THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE
               ORDER AND IS BEING RELEASED TO THE PUBLIC
                 IN REDACTED FORM ON DECEMBER 12, 1994
 
                _______________________________________
 
                        DENIED: October 11, 1994
               _________________________________________
 
 
                             GSBCA 12909-P
 
 
                              CEXEC, INC.,
 
                                                Protester,
 
                                   v.
 
                         DEPARTMENT OF ENERGY,
 
                                                Respondent,
 
                                  and
 
                      KENROB AND ASSOCIATES, INC.,
 
                                                Intervenor.
 
        Keith  L. Baker,  Sean P.  Morgan, and  Darin R.  Bartram of
   Eckert  Seamans  Cherin  & Mellot,  Washington,  DC,  counsel for
   Protester.
 
        Prentis Cook, Jr., Paul A. Gervas, and Beth Kelly, Office of
   Assistant   General   Counsel  for   Procurement   and  Financial
   Assistance,  Department of  Energy,  Washington, DC,  counsel for
   Respondent.
 
        John E. Jensen, Devon E.  Hewitt, Weldon H. Latham, and Alex
   D. Tomaszczuk of  Shaw, Pittman, Potts &  Trowbridge, Washington,
   DC, counsel for Intervenor.
 
        Joel  R. Feidelman,  James  J.  McCullough,  and  Brian  "D"
   Henretty  of   Fried,  Frank,  Harris,  Shriver,   and  Jacobson,
   Washington,  DC; and  Grant  L.  Clark  of  Science  Applications
   International  Corporation, San  Diego, CA,  counsel  for Science
   Applications International Corporation.[foot #] 1
 
   Before Board Judges HYATT, VERGILIO, and DeGRAFF.
 
   HYATT, Board Judge.
 
 
        On July 21,  1994, CEXEC, Inc.  protested the Department  of
   Energy's (DOE's)  decision to award a contract for automated data
   processing (ADP)  services to  KENROB and  Associates, Inc.   The
   protested procurement is for communications network and  computer
   operations support  services to be  provided to  DOE's Office  of
   Civilian Radioactive Waste Management (OCRWM).  
 
        The protest, as amended, contains  six counts.  Counts I and
   II challenge the Government's evaluation of protester's proposal,
   specifically  with respect  to  CEXEC's  proposed key  personnel.
   Count  III alleges that  the trade-off analysis  determining that
   KENROB's  proposal was more advantageous than CEXEC's was flawed.
   On August 12,  1994, CEXEC amended its  protest to add counts  IV
   and  V,  which  charge  that  source  selection  information  was
   improperly disclosed by  a DOE employee to his  wife, an employee
   of Science Applications  International Corporation (SAIC),  prior
   to release of the RFP,  in violation of the Procurement Integrity
   Act,  and that this  employee's participation in  the procurement
   constituted a violation of a DOE conflict of interest regulation.
   Finally, on August 18, 1994,  CEXEC added count VI, which alleges
   that the KENROB resumes for key personnel were improperly scored.
   For the reasons stated, we deny the protest.
 
                            Findings of Fact
 
   Procurement Integrity and Conflict of Interest Issues
 
        Teaming Arrangements with SAIC and Weston
 
        1.  Prior  to the  award of  the  protested contract,  DOE's
   Office  of Civilian  Radioactive  Waste  Management obtained  its
   automated  data processing  support  services (ADPSS)  under  two
   contracts.  One contract was performed by Roy F. Weston, Inc., in
   Washington,  D.C.  (the "East  Coast"  site), and  the  other was
   performed  by SAIC, at  the Yucca Mountain  Site Characterization
   Project Office  (YMPO)  in Las  Vegas, Nevada  (the "West  Coast"
   site).  Protest File, Exhibit 16 at 00021-22.
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 1   Counsel for Science Applications  International
   Corporation  (SAIC), a subcontractor  to the awardee,  KENROB and
   Associates,  Inc.,  were  permitted   to  participate  in   these
   proceedings on a limited basis, with  respect to Counts IV and  V
   of the protest.  Rule 5(a)(6); 58 Fed. Reg. 69,264 (1993)  (to be
   codified  at  48   CFR  6101.5(a)(6)).    These   counts  contain
   allegations directly affecting SAIC's interests. 
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        2.    During  November  or  December  1991,  a  KENROB  vice
   president met with  an SAIC executive to discuss  a potential DOE
   contract  opportunity in Colorado.  Transcript  at 309, 311, 337-
   38.   During  that meeting,  the  SAIC executive  speculated that
   SAIC's  contract to  manage OCRWM's  ADPSS, which  was due  to be
   recompeted, might be restricted as  a small business set-aside of
   some type.   Transcript  at 338.   The  SAIC  official also  told
   KENROB that  if this were to  occur, SAIC would be  interested in
   teaming with a  small business contractor; KENROB  was encouraged
   to investigate this possibility.  The SAIC employee did not state
   definitively  that  the   solicitation  would  be  issued   as  a
   competitive 8(a) procurement nor did he suggest that the East and
   West Coast ADPSS components might  be consolidated.  There was no
   discussion  of  DOE's  budget  for   the  follow-on  procurement.
   Transcript at 312-13, 338-39, 349.
 
        3.  After  this   meeting,  KENROB  began  to   explore  the
   possibility  that,  upon  expiration  of  the  existing   support
   contract the West Coast OCRWM requirements might be competed as a
   small business set-aside.  Transcript at 339.  KENROB was able to
   obtain  a  limited  amount  of  information  through  Freedom  of
   Information  Act requests,  various  publications, and  marketing
   meetings with DOE officials both  in Las Vegas and in Washington,
   D.C.[foot #] 2       Transcript   at    314-15,   319,    326-28.
   KENROB thus became aware that OCRWM was considering consolidation
   of the  East and  West Coast ADPSS  requirements, and  it learned
   that  Weston was  the  incumbent contractor  for  the East  Coast
   portion of the work.  Transcript at 339-40. 
 
        4.  In January 1992, KENROB met with Weston.   Transcript at
   340.    By that  time,  both KENROB  and Weston  believed  it was
   probable  that the  procurement  would  be  restricted  to  small
   businesses, but  did not know  what form the  reprocurement would
   take.   In fact, Weston  had already reached a  "loose handshake"
   agreement to team  with another 8(a)  company.  KENROB,  however,
   persuaded Weston that KENROB  would be a better teaming  partner.
   Transcript at 340-41.  KENROB guessed that if the procurement was
   restricted to small businesses the East and West Coast operations
   might be consolidated, but had no "hard facts" concerning OCRWM's
   intentions.  Transcript at 339-42.   On February 27, 1992, KENROB
   and    Weston    executed    a    teaming    agreement.[foot #] 3
   Protester's Hearing Exhibit 7.  
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 2    KENROB's vice president testified that the Las
   Vegas   DOE  official  suggested  there  was  a  possibility  the
   procurement in  question would be  restricted in  some manner  to
   small businesses and  that the East Coast DOE  employee thought a
   consolidation of the two locations was a possibility.  Transcript
   at 314-17.
 
        [foot #] 3     The  teaming  agreement  recognizes  that the
   agency might award one or more contracts.  Protester's Exhibit 7.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        5.    After the initial meeting in which SAIC identified the
   Las Vegas OCRWM contract  as a potential opportunity  for KENROB,
   SAIC and  KENROB had  discussions concerning  the possibility  of
   teaming to  compete for  the follow-on contract.   Transcript  at
   342.   These discussions  ended in early  1992, when  the parties
   decided they could not agree on the terms of a teaming agreement.
   Transcript at 343.   A teaming agreement between  KENROB and SAIC
   was executed  on October 9,  1992, after the announcement  of the
   subject  procurement  in  the Commerce  Business  Daily  (CBD) on
   September 22, 1992.  Transcript  at 346; Protest File, Exhibit 4.
 
 
        DOE's Forecast of Marketing Opportunities
 
        6.  In late February  or early March 1992,   DOE published a
   Forecast   of   Contracting   Opportunities   for   Fiscal   Year
   1992.[foot #] 4         Respondent's    Hearing     Exhibit    N;
   Transcript at 598-99.   By the end of March 1992, DOE had printed
   and distributed some  8300 copies of this document.   Copies were
   sent to most of DOE's field and operations offices, as well as to
   the firms on the DOE mailing list.  Transcript at 600-04.
 
        7.  The  Forecast  provided  general  information for  small
   businesses, stating as follows:
 
             The Forecast of  Contracting Opportunities is
             published  pursuant  to Public  Law  100-656,
             "Business  Opportunity Reform  Act of  1988."
             It  is  intended  to  inform  small  business
             concerns,   including    those   owned    and
             controlled  by   socially  and   economically
             disadvantaged individuals, of the anticipated
             contracting and  subcontracting opportunities
             with  the U.S. Department of Energy (DOE) and
             its Management and  Operating contractors for
             Fiscal Year 1992.
 
   In addition, the Forecast stated that:
 
             The Forecast will  provide the small business
             contractor  with  advance   notice  of  DOE's
             procurement plans  as they  pertain to  small
             and  small  disadvantaged  business concerns.
             Accordingly,  DOE   invites  small   business
             concerns to explore  prime and subcontracting
             opportunities  with  headquarters  and  field
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 4   Pursuant to the Business Opportunity Reform Act
   of 1988, agencies are charged  with the responsibility to develop
   and  publish an annual forecast of procurement opportunities that
   will be restricted  to small and small  disadvantaged businesses.
   Transcript at 585-86. 
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
             offices, as well as  with our management  and
             operating contractors.  
 
   Respondent's Hearing Exhibit N.
 
        8.  The  OCRWM  procurement  for  ADP  support  services  is
   identified  on  page  nine  of  the  1992  Forecast  as  an  8(a)
   procurement.     The  requirement   is  described  as   "computer
   facilities management services," but does not  otherwise describe
   the nature  of the planned  acquisition.  Mr. Wells  is listed as
   the agency contact.  Respondent's Hearing Exhibit N.  
 
        9.  A  procurement analyst  for DOE's  Office  of Small  and
   Disadvantaged Business  Utilization (SADBU)  was responsible  for
   compiling and preparing  the 1992 Forecast.   The information set
   forth in the 1992 Forecast was made available to the SADBU office
   prior to November 14, 1991.  Transcript at 601.  Such information
   is not  treated by  DOE as source  selection information,  but is
   deemed to be public information  which the agency is obligated to
   collect and release.  Transcript at 190-91, 602, 606.  
 
        10.  The  SADBU  procurement  analyst  testified  that  8(a)
   companies are  expected  to, and  customarily do,  "self-market."
   That  is, small  businesses will  seek out  program officers  and
   other   agency   contacts   to  explore   potential   procurement
   opportunities.  Transcript at 607.   The months preceding the end
   of the fiscal year are a good time for 8(a) companies to approach
   DOE  offices  and   talk  with   technical  representatives   and
   contracting personnel about opportunities  that may be  available
   in the coming fiscal year.  Small businesses frequently know that
   a procurement will be conducted  as an 8(a) set-aside many months
   before the formal  procurement process is scheduled  to commence.
   Such  businesses have some or even considerable information about
   a  small  business  set-aside  well  before  the  acquisition  is
   announced in the CBD.  Transcript at 609-10, 617.
 
        11.  This    testimony    concerning    self-marketing   and
   informational activities  was confirmed by witnesses  employed by
   both KENROB  and CEXEC.   Both KENROB  and CEXEC  actively market
   their capabilities to  federal agencies prior to the  issuance of
   formal  CBD  announcements.   Transcript  at  141-42,  328.    In
   addition, contracts that  will be recompeted are  generally known
   in  the contracting  community prior  to  the issuance  of a  CBD
   announcement.  Transcript at 144.
 
        The Involvement of Mr. Wells in the Procurement
 
        12.  Mr. Robert Wells is a computer specialist employed with
   OCRWM.  He has no supervisory authority.  Transcript at 199, 282.
   His responsibilities have included serving as a task manager with
   respect to  the Weston  ADP support services  contract.   In that
   capacity,  he  performed  a  limited  role  with respect  to  the
   preliminary stages of this procurement.  Transcript at 283.  
 
        13.  The Requirements  Analysis, prepared  as of August  30,
   1991, was  drafted by Ms.  Kathleen Ford, also an  OCRWM computer
   specialist.  This document is the  earliest in the record to have
   discussed consolidation  of the OCRWM  computer support  services
   contracts.     Mr.  Wells   may  have  reviewed   this  document.
   Transcript at 300; Protester's Hearing  Exhibit 4.  This document
   was not marked as source  selection material.  Transcript at 470;
   Protester's Hearing Exhibit 4. 
 
        14.  In late December 1991, or early January 1992, Mr. Wells
   participated  in  the  preparation  of  a  "Request  for  Support
   Services"  memorandum   ultimately  dated   February  18,   1992.
   Respondent's   Hearing  Exhibit   Y;  Transcript  at   201,  301.
   Specifically, Mr.  Wells helped  to draft  the statement of  work
   that accompanied the memorandum, gathered budget information, and
   helped to review the first six to seven pages of  the memorandum.
   Transcript  at  201-05, 301.    This memorandum  is  the earliest
   document in the  record that reflects the planned  8(a) status of
   the procurement.  It is not marked as containing source selection
   information.  Transcript at 193-94, 294-95.
 
        15.  By the  March to  April 1992 time  frame, Ms.  Ford was
   engaged in drafting position descriptions for key personnel which
   ultimately became  Attachment E to  the solicitation.   Mr. Wells
   provided  some limited  assistance  in this  process,  consisting
   principally  of talking  to  Ms.  Ford  about the  positions  and
   qualifications  and reviewing the  initial draft of  the position
   descriptions.  Transcript at 227-28, 280-82, 295-96, 397.   
 
        16.  Mr. Wells also  had limited input into  the preparation
   of the  initial Agency  Procurement Request (APR)  dated July  1,
   1992.   Transcript at 201,  206, 394; Protest  File, Exhibit  2. 
   Mr. Wells provided some information for the contents of paragraph
   two,   "Project  Title   and  Description,"  and   reviewed  that
   paragraph.     He  also  provided  the  estimated  contract  cost
   information for  paragraph six, using the same information he had
   collected for  the  "Request for  Support  Services"  memorandum.
   Protest File, Exhibit 25; Transcript at 206-07.  
 
        17.  The  initial  APR  is  the  earliest  document  in  the
   procurement that  is identified  as  containing source  selection
   information.  Protest File,  Exhibit 2.  The APR states  that the
   support   currently  provided   under  two   contracts   will  be
   consolidated  under a single  contract for  communication network
   and   computer  operations   support  services.     The   planned
   procurement is identified as a  competitive 8(a) acquisition.  It
   is DOE's view, however, that not all of the information contained
   in  that document constituted source selection information (SSI).
   Although  there is  information in  the  APR that  is not  source
   selection information, the  entire document is  marked as SSI  in
   order to protect  the information that is  sensitive.  Transcript
   at 189-91, 602, 606.  The contract specialist also testified that
   the  APR  is  routinely marked  as  source  selection information
   because it is disseminated outside of DOE.  Transcript at 198-99.
 
        18.  The  initial APR identified Mr. Wells as the "technical
   point of contact"  for the  procurement, and  his name  appeared,
   together with  his supervisor's  name, on  an organization  chart
   attached to the APR.  Although an amended APR, dated December 10,
   1993, contained similar  information, and again listed  Mr. Wells
   as the technical point  of contact, Mr. Wells had  no direct role
   or  involvement  in  the preparation  of  this  amended document.
   Consequently, with one minor exception,  Mr. Wells had no role in
   this procurement subsequent to June 30, 1992.  Transcript at 210.
 
        19.  The only other action taken by  Mr. Wells in connection
   with the procurement occurred in the autumn of 1992.  During this
   period Mr. Wells was asked by his supervisor to assist in finding
   two  technical evaluators  to replace  members  of the  technical
   evaluation committee (TEC).   Mr. Wells called a  few offices and
   asked for volunteers.  The  individuals who eventually served  on
   the TEC were proposed by their supervisors, and were not selected
   personally by Mr. Wells.  Transcript at 201, 228, 232-34.
 
        20.  Mr.  Wells   made  no   direct   contribution  to   the
   preparation of  the  solicitation.    His only  input  into  that
   document was to the extent that his work in drafting the "Request
   for Support  Services" was  reflected in  the RFP's statement  of
   work.  The RFP's statement of  work was drafted by Ms. Ford,  and
   differed from  the statement of  work in the Request  for Support
   Services memorandum.  Transcript at 219-26, 284, 397.
 
        21.  Mr.  Wells  had  no other  involvement  in  the subject
   procurement.  He had no role in the source selection process, the
   development  of   the   rating  plan,   the   competitive   range
   determination, the technical evaluations or the cost evaluations.
   He had no  access to documentation pertaining to these activities
   and had  no discussions with  the individuals charged  with these
   responsibilities concerning any of these matters.  At no time did
   he  discuss with  anyone  what  was important  to  the agency  in
   selecting a contractor.  Transcript at 276-85.
 
        22.  For the past eight years, Diane Wells, Mr. Wells' wife,
   has  been employed  by  SAIC as  a  graphics task  manager,  on a
   salaried  basis.   She presently  has  vested and  unvested stock
   holdings    in   SAIC.[foot #] 5       The   record    does   not
   reflect  what,  if any,  dividends are  paid on  that stock.   In
   approximately  January   1992,  in   the  context   of  a   brief
   conversation discussing his  work, Mr. Wells  told his wife  that
   OCRWM was  considering consolidation of  the East and  West Coast
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 5      SAIC  is  an  employee-owned  company,  with
   approximately 16,000  employees and  44 million  shares of  stock
   outstanding.   SAIC  has  annual gross  revenues  of  about  $1.6
   billion from some 4,000 contracts.  Ms. Wells has a direct vested
   interest in  stock.   Also,  she participates  in two  retirement
   plans which hold  shares of stock on  her behalf.  Transcript  at
   561-63.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   ADPSS contracts.   He did not  mention that SAIC  and Weston were
   the   incumbent  contractors  or   otherwise  talk   about  these
   contractors during the conversation.  He did not state that OCRWM
   was planning  to restrict  the procurement  to 8(a)  contractors.
   The  conversation lasted  five  minutes  at most  and  was of  no
   particular significance to  Ms. Wells.  She did  not disclose the
   subject matter to anyone.  Transcript at  240-44, 293-94, 555-60,
   570-71, 577-78, 580-81.
 
 
        23.  In  her position  with SAIC,  Ms.  Wells is  part of  a
   public  information  group.   Her duties  entail use  of computer
   graphics to  create presentations  and briefings  and to  prepare
   documents.  She does not  assist in the preparation of proposals,
   announcement of contract  awards, or competitive  decisionmaking.
   She has had  no contact with anyone in the SAIC Las Vegas office.
   Transcript at 555-58.
 
        The Surprise Birthday Party
 
        24.  On March 4,  1994, Ms.  Wells hosted  a surprise  party
   that  she  had   organized  for  her  husband's   40th  birthday.
   Transcript at  247,  278, 479,  563.   Between  30  to 40  guests
   attended  the party, including  personal friends, Mr.  Wells' co-
   workers, business associates, and softball teammates.  Transcript
   at 278-79, 565. 
 
        25.  Ms.  Wells did  not want  to contact Mr.  Wells' office
   directly  and risk  alerting him  to the party,  so she  called a
   Weston employee  whose last name  she happened to know  and asked
   him to invite  Mr. Wells' work associates.   She faxed directions
   to the Wells' home to this individual  to distribute to those co-
   workers who were attending the party.  Transcript at 565.
 
        26.  Several  of  Mr.   Wells'  work  associates,  including
   employees of contractors such as Weston, TRW, and CDSI,  attended
   the  party.   The only  co-workers  with any  connection to  this
   procurement, however, were two Weston employees proposed for hire
   by KENROB,  and Ms. Ford.   Mr. Wells and  Ms. Ford did  not talk
   about this  procurement at  the party either  with each  other or
   with any one  else there.  Ms.  Wells testified that she  did not
   hear any conversations that pertained to business at all when Mr.
   Wells spoke with DOE co-workers or other guests at the party.  
 
        Disclosure of Budget Information to SAIC
 
        27.  On January 25, 1992, the Associate Director for Program
   and Resources Management for the Department of Energy telefaxed a
   memorandum dated January 14, 1992,  to the project manager of the
   YMPO.  There were no  protective markings on that document, which
   stated  that  OCRWM  planned  to  consolidate  the  two  existing
   computer  support  services  contracts  into  a   single  support
   services contract,  and contained estimated cost  information for
   the YMPO.  Protester's Exhibit 1.
 
        28.  By  letter dated  February  21,  1992,  a  senior  vice
   president of SAIC wrote  to the DOE Associate  Director, advising
   that he  had received a copy  of the January 14,  1992 memorandum
   and  noted  that  it  appeared  to  "contain  internal  estimates
   regarding planned DOE acquisition action."  He further stated:
 
             While   I   understand   that   the   planned
             acquisition action  is intended to be a small
             business set-aside  and, as such,  SAIC would
             be ineligible to bid,  there is a possibility
             that we may participate in the acquisition as
             a subcontractor.   In [that]  event .  . .  I
             wish  to assure you that neither the employee
             recipient nor his direct supervisor, the only
             SAIC employees  who  had  an  opportunity  to
             review the  memorandum before it  was brought
             to  my  attention,  will  participate in  the
             acquisition  or communicate  the contents  of
             the   memorandum  to   any   SAIC  or   prime
             contractor employees who  may be involved  in
             the acquisition.  
 
   Protester's Exhibit 1.
 
        29.  By  letter dated  August 25,  1992,  another SAIC  vice
   president requested relief  from the commitment made  in February
   that the employee and his supervisor would not participate in the
   acquisition.  In the letter, SAIC pointed out that the memorandum
   in question  was a  public document because  it had  been entered
   into  the OCRWM Records Information Systems.  Protester's Exhibit
   1.
 
        30.  On  November  19,  1992, the  DOE  contracting  officer
   authored  a document  entitled "Determination and  Findings" with
   respect to a potential Procurement Integrity Act violation.  That
   document determined  that the disclosure  of the document  by the
   YMPO employee who  received it from Headquarters  was inadvertent
   and made  without knowledge  that the  document contained  source
   selection information  because it had  not been marked  as source
   selection  material.  Moreover, the disclosure of the information
   to  SAIC was  deemed  likely  to have  a  minimal  impact on  the
   procurement at most for the following reasons:  (1)  SAIC, as the
   incumbent contractor, had access to actual incurred cost data for
   the services to  support the Las Vegas facility  prior to receipt
   of  the information; (2) budgetary information on the Washington,
   D.C. site was not  included; (3) SAIC could not submit a proposal
   as a prime contractor because the  procurement would be conducted
   as  an 8(a) set-aside;  and (4) the contract  would be awarded to
   the  proposal  offering the  best  value  to  the Government  and
   technical  considerations  would  outweigh   cost.    Protester's
   Exhibit 1.
 
        31.  The contracting  officer's findings were  sent to DOE's
   Assistant  General  Counsel  for Procurement  for  legal  review.
   Counsel  determined  that there  had  been  no violation  of  the
   Procurement Integrity Act and that any potential violation of the
   Organizational  Conflict  of  Interest law  and  regulations  was
   mitigated  because the same cost information would be released to
   all offerors in the RFP itself.  Protester's Exhibit 1.  In fact,
   that information was provided in  the RFP.  Protest File, Exhibit
   7.
 
   Evaluation of Proposals
 
 
        The Solicitation
 
        32.  Request  for proposals  (RFP) number  DE-RP01-93RW00267
   was  issued by  DOE  on May  17, 1993.    The solicitation  seeks
   proposals from  small disadvantaged businesses to provide support
   services to assist OCRWM with the operation and management of its
   communications network and computer facilities.  The RFP proposed
   to consolidate  the management of two existing facilities, one in
   Las  Vegas, Nevada  and one  at DOE  Headquarters in  Washington,
   D.C., with the addition  of a third contractor-operated  site, to
   be determined  during the course  of the contract.   The contract
   was  to be  awarded on  a cost-plus-fixed-fee  basis, for  a base
   period  of 24  months, with  three option  years.   Protest File,
   Exhibit 7.
 
        33.  The RFP instructed offerors that they would be required
   to provide the necessary personnel, materials and supplies needed
   to successfully fulfill the requirements of the statement of work
   (SOW) set forth in Attachment B.  Six major areas to be supported
   by the  contractor are described  in the SOW.   Of these,  area 1
   provides that  the "contractor  shall manage,  operate, maintain,
   support and provide security for OCRWM communications network and
   computer facilities,  including all existing  hardware, software,
   local  and  wide  area  network  resources,  and  any  additional
   acquired resources."  In conjunction with area 1, the  contractor
   is  responsible  for  existing  physical  facilities,   including
   utilities and  telephone service, and  for ensuring that  the air
   conditioning, humidity  control, and fire protection  systems are
   maintained and in good operating condition.  Area 2 provides that
   the  "contractor shall provide for the continuous, efficient, and
   effective operation of the OCRWM communication network."  Protest
   File, Exhibit 7.
 
        34.  Attachment  K to the  solicitation provided a  detailed
   list of the  hardware and software to be  operated and maintained
   by the contractor at the  Las Vegas, Washington, D.C., and future
   sites.   Protest  File, Exhibit  7  at 00262-72.   The  computers
   listed   in  Attachment   K,  particularly  the   VAX  equipment,
   represents large-scale ADP hardware.  Transcript at 495. 
 
        35.  Section  L.047 of the  RFP, containing  instructions on
   preparation  of   technical  proposals,  advised   offerors  that
   technical proposals would be evaluated to determine the offerors'
   understanding  of the work, the offerors' technical approach, and
   the potential for completing the  desired work, and that as such,
   technical  offers "should  be  specific  and  complete  in  every
   detail."   With  respect  to  key  personnel  requirements,  this
   provision  stated that "[t]he offeror shall propose key personnel
   having  as a minimum the  qualifications specified in the Generic
   Position descriptions. .  . . Resumes for  proposed key personnel
   should be prepared  to facilitate evaluation of  the individual's
   work experience, education, and professional development directly
   related to the corresponding position descriptions  in Attachment
   E."  Protest File, Exhibit 7 at 00107.      
 
 
        36.  In  submitting   technical  proposals,   offerors  were
   required  to  submit  resumes  for  key  employees  to  fill  key
   positions  identified  in  the  solicitation.    These  positions
   included   one  project   manager,  two   site   managers,  three
   branch/assistant site managers, two systems managers,  one senior
   communications   supervisor,   and  one   senior   communications
   specialist.  Protest File, Exhibit 7 at 00109.
 
        Attachment E
 
        37.  The relevant generic position descriptions pertinent to
   the qualifications for  key personnel are set forth in Attachment
   E  to the  solicitation.   The  qualifications  for site  manager
   required in pertinent part:
 
             a  minimum  of   twelve  (12)  years   of  IRM/ADP
             experience with at  least 5 years in  a management
             position on a  large-scale advanced ADP  equipment
             and communications network effort.  Of  the twelve
             years  at least five  (5) years of  recent (within
             the past  seven years) hands-on  experience in the
             operation  of large-scale  advanced ADP  equipment
             and communications network is required.  
 
   Protest File, Exhibit 7 at 00205.
 
        38.  The  qualifications   for  the   branch/assistant  site
   manager position required in pertinent part:
 
             a  minimum  of  ten  (10)  years  of  IRM/ADP
             experience  with  at  least  2   years  in  a
             management position on a large-scale advanced
             ADP  equipment  and   communications  network
             effort.   Of the ten years, at least five (5)
             years of recent (within the past seven years)
             hands-on  experience  in   the  operation  of
             large-scale   advanced   ADP   equipment  and
             communications network is required.  
 
   Protest File, Exhibit 7 at 00205-06.
 
        39.  The  qualifications   for  the   senior  communications
   supervisor position required in pertinent part:
 
             a  minimum  of  eight  (8)  years  of  recent
             (within the past ten years) experience in the
             operation  of large  scale advanced  ADP/data
             communications network.  
 
   Protest File, Exhibit 7 at 00206.
 
        40.  The  qualifications  for  the  system manager  position
   required in pertinent part:
 
             a minimum of five (5) years of recent (within
             the  past  seven  years)  experience  in  the
             operation of a  large-scale advanced ADP/data
             communications network.   Of the five  years,
             at  least  four  (4)  years  of   specialized
             experience    in    supervising     a    data
             communication   installation   at  increasing
             levels  of  responsibility  and  demonstrated
             experience interfacing with vendors.  
 
   The generic position description for the systems manager position
   stated  that the  system manager  is  "responsible for  efficient
   operation  and maximum utilization  of each piece  of equipment."
   Protest File, Exhibit 7 at 00207.
 
   Evaluation Standards
 
        41.  Section M.001 of the  RFP states that proposals will be
   evaluated "to determine the offeror's understanding of work to be
   performed, technical approach, potential for completing  the work
   as specified in  the RFP, cost reasonableness, the  probable cost
   to the Government, and ranking with competing offerors."  Section
   M.004  provides  that  the   technical  and  business  management
   proposals   are  of  equal   importance  and  that   each  is  of
   significantly greater importance  than the cost proposal.   After
   evaluation of the technical and business management proposals, if
   two or  more offerors remain  in the competitive  range, probable
   cost  may  be the  deciding  factor for  selection,  depending on
   whether  the most  acceptable  overall proposal,  excluding  cost
   consideration, is determined  to be worth the  cost differential,
   if any.  Protest File, Exhibit 7 at 00136. 
 
        42.  Section  M.0007 of the  RFP informed offerors  that the
   technical  and business management  proposals would  be evaluated
   according  to   specified  criteria,  which  would   be  assigned
   numerical weights and point scored.   The evaluation of technical
   proposals was  based on two  major criteria -- (1)  personnel and
   (2)  understanding  the  requirements.    Of  these,  the  first,
   personnel,  was assigned greater importance than the second.  The
   personnel criterion  contained two  subcriteria -- key  personnel
   and support  personnel.  Of  these two, key personnel  was deemed
   more   important  than  support  personnel.    For  the  business
   management  proposals,  three  criteria  were  evaluated  --  (1)
   capability  and experience,  (2)  project  organization, and  (3)
   project management plan.   The first criterion  was assigned more
   weight  than  the  other two,  which  were  of equal  importance.
   Protest File, Exhibit 7 at 00136-37.
 
 
        The Evaluation Process
 
        43.  Ms. Ford, an  OCRWM computer  specialist, was  assigned
   the responsibility to  ensure that the procurement  progressed as
   necessary.   In this capacity,  she drafted portions of  the RFP,
   including the statement of work, using prior drafts developed for
   the  purpose  of  proceeding  with  the  APR.    Because  of  her
   experience in  preparing the RFP  and monitoring the  progress of
   the procurement, Ms.  Ford volunteered and was selected  to serve
   on the technical  evaluation committee.   In addition, two  other
   DOE employees  were chosen by  their supervisors to serve  on the
   TEC.  Transcript at 201.
 
        44.  The technical  evaluation committee  prepared a  rating
   plan  for evaluation  of  proposals, which  was  approved by  the
   source selection official.   Protest  File, Exhibit 6; Transcript
   at 378.    That  plan  provided that  the  TEC  would  score  the
   technical  and business  management proposals  numerically.   The
   technical and business management proposals for each offeror were
   reviewed  separately and  rated  on the  basis  that 1000  points
   represented a perfect score.   Thus, the combined point score for
   technical and business management would be 2000 or less.  Protest
   File, Exhibit 6.
 
        45.  Points were to be allocated and weighted as follows:
 
                          Technical Proposals
 
                                                     Weight
   Points
 
     Criterion 1: Personnel
                  Subcriterion A: Key Personnel         40       400
                  Subcriterion B: Support Personnel     20       200
 
     Criterion 2: Understanding the Requirements        40       400
                                                                1000
 
                     Business Management Proposals
 
     Criterion 1: Capability and Experience             40       400
 
     Criterion 2: Project Organization                  30       300
 
     Criterion 3: Project Management Plan               30       300
                                                                1000
 
   Protest File, Exhibit 6.
 
        46.  The numerical rating scale offered a potential score of
   "10" for outstanding, "8"  for very good, "5"  for good, "2"  for
   poor, and  "0"  for  unacceptable.   The  rating  plan  contained
   narrative explanations of each score, as well:
 
        Outstanding         Meets  all,  and  clearly  exceeds  most
                            performance  requirements;  demonstrates
                            major   strengths    in   meeting    the
                            requirements;   no    or   only    minor
                            weaknesses that  have minimal  impact on
                            performance.
 
        Very good           Meets all, and  exceeds some performance
                            requirements;    demonstrates    several
                            strengths in  meeting the  requirements;
                            no  or only  minor  weaknesses that  are
                            easily correctable.
 
        Good                Meets   all  performance   requirements;
                            demonstrates some  strengths in  meeting
                            the  requirements;  weaknesses   can  be
                            corrected.
 
        Poor                Fails   to    meet   some    performance
                            requirements;      major      weaknesses
                            correctable with difficulty.
 
        Unacceptable        Fails   to    meet   most    performance
                            requirements;  needs  extensive revision
                            to the proposal to make it acceptable at
                            the "Good" level.
 
   In  using  the  numerical scale,  evaluators  were  instructed to
   evaluate proposals "by comparing specified parts of the submitted
   data  against  standards/requirements;   not  by  comparing   the
   elements in  the various  offeror's [sic]  submissions with  each
   other."  Protest File, Exhibit 6 at 00005-00006.  
 
        47.  The  plan provided that each TEC  member would read the
   proposals  separately   and  point   score  each   criterion  and
   subcriterion.    The  individual reviewer  was  also  supposed to
   identify  tentative  strengths  and weaknesses.    Once  each TEC
   member  had  completed  a  review  of  a  technical  or  business
   management  proposal for  an offeror, the  members would  meet to
   develop  a consensus  score  for that  proposal.   Protest  File,
   Exhibit 6.   
 
        48.  Although the  TEC  members  were  supposed  to  prepare
   individual  score  sheets   for  each  proposal  evaluated,   the
   evaluators did not  actually follow this procedure  in conducting
   initial evaluations.    Rather, in  performing  their  individual
   reviews  of  proposals,  they highlighted  sentences  and  placed
   markers  in the  margin when  an item  warranted discussion  as a
   group.    The  TEC then  met  as  a group  in  order  to identify
   strengths  and weaknesses and  develop consensus scores  for each
   proposal.   Transcript at  481.  Considerable  time was  spent in
   meetings to discuss and critique each proposal.  
 
 
        49.  The  rating  plan  included  evaluation worksheets  for
   corporate experience and key personnel reference checks.  Protest
   File,  Exhibit 6.   The  rating  plan did  not require  reference
   checks,  however, and  due to time  limitations, none  were made.
   Transcript at 171-72.  
   Initial Evaluation of Proposals
 
 
        50.  Nine proposals were  received by DOE on July  15, 1993.
   Among these proposals were one from CEXEC, Inc., proposing to use
                                                                  
   and  one from  KENROB  proposing  two  subcontractors:  SAIC  and
   Weston.  Protest File, Exhibits 11-13, 16-19.  
 
        51.  The TEC awarded  CEXEC's initial technical proposal    
   out of 1000 possible points.  All of the            identified in
   the  technical proposal were in the  key personnel section, where
   the  TEC arrived at  a score of   .   Although the TEC considered
   that the fact that all proposed key personnel demonstrated       
                                                                    
                                                                    
                                                                    
         Protest File, Exhibit 23 at 00006-07.
 
        52.  Specifically, with respect to CEXEC's key personnel,   
                                                                    
                                                                    
                                                                    
                                                          had
   demonstrated                                                     
                                                                    
            The proposed  system manager was             to have met
   the requirement for                                              
                                                                    
                   Protest File,  Exhibit  23.   Ms. Ford  testified
   that the                   was with respect to                   
                                                                    
                                                                    
                                               The TEC construed the
   requirements  of the  solicitation, read as  a whole,  to require
   demonstrated  experience in the operation of large-scale ADP, and
   not simply operation  of a communications network  on large-scale
   ADP.  This was because operation, maintenance, and support of the
   large-scale equipment  was a function  that would be  required of
   the  contractor  independent  of communications  network  support
   functions.  See, e.g., Transcript at 425-26, 429-32, 440; Protest
   File, Exhibit 58.
 
        53.  With respect to  CEXEC's business management  proposal,
   the TEC found               and               under criterion  2,
   project organization.   The  TEC awarded  a score  of    on  this
   criterion noting              that                               
                                                                    
                                                                    
                                       Protest File,  Exhibit 23  at
   00012.
 
        54.  In  evaluating  KENROB,  the  TEC  awarded  the initial
   technical  proposal a  total  of  800 out  of  the possible  1000
   points.   The  TEC did  not identify  any  weaknesses in  the key
   personnel  proposed by KENROB, who were principally the employees
   of the incumbent contractors.  The TEC did note several strengths
   in this  area,  including the  fact  that the  proposal  "clearly
   demonstrates  the capability  to provide  support personnel  with
   relevant skills to perform specific requirements as stated in the
   SOW."  Protest File, Exhibit 23 at 00025.  Only one  weakness was
   identified, under the business management proposal.  
 
 
        55.  After completion of  initial evaluations, a competitive
   range of three offerors, which included CEXEC, was established on
   December  22, 1993.    Protest File,  Exhibit 27.   Clarification
   questions were  sent to  all offerors in  the competitive  range,
   including CEXEC, on December 22, 1993.  Protest File, Exhibit 28.
 
 
        56.  The clarification items raised with CEXEC concerned    
                 the  area of  key personnel,                       
   capability  and experience,  and                          project
   organization.  The  clarification questions raised by  the agency
   with respect  to the key  personnel proposed  by CEXEC  basically
   inquired  how the   individual  resumes  proposed for  particular
   positions demonstrated  the  requisite qualifications.   For  the
   site  manager   position,  CEXEC   was  asked   how  the   resume
   demonstrated                                                     
                                                                    
                                                                    
      For   one   of  the   branch/assistant   site   managers,  the
   clarification question asked how the resume demonstrates         
                                                                    
                                                      For  the other
   branch/assistant   site  manager,   the  clarification   question
   inquired how the resume demonstrated                             
                                                                    
                                                                    
                    For  one of  the proposed  system  managers, the
   agency asked how the resume demonstrated       
                                                                    
                                                                    
                                                             For the
   other proposed  system manager,  CEXEC was  asked how the  resume
   demonstrated                                                     
                                                                    
                               Protest File, Exhibit 28 at 00007.  
 
        57.  For  CEXEC, the area  of project organization,  the TEC
   found                                  The clarification question
   posed to CEXEC in this regard concerned                          
                                                                    
                                                             Protest
   File, Exhibit 28.  In response, CEXEC explained that             
                                                                    
                                                 Protest       File,
   Exhibit 29.
     
 
        58.  With respect  to  capability and  experience,  the  TEC
   perceived                                         With respect to
   the                             DOE inquired how the  information
   provided by  CEXEC demonstrated                                  
                                                                    
                                                                    
       Protest File, Exhibit 28.  CEXEC responded with              
                                                                    
                                                                    
                           Protest File, Exhibit 29.
    
        59.  Responses were  submitted by  CEXEC in  a letter  dated
   January  6,  1994.    In  its  responses,  CEXEC  summarized  the
   principal areas of experience of  its key personnel in an attempt
   to highlight relevant experience.  In addition, CEXEC            
               for  one of  the  system  managers.    Protest  File,
   Exhibits 29-30.  The TEC members reviewed the responses and found
   that, for the most part, CEXEC's responses                       
                                                                    
       As explained more fully below, the TEC was not persuaded that
                             
                                                                    
                                                                    
                                                     Protest   File,
   Exhibit 34.
 
   CEXEC's Personnel
 
        Site Manager
 
        60.  The site manager proposed by CEXEC has been employed by
                                                             
   resume described his current experience as                       
                                                                    
                                                                    
                                                                    
                                                                    
                                         Protest File, Exhibit 11 at
   00013-14.  
 
        61.  The TEC determined that this appeared to be            
                                                                    
                                                                    
              Transcript at 428.  In response to DOE's clarification
   question, CEXEC stated that                                      
                                                                    
                                                                    
               With respect to the most recent prior position, CEXEC
   explained that                                                   
                         Protest  File, Exhibit 29  at 00025.  After
   considering the resume as clarified, the TEC was                 
                                                                    
 
                                                            
   Transcript at 535-36.
 
        Branch/Assistant Site Manager
 
        62.  One  of  the  branch/assistant  site  manager   resumes
   proposed by CEXEC was similarly identified by the TEC as         
                                                                    
                                         This employee  was provided
   by                                       The resume described the
   current position                                                 
                                                                    
                                  In    addition,    the    proposed
   employee:
 
                                                          
                                                          
                                                          
                                                          
                                                          
                                                          
                                                          
                                                          
                                                          
                                                          
                                                          
                                                          
                                                          
                                                          
                                                          
                                                          
                                                          
                                                          
                                                          
                      
 
   Protest File,  Exhibit 12 at  00027.  In       most recent  prior
   position, this individual was                                    
                                                                    
                                                                    
                              This included completion of           
                                                                    
                            Protest File, Exhibit 12 at 00028.  
 
        63.  Ms. Ford testified  that while this experience  met the
   communications network  experience component of  the statement of
   work, it did not demonstrate the required                        
                                              Although  a  mainframe
   is large-scale ADP equipment, the reference to                   
                                   this individual possessed the    
                                 Transcript at 431-33.   In response
   to the  TEC's clarification questions, CEXEC  highlighted several
   sentences contained in the resume, including the reference to the
                     but did not                                    
 
                              of this resume.  Protest File, Exhibit
   29 at 00032.
 
        System Manager
 
         64.  The  TEC also identified              with the resumes
   proposed by CEXEC  to fill a system manager slot.  One individual
   proposed was currently serving as                                
                                                              The
   description  of  this  individual's  duties  focused  largely  on
   experience in                            Nothing in the resume as
   provided explained whether                                       
                       Reading the statement of work as a whole, and
   the position description  in conjunction with the  qualifications
   requirements set  forth in  the RFP, the  TEC was  concerned that
   this resume                                                      
                                            .  Transcript at 435-39.
   Although  CEXEC's vice  president testified  that,  in fact,  the
   networks described include                                       
                            Transcript at 114,  this information was
   not included in                                                  
     Protest File, Exhibits 12, 29.
 
        65.  A new resume for the  other system manager was provided
   in CEXEC's response to clarification questions as                
                                       Protest  File,  Exhibit   29.
   Upon evaluating this resume, the TEC determined that,            
                                                                    
                            
                                                           
   Although  the   substitute  resume  showed  some   experience  in
   installing  hardware and software,  the duties described  did not
   demonstrate that                                                 
                                                                    
                     In 
   addition, the TEC could not readily identify                     
                                                                    
                                 Transcript at 444-52.  This was not
   considered to be equivalent.  As Ms. Ford stated,                
                                                                    
                                     Transcript at 449-50.
 
   KENROB Personnel
 
        Site Manager
 
        66.  KENROB's proposed site manager for the Washington, D.C.
   office was  the incumbent  contractor's current  site manager  of
   that office.  The resume described his duties in this position as
   including   on-site   management   and   supervision  of   system
   integration,  hardware assessments and planning.  The resume also
   identifies  the equipment  forming the  network  -- multiple  VAX
   cluster  nodes, LAN,  and  extended  LAN.   Similar  details  are
   provided for the individual's prior two positions.  Protest File,
   Exhibit 52  at 00120.  Ms.  Ford testified that  to an individual
   knowledgeable  in computers, the  employment history described in
   the resume  demonstrated hands-on  experience in  large-scale ADP
   equipment.  Transcript at 640-45.
 
 
        67.  The proposed  site manager for  the Las Vegas  site was
   also  the incumbent  contractor's current  site  manager of  that
   office.  The resume stated a wide variety of tasks and duties for
   which this individual was responsible as the Las Vegas OCRWM site
   manager.   Protest  File,  Exhibit  52 at  00124.   Although  the
   equipment  at this  site  is  not listed,  this  location is  the
   subject  of the  proposal and  the solicitation.   The  TEC could
   readily  determine   that  large-scale  ADP   and  communications
   networks were managed  simply by reviewing the list in Attachment
   K of the solicitation, which  delineates the equipment located at
   this   site.     Protest   File,   Exhibit   7;   Transcript   at
   648.[foot #] 6  Descriptions of this individual's prior positions
   identified the  type of  management experience  and the  specific
   equipment  managed and  operated.   For  example, the  experience
   descriptions refer to directly-managed activities with respect to
   "VAX  ALL-in-1,  IBM  Officevision,  HPmail, and  CRAY/smtp  mail
   environments" and  to "SONET  transmission system, FDDI  backbone
   for communications, gateways  to SNA and facility  services," and
   to  "VAX servers  and VAXcluster  environments."   Protest  File,
   Exhibit  52.   The  TEC  thus  was  able  to determine  that  the
   activities  described  demonstrated the  requisite  experience in
   hands-on  operation   of  large-scale   ADP  and   communications
   networks.  Transcript at 702-07.
 
        Branch/Assistant Site Manager
 
        68.  The  individual  proposed  for  the  Las  Vegas branch/
   assistant site manager  had performed various duties  at the YMPO
   site for SAIC since 1989.  These were identified and described in
   his resume.   Protest File,  Exhibit 52 at  00128.  Although  the
   YMPO equipment  was not specifically identified, that information
   could be derived from the solicitation; the large-scale nature of
   the equipment was  also evident  from statements  in the  resume.
   Protest  File, Exhibit 7; Transcript at  663-64.  Prior positions
   described  in the  resume also  established appropriate  hands-on
   experience  in the operation of  large-scale advanced ADP.  These
   descriptions  included,  inter  alia,  statements  referring   to
   "production  runs,"  "database  backups," and  "special  planning
   exercises."  Transcript at 664-66.
 
        69.  The  proposed  Washington, D.C.  branch/assistant  site
   manager had been with Weston at this site since 1989.  His resume
   described various directly relevant duties performed at this site
   and referred to the equipment at the site as well.  His two prior
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 6   In any event, this individual had only been the
   site manager at the YMPO for one month prior to the submission of
   KENROB's proposal.  Protest File, Exhibit 52.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   positions  also  demonstrated  experience  not  only  in  network
   communications systems,  but  in large-scale  ADP  equipment,  as
   well.   This proposed employee was responsible for administrative
   and technical  management duties  in both prior  positions.   His
   resume contains detailed descriptions of the type of equipment he
   has operated:
 
 
             responsible   for   projects    and   systems
             developed and  operated in the  IBM mainframe
             (under  MVS with  Model 204,  ISPF, and  CASE
             development    tools)    DEC     minicomputer
             (utilizing RSTS/E  and Gandalf  communication
             device), and IBM/IBM compatible microcomputer
             (running on a Token Ring LAN) environment.
 
   Protest  File, Exhibit 52  at 00132.   The  technical evaluators,
   accordingly,  were  satisfied  that  the  appropriate  levels  of
   experience and qualifications had been demonstrated.   Transcript
   at 725-29.
 
        Senior Communications Supervisor
 
        70.  At  the  time  resumes  were  submitted,  the  proposed
   candidate  for  this  position   was  the  senior  communications
   supervisor  for  the  Washington,  D.C.  OCRWM  facility.    This
   directly  relevant   experience  with   a  large-scale   ADP/data
   communications network is described  on his resume.  In  addition
   his   resume   identifies    recent   prior   positions   as    a
   telecommunications specialist at  GSA, working with the  FTS 2000
   contract, and  as a senior  systems engineer for  Boeing Computer
   Service,  also involved  with  implementation  of  the  FTS  2000
   contract  -- these  positions  involved relevant  experience with
   large-scale   ADP    equipment   and    communications   network.
   Descriptions  of  earlier positions  held  also demonstrated  the
   requisite experience and  qualifications.  Protest File,  Exhibit
   152, at 00145; Transcript at 734-39.
 
   Final Evaluations
 
        71.  Additional clarification questions were issued to CEXEC
   (as well  as the  other firms)  in letters  sent on  February 24,
   1994, with responses due on February 28.  The letter addressed to
   CEXEC  included a statement  that DOE considered  that weaknesses
   with  substitute personnel  still  existed.    DOE  identified  a
   weakness with respect to  the substituted site manager resume  in
   particular.  Protest File, Exhibit 36.  CEXEC and the other firms
   submitted responses to these questions  by the due date.  Protest
   File, Exhibits 37-40.  
 
        72.  As explained by Ms. Ford at the hearing, the TEC looked
   to two  separate sets of  evaluation criteria when  reviewing key
   employee  resumes.    The  first  was  the applicable  Section  M
   criterion, which stated that "[p]articular emphasis will be given
   to  demonstrated  ability  and  relevant  experience  related  to
   management  and   execution  of  support  activities  similar  in
   magnitude and complexity to  those required in the  'Statement of
   Work'."  Transcript at 493.   The Statement of Work described the
   support  activities required of the contractor and referenced the
   equipment listed at  the relevant DOE sites.   This equipment was
   listed  for offerors in Attachment  K of the  RFP.  Transcript at
   493-96.  The second criterion applied by the TEC to key personnel
   resumes was  the relevant qualifications requirement specified in
   the  position  description,  in  particular,  experience  in  the
   "hands-on  operation of  large-scale advanced  ADP equipment  and
   network  operations," a  form of  experience  sought, in  varying
   degrees, with respect to a  number of the relevant key positions.
   This criterion was  applied by the TEC with  a two-part analysis:
   (1) hands-on operational  experience in large-scale advanced  ADP
   equipment,  and   (2)  hands-on   experience  in   communications
   networks.  Transcript at 497-98.  
 
 
        73.  Considerable  testimony  was  adduced  from  Ms.   Ford
   regarding the evaluations of CEXEC and KENROB key personnel.  Ms.
   Ford testified that, in many  instances, she was not certain what
   the  described  experience  for  CEXEC's proposed  key  personnel
   entailed.   Although  it  was  clear to  her  that the  personnel
   proposed by CEXEC  had extensive experience  in the operation  of
   computer networks, it was not equally clear that                 
                                                                    
                       By  way  of  example, one  of  the  questions
   directed to Ms. Ford  concerned statements in the site  manager's
   resume that                                                      
                                                                    
                                                                    
                                                                    
                                          In  responding  to CEXEC's
   contention that this  met the requirements for  the position, Ms.
   Ford explained:
 
                                                          
                                                          
                                                          
                                                          
                                                          
                                                          
                                                          
                                                          
                                                          
                                                          
                                     
 
                                                          
                                                          
                                                          
                                                     
 
   Transcript at 421-22.   In response to a  follow-up question, Ms.
   Ford elaborated:
 
                                                          
                                                          
                                                          
                                                          
                                                          
                                                         
 
             Access.  Access simply means there could be a
             network,  a  link.   It  doesn't  mean  it is
             there.  It is not  [a] clear statement --  we
             [DOE] have access to the Internet.  We do not
             operate the Internet.  We have access to Cray
             computers  over  the  network.    We  do  not
             operate Cray computers.  
 
   Transcript at 423.   
 
        74.  On March 3,  1994, DOE announced that  discussions were
   closed  and requested  best and  final offers  (BAFOs) from  each
   firm. Protest File, Exhibit  43.  The next day, DOE  sent another
   letter to the offerors clarifying its instructions:
 
             The  offeror  is  not  required  to  resubmit
             answers to discussion  questions; however, to
             the extent that such answers affect the  BAFO
             and require  consideration, responses  should
             be included  in your  BAFO.   The offeror  is
             advised that DOE will evaluate  only the BAFO
             for determination  of award.   Therefore  any
             changes the  offeror deems  appropriate as  a
             result  of discussions  must be  reflected in
             the BAFO in the manner described in the March
             3, 1994 letter.
 
   Protest File, Exhibit 45.
 
        75.  BAFOs were submitted  on March 10, 1994.   CEXEC's BAFO
   included                                                         
                                                                    
                                                                    
                                                     Protest   File,
   Exhibits 46-47. 
 
        76.  After  reviewing  the  BAFOs,  the  TEC concluded  that
   scores  for the  offerors had  not changed.   The  TEC considered
   CEXEC's clarification responses, despite the fact that           
                       In general, the TEC did not consider that the
   information provided in discussions was sufficient to            
                      In addition, the TEC was concerned that       
                                                      with its BAFO 
                                                                    
   Protest File,  Exhibit  60.   CEXEC and  KENROB were  accordingly
   scored as follows:
 
                               CEXEC              KENROB
 
   Technical Proposal   Raw Score  Weighted  Raw Score  Weighted
 
   Criterion 1:
     Key Personnel          [ ]       [ ]       [ ]        [ ]
     Support Personnel      [ ]       [ ]       [ ]        [ ]
 
   Criterion 2:
     Understanding Reqts    [ ]       [ ]       [ ]        [ ]
 
   TOTAL                              [ ]                  [ ]
 
                               CEXEC              KENROB
 
   Business Management
     Proposal             Raw Score  Weighted  Raw Score  Weighted
              
 
   Corporate Experience     [ ]        [ ]       [ ]       [ ]
 
   Project Organization     [ ]        [ ]       [ ]       [ ]
 
   Project Management Plan  [ ]        [ ]       [ ]       [ ]
 
     TOTAL                             [ ]                 [ ]
 
   TOTAL COMBINED SCORE                [ ]                 [ ]
 
   See Protest File, Exhibit 58.
 
        The Award Decision
 
        77. After receipt of BAFOs, and completion of final         
    evaluations,  the  contract   specialist  prepared  the   source
   selection  document  to be used by the  source selection official
   in selecting an awardee.  That document recommends that KENROB be
   selected  for award.  Specifically, the source selection document
   noted that the  KENROB proposal was  rated better or  as good  as
   both  the  other  proposals  in  all  evaluation  criteria.    It
   identified various  "exceptional features" of the KENROB proposal
   as well:
 
             [T]he    relevant    work    experience   and
             professional development of the key personnel
             proposed   demonstrate   that    KENROB   has
             assembled  an  exceptionally  well  qualified
             team  to perform  the contract  requirements;
             KENROB's  proposal  provides  a comprehensive
             technical   approach   to  each   work   area
             described in  the  statement  of  work  which
             clearly     demonstrates      an     in-depth
             understanding of  the statement  of work  and
             ability to successfully perform in each area;
             the KENROB proposal demonstrates an extremely
             well  conceived  project   organization  plan
             which  will   enable  its  team   to  perform
             effectively and responsively.
 
   Protest File, Exhibit 60.  
 
        78.                                                         
                                                                    
                                                                    
                                                                    
 
                                                                    
           As a result the source selection document concludes:
 
             Mindful  of the  fact  that the  RFP provides
             that  the Technical  and Business  Management
             Proposals are of greater importance than  the
             Cost    Proposal,    and     after    careful
             consideration of the  differences between the
             Technical/   Business   Management   proposal
             scores and the evaluated probable cost of all
             offerors,  the technical  superiority of  the
             KENROB proposal is hereby deemed sufficiently
             significant to  outweigh the  differential in
             evaluated probable cost.
 
   Protest File, Exhibit 60.  
 
        79.  The  source  selection  official  was  the  then Deputy
   Director of the  Office of Program and Resources  Management.  He
   was recruited  to serve in  this capacity because of  his several
   decades of background  in computer based-information systems  and
   technical  management.  Transcript  at 359-60, 377.   Although he
   did  not actually  read the  proposals, he  reviewed a  number of
   other procurement documents,  including the rating plan,  the RFP
   and amendments  thereto, the  TEC's evaluation  reports, and  the
   competitive range  determination.  Transcript at  365-67, 378-80.
   He arrived at his  decision after reviewing the source  selection
   document   and  after  convening   a  meeting  attended   by  the
   contracting  officer, the  contract  specialist,  Ms.  Ford,  and
   others.  Transcript  at 167-68, 363.  At the  meeting, the source
   selection official questioned  Ms. Ford at some length  as to the
   rationale underlying the technical and business management scores
   and the differing capabilities of the three offerors remaining in
   the  competition.    At  the hearing,  he  explained  the process
   followed in selecting KENROB as follows:
 
             I   had   the    [solicitation's   evaluation
             criteria]  in  my  mind as  I  evaluated  the
             recommendations  that came  to  me.   I noted
             that   although   they   were   given   equal
             importance, the spread,  the numerical spread
             in the final  tabular materials that came  to
             me   showed   greater  differences   in   the
             technical  areas   than  they   did  in   the
             managerial, business management area.
 
                  As a consequence, I focused my attention
             on the  background that  led  to the  greater
             spread.  I  wanted to understand the  reasons
             for  the  numerical ratings  assigned  to the
             various proposers.  
 
                  I kept in the back of my mind that  they
             were  of equal  importance and  both of  them
 
             represented  more  important   parts  of  the
             proposal than the cost.
 
                  . . . .
 
                                                          
                                                          
                                                          
                                                          
                                                          
                                                          
                                                          
                                                          
                              
 
   Transcript  at  382-83.    The  source  selection  official  thus
   approved  the source selection document which concluded that "the
   technical superiority  of the  KENROB proposal  is hereby  deemed
   sufficiently   significant  to   outweigh  the   differential  in
   evaluated probable cost."  Protest File, Exhibit 60 at 00006.
 
        80.  KENROB was selected for award on May 10, 1994.  On  May
   16, 1994,  all offerors were  sent a letter announcing  the award
   selection.  The letter  sent to CEXEC stated:  "Your proposal was
   not  selected for  award under  this  requirement as  it was  not
   determined to be  the most advantageous to the  Government from a
   technical perspective."  Protest File, Exhibit 61.  
    
                               Discussion
 
        CEXEC challenges  the  award  to  KENROB  for  a  number  of
   reasons.   It  claims that  the  conduct of  the procurement  was
   tainted  by   improper  disclosures   of  sensitive   procurement
   information,  giving rise to  an unfair competitive  advantage to
   KENROB.   CEXEC  also asserts  that  Mr. Wells,  a DOE  employee,
   substantially and  personally participated in this procurement in
   violation of  a DOE regulation  prohibiting such activities  in a
   matter in which the employee knowingly  has a financial interest.
   CEXEC further claims  that its technical and  business management
   proposals were  unfairly and  improperly scored by  the TEC,  and
   that  clarification responses given to  the TEC were not properly
   accounted  for  in the  final  evaluation.   In  addition,  CEXEC
   contends   that  the  scores  for  KENROB's  key  personnel  were
   inflated.   Finally, CEXEC challenges the validity  of the trade-
   off analysis conducted to justify  award to KENROB, with a higher
   probable cost, based on that company's superior technical scores.
 
 
   Procurement Integrity Act
 
        CEXEC contends  that  the agency  violated  the  Procurement
   Integrity  Act,  41  U.S.C.    423,   in  the  conduct  of   this
   procurement,   principally   by   disclosing   source   selection
   information  to KENROB and  SAIC.  Specifically,  CEXEC maintains
   that  KENROB  and  SAIC  were   told  prior  to  release  of  the
   information to other competitors that the scope of work under the
   solicitation would  consolidate two existing contracts,  and were
   informed that the procurement would  be conducted as an 8(a) set-
   aside.   As a  result of  these advance information  disclosures,
   CEXEC  claims  that  it  was  placed  at  an  unfair  competitive
   disadvantage  because  KENROB  was  able  to  team with  the  two
   incumbent  contractors  and  arrange commitments  from  their key
   personnel  prior to other  8(a) contractors learning  these facts
   about the procurement.[foot #] 7
 
 
        The Procurement Integrity Act states in pertinent part:
 
             During  the  conduct  of  any Federal  agency
             procurement  of  property   or  services,  no
             person   who    is   given    authorized   or
             unauthorized access to  proprietary or source
             selection    information    regarding    such
             procurement,  shall  knowingly  disclose such
             information, directly  or indirectly,  to any
             person other than a person  authorized by the
             head  of  such   agency  or  the  contracting
             officer to receive such information.
 
   41 U.S.C.   423(d) (1988).   This provision is implemented in the
   Federal Acquisition  Regulation (FAR),  Part 3.   FAR  3.104-4(k)
   defines source selection information (SSI) as follows:
 
             (1)  Source selection  information is information,
             including   information   stored   in  electronic,
             magnetic,  audio   or  video  formats,   which  is
             prepared or developed for use by the Government to
             conduct a particular procurement and -- 
 
                  (i)  The disclosure of  which to a  competing
             contractor  would  jeopardize   the  integrity  or
             successful   completion    of   the    procurement
             concerned; and
 
                  (ii) Is  required by  statute, regulation  or
             order to be  secured in a source selection file or
             other facility to prevent disclosure.
 
             (2)  Source selection information is limited to --
 
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 7    There is,  however, no evidence  in the record
   that CEXEC  ever attempted  to enter  into a teaming  arrangement
   with either  of the incumbent  contractors.  By way  of contrast,
   KENROB, on its own initiative,  approached Weston and was able to
   persuade that company to drop tentative arrangements to team with
   yet another small business.  Finding 4. 
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
                  (i)  Bid  prices submitted  in response  to a
             Federal agency  solicitation for  sealed bids,  or
             lists  of those  bid prices  prior  to public  bid
             opening;
 
                  (ii) Proposed  costs or  prices submitted  in
             response  to a  Federal  agency solicitation  (for
             other  than   sealed  bids),  or  lists  of  those
             proposed costs or prices;
 
                  (iii)  Source selection plans;
 
                  (iv)   Technical evaluation plans;
 
                  (v)    Technical evaluations of proposals;
 
                  (vi)   Cost or price evaluations of proposals;
 
                  (vii)  Competitive range determinations which
             identify proposals that  have a reasonable  chance
             of being selected for award of a contract;
 
                  (viii) Ranking of bids, proposals, or competitors;
 
                  (ix)   The reports and  evaluations of source
             selection panels or  boards or advisory  councils;
             or 
                  (x)    Other  information  marked  as "SOURCE
             SELECTION INFORMATION -- SEE FAR 3.104" based upon
             a  case-by-case determination by  the Head  of the
             Agency, his  designee, or the  contracting officer
             that  the  information  meets   the  standards  in
             subdivisions k(1)(i) and (ii) of this subsection. 
              
        As  drafted, neither the Act nor the implementing regulation
   confer  source selection  information status  on  every piece  of
   information relevant to a given procurement.  CEXEC points to two
   documents and certain conversations in asserting that a violation
   of  the Procurement Integrity  Act and the  applicable regulation
   occurred.  The information said to have been improperly disclosed
   generally  relates to matters  that are administrative  in nature
   and  does not  fall into  any  of the  categories of  information
   expressly  identified  in  the  regulation.    A review  of  this
   evidence demonstrates that  the integrity of the  procurement was
   not compromised. 
 
        The covering memorandum  for the  initial APR  is marked  as
   source selection information.   That document indeed  states that
   the work of the two existing sites would be consolidated and that
   the  procurement would proceed  as a competitive  8(a) set-aside.
   Finding 17.  The contract specialist explained that this document
   is routinely marked as source selection information because it is
   disseminated outside of  DOE and may contain  advance information
   about a procurement.   At the same time,  the contract specialist
   testified that the 8(a) status  of the procurement was not source
   selection  information.  Thus,  although this  document contained
   some source selection information, not all of the  information in
   the document was  necessarily subject to the  prohibition against
   public disclosure.[foot #] 8  
 
 
        The  DOE memorandum, dated  January 14, 1992,  announced the
   planned  consolidation of  the  support  contracts  and  provided
   certain  budget information concerning the Las Vegas YMPO office.
   By letter dated February 21, 1992, SAIC informed DOE  that it had
   inadvertently received a copy of the  memorandum.  The memorandum
   was  not marked  as source  selection information.   There  is no
   evidence of any impropriety  on the part of SAIC in receiving the
   document.    SAIC  stated  in  its  letter  that  access  to  the
   information had been restricted to the few SAIC employees who saw
   it  and  that   these  employees  would  take  no   part  in  the
   recompetition  of the OCRWM requirements.  DOE's counsel reviewed
   this matter and determined that the Procurement Integrity Act had
   not been  violated.  See  Findings 27-30.   There is  no evidence
   that the contents  of this memorandum were disclosed  to the SAIC
   employees who  negotiated the  teaming agreement  with KENROB  or
   were  otherwise used by  SAIC employees before  the formal public
   release of the information.  
 
        In addition, the record shows that Mr. Wells, early in 1992,
   mentioned to his  wife, an SAIC employee, that  the two contracts
   for computer facilities  support services might  be consolidated.
   Ms.  Wells  credibly  testified  that  she  did  not  repeat  the
   conversation.  In  marketing meetings with  DOE officials in  the
   spring of 1992,  KENROB learned that the procurement  would be an
   8(a) set-aside  and that the  requirements for the East  and West
   Coast would be consolidated.  Finding 3.  By  this time, however,
   the  8(a) status  of the  procurement was  public knowledge  as a
   result      of      the      issuance     of      the      annual
   Forecast.[foot #] 9  Finding 6. 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 8   This conclusion  is supported by the  fact that
   the  8(a) status  of  the procurement  was publicly  disclosed no
   later than the  date of the publication  of DOE's Forecast.   The
                                                     ________
   Forecast was  issued by late  February or early March  1992, some
   ________
   three  to  four months  prior  to the  date of  the  initial APR.
   Finding 6.  
 
        [foot #] 9     The evidence  of record generally  shows that
   most small  businesses self-market and  approach program managers
   at federal agencies  well in advance  of planned procurements  in
   the  hope  of  uncovering  business  prospects.    The  testimony
   suggests  that  considerable  information can  and  will  be made
   available  to those enterprising  small businesses that  make the
   effort  to self-market.  Forecast, projecting and informing small
                            _________
   businesses of such opportunities,  provides public advance notice
   of  proposed procurement  actions.   The  publication reveals  an
                                                      (continued...)
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        Based on this  evidence, CEXEC asks the Board  to infer that
   source  selection information was  improperly disseminated by DOE
   prior to the time that the information became  publicly available
   and that the  integrity of the procurement was  thereby adversely
   affected.  This is not established on this record, however.   The
   information in question was disclosed prior to the marking of the
   APR as source selection information.  However,  the APR contained
   information  in   addition  to  what  was  previously  disclosed.
   Moreover, the disputed information  is not covered by a  specific
   category  in  the FAR  and  could  only become  source  selection
   information if so designated  by an appropriate DOE  official and
   marked   accordingly.[foot #] 10          FAR   3.104-4(k)(2)(x).
   Thus, no violation of this statute or regulation has been shown.
 
        We are mindful that regardless of whether a violation of the
   Procurement  Integrity Act has been shown, FAR 15.402(b) provides
   that "Government  personnel shall  not provide  the advantage  of
   advance  knowledge  concerning  a  future  solicitation  to   any
   prospective contractor."   It is entirely possible  that KENROB's
   knowledge concerning  consolidation of  the East  and West  Coast
   requirements  was based  upon  its  discussions  with  SAIC,  and
   inferences  that  KENROB  drew  from  other  information  it  had
   available.  For the sake  of argument, we will consider  that DOE
   provided   KENROB  with   advance   information  concerning   the
   consolidation.     CEXEC  has  not  shown  that  this  disclosure
   adversely  impacted the integrity  of the procurement  process or
   conferred  an impermissible  competitive  advantage upon  KENROB.
   The actual  teaming agreements  were not  entered into  by KENROB
   until after this information was announced in the CBD.  CEXEC has
   not shown  that it attempted  to obtain a teaming  agreement with
   one  of  the incumbents.   There  is evidence  that at  least one
   incumbent  considered teaming with  a partner other  than KENROB.
   CEXEC has  not shown that  the dissemination of  this information
   resulted in  an advantage  to KENROB,  and so there  has been  no
   violation of FAR 15.402(b).[foot #] 11
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 9 (...continued)
   agency  intent to  treat  the information  as other  than closely
   held. 
     
 
        [foot #] 10      Information   which  is   not  specifically
   enumerated  in  the  FAR  as  SSI cannot  become  SSI  unless  an
   appropriate agency  official  determines  that  such  information
   meets the FAR's standard for "other information" as defined under
   FAR 3.104-4(k)(1) and the information is marked accordingly.  Cf.
                                                                 ___
   Lockheed  Aircraft Service Co., B-255305, et  al., 94-1 CPD   205
   ______________________________
   (Feb. 22, 1994).
 
        [foot #] 11    Moreover, the cases  relied upon by  CEXEC to
   support  its argument that  the procurement should  be overturned
   because of the possibility that a competitive advantage has  been
                                                      (continued...)
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   Personal Conflict of Interest
 
 
        CEXEC  also argues that  DOE violated the  agency's personal
   conflict of interest regulation applicable to the conduct of this
   procurement.   That  regulation, set  forth in  10  CFR 1010.302,
   governing "Restrictions Concerning  Private Financial Interests,"
   provides:
 
             Unless  authorized  to  do  so  as   provided
             hereafter in this  Section, no employee shall
             participate personally and substantially as a
             Government employee in a particular matter in
             which the employee  knowingly has a financial
             interest.
 
   CEXEC notes that this restriction  is based upon 18 U.S.C.   208,
   which provides, in  pertinent part, that a  Government employee's
   personal and  substantial participation as  a Government employee
   in  a particular  matter in  which the  employee has  a financial
   interest constitutes a criminal offense.  
 
        CEXEC further refers  us to the Supreme Court's  decision in
   United States v.  Mississippi Valley Generating Co., 364 U.S. 520
   (1961),  for  the  proposition that  these  personal  conflict of
   interest  statutes and regulations  must be applied  strictly and
   that a showing of harm  created by the conflict is not  necessary
   for the contract to be voided.  In that case, a vice president of
   a  financial institution  that  benefitted from  the  award of  a
   Government contract to  construct a steam power plant  acted as a
   Government advisor and  participated on behalf of  the Government
   in contract negotiations.  Although the conflict inherent in that
   scenario was evident  to the parties to the  transaction early in
   the  process,  the  Government and  private  interests  proceeded
   nonetheless.  The Government subsequently voided the contract and
   defended on the  basis of a violation of  the statute prohibiting
   personal  conflicts of interest.   In upholding  the Government's
   decision, the Court observed:
 
             [T]he primary  purpose of the  statute is  to
             protect  the   public  from   the  corrupting
             influences that might be brought to bear upon
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 11 (...continued)
   conferred upon KENROB  involve clearer instances of  prejudice to
   other competitors.  See CACI,  Inc. - Federal, GSBCA 9193-P, 88-1
                       ___ _____________________
   BCA   20,336, 1987 BPD   266 (winning offeror's subcontractor had
   an  organizational conflict  of  interest likely  to have  led to
   competitive advantage); Holmes & Narver Services, Inc., B-235906,
                           ______________________________
   et  al.,  89-2 CPD    379  (Oct.  26,  1989)  (former  Government
   employee, who had participated in  drafting of RFP and had access
   to  evaluation standards,  drafted  winning offeror's  proposal).
   Here, the probability  of competitive harm is  significantly more
   remote.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
             government   agents   who   are   financially
             interested in the business transactions which
             they  are   conducting  on   behalf  of   the
             Government.   This  protection  can be  fully
             accorded only if contracts  which are tainted
             by a conflict of interest  on the part of the
             government  agent may  be disaffirmed  by the
             Government.
 
   Id. at  563.  There need not be  a showing of "actual corruption"
   or  any  "actual  loss  suffered  by the  Government"  to  permit
   disaffirmance of the contract.  Id. at 549.  
 
        The holding of  Mississippi Valley was applied by the United
   States Claims Court in TRW  Environmental Safety Systems, Inc. v.
   United  States,  18  Cl.  Ct.  33  (1989), a  protest  proceeding
   concerning a violation of the statute prohibiting post-employment
   conflicts  of interest.   Again,  the court recognized  the broad
   policy of protecting the public interest inherent in the statute,
   and stated:
 
             [W]here  there  occurs   within  the  federal
             procurement process a violation of a conflict
             of  interest statute,  which  exists for  the
             purpose of  protecting the very  integrity of
             that process, any contract  arising from such
             tainted process must be disaffirmed.  
 
   Id. at 67.  The court recognized that Mississippi Valley does not
   require a showing of prejudice  if a conflict of interest statute
   has been found  to have been violated, but  nonetheless concluded
   that   the  record  before  it  in  fact  contained  considerable
   probative evidence of  prejudice to the protesting  company.  Id.
   at 69.  
 
        CEXEC asserts  that the "participation" of Mr. Wells in this
   procurement  constituted  a   prohibited  conflict  of  interest,
   violative  of  10 CFR  1010.302, because  Mr. Wells,  through his
   spouse, had a  personal financial interest in the  outcome of the
   procurement.  In light of  the holdings in Mississippi Valley and
   TRW Environmental Safety Systems, CEXEC argues that this conflict
   is per se prohibited by the regulation  and should be presumed to
   have tainted the  procurement process, regardless of  whether any
   actual showing of prejudice to CEXEC has been shown.  
 
        The  General  Accounting   Office,  in  addressing  protests
   alleging  conflicts of interest, has held that alleged violations
   of criminal statutes are beyond  its purview in the context of  a
   bid protest.  Similarly, violations of the regulations are in the
   first  instance matters to be  addressed by the procuring agency.
   The proper extent  of any review of  such matters by GAO,  is "to
   determine whether any action of the government  employee may have
   resulted in any prejudice  for, or on behalf of, (i.e.,  convey a
   competitive  advantage to) the awardee during the award selection
   process."  RAMCOR Services Group, Inc., B-253714, 93-2 CPD   213,
   at  4  (Oct.  7,  1993).    This  Board  has,  in  assessing  the
   consequences  of actions alleged  to have tainted  a procurement,
   looked  to whether  the violation  alleged  in fact  affected the
   procurement process in such a  way as to prejudice the protester.
   See  Universal   Automation   Labs,   Inc.   v.   Department   of
   Transportation, GSBCA 12370-P, 94-1 BCA   26,323, 1993 BPD   211;
   TRW, Inc., GSBCA 11309-P, 92-1 BCA   24,389, 1992 BPD   205. 
 
 
        To conclude that  this regulation has been  violated we must
   ascertain  that  Mr. Wells  in  fact knowingly  held  a financial
   interest in  the matter and  that he participated  personally and
   substantially in this  procurement.  We note in  this regard that
   the  Office  of   Government  Ethics  (OGE)  has   promulgated  a
   regulation  with respect to disqualifying financial interests.  5
   CFR   2635.402   (1994).[foot #] 12       The   OGE   regulations
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 12   This regulation provides:
 
             An   employee  is   prohibited  by   criminal
             statute, 18 U.S.C. 208(a), from participating
             personally and  substantially in  an official
             capacity in  any particular matter  in which,
             to  his knowledge,  he  or any  person  whose
             interests  are  imputed  to  him  under  this
             statute has  a  financial  interest,  if  the
             particular  matter  will  have a  direct  and
             predictable effect on that interest.
 
   The  OGE  regulations  further  define  the  phrase  "substantial
   participation":
 
             (4) Personal and Substantial.  To participate
                 ________________________
             personally means to participate directly.  It
             includes the direct and active supervision of
             the  participation of  a  subordinate in  the
             matter.   To participate  substantially means
             that   the  employee's   involvement  is   of
             significance  to the  matter.   Participation
             may  be  substantial even  though  it is  not
             determinative of the outcome of a  particular
             matter.    However,  it  requires  more  than
             official      responsibility,      knowledge,
             perfunctory involvement, or involvement on an
             administrative  or   peripheral  issue.     A
             finding of substantiality should be based not
             only on the  effort devoted to a  matter, but
             also on the importance of the effort.   While
             a series  of peripheral  involvements may  be
             insubstantial, the single act of approving or
             participating  in a  particular  step may  be
             substantial.      Personal   and  substantial
                                                      (continued...)
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   are  the primary  ethics  regulations  applicable  to  Government
   employees, 5  CFR  2635.101(a) (1994),  and provide  considerable
   instruction  as to the intended meaning  of the term "substantial
   participation"  in a particular  matter.  Subsection  (b) of this
   regulation  states  that,  inter  alia,  to  be  substantial,  an
   employee's   participation   requires   more   than   perfunctory
   involvement  or  involvement on  an administrative  or peripheral
   issue.  The importance of an  employee's effort with respect to a
   particular  matter should  be  examined.   In  addition, the  OGE
   regulations provide  that where a  matter will not have  a direct
   and  predictable effect  on  the associated  financial  interest,
   there is no threat to the integrity of the employee's services on
   that matter.  5 CFR 2635.402(b)(1) (1994).
 
 
        The financial  interest of  his spouse,  although modest  in
   amount, is  attributable to  Mr. Wells.   The evidence  of record
   does   not,  however,  support  the  conclusion  that  Mr.  Wells
   personally and  substantially  participated  in  the  procurement
   process   so  as   to  violate   the  cited   regulation.     His
   "participation"  seems to have been largely confined to providing
   statistical-type information available to him as the task manager
   of the Weston  subcontract.  His review efforts,  similarly, seem
   to have been  in those  areas where  he had some  expertise as  a
   result of his  position.  He did not actually draft or review any
   portions   of  the   solicitation,[foot #] 13   and  he   had  no
   role in  the development  of the rating  plan, the  evaluation of
   proposals,   or  in  the  ultimate  selection  of  a  contractor.
   Findings 20-21.  On this record, we do not find, as CEXEC asks us
   to find, that  Mr. Wells' limited  activities in connection  with
   this procurement  rose to the  level of substantial  and personal
   involvement.   Certainly, there  existed no conflict  of interest
   that  paralleled those  underlying  the decisions  in Mississippi
   Valley and TRW  Environmental Safety Systems.  We  thus deny this
   count of the protest.
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 12 (...continued)
             participation may occur when, for example, an
             employee   participates   through   decision,
             approval,     disapproval,    recommendation,
             investigation, or the rendering of advice  in
             a particular matter.
 
   5 CFR 2635.402(b)(4) (1994).
 
        [foot #] 13    Some  part of  the preliminary  SOW  that Mr.
   Wells drafted  in support of  the documents prepared  to initiate
   the  procurement  process may  have  been  used  by Ms.  Ford  in
   preparing the solicitation.  The SOWs are not identical, however.
   Finding 20.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   The Evaluation of the CEXEC and KENROB Proposals
 
 
        CEXEC  also claims  that  the resumes  of  its proposed  key
   personnel were not fairly and properly evaluated by the TEC; that
   the resumes of  key personnel proposed  by KENROB were  evaluated
   more leniently than those of CEXEC  and in fact did not meet  the
   requirements of  the RFP, and  that the TEC improperly  failed to
   adjust  its scores  on business  management  criteria to  reflect
   clarification provided  with respect  to these  areas.   Finally,
   CEXEC argues that the trade-off  analysis performed in the source
   selection process was fatally flawed and not properly documented.
   None  of these  contentions  have  been shown  to  be true  by  a
   preponderance of the evidence in this case, however.
 
        Evaluation of Key Employees' Qualifications
 
        Specifically, CEXEC  challenges the TEC's assessment  of the
   resumes of its  key employees on the  basis that the TEC  did not
   give                                                 that fit the
   area  descriptions  in  the  statement  of work.    As  Ms.  Ford
   explained,  however, when reviewed as a  whole, the CEXEC resumes
   indeed met                                                       
                                                                    
                        The area in which the resumes               
                                                                    
                                             [foot #] 14            
   The TEC,  looking at  contract requirements as  a whole,  was not
   able to assure itself                                            
                       the                                          
   [foot #] 15      It   appeared   to   the   TEC,   in   reviewing
   these  resumes, that the experience with             where shown,
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 14     Although   the  qualifications  provided  in
   attachment E to  the RFP specify minimum years  of experience for
   key  personnel, it  was not  stated that these  requirements were
   "mandatory" in the sense that  failure to meet the minimum stated
   experience levels would result in disqualification of an offeror.
 
 
        [foot #] 15      The  evaluation  of  CEXEC's  and  KENROB's
   personnel was  thoroughly explained  by the  evaluator called  to
   testify at the  hearing.  The principal difference  in the scores
   allotted to these competitors arose from the determination of the
   evaluators that                                                  
                                                                    
                                             Much  of  the testimony
   adduced with respect to the  KENROB personnel was slanted in such
   a way as to attack the credibility  of Ms. Ford, the only one  of
   the three evaluators  who was called as  a witness.  We  find Ms.
   Ford's testimony  to be credible  and consistent.  Our  review of
   this  testimony persuades us  that the evaluators  did not depart
   from the terms of the solicitation in performing their task.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   was                                                              
 
                                          CEXEC has  not shown  that
   this conclusion  was unwarranted.   Rather, its  approach was  to
   emphasize  CEXEC's compliance  with  the overall  requirement for
   experience  in  operating and  managing  communications networks.
   Much of  the testimony  of the  CEXEC executive  demonstrates not
   that the resumes met the experience requirement as interpreted by
   the  agency, but  rather takes  issue  with that  interpretation,
   which differs from the reading  that CEXEC gives to the statement
   of  work.     CEXEC  apparently  regarded  the   requirement  for
   experience   in   large-scale   advanced    ADP   equipment   and
   communications network to be conjoined.  The agency  viewed these
   elements as  distinct, disjunctive  requirements.   The  agency's
   interpretation, when read in the context of the solicitation as a
   whole, and in light of the discussions, is the more reasonable of
   the two.   See Data Switch Corp. v.  Department of Health & Human
   Services, GSBCA 11582-P, 92-2 BCA   24,766, 1992 BPD   23.  
 
        Furthermore,  considerable  discretion   is  vested  in  the
   judgment of technical evaluators.  Computer Sciences Corp., GSBCA
   11497-P,  92-1 BCA    24,703, at  123,297,  1992 BPD    6, at  32
   (1991).   The  Board has  recognized that  the evaluation  of key
   personnel  is "highly  subjective" in  nature and  is an  area in
   which  the agency  is to  be  accorded "considerable  deference."
   CBIS Federal Inc. v. Department  of the Interior, GSBCA  12092-P,
   93-2  BCA    25,590,  1992  BPD    340.    The  record  does  not
   demonstrate that the  evaluations of these resumes  departed from
   the terms of the solicitation.
 
        CEXEC's Business Management Proposal
 
        CEXEC  also  challenges  the scoring  of  its  proposal with
   respect to the project organization and capability and experience
   scores.  The TEC had  identified                     the business
   management proposal, one involving                               
                 and the  other involving CEXEC's description of its
   capability and experience.  
 
        CEXEC  was given  a score  of                    on  project
   organization despite the fact that it appeared that              
                                             CEXEC's   clarification
   of this point, assuring the agency that                          
                                                responded to        
       that been identified.  The evaluators did take this  response
   into  account,  but  were concerned  that  the  proposal  was not
   affirmatively modified in CEXEC's BAFO to confirm that           
                                          In any event, given the   
                                in this  area, CEXEC  has not  shown
   that the overall score in this category should have been adjusted
   upward.   Under the rating plan,                                 
   does  not justify  a rating and  score above           and       
   Finding 46.  
 
        Similarly,  with respect  to the  capability  and experience
   criterion, CEXEC, which was given a score of    the            as
   that accorded KENROB, complains that its response to             
            should  have resulted  in an  upward  adjustment of  its
   score.  No  testimony was presented  on this point.   Again,  the
   record does not demonstrate that  the judgments of the evaluators
   in  scoring  this  criterion  departed  from  the  terms  of  the
   solicitation.  
 
   Trade-off Analysis
 
        Finally,  having   concluded  that   the  record   does  not
   demonstrate that  the    technical  evaluations  were  improperly
   performed,  we are not persuaded  that the trade-off analysis was
   flawed.    The  source  selection  official  reviewed  the  final
   technical   evaluations  and   the   source  selection   document
   recommending award to  KENROB.  The selection  official testified
   that he questioned the  evaluations and looked behind the  scores
   given to various criteria --  particularly the evaluations of key
   personnel -- to discern the true technical distinctions among the
   proposals eligible  for award.   Based on his questioning  of the
   evaluation  panel, he was satisfied that KENROB in fact presented
   the best value  to the Government.  Given  the selection criteria
   and  relative  scores,  strengths,  weaknesses,  and  costs,  the
   decision is fully  supported by the record.   See TGS Technology,
   Inc.  v.  Department of  the  Interior, GSBCA  11644-P,  92-2 BCA
     24,939, 1992 BPD   96.
 
        In  closing, we  note that  even if  CEXEC were  granted the
   benefit of the  doubt, and the scores of the CEXEC and KENROB key
   employees adjusted so  as to be comparable, the  overall score of
   KENROB would still               of CEXEC.  The  preponderance of
   evidence  in the  record supports  the  conclusion that  KENROB's
   proposal,  from a  technical and business  management standpoint,
   was superior.  Although CEXEC was evaluated as having a          
       cost,  this is  a  cost  reimbursement  contract.    The  FAR
   expressly  states that  in the  context of  a cost  reimbursement
   contract, the primary  consideration should be which  offeror can
   perform  the contract  in  the manner  most  advantageous to  the
   Government.  Generally,  cost should not be  controlling, because
   estimates of cost are subject to change.  FAR 15.605(d).  Read in
   the context of this FAR, the agency's application of the criteria
   set forth  in section M  of the solicitation, Findings  41-42, in
   arriving at an award decision was proper.  
 
        The   errors  alleged  by   CEXEC  in  the   performance  of
   evaluations and  in conducting  the trade-off  analysis have  not
   been proven  by a preponderance  of the evidence.   Even assuming
   that some errors  were made, the overall superiority  of KENROB's
   BAFO is such that CEXEC would not in any event have been selected
   for award.  See Planning  Research Corp., GSBCA 10472-P, 90-2 BCA
     22,798, 1990 BPD   62 ("The competition was not even close."). 
 
                                Decision
 
        The protest is DENIED.
 
                                      _____________________________
                                      CATHERINE B. HYATT
                                      Board Judge
 
   We concur:
   ________________________________   ______________________________
   JOSEPH A. VERGILIO                 MARTHA H. DeGRAFF
   Board Judge                        Board Judge