TITLE: B-299457; B-299457.2; B-299457.3, Apptis, Inc., May 23, 2007
BNUMBER: B-299457; B-299457.2; B-299457.3
DATE: May 23, 2007
************************************************************
B-299457; B-299457.2; B-299457.3, Apptis, Inc., May 23, 2007

   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: Apptis, Inc.

   File: B-299457; B-299457.2; B-299457.3

   Date: May 23, 2007

   Richard J. Conway, Esq., Robert J. Moss, Esq., Charlotte Rothenberg Rosen,
   Esq., and Joseph R. Berger, Esq., Dickstein Shapiro LLP, for the
   protester.

   David R. Hazelton, Esq., Kyle R. Jefcoat, Esq., Ali I. Ahmad, Esq., Roger
   S. Goldman, Esq., and Andrew B. Stein, Esq., Latham & Watkins LLP, for
   ViON Corporation, an intervenor.

   Stephanie A. Kreis, Esq., Defense Information Systems Agency, for the
   agency.

   Louis A. Chiarella, Esq., and Christine S. Melody, Esq., Office of the
   General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1. Post-closing time protest that evaluator who is not a government
   employee has an impermissible conflict of interest is untimely where the
   solicitation informed offerors of the agency's intent to use the evaluator
   and the protester was aware of the factual basis of the evaluator's
   alleged conflict of interest prior to closing time.

   2. Agency's evaluation of offerors' "proof of concept" demonstrations
   cannot be determined to be reasonable where the record lacks adequate
   documentation supporting the evaluators' findings.

   3. Agency's consideration of an offeror's record of past performance as
   part of assessing technical approach risk was improper where past
   performance was not relevant and reasonably related to technical approach
   risk as defined in the solicitation.

   4. Agency's discussions with protester were not meaningful where the
   agency found significant weaknesses in the protester's proposal but failed
   to identify them during discussions and give the firm the opportunity to
   comment on adverse past performance information to which it previously had
   not had an opportunity to respond.

   5. Protest challenging agency's price and past performance evaluation is
   denied where the record establishes that the evaluation was reasonable and
   consistent with the stated evaluation criteria

   DECISION

   Apptis, Inc. protests the award of a contract to ViON Corporation under
   request for proposals (RFP) No. HC1013-06-R-2005, issued by the Defense
   Information Systems Agency (DISA), Department of Defense (DOD), for
   enterprise storage services (ESS). Apptis argues that the agency's
   proposal evaluation and subsequent source selection decision were
   improper. Apptis also contends that a contractor that DISA employed to
   help evaluate offerors' proposals had an impermissible organizational
   conflict of interest.

   We sustain the protest in part and deny it in part.

   BACKGROUND

   DISA, through its Computing Services (CS) group, is a provider of
   information technology solutions for DOD customers that require data
   storage capacity services for a variety of applications and processing
   environments. The ESS initiative seeks to obtain state-of-the-art storage
   solutions to meet new and emerging customer requirements and provide
   storage solutions to replace existing DISA storage capacity that has
   exceeded its technical or economic life as determined by the agency.
   DISA's goal for the ESS procurement here is to obtain a dynamically
   scalable storage capability utilizing an on-demand service approach that
   will readily adjust to changes in processing and throughput requirements,
   both increases and decreases, and is priced on a utility ("as used")
   basis. In general terms, the statement of work required the contractor to
   acquire, install, de-install, transport, configure, and maintain all
   hardware, and provide software and software updates, for nine specified
   computer operating environments at any of the current or future DISA CS
   data centers located in the United States and Germany. Statement of Work
   (SOW) sect.C.1-4; Contracting Officer's Statement at 2.

   The RFP, issued on December 28, 2005, contemplated the award of a
   fixed-price, indefinite-delivery/indefinite-quantity (ID/IQ) contract for
   a base period of 5 years with three 1-year options. The solicitation
   identified four evaluation factors: technical solution; price/cost
   (hereinafter, price); service offerings; and past performance.[1] The
   solicitation notified offerors that proposal and past performance risk
   would also be evaluated. The solicitation stated that technical solution
   was significantly more important than price, and that price was more
   important than service offerings and past performance, which were
   approximately equal in weight to each other. Award was to be made to the
   responsible offeror whose proposal represented the best value to the
   government, all factors considered. RFP sect. M.3.2.

   Three offerors, including Apptis and ViON, submitted written proposals by
   the February 23, 2006 closing date. A DISA source selection evaluation
   board (SSEB) evaluated offerors' proposals as to the technical solution,
   service offerings, and past performance factors and subfactors using a
   color-coded rating system: blue, green, yellow, red, and white.[2] The RFP
   described the agency's color ratings as follows:

 +---------------------------------------------------------------------------+
 |      |  Technical Solution,   | Strengths | Weaknesses  |Past Performance |
 |      |   Service Offerings    |           |             |                 |
 |      |       Capability       |           |             |                 |
 |------+------------------------+-----------+-------------+-----------------|
 |Blue  |The proposal exceeds    |There are  |Weaknesses   |Highly           |
 |      |requirements/objectives |numerous   |are          |relevant/very    |
 |      |and clearly demonstrates|strengths  |considered   |recent past      |
 |      |the offeror's capability|that are of|insignificant|performance in   |
 |      |to deliver exceptional  |direct     |and have no  |all identified   |
 |      |performance.            |benefit to |apparent     |past performance |
 |      |                        |the        |impact to the|efforts;         |
 |      |                        |Government.|program.     |excellent        |
 |      |                        |           |             |performance      |
 |      |                        |           |             |ratings.         |
 |------+------------------------+-----------+-------------+-----------------|
 |Green |The proposal is         |Some       |A few        |Relevant/somewhat|
 |      |satisfactory; the       |strengths  |weak-nesses  |recent past      |
 |      |offeror is capable of   |exist that |exist; they  |performance in   |
 |      |meeting performance     |are of     |are          |all identified   |
 |      |requirements/objectives.|benefit to |correctable  |past performance |
 |      |                        |the        |with minimal |efforts;         |
 |      |                        |Government;|Government   |acceptable       |
 |      |                        |the        |oversight or |performance      |
 |      |                        |strengths  |direction.   |ratings.         |
 |      |                        |clearly    |             |                 |
 |      |                        |offset     |             |                 |
 |      |                        |weaknesses.|             |                 |
 |------+------------------------+-----------+-------------+-----------------|
 |Yellow|The proposal is         |Few        |Substantial  |Somewhat         |
 |      |minimally adequate; the |strengths  |weaknesses   |relevant/not very|
 |      |offeror is most likely  |exist that |exist that   |recent past      |
 |      |able to meet performance|are of     |may impact   |performance; most|
 |      |requirements/objectives.|benefit to |the program; |acceptable       |
 |      |                        |the        |they are     |performance      |
 |      |                        |Government;|correctable  |ratings.         |
 |      |                        |the        |with some    |                 |
 |      |                        |strengths  |Government   |                 |
 |      |                        |do not     |oversight and|                 |
 |      |                        |offset the |direction.   |                 |
 |      |                        |weaknesses.|             |                 |
 |------+------------------------+-----------+-------------+-----------------|
 |Red   |The proposal is highly  |There are  |Numerous     |Little relevant  |
 |      |inadequate; the offeror |no         |weaknesses   |past performance |
 |      |cannot meet performance |beneficial |exist that   |identified;      |
 |      |requirements/objectives.|strengths. |are so       |almost all       |
 |      |                        |           |significant  |unacceptable     |
 |      |                        |           |that a       |performance      |
 |      |                        |           |proposal     |ratings.         |
 |      |                        |           |rewrite is   |                 |
 |      |                        |           |not feasible |                 |
 |      |                        |           |within a     |                 |
 |      |                        |           |suitable     |                 |
 |      |                        |           |timeframe.   |                 |
 |------+------------------------+-----------+-------------+-----------------|
 |White |Not used.               |Not used.  |Not used.    |Completely lacks |
 |      |                        |           |             |relevant         |
 |      |                        |           |             |performance      |
 |      |                        |           |             |history or past  |
 |      |                        |           |             |performance is   |
 |      |                        |           |             |unavailable, not |
 |      |                        |           |             |due offeror's    |
 |      |                        |           |             |failure to       |
 |      |                        |           |             |provide          |
 |      |                        |           |             |information.     |
 +---------------------------------------------------------------------------+

   RFP sect. M.4. The RFP also established that proposal and past performance
   risk would be evaluated as high, medium, or low, and that the price factor
   would not be color rated but would be evaluated for completeness,
   reasonableness, and if necessary, price realism. Id., sect. M.4-.5.

   After the evaluation of offerors' initial proposals, the contracting
   officer determined that all three proposals were in the competitive range.
   DISA subsequently conducted oral presentations, multiple rounds of
   discussions, and proof of concept (POC) demonstrations with the offerors.
   All three offerors submitted final proposal revisions (FPR) by the October
   30 closing date.[3]

   The SSEB then evaluated the offerors' FPRs, as well as responses to
   discussion items, oral presentations, POC demonstrations, and past
   performance data obtained from other sources. The SSEB's final evaluation
   ratings of ViON's and Apptis's proposals with regard to the evaluation
   factors and subfactors were as follows:

   +------------------------------------------------------------------------+
   |                Factor                 |      ViON      |    Apptis     |
   |---------------------------------------+----------------+---------------|
   |Technical Solution                     |   Green/Low    | Green/Medium  |
   |---------------------------------------+----------------+---------------|
   |Specified Operating Environments       |   Green/Low    | Green/Medium  |
   |---------------------------------------+----------------+---------------|
   |Performance/Availability Objectives    |   Green/Low    |  Green/High   |
   |---------------------------------------+----------------+---------------|
   |Integration                            |   Green/Low    | Green/Medium  |
   |---------------------------------------+----------------+---------------|
   |Storage Functionality Capabilities     |   Green/Low    |   Green/Low   |
   |---------------------------------------+----------------+---------------|
   |Security                               |   Green/Low    | Green/Medium  |
   |---------------------------------------+----------------+---------------|
   |Service Offerings                      |    Blue/Low    |   Green/Low   |
   |---------------------------------------+----------------+---------------|
   |Billing Methodology                    |    Blue/Low    |   Green/Low   |
   |---------------------------------------+----------------+---------------|
   |Flexibility of Utility Service         |    Blue/Low    |   Blue/Low    |
   |---------------------------------------+----------------+---------------|
   |Technology Offerings                   |    Blue/Low    |   Green/Low   |
   |---------------------------------------+----------------+---------------|
   |Other Service Offerings                |    Blue/Low    |   Green/Low   |
   |---------------------------------------+----------------+---------------|
   |Past Performance                       |    Blue/Low    | Green/Medium  |
   |---------------------------------------+----------------+---------------|
   |Successful Implementation              |  Blue/Low[4]   | Green/Medium  |
   |---------------------------------------+----------------+---------------|
   |Quality Controls                       |   Green/Low    |   Green/Low   |
   |---------------------------------------+----------------+---------------|
   |Socioeconomic Goals                    |   White/Low    |   Green/Low   |
   |---------------------------------------+----------------+---------------|
   |Evaluated Price                        |  $150,352,451  | $122,015,340  |
   +------------------------------------------------------------------------+

   Agency Report (AR), Tab 9B, SSEB Consensus Reports of Apptis; Tab 10B,
   SSEB Consensus Reports of ViON; Contracting Officer's Statement at 16-17.

   The SSEB subsequently briefed the agency source selection advisory council
   (SSAC) as to its evaluation of the offerors' proposals. Id., Tab 13, SSEB
   Briefing to SSAC. On December 8, the SSAC (and the SSEB Chairperson) then
   briefed the SSA and recommended contract award to ViON. Id., Tab 14, SSAC
   Briefing to SSA. On January 12, 2007, after having reviewed the SSEB's
   evaluation reports and findings, the SSA determined that ViON's higher
   technically rated proposal represented the best value to the government,
   notwithstanding its higher price. Id., Tab 15, Source Selection Decision,
   at 1, 19-21. These protests followed.

   DISCUSSION

   Apptis's protests raise numerous issues regarding the agency's evaluation
   of offerors' proposals and subsequent award determination. First, the
   protester alleges that DISA improperly used an employee of a contractor
   lacking impartiality to assist in the evaluation of proposals. Apptis also
   argues that DISA's evaluation of proposals under the technical solution
   and past performance factors was improper and that the agency failed to
   engage in meaningful discussions with the firm. Apptis further argues that
   DISA's price evaluation was improper and the best value tradeoff
   determination was unreasonable. As detailed below, we find that the
   agency's evaluation of Apptis's proposal under the technical solution
   factor was improper, and that DISA failed to conduct meaningful
   discussions with the firm.

   Organizational Conflict of Interest

   Apptis first protests that an organizational conflict of interest (OCI)[5]
   existed in connection with the evaluation due to DISA's use of a
   contractor employee, C.F.,[6] as an SSEB evaluator. Specifically, Apptis
   alleges that at the time he evaluated offerors' proposals, C.F. was
   employed by Shim Enterprises, Inc., a support services contractor for the
   DISA CS site in Ogden, Utah. Shim, the protester contends, was responsible
   for performing systems management for DISA at the time and location that a
   service outage occurred, and for which the equipment and/or support of
   Apptis' primary subcontractor here, EMC, was alleged to have been at fault
   (the so-called "Fairchild chip issue"). Thus, Apptis asserts, Shim had a
   motivation to deflect blame to EMC and avoid any responsibility it may
   have had for the service outage problem that occurred.[7] Apptis argues
   that because the agency used as an evaluator an employee of a firm that
   had an impermissible OCI, the agency's evaluation of proposals was
   unreasonable and the award to ViON improper.

   The agency argues that Apptis's protest regarding Shim's alleged OCI is
   untimely. In support of its position, the agency contends that the RFP
   gave offerors notice of the fact that DISA planned to utilize Shim in the
   evaluation. Further, DISA asserts that the protester was aware of Shim's
   role as DISA's support services contractor for the Ogden site, and had
   interacted directly with Shim regarding the Fairchild chip failure
   incident. The agency contends that because Apptis was aware of the
   potential OCI involving Shim during the solicitation process, but did not
   protest this issue until after the closing time, the issue is untimely. We
   agree.

   Our Bid Protest Regulations contain strict rules requiring timely
   submission of protests. Under these rules, protests based upon alleged
   improprieties in a solicitation which are apparent prior to bid opening or
   the time set for receipt of initial proposals must be filed prior to bid
   opening or the time set for receipt of initial proposals. 4 C.F.R. sect.
   21.2(a)(1) (2007). Similarly, protests not based on solicitation
   improprieties must be filed within 10 days after the basis of protest is
   known or should have been known, whichever is earlier. 4 C.F.R. sect.
   21.2(a)(2).

   As a general rule, a protester is not required to protest that another
   firm has an impermissible OCI until after the agency has made an award
   determination. REEP, Inc., B-290688, Sept. 20, 2002, 2002 CPD para. 158 at
   1-2. A different rule applies, however, where a solicitation informs
   offerors that the agency plans to utilize the services of a third-party
   contractor to assist in the evaluation of proposals, and the protester
   knew or should have known, by means of due diligence, that the
   nongovernmental entity may have, as alleged here, impaired objectivity. In
   such cases, the protester cannot wait until an award has been made to file
   its protest of an impermissible OCI, but instead must protest before the
   closing time for receipt of proposals. See Abt Assocs., Inc., B-294130,
   Aug. 11, 2004, 2004 CPD para. 174 at 2.

   Here, the RFP expressly identified Shim as a nongovernmental evaluator of
   offerors' proposals, RFP sect. L at 57, and the protester itself indicates
   that information regarding Shim's role as DISA's support services
   contractor for the Ogden location was readily available at Shim's website.
   Protester's Comments, Mar. 26, 2007, exh. A, Printout of Shim Enterprise
   webpage. Moreover, EMC employees had frequent and regular dealings with
   C.F. at the Ogden site, dealt directly with C.F. regarding the Fairchild
   chip failure incident, and were aware that C.F. was a Shim employee.
   Protester's Comments, Mar. 26, 2007, Second Decl. of J.S.; AR, Apr. 17,
   2007, exh. 1, Decl. of M.H.; exh. 2, Decl. of C.W. We think that, given
   EMC's prior work for DISA at the Ogden site, and that EMC was Apptis's
   primary subcontractor, Apptis knew or should have known of Shim's role as
   the DISA support services contractor for the Ogden site where EMC had had
   the Fairchild chip failure issue. Apptis's failure to protest the alleged
   OCI associated with Shim's role in the evaluation of offerors' proposals
   before the closing date for receipt of proposals makes this issue
   untimely.

   Technical Solution Factor Evaluation

   Apptis argues that the agency's evaluation of proposals under the
   technical solution factor, the most important factor, was improper.
   Specifically, the protester argues that by considering various procedural
   aspects of its POC demonstration, DISA, in effect, applied an unstated
   evaluation criterion. Apptis also contends that DISA failed to properly
   document its adverse findings regarding Apptis's POC demonstration. Apptis
   further asserts that the agency improperly considered the past performance
   of its primary subcontractor, EMC, in connection with its evaluation under
   the technical solution factor.[8] For the reasons set forth below, while
   we think that DISA's consideration of the procedural aspects of Apptis's
   POC demonstration did not constitute application of an unstated evaluation
   criterion and therefore was permissible, we nevertheless conclude that the
   agency failed to adequately document its conclusions in this area.
   Further, we conclude that it was improper for the agency to consider past
   performance as part of the evaluation of Apptis's proposal under the
   technical solution factor.

   With regard to the POC demonstration, the RFP stated as follows:

     Offerors in the competitive range will be required to demonstrate their
     proposed solution to members of the SSEB at the offeror's own
     demonstration location. The [POC] Demonstration is designed to validate
     the offeror's solution in the following areas: Operating Environment
     Support, Performance, Integration and Manageability, Storage
     Capabilities, and Security. [POC] test instructions, together with any
     other Government provided data required to be used in the demonstration,
     will be provided to each offeror 14 calendar days prior to the
     demonstration. The results of the [POC] demonstration will not be
     separately rated, but may be used to adjust the ratings previously
     assigned.[9]

   RFP sections L.1.13, M.2.1.4.1.

   The agency subsequently provided offerors with additional, detailed
   instructions regarding how the POC demonstration would be conducted and
   the specific technical scenarios and solutions for which the offerors had
   to show proficiency. The instructions informed offerors that "[t]he
   purpose of the proof of concept is to demonstrate that a vendor's proposed
   solution meets the Government's stated objectives. The Government will
   determine if the demonstration meets all of the stated objectives and how
   efficiently those objectives are met." AR, Tab 12A, POC Demonstration
   Instructions, May 15, 2006, at 1. The instructions also encouraged
   offerors to demonstrate any additional value-added capabilities they
   wanted DISA to be aware of in evaluating the merits of their proposals.
   Id.

   Apptis's POC demonstration took place at the facilities of its proposed
   subcontractor, EMC, on June 5-19, 2006, and was conducted primarily by EMC
   personnel. While the SSEB found that all of the solutions presented by
   Apptis worked and were validated, the agency asserts that the evaluators
   also observed various nonsubstantive deficiencies in Apptis's
   demonstration. Specifically, the SSEB is said to have observed that the
   firm's personnel had repeated difficulty in getting proposed solutions to
   work correctly the first time they were demonstrated. According to the
   agency, the problems evident with Apptis's proposed solutions in a
   controlled testing environment raised concerns about the potential
   difficulties Apptis would have in the much-more complicated DISA
   production environment. The SSEB also purportedly observed that each of
   the various components of Apptis's proposed solutions required a different
   technical expert, or experts, to present the solution. This raised
   concerns that successful implementation by Apptis of its proposed solution
   would require the coordination of a large number of individual technical
   disciplines, and was likely to result in an inability to get timely
   resolution of operational issues. AR, Tab 9B, SSEB Consensus Report of
   Apptis (Technical), at 2-4, 10-11. The SSEB's findings and conclusions
   regarding these perceived deficiencies in Apptis's nonsubstantive
   demonstration factored heavily into the evaluators' ratings of the firm's
   proposal under the technical solution factor and subfactors, as well as
   the SSAC's recommendations and the agency's eventual source selection
   decision. Id., Tab 14, SSAC Briefing to SSA, at 23; Tab 15, Source
   Selection Decision, at 6-7, 20.

   Apptis first alleges that the agency's decision to consider the
   nonsubstantive aspects of its POC demonstration constituted application of
   an unstated evaluation factor. Specifically, the protester alleges that
   the POC demonstration was intended to validate that an offeror's proposed
   solution met the RFP's stated objectives, and Apptis demonstrated its
   capabilities and received the agency's agreement that it met all the
   stated test objectives. Apptis contends that the number of attempts
   required and the number of technicians it utilized were not properly part
   of the POC demonstration evaluation. We disagree that consideration of
   these matters was improper.

   Although agencies are required to identify in a solicitation all major
   evaluation factors, they are not required to identify all areas of each
   factor which might be taken into account in an evaluation, provided that
   the unidentified areas are reasonably related to or encompassed by the
   stated factors. Chenega Technical Prods., LLC, B-295451.5, June 22, 2005,
   2005 CPD para. 123 at 5.

   Here, as set forth above, the RFP established that the purpose of the POC
   demonstration was to validate the offeror's solution in specific technical
   areas. The agency also expressly informed offerors that the POC
   demonstration would be used to determine how efficiently each offeror met
   the stated performance objectives. We think that consideration of the
   number of attempts required, and the number of separate technicians
   required, as part of the validation of an offeror's technical solutions is
   reasonably related to determining how efficiently an offeror meets the
   stated performance objectives. Thus, we conclude that the agency's
   consideration of these aspects of Apptis's POC demonstration as part of
   its evaluation of Apptis's proposal was consistent with the stated
   evaluation criteria.

   Apptis also argues that the agency's determinations regarding its
   nonsubstantive POC deficiencies were not adequately documented. Apptis
   contends that the agency record contains almost no contemporaneous
   documents regarding its POC demonstration, and no contemporaneous
   documentation showing the POC deficiencies in core systems (as opposed to
   value-added solutions) which the SSEB allegedly observed.[10] The
   protester argues that in light of the fact that its proposal was
   significantly downgraded as a result of the SSEB's finding that its
   solutions routinely required multiple attempts to implement, it was
   substantially prejudiced by the agency's failure to adequately document
   the evaluation here.

   In order for us to review an agency's evaluation of proposals, an agency
   must have adequate documentation to support its judgment. Northeast MEP
   Servs., Inc., B-285963.5 et al., Jan. 5, 2001, 2001 CPD para. 28 at 7.
   While an agency is not required to retain every document or worksheet
   generated during its evaluation of proposals, the agency's evaluation must
   be sufficiently documented to allow review of the merits of a protest. KMS
   Fusion, Inc., B-242529, May 8, 1991, 91-1 CPD para. 447 at 10. Where an
   agency fails to document or retain evaluation materials, it bears the risk
   that there may not be adequate supporting rationale in the record for us
   to conclude that the agency had a reasonable basis for its source
   selection decision. Southwest Marine, Inc.; American Sys. Eng'g Corp.,
   B-265865.3, B-265865.4, Jan. 23, 1996, 96-1 CPD para. 56 at 10.

   Here, the agency's evaluation record contains the individual evaluator
   comment reports (over 600 pages), as well as various handwritten notes of
   SSEB members regarding Apptis's POC demonstration. AR, Tab 9C, SSEB
   Evaluation Comments of Apptis; Tab 12, SSEB Notes from Apptis POC
   demonstration. However, none of these contemporaneous documents contains
   any reference to either of the nonsubstantive deficiencies that the
   evaluators found in Apptis's demonstration. Likewise, there are no other
   documents in the evaluation record that support the SSEB's conclusions
   that Apptis's personnel had repeated difficulty in getting proposed
   solutions to work correctly the first time they were demonstrated, or that
   each of the various components of Apptis's proposed solution required a
   different technical expert to implement.[11] Quite simply, while the
   agency described Apptis's POC as a "problem plagued demonstration," AR,
   Tab 14, SSAC Briefing to the SSA, at 23, it kept no records of which
   Apptis solutions required multiple attempts, how many attempts were
   required, or any reasons for the multiple attempts. In sum, we cannot tell
   if the evaluation of this aspect of Apptis's proposal was reasonable
   because the agency record lacks adequate documentation to support its
   findings regarding Apptis's POC demonstration.

   In its report to our Office, the agency acknowledges that, "[t]here is no
   documentation from the POC that identifies how many times it took [Apptis]
   to successfully demonstrate any aspect of [its] proposed solutions." AR,
   Apr. 5, 2007, at 9. DISA argues, however, that because the POC
   demonstration was not separately evaluated, there was no reason for the
   SSEB to document its concerns regarding Apptis's nonsubstantive
   deficiencies. The agency's argument is based on a fundamental
   misunderstanding of the requirement that agencies provide an adequate
   basis for their evaluation findings. While the POC demonstration was not
   itself a separate evaluation factor, it was a significant part of the
   agency's overall evaluation of an offeror's proposal and, as such, the
   agency was required to maintain records adequate to permit meaningful
   review. Tiger Enters., Inc., B-293951, July 26, 2004, 2004 CPD para. 141
   at 2.

   Apptis also argues that DISA's evaluation of its proposal under the
   technical solution factor was improper because the evaluation included
   consideration of EMC's past performance history with DISA. Specifically,
   the protester argues that as part of the evaluation of technical solution
   risk, the SSEB took into account EMC's past performance with DISA. By
   considering EMC's past performance history as part of technical solution
   risk, Apptis argues, the agency improperly elevated the relative
   importance of the past performance factor from the relative weightings
   established in the solicitation.

   An agency is not precluded from considering an element of a proposal (such
   as past performance) under more than one evaluation criterion where the
   element is relevant and reasonably related to each RFP criterion under
   which it is considered. Infrared Techs. Corp., B-282912, Sept. 2, 1999,
   99-2 CPD para. 41 at 5 n.2. Conversely, an agency may not consider an
   element of an offeror's proposal under an evaluation criterion where the
   element is not relevant and reasonably related to that evaluation
   criterion.

   With regard to the evaluation of proposal risk, the RFP stated as follows:

     The Government will perform a risk assessment of each offeror's
     proposal. The proposal risk assessment focuses on the risks and
     weaknesses associated with the offeror's proposed approach. Assessment
     of risk identifies potential for disruption of schedule, degradation of
     performance, and need for increased government oversight. For any risk
     identified, the evaluation addresses the offeror's proposal for
     mitigating those risks and why that approach is or is not feasible. A
     risk assessment of each offeror's record of past performance will also
     be conducted and will form a part of the proposal evaluation.

   RFP sect. M.4.1.2.

   The solicitation also included distinct narrative descriptions for the
   risk assessment ratings for both the technical solution and past
   performance factors. For the assessment of technical solution risk, the
   agency's stated focus was upon the severity of the disruption of schedule,
   increase in price/cost, or degradation of performance that the offeror's
   proposed approach was likely to cause.[12] By contrast, for the assessment
   of past performance risk, the agency's stated focus was upon the amount of
   doubt that existed, based upon an offeror's past performance record, that
   the offeror could satisfactorily perform the proposed effort. Id.

   It is clear, we think, that the solicitation intended for technical
   proposal and past performance risk to be analyzed differently. In general
   terms, the agency's technical risk assessment was to be based on "what"
   the offeror's proposed approach was, while the agency's past performance
   risk assessment was to be based on "who" would be performing the various
   ESS services, and would include consideration of that firm's past
   performance history. Given the distinction established here by the
   solicitation, we conclude that consideration of an offeror's past
   performance was not relevant or reasonably related to the assessment of an
   offeror's technical approach risk.

   In its report to our Office, the agency does not argue that it was
   permissible for it to consider the past performance history of Apptis or
   EMC as part of the SSEB's evaluation of the offeror's technical approach
   risk. Rather, the agency contends that it did not do so. On the contrary,
   the record shows that the agency did in various instances improperly
   consider EMC's past performance as part of its evaluation of Apptis's
   technical approach. For example, in its consensus report regarding
   Apptis's technical solution, the SSEB stated:

     While there has not been an Apptis technical track record with DISA
     locations, EMC has performed in most all CS locations and has a complete
     service structure in place for their components, which make up the bulk
     of this offer. Service delivery is the greatest concern with this
     proposal. Prior experience with EMC support is that it has not always
     met government expectations.

   AR, Tab 9B, SSEB Consensus Report of Apptis (Technical), at 2. The SSEB
   also reported that its technical solution medium risk rating for Apptis's
   proposal was based on the "Medium level of DISA oversight anticipated to
   insure quality service delivery based on . . . DISA experience with
   service quality of EMC solutions." Id., Tab 13, SSEB Briefing to SSAC, at
   38. In turn, the SSAC stated that Apptis's technical solution risk was in
   part the result of EMC's past performance within DISA, id., Tab 14, SSAC
   Briefing to the SSA, at 23, and the SSA stated that the medium risk rating
   associated with Apptis's technical solution was the result of EMC's poor
   record of service delivery within DISA. Id., Tab 15, Source Selection
   Decision, at 20.

   Viewing the evaluation record as a whole, we think that, as shown above,
   the agency's evaluation of Apptis's technical solution also took into
   consideration EMC's record of past performance. As past performance was
   not relevant and reasonably related to the technical solution evaluation
   criterion as defined by the solicitation here, such consideration was
   improper. Moreover, it is clear that Apptis was prejudiced as a result;
   the ratings assigned to the firm's proposal under the technical solution
   factor, as well as the reliance by the SSA upon those ratings, were the
   result of DISA's improper consideration of who would be performing the ESS
   services as part of Apptis's technical approach.

   Past Performance Evaluation

   Apptis contends that the agency improperly considered past performance
   information outside of the period specified by the terms of the RFP, and
   improperly regarded Apptis's lack of past performance with the contracting
   agency as a weakness. The protester also raises other issues regarding the
   agency's evaluation of offerors' past performance, including the argument
   that DISA did not treat Apptis and ViON equally in its evaluation of their
   past performance. Although we do not here specifically address all of
   Apptis's arguments about the evaluation of offerors' past performance, we
   have fully considered all of them and find that they afford no basis upon
   which to sustain the protest.

   Where a solicitation requires the evaluation of offerors' past
   performance, we will examine an agency's evaluation to ensure that it was
   reasonable and consistent with the solicitation's evaluation criteria and
   procurement statutes and regulations. The MIL Corp., B-297508, B-297508.2,
   Jan. 26, 2006, 2006 CPD para. 34 at 10. Our review of the record leads us
   to conclude that the agency's evaluation of Apptis's past performance here
   was unobjectionable.

   With regard to the evaluation of an offeror's past performance, the RFP
   stated:

     The Government will assess the offeror's capability to perform the
     contract by evaluating their record of past performance as a prime
     contractor as well as the past performance record of their teaming/
     subcontractors on comparable IT projects. Only past performance data
     regarding similar IT efforts completed within the last two years or
     currently under contract will be evaluated.

   RFP sect. M.5.1.3.

   When evaluating offerors' proposals under the nonprice factors and
   subfactors, including past performance, the SSEB utilized a set of
   internal evaluation standards. Contracting Officer's Statement at 8. For
   the first past performance subfactor, "successful implementation of a
   technical solution similar in size, scope and make-up" (hereinafter,
   successful implementation), the SSEB had five evaluation standards,
   including "Prior DISA CS experience with service and solutions offered by
   this vendor and its partners." Id. at 12.

   The SSEB rated Apptis's proposal as Green/Medium Risk under the successful
   implementation subfactor. While finding that Apptis's proposal met most of
   the evaluation criteria, the SSEB assessed as a weakness Apptis's lack of
   prior DISA CS experience. Specifically, the agency evaluators stated:

     EMC has a great deal of experience working in the DISA environment,
     however Apptis as an integrator does not have experience delivering
     services and solutions of this magnitude within [the] DISA computing
     services environment. There is considerable amount of risk for DISA in
     regard to integration when the integrator is not familiar with the full
     extent of our environment.

   AR, Tab 9B, SSEB Consensus Report of Apptis (Past Performance), at 3.
   Also, the SSEB considered the past performance problems of EMC, Apptis's
   proposed subcontractor, to be the second key reason (together with
   Apptis's lack of direct DISA experience) for the firm's medium risk
   ratings under both the successful implementation subfactor and the past
   performance factor. Id. at 2-3.

   Apptis protests that DISA improperly considered past performance
   information regarding its subcontractor EMC that occurred outside of the
   2-year period specified by the solicitation. The protester alleges that at
   the post-award debriefing, the agency mentioned EMC's performance on the
   "EMS project" as one of the specific factual instances in support of
   DISA's determination that EMC's past performance had not always met
   expectations. According to Apptis, EMC's portion of the EMS project was
   completed in 2003, and the contract itself ended in April 2004. Protest,
   Feb. 18, 2007, at 18. Apptis argues that because the EMS project contract
   was completed more than 2 years before the date when Apptis submitted its
   proposal, it could not be considered as part of DISA's past performance
   evaluation here. Protester's Comments, Mar. 26, 2007, at 49. The agency
   argues that the 2-year period for the consideration of performance
   information should be computed from the date the solicitation was issued
   and, as a result, consideration of the EMS project was appropriate. AR,
   Mar. 14, 2007, at 37.

   As a preliminary matter, we note that it is unclear whether DISA actually
   relied on the EMS project in the evaluation of Apptis's past performance
   or simply mentioned it at the debriefing as an additional factual instance
   of EMC's adverse performance; for example, the SSEB report does not
   mention the EMS project as part of its past performance evaluation of
   Apptis. See id., Tab 9B, SSEB Consensus Report of Apptis (Past
   Performance). In any event, while it is not uncommon for a solicitation to
   specify exactly how the past performance period is to be computed, see,
   e.g., FR Countermeasures, Inc., B-295375, Feb. 10, 2005, 2005 CPD para. 52
   at 2 (within 3 years of the solicitation's initial closing date), the RFP
   here was silent as to how the past performance evaluation period was to be
   determined. Given that both the agency's and the protester's
   interpretations of the provision are reasonable ones,[13] the resulting
   ambiguity was readily apparent from the face of the RFP. Thus, to be
   timely, any protest on this ground had to be filed prior to the closing
   time for submission of proposals. Singleton Enters., B-298576, Oct. 30,
   2006, 2006 CPD para. 157 at 5; see 4 C.F.R. sect. 21.2(a)(1). Since it was
   not, and since the agency's interpretation of the time period is
   reasonable, we have no basis to question the agency's consideration of the
   EMS project in the evaluation.

   Apptis also protests that the agency's past performance evaluation was
   improper because it employed an undisclosed evaluation criterion.
   Specifically, the protester argues that it was impermissible for the SSEB
   to consider its lack of past performance history with DISA to be a
   weakness.

   We see nothing objectionable in the agency's consideration of past
   performance history at DISA as part of its evaluation of offerors' past
   performance. Past performance history with the agency for which the
   solicited work is to be performed clearly is a matter encompassed by the
   stated evaluation criteria. See Leach Mgmt. Consulting Corp., B-292493.2,
   Oct. 3, 2003, 2003 CPD para. 175 at 5. Accordingly, the agency reasonably
   considered Apptis's lack of past performance history with DISA to be a
   weakness.[14]

   Apptis argues that DISA's evaluation of offerors' past performance
   reflects disparate treatment. The protester alleges that, when considering
   past performance information from outside the offerors' proposals, the
   SSEB generally considered only negative information about Apptis's
   subcontractor EMC even though there was also positive information of which
   DISA had knowledge. Likewise, Apptis contends, the SSEB generally
   considered only positive information about ViON's subcontractor Unisys
   even though there was also negative information of which DISA had
   knowledge. Moreover, Apptis asserts, the prior DISA contracts which formed
   the basis for the agency's conclusions regarding the offerors' past
   performance were ones in which EMC performed as a subcontractor to Unisys.

   While agency evaluators may consider and rely upon information of which
   they are personally aware in the course of evaluating an offeror's
   proposal, Del-Jen Int'l Corp., B-297960, May 5, 2006, 2006 CPD para. 81 at
   7, it is a fundamental principle of government procurement that evaluators
   must treat all offerors equally. Infrared Techs. Corp.--Recon.,
   B-255709.2, Sept. 14, 1995, 95-2 CPD para. 132 at 4-5. Our review of the
   record confirms that the agency evaluated offerors' proposals fairly and
   without disparate treatment under the past performance factor.

   In our view, Apptis's argument of disparate treatment is mistakenly
   premised upon an improper "apples-to-oranges" comparison of the offerors'
   proposals. When evaluating Apptis's past performance, the SSEB was aware
   that its subcontractor EMC would be performing an extensive role in the
   delivery and servicing of Apptis's ESS solutions. AR, Tab 9B, SSEB
   Consensus Report of Apptis (Technical), at 2. By contrast, when evaluating
   ViON's past performance, the SSEB was aware that the role to be played by
   its proposed subcontractor Unisys was a more minor one, limited to
   discrete ESS solutions and services, and that ViON would be performing the
   majority of the services. Id., Tab 10B, SSET Consensus Report of ViON
   (Technical), at 1-14. Given the different degrees of reliance by ViON and
   Apptis on their respective proposed subcontractors, the SSEB properly
   found EMC's past performance much more relevant to the evaluation than
   that of Unisys, and the SSEB's overall past performance ratings for ViON
   and Apptis reflected this distinction. In sum, the difference in the past
   performance ratings of ViON and Apptis here was not the result of unequal
   treatment by the agency of identical similar facts, but instead resulted
   from the agency's recognition of different underlying facts.

   Lack of Meaningful Discussions

   Apptis argues that neither of the issues on which its ratings under the
   technical solution and past performance factors were based--the POC
   demonstration deficiencies and EMC's adverse past performance--was raised
   by the agency during discussions. Apptis argues that in order for the
   discussions conducted by the agency to be meaningful, the agency should
   have raised these perceived weaknesses, given that they significantly
   affected the evaluation of the firm's proposal under multiple subfactors
   and factors. We agree.

   Although discussions must address deficiencies and significant weaknesses
   identified in proposals, the precise content of discussions is largely a
   matter within the contracting officer's judgment. See FAR sect.
   15.306(d)(3); American States Utils. Servs., Inc., B-291307.3, June 30,
   2004, 2004 CPD para. 150 at 6. We review the adequacy of discussions to
   ensure that agencies point out weaknesses that, unless corrected, would
   prevent an offeror from having a reasonable chance for award. Northrop
   Grumman Info. Tech., Inc., B-290080 et al., June 10, 2002, 2002 CPD para.
   136 at 6. When an agency engages in discussions with an offeror, the
   discussions must be meaningful, that is, they must reasonably lead an
   offeror into the areas of its proposal requiring correction or
   amplification. See TRI-COR Indus., Inc., B-259034.2, Mar. 14, 1995, 95-1
   CPD para. 143 at 5.

   Here, DISA held discussions with all offerors after completing its
   evaluation of initial technical and price proposals. The agency conducted
   four rounds of discussions with Apptis and provided the firm with a total
   of 120 discussions items. One of the specific discussion items, which
   involved the service offerings evaluation factor, stated:

     APP-DI-SRVO-105
     Project Management Office (PMO) Support

     Detail: During the POC APPTIS demonstrated a large variety of components
     that comprise their proposed storage solutions. The demonstration of
     these solutions involved a number of highly skilled expert technicians.
     What level of expertise for these components will be available within
     the PMO? If expertise required for a specific requirement is not
     available within the PMO, what will be the turn around time [for]
     assigning someone or dispatching a subject matter expert to provide on
     site assistance?

   AR, Tab 9A, Discussions Items with Apptis, July 20, 2006, at 50.

   None of the agency's discussion items concerned either the SSEB's
   observation that Apptis repeatedly required multiple attempts at the POC
   demonstration in order to get its proposed solutions to work correctly, or
   EMC's adverse past performance.[15]

   We think that DISA failed to conduct meaningful discussions with Apptis
   with respect to the nonsubstantive POC deficiencies. Regarding the
   technical solution factor, none of the discussion items provided to Apptis
   mentioned the SSEB's observation that the firm's personnel had repeated
   difficulty in getting proposed solutions to work correctly the first time
   they were demonstrated, or the agency's associated concern (that Apptis
   would have greater difficulties in the much-more complicated DISA
   production environment). Further, only the one discussion item noted above
   makes any mention of the SSEB observation that Apptis's demonstration
   involved a number of highly skilled expert technicians, and it does not
   reference the associated concern (that successful implementation would
   require the coordination of a large number of individual technical
   disciplines). Moreover, this discussion item was directed towards an
   aspect of Apptis's proposal under the service offerings (not the technical
   solution) evaluation factor. Under the circumstances here, we cannot
   conclude that an offeror, reviewing the agency's question in conjunction
   with the material that the offeror had submitted with its proposal,
   reasonably would have recognized the agency's concern regarding the POC
   demonstration.

   DISA does not dispute that its discussions with Apptis did not address the
   nonsubstantive POC deficiencies that its evaluators had observed. Rather,
   the agency argues that discussions with Apptis regarding the
   nonsubstantive POC deficiencies that the SSEB had observed would not have
   benefited Apptis. In its report to our Office, the agency states:

     Given the circumstances under with the POC issues arose, it is not clear
     what discussions would have accomplished to assist Apptis in enhancing
     its demonstration. . . . Apptis knew the POC was only going to be
     conducted once and that there would not be a second opportunity to
     repeat any part of it. . . . It should have been apparent to the
     offerors that it would benefit them to put on a good demonstration. What
     is not apparent is what purpose after-the-fact discussions would have
     accomplished to improve on a demonstration that had already been
     completed. There is no information the Agency could have communicated at
     that point that would have assisted Apptis in improving on its
     demonstration.

   AR, Mar. 14, 2007, at 13.

   The agency essentially argues that Apptis was not prejudiced by its lack
   of meaningful discussions here, because even if the agency had mentioned
   the POC deficiencies, there was nothing that Apptis could do to fix them.
   We disagree. As a preliminary matter, while, as explained above, we think
   that DISA's consideration of the nonsubstantive aspects of the POC
   demonstration did not involve application of an unstated evaluation
   criterion, neither did the RFP expressly inform offerors that the agency's
   validation effort would include assessing the number of tries or the
   number of technical experts required. Further, even though Apptis could
   not change the events that transpired at its POC demonstration, the agency
   nevertheless was required to point out the weaknesses it observed and
   provide the firm with an opportunity to address them. Thus, for example,
   Apptis's discussion responses and/or FPR could have refuted the agency's
   purported observations, provided explanations as to why the events
   occurred, or proposed methods by which to address the agency's associated
   concerns. DISA's failure to conduct discussions with Apptis regarding the
   perceived POC deficiencies improperly foreclosed the offeror's opportunity
   to address these proposal weaknesses.

   We also conclude that the agency did not conduct meaningful discussions
   with Apptis regarding EMC's past performance problems. Contracting
   agencies are required to provide an offeror with an opportunity to address
   adverse past performance information to which the offeror has not
   previously had an opportunity to respond. See FAR sect. 15.306(d)(3). As
   noted above, none of the agency's discussion items inquired into EMC's
   past performance, and, as a result, Apptis had no opportunity to respond
   to the agency's adverse findings.[16] Moreover, while the agency was aware
   of and apparently relied upon specific instances of EMC past performance
   problems, none of these incidents was mentioned in discussions with
   Apptis.

   In its report to our Office, DISA does not deny that its discussions
   failed to raise EMC's past performance problems; rather, the agency argues
   did not have to do so. Specifically, the agency states:

     When it considers past performance in a procurement, the Government has
     an obligation to provide offerors with an opportunity to address
     negative past performance information, provided they have not had a
     prior opportunity to do so. Whether or not specifically identified . . .
     in discussions, it is beyond question that [Apptis] was well aware of
     the [EMC past performance] incidents discussed at the debriefing, a
     point emphasized by the detailed rebuttals on pages 18-19 of [Apptis's]
     Supplemental Protest (Tab 1). There was no obligation on the part of the
     Agency to explicitly remind them.

   AR, Mar. 14, 2007, at 38.

   The agency argument here indicates a misunderstanding of its obligations
   during discussions. The agency's responsibility to conduct meaningful
   discussions is not conditioned, or qualified, by what it assumes the
   offeror already knows about its past performance history. Rather, the
   obligation is upon the agency in the course of discussions to point out
   adverse past performance information that would prevent the offeror from
   having a reasonable chance at award and that the offeror has not
   previously had the opportunity to rebut.

   Price Evaluation

   Apptis argues that DISA's price evaluation was improper and not in
   accordance with the solicitation. Specifically, the protester states that
   the RFP established a price evaluation methodology that combined three
   different contract length possibilities into a single overall evaluated
   price, and asserts that it relied heavily upon the solicitation's
   "blended" pricing methodology when developing its pricing structure.
   However, Apptis argues, DISA's price evaluation disregarded the
   solicitation's stated evaluation criteria and focused instead on offerors'
   prices for only the single most likely contract length scenario, thereby
   failing to give sufficient consideration to the evaluated price difference
   between its proposal and that of ViON. We disagree.

   Agencies must consider cost to the government in evaluating proposals. 10
   U.S.C. sect. 2305(a)(3)(A)(ii) (2000). While it is up to the agency to
   decide upon the method for the evaluation of offerors' prices, the method
   chosen must include some reasonable basis for evaluating or comparing the
   relative costs of proposals, so as to establish whether one offeror's
   proposal would be more or less costly than another's. See FAR
   sect. 15.405(b); Bristol-Myers Squibb Co., B-294944.2, Jan. 18, 2005, 2005
   CPD para. 16 at 4. Where a protester challenges an agency's evaluation of
   proposals, including the evaluation of an offeror's proposed price, our
   Office will not reevaluate proposals, but instead will examine the record
   to determine whether the agency's judgment was reasonable and consistent
   with the stated evaluation criteria and applicable procurement statutes
   and regulations. Liquidity Servs., Inc., B-294053, Aug. 18, 2004, 2005 CPD
   para. 130 at 5.

   The RFP established that the agency's evaluation of offerors' proposed
   prices would be based on an analysis of proposals' total discounted life
   cycle cost (DLCC) for the 5-year base period and three 1-year option
   periods. Additionally, the solicitation stated that the DLCC analysis
   would incorporate proposed prices into a pricing model containing three
   different contract-length scenarios--one based on contract termination at
   48 months, one based on contract termination at 72 months, and a third
   based on contract termination at 96 months--but did not inform offerors of
   the predetermined weightings that DISA assigned to each scenario.[17]
   Notwithstanding the fact that the contract length scenarios were mutually
   exclusive in nature, and could not all occur, the RFP stated that all
   three scenarios would be evaluated and the relative weightings applied to
   determine the overall DLCC for each offeror's proposal.[18] RFP sect.
   M.5.1.4.

   The SSEB computed ViON's and Apptis's weighted DLCCs as follows:

                                      ViON                    Apptis          
          Scenario 1               $11,453,986              $6,328,125        
          Scenario 2               $26,986,459              $19,531,631       
          Scenario 3              $111,912,006              $96,155,583       
            Total                 $150,352,451           $122,015,340[19]     

   AR, Tab 9D, SSEB Price Summary for Apptis; Tab 10D, SSEB Price Summary for
   ViON.

   In its briefing to the SSAC, the SSEB set forth the offerors' total
   weighted DLCCs, demonstrating the $28 million difference between the total
   evaluated prices of Apptis and ViON.[20] Id., Tab 13, SSEB Briefing to
   SSAC, at 119. The SSAC's subsequent briefing to the SSA described both
   offerors' total evaluated prices and the weighted DLCCs for the single
   most likely contract length scenario (the 96-month scenario). Id., Tab 14,
   SSAC Briefing to SSA, at 26. In the source selection decision, the SSA
   considered only the offerors' total weighted DLCCs, including specific
   reference to the $28 million difference between Apptis's and ViON's
   evaluated prices in her price/ technical tradeoff determination. Id., Tab
   15, Source Selection Decision, at 19, 21.

   Contrary to the protester's allegations, the record here provides no basis
   to challenge the agency's evaluation of offerors' prices. As set forth
   above, the agency computed offerors' evaluated prices in accordance with
   the RFP's stated evaluation criteria, a conclusion which Apptis does not
   contest. Moreover, the record also reflects that the agency utilized
   offerors' evaluated prices as the basis for its award determination. While
   presumably aware of offerors' weighted DLCCs for each individual contract
   length scenario (including the most likely contract length scenario), the
   SSA, consistent with the RFP evaluation scheme, relied exclusively on
   offerors' total weighted DLCCs, and the associated price difference
   between the proposals of Apptis and ViON here, in making her source
   selection determination.

   We find no merit in Apptis's argument that the agency could not consider
   offerors' evaluated prices for individual contract length scenarios as
   part of the evaluation process. It was self-evident that only one, and not
   all three, of the contract length scenarios that comprised offerors' total
   weighted DLCCs would actually occur. Further, nothing in the RFP precluded
   the agency from examining the DLCCs for the most likely contract length
   scenario in addition to offerors' total weighted DLCCs. Quite simply, the
   fact that DISA also considered offerors' evaluated prices for the most
   likely of the mutually-exclusive contract length scenarios here does not
   indicate, as Apptis contends, that the agency disregarded the RFP's stated
   evaluation criteria in its price evaluation.

   Source Selection Decision

   Apptis argues that DISA's price/technical tradeoff decision was
   inconsistent with the solicitation's stated evaluation criteria. In
   support of its position, Apptis contends that the offerors' proposals were
   "about equal" under the technical solution factor and equal under the past
   performance factor, and ViON's proposal was only slightly superior under
   the service offerings factor. Consequently, the protester argues, its
   considerably lower price should have been the determining factor. In light
   of our conclusion that the agency's evaluation of proposals was
   unreasonable and that a new evaluation and source selection decision are
   necessary, we need not address this issue.

   RECOMMENDATION

   In summary, we conclude that the agency's findings regarding the
   nonsubstantive aspects of Apptis's POC demonstration lack any supporting
   documentation in the record; the agency's evaluation of Apptis's proposal
   was unreasonable insofar as it considered the firm's past performance as
   part of technical approach risk; and the agency failed to conduct
   meaningful discussions with Apptis regarding both the nonsubstantive
   aspects of the POC demonstration and adverse past performance information.
   In these circumstances, we are unable to determine whether the award to
   ViON was proper.

   We recommend that the agency reopen discussions with the offerors
   consistent with our conclusions above, request and evaluate revised
   proposals, and then rely on that revised evaluation in making a new source
   selection determination. If the agency wishes to rely on its findings
   regarding the nonsubstantive aspects of the POC demonstration, it should
   ensure that the record in that area is properly documented. If, upon
   reevaluation of proposals, Apptis is determined to offer the best value to
   the government, DISA should terminate ViON's contract for the convenience
   of the government and make award to Apptis. We also recommend that Apptis
   be reimbursed the costs of filing and pursuing the protest, including
   reasonable attorneys' fees, limited to the costs relating to the grounds
   on which we sustain the protest. 4 C.F.R. sect. 21.8(d)(1). Apptis should
   submit its certified claim for costs, detailing the time expended and
   costs incurred, directly to the contracting agency within 60 days after
   receipt of this decision. 4 C.F.R. sect. 21.8(f)(1).

   The protest is sustained in part and denied in part.

   Gary L. Kepplinger
   General Counsel

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

   [1] The technical solution factor was comprised of five subfactors: 1)
   ability to provide complete end-to-end solutions for specified operating
   environments; 2) achievement of agency performance/availability
   objectives; 3) integration with the current environment and
   government-furnished equipment; 4) storage functionality capabilities; and
   5) security. The service offerings factor consisted of four subfactors: 1)
   billing methodology; 2) flexibility of utility service; 3) technology
   offerings; and 4) other service offerings advantageous to the government.
   The past performance factor consisted of three subfactors: 1) successful
   implementation of a technical solution similar in size, scope, and
   make-up; 2) whether the offeror has a process in place to address quality
   of performance (hereinafter, quality controls); and 3) socioeconomic
   goals. The RFP stated that the subfactors within each evaluation factor
   were approximately equal in importance to each other. RFP sect. M.4.1.2.

   [2] The SSEB was comprised of two teams: the technical solution and past
   performance team, and the price and service offerings team. The SSEB teams
   rated proposals by having each member individually identify strengths and
   weaknesses and assign a rating for each non-price subfactor and factor.
   The SSEB teams then developed consensus ratings for the non-price factors
   based upon discussions among the members of the strengths and weaknesses
   of each proposal.

   [3] The third offeror's proposal is not relevant to the protest here and
   will not be discussed further.

   [4] The agency source selection authority (SSA) later changed ViON's
   ratings under the prior successful implementation subfactor from Blue/Low
   Risk to Green/Low Risk, and the offeror's overall past performance rating
   from Blue/Low Risk to Green/Low Risk. Contracting Officer's Statement at
   16.

   [5] An OCI occurs where, because of other activities or relationships with
   other persons or organizations, a person or organization is unable or
   potentially unable to render impartial assistance or advice to the
   government, or the person's objectivity in performing the contract work is
   or might be otherwise impaired. See Federal Acquisition Regulation (FAR)
   sect. 2.101; Aetna Gov't Health Plans, Inc.; Foundation Health Fed.
   Servs., Inc., B-254397.15 et al., July 27, 1995, 95-2 CPD para. 129 at 12.
   As relevant here, in "impaired objectivity" cases, the concern is that the
   contractor's ability to render impartial advice to the government could
   appear to be undermined by the relationship with the entity whose work
   product is being evaluated. FAR sect. 9.505-3; Aetna Gov't Health Plans,
   Inc.; Foundation Health Fed. Servs., Inc., supra, at 13; see also
   DZS/Baker LLC: Morrison Knudsen Corp., B-281224 et al., Jan. 12, 1999,
   99-1 CPD para. 19 at 5. Contracting officials are required to identify and
   evaluate potential conflicts of interest as early in the acquisition
   process as possible. FAR sect. 9.504(a); Alion Sci. & Tech. Corp.,
   B-297022.3, Jan. 9, 2006, 2006 CPD para. 2 at 6.

   [6] Throughout this decision, we identify individuals by their initials
   rather than their full names.

   [7] The protester also asserts that C.F.'s individual evaluation ratings
   and comments regarding Apptis's proposal were consistently the most
   critical of all the SSEB members.

   [8] Apptis also raises other challenges to the agency's evaluation of
   proposals under the technical solution factor. Although we do not here
   specifically address all of Apptis's arguments in this area, we have fully
   considered all of them and find that they afford no basis upon which to
   sustain the protest.

   [9] The RFP did not contemplate multiple POC demonstration opportunities,
   and expressly informed offerors that any changes to a technical solution
   or service offering that was tested during the demonstration would be
   subject to an evaluation to determine the risk to the government
   associated with the unvalidated change. RFP sect. M.2.1.4.2.

   [10] Similarly, Apptis contends that the record contains no
   contemporaneous documentation regarding ViON's POC demonstration, and that
   the awardee's technical solution rating included credit for the alleged
   capabilities of the equipment shown during ViON's demonstration. We agree.
   Our conclusion, set out below, that the agency was obligated to document
   its findings regarding Apptis's POC demonstration applies as well to any
   findings based on ViON's POC demonstration.

   [11] Subsequent to the filing of Apptis's protest, the agency submitted a
   declaration from the SSEB chairperson stating, "During the Apptis/EMC POC
   there were three separate discussions that addressed EMC's ability to
   deliver solutions that worked the first time . . . ." AR, Apr. 18, 2007,
   encl. 1, Second Decl. of K.M., Apr. 18, 2007. In determining the
   rationality of an agency's evaluation and award decision, we do not limit
   our review to contemporaneous evidence, but consider all the information
   provided, including the parties' arguments, explanations, and hearing
   testimony. Id. While we consider the entire record, including the parties'
   later explanations and arguments, we accord greater weight to
   contemporaneous evaluation and source selection material than to arguments
   and documentation prepared in response to protest contentions. Boeing
   Sikorsky Aircraft Support, B-277263.2, B-277263.3, Sept. 29, 1997, 97-2
   CPD para. 91 at 15. Even this post-protest declaration, however, provides
   insufficient detail and support for the SSEB's findings that Apptis
   required multiple attempts to perform many or most solutions.

   [12] The technical solution risk assessment also included a corresponding
   rating for the level of contractor emphasis and government monitoring that
   would be needed to overcome difficulties associated with the offeror's
   proposed approach. RFP sect. M.4.1.2.

   [13] In this regard, we note that Apptis acknowledges that the agency's
   interpretation of the solicitation provision is reasonable; the protester
   simply contends that its interpretation is more reasonable. GAO Conference
   Call with Parties, Apr. 13, 2007.

   [14] Apptis also contends that the agency's decision to treat its lack of
   past performance history with DISA as a weakness violated FAR sect.
   15.305(a)(2)(iv), which provides that offerors lacking a record of
   relevant past performance (or for whom past performance information is not
   available) may not be rated favorably or unfavorably. In our view, this
   provision does not apply where, as here, an offeror is determined overall
   to have relevant past performance history. See Chicataw Constr., Inc.,
   B-289592, B-289592.2, Mar. 20, 2002, 2002 CPD para. 62 at 7.

   [15] At the debriefing of Apptis, the agency informed the firm that one of
   the primary weaknesses in its proposal was that EMC's past performance had
   not always met DISA expectations, and provided the offeror with several
   specific incidents of EMC past performance problems. AR, Mar. 14, 2007, at
   37-38. The specific incidents mentioned in the debriefing and upon which
   the agency apparently relied as the basis for its conclusion regarding
   EMC's past performance were not raised in discussions with Apptis.

   [16] The agency point us to various segments of Apptis's videotaped oral
   presentation as evidence that EMC's past performance problems were
   adequately discussed with the firm. In our view, the discussion during the
   oral presentation only concerns, in general terms, certain prior
   performance issues as well as Apptis's current commitment to partnership
   and problem ownership. It does not meet the agency's obligation to provide
   an offeror with notice of the specific incidents of adverse past
   performance that the agency believes are properly attributable to the
   offeror, and provide the offeror with an opportunity to respond.

   [17] The weightings that DISA applied to the DLCCs for the different
   scenarios were 15 percent for scenario 1, 20 percent for scenario 2, and
   65 percent for scenario 3. AR, Mar. 14, 2007, at 25.

   [18] We express no view on the advisability of this price evaluation
   scheme.

   [19] Apptis does not dispute the agency's DLCC computations of its or
   ViON's evaluated prices.

   [20] In a supplemental report requested by the SSAC, the SSEB pointed out
   that offerors' evaluated prices were based on a composite of three
   different contract length scenarios, and that the weighted DLCCs for the
   single most likely scenario indicated a $16 million price difference
   between the proposals of Apptis and ViON. Id., Tab 13, SSEB Selection
   Justification Memorandum.