systems for all federal parks and recreation
facilities and activities into the NRRS with the goal of providing
"one-stop" reservation shopping.  Contracting Officer's Statement at 1;
AR, Tab 5, NRRS Acquisition Plan, at 39.  To accomplish this, the RFP
provides for the award of a contract for the development, provision, and
operation of a state-of-the-art reservation system with a web-based portal
that would include multiple sales channels (telephone call center,
Internet, and walk-up[2]), providing "one-stop" reservation shopping
directly to the public for camping, tours, tickets, permits, activities,
and recreation-related sales, as well as providing general recreation and
trip planning information about all federal recreation areas.  The system
would also provide administrative and field personnel of federal land
management agencies with the ability to access and manage reservation and
recreation information.  RFP S C, at 197-201, S M, at 332-34.  Offerors
were informed that the contract would be funded primarily by fees, such as
reservation fees, service fees, and use fees, collected from the public. 
RFP S C, at 200.

   In accordance with Federal Acquisition Regulation (FAR) S 15.202, the
Forest Service established a two-step advisory process for this
acquisition.  The first step--the Project Agreement--sought capability 
information, such as past performance information, from potential offerors 
to allow the agency to advise those firms about their potential to be 
viable competitors under the RFP.  Of the ten firms submitting capability 
information, only three firms, including Spherix and ReserveAmerica, were 
invited to participate under the second step--the RFP.  Contracting 
Officer's Statement at 2-3.

   The RFP, as amended, provided for the award of a fixed-unit-price
requirements contract for a base period from the date of award until
December 12, 2007, and included six 1-year award terms.  RFP amend. 1, S
B, at 187-93.  A detailed performance work statement was provided,
describing the services and capabilities required.  RFP S C, at 197-246. 
Offerors were informed that award would be made on the basis of a
cost/technical tradeoff, and identified the following five evaluation
factors in descending order of importance:[3]

   1.A A A A A  Technical approach;

   2.A A A A A  Management approach;

   3.A A A A A  Reservation system demonstration;

   4.A A A A A  Past performance; and

   5.A A A A A  Price.

   RFP S M, at 332.  The first four factors were stated to be significantly
more important than price, and RFP informed offerors that the government
intended to make award based primarily on technical merit, although price
would become more important as the difference in technical merit
narrowed.  Id.

   The RFP provided that price would be evaluated for realism, completeness,
and reasonableness.  Id. at 335.  Section B of the solicitation, "Services
and Prices/Costs" schedule, required offerors to propose unit prices for
each service (e.g., reservations, ticketing, permits) provided to the
public by telephone or Internet, or at field and kiosk locations, and
provide prices for equipment and telecommunications connections provided
to the government.  RFP amend. 1, S B, at 187-93.  As described by the
contracting officer, the contractor would be paid "on a per reservation
transaction basis," which includes "all subsequent transactions related to
the original reservation including changes, cancellations, and no shows." 
Contracting Officer Statement at 4.

   The solicitation schedule did not identify estimated volume levels but
requested that offerors provide unit pricing at various estimated volume
levels of their own choosing.[4]   RFP amend. 1, S B, at 187-94.  Also,
the schedule provided two alternate pricing scenarios:  scenario A, which
was comprised of separate contract line item numbers (CLIN) for call
center reservations and for Internet reservations, and scenario B, which
combined the call center and Internet reservations into a single CLIN. 
See id. at 195.  Scenario B was considered by the agency to be an
incentive for Internet sales, which the agency viewed as less costly than
call center sales.  Contracting Officer's Statement at 5.  The RFP
provided that award would be based on only one of these scenarios.  RFP
amend. 1, S B, at 195.

   Detailed proposal preparation instructions were provided.  See RFP S L, at
326-31.  The RFP provided for both written proposals and oral
presentations.  In this regard, offerors were informed that the written
proposals, "exclusive of Plans," were limited to 50 pages.  Id. at 328.

   Proposals were received from four firms, including Spherix and
ReserveAmerica.  Following evaluation of the written proposals by the
agency's source selection evaluation team (SSET), one firm's proposal was
rejected.  Contracting Officer's Statement at 3.  The remaining three
offerors, including Spherix and ReserveAmerica, made oral presentations,
which included reservation system demonstrations.  Id. at 6.  Following
the oral presentations, discussions were conducted, and final proposal
revisions received.  Id. at 8.  Spherix's and Reserve America's final
proposals were evaluated as follows: [5]

+------------------------------------------------------------------------+
|Factor                   |Spherix                |ReserveAmerica        |
|-------------------------+-----------------------+----------------------|
|Technical Approach       |[DELETED]              |[DELETED]             |
|-------------------------+-----------------------+----------------------|
|Management Approach      |[DELETED]              |[DELETED]             |
|-------------------------+-----------------------+----------------------|
|System Demonstration     |[DELETED]              |[DELETED]             |
|-------------------------+-----------------------+----------------------|
|Past Performance         |[DELETED]              |[DELETED]             |
|-------------------------+-----------------------+----------------------|
|Overall                  |Good/Moderate Risk     |Excellent/Low Risk    |
|-------------------------+-----------------------+----------------------|
|Scenario A Price         |$[DELETED]             |$128,327,026          |
|                         |                       |                      |
|Scenario B Price         |$[DELETED]             |$[DELETED]            |
+------------------------------------------------------------------------+

   Agency Report, Tab 17, Source Selection Decision, at 442, 455, 463-65. 
The offerors' evaluated prices were calculated by averaging the volume
estimates from all three proposals and applying this average to each
offeror's proposed unit prices.[6]

   The SSET's evaluation results were presented to the agency's source
selection authority (SSA).[7]  Hearing Transcript (Tr.) at 20-21; see AR,
Supplemental Documents, Source Selection Briefing Slides, at 2970-92.[8] 
The SSET identified numerous strengths for ReserveAmerica, including the
provision of a [DELETED],[9] dedicated staff, comprehensive quality
control plan, and "[c]omprehensive and innovative marketing to grow the
service," and no weaknesses.  Id. at 2980-82.  The SSET identified less
strengths for Spherix and a number of "significant weaknesses," including
"[quality control] plan was not comprehensive in approach," "[n]o
marketing; no growth," and transition period staffing.  Id. at 2984-85. 
The SSET recommended award to ReserveAmerica, despite Spherix's
substantially lower price.  Id. at 2992.

   Prior to the SSET's evaluation briefing, the SSA received a draft source
selection decision from the SSET, and the SSA was aware of Spherix's large
price advantage.  See Tr. at 27, 23.  The SSA asked a number of questions
to explore why the SSET believed that ReserveAmerica's proposal
represented the best value and asked the SSET to quantify the "value" of a
number of ReserveAmerica's evaluated advantages.  See Tr. at 31-34,
78-83.  For example, the SSA noted:

   So the question that I was looking at was how to determine best value. 
One of the comments made was that the two companies looked differently at
the marketing strategies.  One of them saw a tremendous amount of growth
and had an aggressive marketing strategy, one predicted very little growth
and did not have a very aggressive marketing strategy.

   Tr. at 32, and

   [The SSET] made a big deal about [ReserveAmerica's] marketing plan [having
a] $[DELETED] million [value].  What's important to me is, does it have a
$[DELETED] million effect?  Maybe it has more, that kind of thing.

   Tr. at 79.  The SSA accepted the SSET's evaluated strengths and weaknesses
in the two firms' proposals and did not independently read or evaluate
proposals.  Tr. atA 18-19, 37.

   The SSA concluded that ReserveAmerica's proposal reflected the best value
to the government, finding that ReserveAmerica's proposal was technically
superior to Spherix's under both the technical approach and management
approach factors.  Under the technical approach factor, the SSA cited,
among a number of identified proposal strengths, ReserveAmerica's offer of
a "technically advanced web-based reservation system . . . [which]
provides the centralized system to deliver the multi-purpose services of
the NRRS," "[DELETED] dedicated staff members for the NRRS that include
[DELETED] agency specific program managers," and "marketing."  Under the
management approach factor, the SSA cited, among other things,
ReserveAmerica's "exceptional and comprehensive" quality control plan. 
ReserveAmerica was also found superior under the reservation system
demonstration factor.  However, the two firms were found by the SSA to be
essentially equivalent under the past performance factor.  AR, Tab 17,
Source Selection Decision, at 442-48.

   To assess the value of ReserveAmerica's technical superiority against
Spherix's nearly $[DELETED] million (or [DELETED] percent) price
advantage, the SSA noted that:

   There are several elements of the ReserveAmerica proposal that go beyond
the Spherix approach that can be quantified into dollars that bridge this
gap, and there are also a number of non-quantifiable elements as well, as
follows:

   (1)A  Value of Dedicated Sales Staff - $[DELETED]per year

   ReserveAmerica is proposing dedicating [DELETED] call center staff to this
effort.  If using an annual salary of $35,000 (the median call center
salary is $37,000 in Arlington, Virginia) then this comes out to the
annual cost noted.  Spherix is certainly allotting personnel time for the
call center as well; however, it is not the fully "dedicated" support
ReserveAmerica is proposing.  It is difficult to understand how many
personnel will be working on the NRRS for Spherix; the value projected is
[DELETED]% of that offered by ReserveAmerica.

   (2)A  ReserveAmerica Marketing Plan

   One area of their solution that clearly separates ReserveAmerica from
Spherix is their marketing plans.  Based upon experience under the current
NRRS marketing program that is valued at over $[DELETED] million in annual
marketing value, ReserveAmerica's proposed marketing plan will provide
greater innovative features, focused on the customer.  Their commitment to
expand the NRRS is reflected in increased costs, and can be seen in the
ReserveAmerica/Spherix Estimated Growth Comparison (see Attachment 4).[10]

   (3)A  Other Value Considerations

   There are many other aspects of ReserveAmerica's proposal that provide
significant value to the government and the customer, and are difficult to
quantify.  These include:  a) [DELETED] b) [DELETED] c) Quality Control
approach . . . d) An innovative implementation plan . . .

   Agency Report, Tab 17, Source Selection Decision, at 456-57. 

   The SSA concluded that:

   Because the intent of the NRRS is to provide high quality recreation
reservation services to the public, features such as the quality control
plan, [DELETED], and [DELETED]represent significant value to the
Government.  The smooth and effective operation of the NRRS is essential
for the Government and its recreation cooperators and contractors to make
recreation opportunities accessible to the public.  For these reasons, the
solicitation informed offerors that the technical approach was the most
significant non-price factor, management approach the second most
significant non-price factor, and the system demonstration the third most
significant non-price factor.  The solicitation also informed offerors
that the non-price factors were significantly more important than the
price.

   Thus, given the significantly better technical approach, the significantly
better management approach, and the significantly better system
demonstration, and in light of the essentially equivalent past
performance, I conclude that, even at the significantly higher price, the
ReserveAmerica scenario A offer provides the best value to the Government.

   Id. at 460.  Award was made to ReserveAmerica, and, following a
debriefing, Spherix filed this protest.[11]

   DISCUSSION

   Spherix challenges the agency's evaluation of both firms' proposals and
the source selection decision based upon that evaluation.  Specifically,
Spherix argues that the agency's evaluation of ReserveAmerica's offer of
dedicated staff and marketing plan as substantial technical advantages
over Spherix's proposal is unreasonable, where the solicitation did not
require the submission of, or provide for the evaluation of, proposed
dedicated staff or a marketing plan.  Moreover, Spherix argues that it, in
fact, also offered dedicated staff and provided information regarding its
marketing approach, which were not fairly considered by the SSA in his
selection decision.

   In reviewing a protest of an agency's evaluation and source selection
decision, we will not re-evaluate proposals, but will review the record to
determine whether the evaluation and selection decision are reasonable and
consistent with the stated evaluation criteria, and with applicable
procurement laws and regulations.  M&S Farms, Inc., B-290599, Sept. 5,
2002, 2002 CPD P 174 at 6.

   Dedicated Staff

   As noted above, the agency's evaluation documentation and source selection
decision specifically identified, under the technical approach factor,
ReserveAmerica's offer of [DELETED] dedicated staff positions as a
proposal strength, which was one of the SSA's bases for offsetting
Spherix's price advantage.  In this regard, the RFP's work statement
provided that the contractor would be required to operate a contact center
to receive phone calls for, or related to, reservations and
recreation-related sales, and "shall provide all aspects of this service
including, but not limited to: . . . trained staff, and experienced
supervision."  RFP SA C, at 226.  However, the RFP did not state specific
staffing requirements, instruct offerors to provide their staffing levels
in their proposals, or specifically inform offerors that such staffing
would be evaluated.[12]

   We find the agency's assessment of ReserveAmerica's offer of dedicated
staff problematic in a number of regards.  First, the SSA apparently
believed that Spherix did not propose the "dedicated" support that
ReserveAmerica proposed.  In this regard, in the hearing conducted by our
Office in this matter, the SSA testified that he understood from the
SSET's briefing that Spherix's proposal had not committed to provide the
level of effort needed to provide the call center services.[13]  Tr.
atA 97-100. 

   Both Spherix and ReserveAmerica addressed staffing in their proposals. 
ReserveAmerica's proposal identified "[DELETED] dedicated to serving the
needs of the NRRS" that would include [DELETED] agency-specific program
managers and [DELETED] contact center agents.  AR, Tab 92, ReserveAmerica
Final Proposal Revision, at 1491, 1500, 1526, 1541-42.  As noted above,
this offer was assessed as a proposal strength for ReserveAmerica. 
Spherix's proposal stated that Spherix would deliver [DELETED] call center
seats and "a dedicated staff of Reservation Specialists and Customer
Service Representatives" with experienced management, and specifically
proposed key personnel that included [DELETED] dedicated to each major
stakeholder Agency."  AR, Tab 112, Spherix Final Proposal Revision, at
2522, 2583.  This aspect of Spherix's proposal was not discussed in the
SSET final consensus evaluation.  See AR, Supplemental Documents, Final
Consensus Evaluation Worksheets for Spherix, 2995-96, 3003-04.

   From our review of the record, we find no reasonable support for the
agency's conclusion that ReserveAmerica's promise of dedicated staff
represented a significant  proposal advantage over Spherix's similar
offer.  As noted above, both firms indicated in their proposals that
dedicated staff would be provided.  Although it is true that Spherix's
proposal did not specifically identify the number of dedicated staff, as
ReserveAmerica's proposal did, this specific information was neither
requested by the RFP nor sought by the agency during discussions. 
Moreover, the record does not show that the SSA otherwise fairly
considered Spherix's offer of dedicated staff.  The SSA stated that he had
not reviewed Spherix's proposal and the SSET's briefing left him with the
understanding that Spherix's proposal had not committed to provide the
level of effort needed to provide the call center services.  Tr. at
97-100.  This was neither a reasonable evaluation of Spherix's proposal,
nor a reasonable assessment of the difference between ReserveAmerica's and
Spherix's proposals.

   Moreover, while we recognize that an agency is not required to "dollarize"
the value of assessed proposed strengths, here the agency did that,[14]
and we find unreasonable the SSA's conclusion that quantified the value of
ReserveAmerica's offer of [DELETED] dedicated call center staff to be
$[DELETED] per year.  The agency calculated this amount by multiplying an
estimated average annual salary by the number of staff that ReserveAmerica
offered,[15] and thus this value reflects only ReserveAmerica's estimated
costs of providing these [DELETED] dedicated staff.  The agency recognized
that Spherix would be providing some amount of staff to perform this work,
but because the agency did not know the amount of dedicated staff that
Spherix would provide (and did not ask), the agency merely "projected"
Spherix's staffing to be [DELETED] percent of ReserveAmerica's staffing. 
See AR, Tab 17, Source Selection Decision, at 456.  Although the basis for
this projection is somewhat uncertain, the recollection of one SSET member
is that the percentage is based on comparing the size of Spherix's call
center staff under its current NPRS contract with the [DELETED] dedicated
staff stated in ReserveAmerica's proposal.  Tr. at 242-43.  That
comparison is unreasonable, however, because, under the RFP, the NPRS is
being consolidated with all of the other recreation reservation services,
including the larger, existing NRRS.  Given the substantial increase in
reservation services under the RFP, the call center staff size under the
NPRS could not reasonably be assumed to be similar in staff size for the
consolidated system.  In any event, the agency did not determine a value
associated with its projection of the staff that it believed Spherix would
provide.  In short, the record does not establish reasonable support for
the determination that ReserveAmerica's dedicated staff reflected
additional value.

   Marketing Approach

   As explained above, the SSA assessed a significant proposal strength under
the technical approach factor for ReserveAmerica's proposed marketing
approach, finding that the awardee's marketing approach was more
aggressive and offered the prospect of greater growth than Spherix's
marketing approach.  The SSA quantified the value of ReserveAmerica's
marketing approach to be in excess of $[DELETED] million per year.  See
AR, Tab 17, Source Selection Decision, at 456. 

   The RFP's work statement provided that the "Contractor shall develop a
Marketing Plan to implement a nationwide, public information and awareness
program to promote reservation and recreation related services . . .
within the NRRS . . . ."  RFP SA C, at 227.  The RFP did not, however,
identify that the offerors' approach to marketing plans would be evaluated
under any of the evaluation factors, nor did the RFP instruct offerors to
propose, or provide any information about, a marketing plan.  In this
regard, the agency, in answering offerors' solicitation questions, stated
that the marketing plan is a contract deliverable, see AR, Tab 14, Answers
to Industry Questions No. 51, at 354, and that "[a] detailed marketing
plan is not a requirement of the proposal."  Id. at 367.

   In fact, though, both offerors addressed their approach to performing the
marketing plan contract requirement.  In this regard, ReserveAmerica
stated [DELETED].  AR, Tab 92, ReserveAmerica Final Proposal Revision, at
1519-21.  Spherix stated that [DELETED].  AR, Tab 112, Spherix Final
Proposal Revision, at 2543-44.

   The SSA's conclusion that ReserveAmerica's approach to the marketing plan
was a significant proposal advantage is apparently based upon the SSET's
statements to the SSA that ReserveAmerica had "[c]omprehensive and
innovative marketing to grow the service," but that Spherix proposed "[n]o
marketing; no growth."  See AR, Supplemental Documents, Source Selection
Briefing Slides, at 2981, 2985, 2991.  This conclusion does not appear to
be supported in the evaluation record; specifically, the SSET's final
consensus evaluation of ReserveAmerica's proposal contains no discussion
of that firm's approach to the marketing plan.  See AR, Tab 94, Final
Consensus Evaluation Worksheets for ReserveAmerica, at 1842-1902.  With
respect to Spherix's proposal, the SSET noted that the firm's "marketing
plan [was] not comprehensive, lacking specifics and detail"[16]--rather
than Spherix had not offered an approach to the marketing plan, as stated
in the briefing slides provided to the SSA.  AR, Supplemental Documents,
Final Consensus Evaluation Worksheets for Spherix, at 2994.  Spherix's
approach to the marketing plan was not identified as needing discussions
or clarifications by the SSET, and was not discussed with the protester. 
See AR, Tab 108, Negotiations, at 2375-86. 

   The SSA did not independently review proposals; rather, he relied upon the
SSET for its evaluation conclusions.  The SSET, however, led the SSA to
believe that, although Spherix proposed some level of marketing, its
proposed approach was inadequate.  Tr. at 58-59, 115-16.  In fact, as
noted above, the SSET's briefing slides to the SSA erroneously stated that
Spherix offered "no marketing; no growth."  In this regard, the SSA
apparently believed that ReserveAmerica proposed higher costs for its
marketing plan and that ReserveAmerica's larger estimated growth in volume
over the term of the contract reflected that firm's commitment to its
marketing plan.  SeeA AR, Tab 17, Source Selection Decision, at 456. 
There is no support for these conclusions.  First, the RFP did not
request, and the offerors did not provide, costing information that would
have allowed the SSA to determine that ReserveAmerica's costs reflected
any commitment to its marketing plan.  In this regard, the SSA testified
that he did not know how it was determined that ReserveAmerica was
dedicating more costs to marketing than Spherix.  See Tr. at 108-09.  As
to projected growth, while it is true that Spherix did not offer a growth
projection in its transaction volumes for the award term years, as
ReserveAmerica did, the RFP did not state that offerors should provide
growth in their projected transaction estimates.  Indeed, Spherix's final
proposal revision advised the agency that the firm could provide growth
estimates, if desired.[17]  The SSA was unaware, however, of the context
of Spherix's decision not to provide projected growth estimates.  See
Tr. atA 59, 61.

   We also question how the SSA determined that ReserveAmerica's assertedly
superior marketing approach would be worth $[DELETED] million per year. 
Apparently, this amount was calculated from ReserveAmerica's current
marketing plan for the incumbent NRRS contract, which was not provided as
part of ReserveAmerica's proposal.  SeeA Tr. atA 246-49.  Nevertheless,
no explanation has been provided by the agency or the SSA as to exactly
how this amount was calculated.[18]  Nor does the record evidence any
consideration of the value of Spherix's marketing approach.

   In sum, there is simply nothing in the evaluation record provided by the
agency that supports the SSA's conclusion that ReserveAmerica's marketing
approach is superior to that of Spherix.  In this regard, from our review
of the firms' proposals, their approach to the marketing plan requirement
appears similar, and there is no documentation in the record showing the
agency had actually compared the firms' approaches to meeting this
requirement.  We also note that to the extent that the agency believed
Spherix's approach to the marketing plan requirement was inadequate (the
SSET's briefing slides identified this to be a "significant weakness"),
this should have been, but was not, raised with Spherix during
discussions.[19]

   Given Spherix's substantial price advantage, any narrowing of the
difference in perceived difference in technical quality between Spherix's
and ReserveAmerica's proposal could result in a different selection
decision.  In this respect, the SSA admitted that he may have made a
different selection decision if "ReserveAmerica [did] not provide
sufficient value to bridge the gap between the cost differences."[20]  See
Tr. at 126.  As a result, we conclude that the flaws in the evaluation of
proposals prejudiced Spherix, and we therefore sustain this basis of
Spherix's protest.

   Meaningful Discussions

   We also find that the Forest Service did not conduct meaningful
discussions with Spherix.  It is a fundamental precept of negotiated
procurements that discussions, when conducted, must be meaningful; that
is, discussions may not mislead offerors and must identify deficiencies
and significant weaknesses in each offeror's proposal that could
reasonably be addressed in a manner to materially enhance the offerors
potential for receiving award.  FAR SA 15.306(d); Lockheed Martin Corp.,
B-293679 etA al., May 27, 2004, 2004 CPD PA 115 at 7.

   As described above, the SSET identified Spherix's marketing approach,
including a lack of projected growth, to be a "significant weakness."  See
AR, Supplemental Documents, Source Selection Briefing Slides, at 2985.

    Spherix's approach to the marketing plan requirement was not discussed
with the protester, and therefore we conclude that the agency failed to
conduct meaningful discussions with the firm in this respect.

   We also find that the agency did not conduct meaningful discussions with
Spherix with respect to its proposed quality control plan, which was also
determined to be a significant weakness.  The RFP provided for the
evaluation of offerors' draft comprehensive quality control plan "to
include a Performance Work Summary (PRS) with Standards, Acceptable
Quality Level (AQL), and Incentives."  RFP S M, at 333.  Spherix's initial
proposal described its proposed quality control plan, see AR, TabA 103,
Spherix Initial Proposal, at 2139-214, which the SSET evaluated to be a
weakness, stating that Spherix's "overall quality control plan . . . is
not a complete approach . . . Vendor must amplify a more thorough approach
to quality control ensuring that [DELETED] are addressed."  See AR,
Supplemental Documents, Final SSET Evaluation Worksheets for Spherix, at
2997.  The SSET also evaluated Spherix's proposed approach to the PRS and
AQL requirements to be weaknesses.  Id. 

   In its discussions with Spherix, the agency addressed only the firm's
proposed approach to the PRS and AQL requirements, and Spherix's proposal
revisions sufficiently addressed those aspects of its proposal such that
the agency no longer identified them as proposal weaknesses.  Id.  The
agency did not otherwise address Spherix's quality control plan during
discussions.  Id.  In its final evaluation, the SSET noted that Spherix
had not changed its proposal with respect to its proposed quality control
plan, and stated that discussions were not conducted on this weakness
because Spherix "had a plan[; the] plan was simply weak."  Id. 
Ultimately, this aspect of Spherix's proposal was identified by the SSET
identified to be a "significant weakness."  See AR, Supplemental
Documents, Source Selection Briefing Slides, atA 2985.  We therefore find
that the agency failed to conduct meaningful discussions with Spherix with
respect to its proposed quality control plan.

   We also find that Spherix did not receive meaningful discussions with
respect to its proposed transition period staffing, which was evaluated as
a part of the proposed project implementation plan under the management
approach factor.  See RFP S M, at 333.  Spherix's response to this
requirement was evaluated as a weakness, because the SSET found that
Spherix did not provide detailed information; SSET did not conduct
discussions on the matter with Spherix because it concluded that Spherix's
proposal "spoke to staffing but weak in identification."  See AR,
Supplemental Documents, Final SSET Consensus Evaluation Worksheets for
Spherix, at 2999.  This aspect of Spherix's proposal, which was identified
by the SSET as a "significant weakness," see AR, Supplemental Documents,
Source Selection Briefing Slides, atA 2985, also should have been raised
with Spherix during discussions, but was not.

   Other Issues

   The protester challenged a number of other aspects of the agency's
evaluation, which we need not address, given our decision sustaining
Spherix's protest.  Specifically, Spherix challenged the agency's price
evaluation because of the agency's averaged quantity estimates.  Although
we do not address this issue, we note that a substantial portion of this
protest basis arises from, though not based upon, the fact that the RFP
did not state quantity estimates in the price schedule.  The agency may
wish to consider identifying total estimated quantities for calculating
total prices, thereby allowing offerors to prepare their price proposals
on the same basis.[21]

   Spherix also challenged the agency's evaluation of the firms' past
performance.  We note that, although the SSA was informed that the
offerors were equivalent under the past performance factor, he was not
informed of one of the few evaluated weaknesses in ReserveAmerica's final
proposal, i.e., [DELETED], nor was he aware of the substance of the
offerors' past performance histories.  See Tr. at 119-25.  Because we have
recommended that the competition be reopened and a new selection decision
prepared, the agency will have the opportunity to inform the SSA of the
evaluated differences in the firms' past performance and potentially
related weaknesses and risks, such as the one identified here.

   Spherix also complains that the Forest Service accepted ReserveAmerica's
[DELETED] implementation plan, which [DELETED].  AR, Tab 92,
ReserveAmerica Final Proposal Revision, at 1530-31.  The protester argues
the Forest Service improperly relaxed the solicitation requirements, which
provided for [DELETED].  The agency disputes this and argues that this
protest ground is untimely.  Although we do not decide the matter, we note
that neither the SSET nor the SSA considered the impact of [DELETED] on
the other evaluated strengths of ReserveAmerica's proposal and further
note that the approach appears inconsistent with the stated goal of the
acquisition to consolidate all the many systems into a single system.

   RECOMMENDATION

   Because we find unreasonable the agency's evaluation of proposals, conduct
of discussions, and source selection decision, we sustain the protest.  We
recommend that the agency amend the solicitation, if appropriate, reopen
discussions, request revised proposals, and make a new source selection
decision.  If an offeror other than ReserveAmerica is selected for award,
the agency should terminate ReserveAmerica's contract and make award to
that other firm.[22]  We also recommend that the agency reimburse the
protester its cost of pursuing this protest, including reasonable
attorney's fees.  4 C.F.R. SA 21.8(d) (2004).  The protester should submit
its certified claim for costs, detailing the time expended and the costs
incurred, directly to the contracting agency within 60 days of receipt of
this decision.  4 C.F.R. SA 21.6(f)(1).

   The protest is sustained.

   Anthony H. Gamboa

   General Counsel

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

   [1] Pages in documents contained in the agency's report are sequentially,
"Bates" numbered.  When citing to these documents, we use the sequential
numbers.

   [2] A "walk-up" reservation sale occurs in the field when a customer
arrives at a recreation facility or activity without a prior reservation. 
RFP S C, at 217.

   [3] For each technical evaluation factor, the RFP identified numerous
subordinate evaluation criteria, which were stated to be of equal
importance to each other.

   [4] The contracting officer states that offerors were requested to
identify their own estimated volume levels to allow the government to rely
on the offeror's expertise in estimating the anticipated volume, to "see
how a particular offeror projected their ability to grow transaction
volumes," and to allow the offeror to determine its own ceiling for
transaction volume discounts.  Contracting Officer's Statement at 4.

   [5] The third offeror's proposal received lower technical ratings and
proposed higher prices than either Spherix's or ReserveAmerica's proposals
and was eliminated from consideration for award.  AR, Tab 17, Source
Selection Decision, at 459.

   [6] The agency intended to establish evaluated prices based on a
government estimate of sales volume, which was not disclosed to the
offerors and which the government expected would reflect a reasonable rate
of growth over the full term of the contract, including option years. 
However, upon receiving the offerors' estimates, the agency determined
that the government estimate overstated the growth rate in the out-years
of the contract term.  The agency determined that the offerors' estimates
were more consistent with each other than with the government estimate,
and the agency discarded its estimate in favor of an average of the
offerors' estimates.  Contracting Officer's Statement at 9-11.

   [7] The record is unclear as to exactly which evaluation documents were
reviewed by the SSA.  Apparently, the SSA reviewed a Proposal Evaluation
and Analysis Report, a number of drafts of which are contained in the
record, see Agency's Supplemental Document Production (Nov. 2, 2004), at
3166-42, and which eventually formed the basis of the source selection
decision.  See Tr. at 21, 223.

   [8] The agency did not produce these slides until just several days prior
to the hearing conducted by our Office in this protest.

   [9] [DELETED]  See AR, Tab 92, ReserveAmerica Final Proposal Revision, at
1492.

   [10] This attachment is a table estimating and comparing the growth rates
in the firms' proposed volume estimates:  ReserverAmerica (4-8 percent)
and Spherix (0-1 percent).  AR, Tab 17, Source Selection Decision, at 526.

   [11] The protest was filed within 5 days of a required debriefing, and, as
required by the Competition in Contracting Act of 1984 (CICA), 31 U.S.C.
SA 3553(d)(3), (4) (2000), the agency suspended contract performance. 
Subsequently, the agency prepared a written determination that performance
of the contract during the protest was in the "best interests" of the
United States.  31 U.S.C. SA 3553(d)(3)(C).

   [12] The RFP did identify "staffing for the transition period" as an
evaluation sub-criterion under the management approach factor.  RFP S M,
at 333.  However, the dedicated staffing identified as an evaluated
advantage for ReserveAmerica's proposal under the technical approach
factor was not part of the transition plan.

   [13] The SSA testified that he did not see significant value in dedicated
call center agents per se, but that his concern was whether an offeror had
committed sufficient labor hours to the contract for that purpose.  Tr. at
84-88.

   [14] There is no requirement that a selection official, in performing a
cost/technical tradeoff, quantify, or dollarize by calculating a precise
value, the technical advantages offered.  See KRA Corp., B-278904,
B-278904.5, Apr. 2, 1998, 98-1 CPD PA 147 at 14.

   [15] The offerors did not provide salary information in their proposals,
and therefore the salary estimate is not based upon ReserveAmerica's
projected salaries for this staff.

   [16] Neither firm provided a marketing plan, which, as described above, is
a contract deliverable item.

   [17] In its proposal, Spherix stated that since the RFP provided no
instructions or information related to growth, "[DELETED]."  AR, Tab 112,
Spherix Final Proposal Revision, at 2515-16.

   [18] The agency argues that how the SSA quantified the value of
ReserveAmerica's marketing approach and dedicated staff is not material,
because he otherwise determined that ReserveAmerica's proposal reflected
the best value to the government.  Although the agency now desires to
disavow this part of the SSA's selection decision, the written decision
documents the SSA's contemporaneous cost/technical tradeoff judgment,
which included the dollarized values for ReserveAmerica's assertedly
superior market approach and dedicated staff.  In this respect, the SSA
testified that the written source selection decision accurately reflected
his thinking at the time of the selection decision.  Tr. at 175.  In any
event the awardee's marketing approach and dedicated staff were identified
as significant discriminators in the selection decision, apart from their
quantified dollar value.  SeeA Agency Report, Tab 17, Source Selection
Decision, 458, 459.

   [19] Although the SSA's decision suggests that Spherix's approach to the
marketing plan requirement was inadequate, the agency now acknowledges
that Spherix's proposed marketing approach meets the agency's
requirements.  Agency's Hearing Comments at 7.

   [20] In its report, the agency argues that "[a]lthough some elements of
the award decision may be flawed, the award decision as a whole was
reasonable and should stand."  Agency's Post-Hearing Comments at 19. 
Here, however, the SSA concluded that Spherix's substantial price
advantage was outweighed by the perceived technical advantages in
ReserveAmerica's proposal, some of which we have found unsupported in the
record.  Although other aspects of ReserveAmerica's proposal appear to
have been reasonably found superior to Spherix's, reduction of any aspect
of ReserveAmerica's perceived technical superiority could potentially lead
the SSA to make a different tradeoff decision.

   [21] The RFP could still request that offerors propose the quantity levels
at which their lower unit prices for higher volume levels would take
effect.

   [22] Consistent with the requirement of CICA regarding the impact of an
agency's decision to override the automatic stay of performance on "best
interests" grounds, as occurred here, our recommendation is made "without
regard to any cost or disruption from terminating, recompeting, or
reawarding the contract."  See 31 U.S.C. S 3554(b)(2).
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