THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS
    BEING RELEASED TO THE PUBLIC IN REDACTED FORM ON MARCH 30, 1995
 
                         ______________________
 
                         DENIED:  March 2, 1995
                         ______________________
 
 
                             GSBCA 13128-P
 
                             I-NET, INC., 
 
                                           Protester,
 
                                   v.
 
                        DEPARTMENT OF THE ARMY,
 
                                           Respondent,
 
                                  and
 
                  NORTH AMERICAN MORPHO SYSTEMS, INC.,
 
                                           Intervenor.
 
        Richard J. Conway, Merle M. DeLancey, Jr., William M. Rosen,
   Hilary S. Cairnie,  and Kendrick C. Fong of  Dickstein, Shapiro &
   Morin, Washington, DC, counsel for Protester.
 
        Craig   R.  Schmauder,   Scott  M.   McCaleb,   Danielle  M.
   Conway-Jones, Susan  J. Platt, and  Timothy L. Felker,  Jr., U.S.
   Army Corps of Engineers, Department of  the Army, Washington, DC;
   Robert L. Oswald, U.S. Army Corps of Engineers, Department of the
   Army,  Norfolk,  VA;   and  Thomas  Ainora,  Federal   Bureau  of
   Investigation, Department of Justice, Washington, DC, counsel for
   Respondent.
 
        Martin  P. Willard  and Kara M.  Sacilotto of  Perkins Coie,
   Washington, DC; Richard W.  Oehler of Perkins Coie, Seattle,  WA;
   and Jeffrey A. Lovitky, Washington, DC, counsel for Intervenor.
 
   Before Board Judges HYATT, DeGRAFF, and GOODMAN.
 
   DeGRAFF, Board Judge.
 
        I-Net,  Inc. (I-Net)  protests the  decision  of the  United
   States  Army Corps  of Engineers  (Army) to  award a  contract to
   North American Morpho Systems, Inc. (Morpho).  I-Net alleges that
   the Army determined that  I-Net's proposal contains  deficiencies
   and never  told I-Net  of those deficiencies,  and that  the Army
   imposed an  unstated requirement for  a certain minimum  level of
   fingerprint  conversion experience.  Because we find no violation
   of statute,  regulation, or delegation of  procurement authority,
   we deny the protest.
 
 
                            Findings of Fact
 
   The Solicitation
 
        On  December 30, 1993, the Army issued solicitation DACW-65-
   94-R-0001  for conversion of  fingerprint cards to  digital form.
   The Army anticipated awarding a firm fixed-price contract for the
   conversion  of  approximately   thirty-five  million  fingerprint
   cards.  Protest File, Exhibit 10.
 
        Section M3.1 of the solicitation states that, in order to be
   eligible for award, offerors must meet all mandatory solicitation
   requirements.  Protest File, Exhibit 10 at M-2.  Section C of the
   solicitation states simply, "Contractor shall  provide all labor,
   materials, equipment,  management, and other  resources necessary
   to provide services as required under the contract, including the
   requirements of all ATTACHMENTS and APPENDICES thereto."  Protest
   File, Exhibit  10 at C-1.   Attachment  B to the  solicitation is
   titled, "Statement  of Work,"  and  section 3.5  of Attachment  B
   provides,  "[T]he contractor shall  produce the scanned  image of
   each  fingerprint  card  which complies  with  the  image quality
   requirements of the contract. . .  . The scanned images shall  be
   clear and  representative of  the original. .  . .  During visual
   inspection  the  contractor   shall  apply  pass/fail  standards,
   developed by the  contractor and approved  by the Government,  to
   each image."   Section  3.5.1 of Attachment  B provides  that the
   contractor  will  convert all  fingerprint  cards, regardless  of
   format  or  condition.   Section  3.5.1 also  explains  that some
   fingerprint  cards will require special handling and requires the
   contractor to ensure that such cards "are processed to obtain the
   image  quality  requirements of  the contract."   Section  5.0 of
   Attachment  B  requires  the contractor  to  implement  a quality
   control  and assurance program  "to ensure that  each fingerprint
   impression  image produced meets  or exceeds the  requirements of
   the contract."  Protest File, Exhibit 10 at Att B-11, B-12, B-20.
 
 
        Attachment C  to the  solicitation is  titled, "IAFIS  Image
   Quality Specifications" and  is referred to as the  IQS.  Protest
   File,  Exhibit 10.    IAFIS  is the  acronym  for the  Integrated
   Automated Fingerprint Identification System, and the  procurement
   at issue in this case is a part of IAFIS.   Protest File, Exhibit
   10  at  Att B-1.    The IQS,  in  paragraphs 2.0,  3.0,  and 4.0,
   describes the performance characteristics for scanners, displays,
   and  printers  used  for  IAFIS.    Protest   File,  Exhibit  10.
   Paragraph 1.0 of  the IQS explains the  scope and the purpose  of
   the IQS  is to  "provide objective  criteria  for insuring  image
   quality."  Paragraph 1.0 also  states that the IQS "will  be used
   by the Government in acceptance testing to ensure compliance with
   the requirements, and in performance capability demonstrations as
   an indication of  capability to perform."  Protest  File, Exhibit
   10  at  Att C-3.    At the  preproposal  conference, the  IQS was
   described  as  establishing "attainable  goals."   Protest  File,
   Exhibit 11 at 30; Transcript at 221.
 
 
        In  response to  a  vendor question,  the  Army amended  the
   solicitation to  explain that, during the  performance capability
   demonstration  (PCD), offerors "must  show how well  the proposed
   system  meets the  [IQS]. . .  . While  it is desirable  that the
   Offeror's proposed  production equipment  has  the capability  to
   meet or exceed the IQS  values under production conditions, a few
   minor  deviations  in one  or  two  of  the parameters  will  not
   automatically  exclude an imaging system from consideration.  The
   nature  and extent of the deviation in context with all the other
   quality assurance, testing considerations, and results of the PCD
   will be taken into account."  The amendment goes on to state that
   the Army did not  want to establish "absolute  pass/fail criteria
   for image quality."  Protest File, Exhibit 12 at 37.  
 
        The  technical panel leader and  the program manager for the
   procurement,  who  will  also  be the  program  manager  for  the
   contract,   testified  that,  in  their view,  the  IQS does  not
   contain mandatory solicitation requirements.   Transcript at 627-
   34, 229-24.  The technical  panel leader explained that the image
   quality requirements of  the contract are not  established by the
   IQS,  and that  the IQS  does not  contain requirements  that are
   either passed  or failed by  offerors.   Instead, the IQS  is one
   method of evaluating  an offeror's proposed solution.   The image
   quality requirements of  the contract were  to be established  by
   the pass/fail criteria  proposed and demonstrated by  an offeror.
   The reason for  requiring offerors to propose  pass/fail criteria
   was  to establish  the level  of quality  that would  be provided
   during performance of the  contract.  Transcript at 586-87,  607-
   12.    The  program  manager  testified  that  the  IQS  contains
   numerical values  and that the  purpose of the evaluation  was to
   determine  how well  the values  were met by  the offerors.   The
   program  manager testified that  his understanding of  the IQS is
   consistent   with   information  provided   at   the  preproposal
   conference and in the amendment  to the solicitation.  Transcript
   at 215-21, 225.  
 
   Evaluation of Proposals
 
        Section M of the  solicitation explains the manner  in which
   the Army intended to evaluate proposals and to select an awardee.
   According to paragraph M3.2, "selection will be based on how well
   each proposal satisfies  the evaluation criteria as  described in
   paragraph M4."  Section M4  explains that the evaluation criteria
   are divided into three areas.  In descending order of importance,
   they are  the technical area,  the management area, and  the cost
   area.   For  each  of the  areas,  section  M sets  out  specific
   evaluation criteria at the item  level, the factor level, and the
   subfactor  level.    Subfactors  are  contained  within  factors,
   factors  are  contained  within items,  and  items  are contained
   within areas.  Protest File, Exhibits 10, 12.
 
 
        Paragraph M4 explains that three assessment criteria will be
   applied against the evaluation criteria.  The assessment criteria
   are:
 
             Soundness of Approach - The Government will assess
        how well it considers the proposal  is capable of being
        implemented.
 
             Understanding of the Requirements - The Government
        will   assess  the   degree  to   which   the  proposal
        demonstrates   the  offeror's   comprehension  of   the
        requirements to be satisfied.
 
             Implementation Risk  - The Government  will assess
        the technical  and schedule  risk  associated with  the
        offeror's  design,  technical management,  and  program
        management approaches.
 
   Protest File, Exhibit 10.  
 
        Before issuing the solicitation, the Army developed a source
   selection plan  that explains  the  organization established  for
   selecting an awardee.   The source selection  authority (SSA) was
   the Chief,  Contracting Division, Norfolk District, United States
   Army Corps  of Engineers.  Below  the SSA was a  source selection
   recommendation board (SSRB),  which approved evaluation standards
   and  which appointed the members  of a technical evaluation board
   (TEB).   The  TEB consisted  of a  technical panel,  a management
   team, a cost  team, a contract team,  and advisors.  The  TEB was
   responsible for preparing evaluation standards  and for reviewing
   and evaluating proposals by comparison to the standards.  The TEB
   was to prepare an evaluation report and to provide the report and
   a briefing to  the SSRB.  The  SSRB was to conduct  a comparative
   analysis of  the proposals and  present its findings to  the SSA.
   Protest File, Exhibit 6.  
 
        I-Net  and Morpho  submitted their  proposals  on March  24,
   1994.  The  Army initially reviewed the proposals  to ensure that
   they contained sufficient information to describe  each offeror's
   proposed   method  of  meeting  the  Army's  requirements.    The
   validators who conducted  this review were instructed  "to ensure
   compliance  with  minimum  requirements  of the  [solicitation]."
   Protest File, Exhibit  7 at 32.  This initial review was meant to
   validate   whether   an  offeror's   proposal   met   the  Army's
   requirements.  Transcript at 507, 541-42; Protest File, Exhibit 7
   at 3, 10-11.  The  Army prepared a proposal compliance validation
   checklist to use when conducting its initial review of proposals.
   The checklist contains  approximately five hundred  requirements.
   Transcript at 508; Protest File,  Exhibits 7, 16.  The validation
   checklist  lists the requirements  found in sections  3.5, 3.5.1,
   and 5.0 of Attachment  B to the solicitation,  but does not  list
   the "requirements" found in the IQS.  Protest File, Exhibit 16 at
   29-30, 33, 69.
 
 
        Ten   validators  reviewed  I-Net's  proposal  in  order  to
   determine whether it  complied with the technical  and management
   requirements of  the solicitation.   Transcript  at 509;  Protest
   File, Exhibits 7, 16.   They determined that I-Net's proposal did
   not comply with some of the requirements and on April 7, 1994, in
   a  series of clarification  requests, they asked  I-Net questions
   concerning  those requirements.   Transcript  at 510-11;  Protest
   File, Exhibit 17.   On  April 15, 1994,  I-Net provided the  Army
   with responses to  its questions and  also revised its  proposal.
   Protest  File,  Exhibits  17,  19;  Transcript  at  511.    After
   reviewing  I-Net's responses and proposal revisions, on April 22,
   1994, the validators asked  I-Net additional questions concerning
   how  I-Net proposed  to  meet certain  solicitation requirements.
   These questions are  also contained in a  series of clarification
   requests, rather than in deficiency reports.   Transcript at 513;
   Protest File,  Exhibit 21.   On May 3,  1994, I-Net  provided the
   Army  with responses  and again  revised  its proposal.   Protest
   File, Exhibits 21, 22; Transcript  at 513-14.  After reviewing I-
   Net's  second  set  of  responses  and  proposal  revisions,  the
   validators  determined  that  I-Net's  proposal  met  the minimum
   mandatory requirements of  the solicitation.  Transcript  at 514-
   15.    The   technical  panel  leader  reviewed   the  validation
   checklists  with  each validator  in  order  to ensure  that  the
   validator  "understood that he had identified compliance with all
   the  requirements."   Transcript  at 514.    The technical  panel
   leader  concluded   that  I-Net's  proposal  met   the  mandatory
   requirements of the solicitation.  Transcript at 515.  
 
        After  I-Net provided  its  April  15,  1994  responses  and
   proposal  revision,  the  Army began  its  evaluation  of I-Net's
   proposal.    Transcript  at  512.    The  Army  developed  factor
   worksheets  to utilize in conducting its evaluation of proposals.
   Each  worksheet addresses an  area (technical or  management), an
   item within  the  area,  and a  factor  within the  item.    Each
   worksheet contains a  "standard," which is a  guideline developed
   to "assist in the evaluation  of the solution to the requirements
   associated with particular  evaluation criteria.   Standards  are
   provided to  assist the  evaluator in focusing  on the  manner in
   which   the   particular   proposal    response   addresses   the
   [solicitation]  requirement."   Protest File,  Exhibit  7 at  44.
   "Standards are used  to determine where a proposal  fails to meet
   requirements, meets requirements, or exceeds the minimum level of
   compliance with a  requirement."  Protest File, Exhibit  7 at 14.
   "The  standards  criteria   were  generally  set  above   minimal
   compliance to provide  a range of evaluation for  each factor and
   subfactor."   Protest File, Exhibit  71 at 2; Transcript  at 596.
   In  addition to  a standard,  each worksheet  contains a  list of
   "considerations,"  which are  questions  designed to  "guide  the
   thought processes of evaluators" in order to determine "how well"
   a proposal  meets the standard.   Protest File, Exhibit  8 at 15,
   44.  Each consideration  was to be rated as to  the "Soundness of
   Approach & Understanding of  the Requirement" and "Implementation
   Risk."    The  worksheets  contain  a  column  labeled  "Comments
   (Strengths/Weaknesses)" for  each consideration.   Protest  File,
   Exhibit 20.   Each  standard was supposed  to receive  an overall
   rating,  based  upon   the  rating  of  the   considerations  and
   considering the importance of each consideration to the standard.
   Protest  File,  Exhibits  7,  20.    The  ratings  for  both  the
   considerations and the standards were as follows:
 
 
             (1)     "+".         Exceptional.          Exceeds
        standards/considera-tions  in a  beneficial way  to the
        Government.    No significant  weaknesses.    When this
        rating is assigned, one or more strengths which justify
        the rating should  be included on the  Factor Worksheet
        in  conjunction with  the  consideration  to which  the
        rating applies.
 
             (2) " ".  Acceptable.   Meets standards/considera-
        tions.  Good probability of success.  Weaknesses can be
        readily corrected.
 
             (3) "-".   Fails to meet  the standards/considera-
        tions.   Significant weaknesses.   When this  rating is
        assigned,  one or  more  weaknesses  which justify  the
        rating  should be included  on the Factor  Worksheet in
        conjunction with the consideration to  which the rating
        applies.  
 
   Protest File, Exhibit 7 at 16.  Proposals were to be evaluated by
   comparing them to  the standards and rating each proposal's worth
   in relation to the standards.  Protest File, Exhibit 7 at 13.  
 
        The factor worksheets  served as records of  each individual
   evaluator's  notes.    Transcript  at  518.    After  the  factor
   worksheets  were  completed  by  the  evaluators, the  evaluators
   discussed  their individual ratings  and arrived at  an consensus
   rating which  is reflected in  a factor summary for  each factor.
   Protest  File, Exhibit  7 at  17.   If there were  differences of
   opinion among the  evaluators, they were resolved when the factor
   summary was prepared.   Transcript at 529.   The factor summaries
   were provided  to  item-level supervisors  and  used by  them  to
   prepare item  summaries,  which contain  a "composite  subjective
   analysis of all  the factors associated with the  Item."  Protest
   File, Exhibit 7 at 18.  The item summaries were provided to area-
   level supervisors and  used by  them to  prepare area  summaries.
   Protest File,  Exhibit  7 at  18.   The item  and area  summaries
   received color ratings.  Protest File, Exhibit 7 at 18.  A rating
   of "red"  in an  item or  area  summary meant  that the  proposal
   failed to meet a minimum requirement.  A rating of "yellow" meant
   that the proposal failed to  meet the evaluation standards or had
   a   low  probability  of   satisfying  the  requirement   or  had
   significant  but correctable  weaknesses.   A  rating of  "green"
   meant that the proposal met  the evaluation standards, had a good
   probability   of  satisfying  the   requirement,  and   that  any
   weaknesses could  be readily  corrected.   Protest File,  Exhibit
   6.[foot #] 1     At  no   time  during  the   evaluation  process
   did I-Net's  proposal ever receive a "red"  rating in any item or
   area summary.   Transcript at 515-17; Protest  File, Exhibits 20,
   25, 38, 42.
 
 
        The  first evaluation of  I-Net's proposal was  completed on
   April  22, 1994.  Protest File,  Exhibit 20.  As mentioned above,
   on this date the Army sent a  set of clarification requests to I-
   Net.  I-Net responded to those clarification requests and revised
   its proposal on May 3, 1994.  Protest File, Exhibits 21, 22.  The
   April 22, 1994 evaluation  was preliminary because I-Net  had not
   yet  conducted its  performance  capability demonstration  (PCD),
   which was one  of the items  within the technical area.   Protest
   File,  Exhibits 10,  71 at  7.   On  May  9 and  10, 1994,  I-Net
   conducted its PCD.  Protest File,  Exhibit 23.  On May 13,  1994,
   I-Net sent  the Army a report  concerning the results of  the PCD
   and modifications made by I-Net as a  result of the PCD.  Protest
   File, Exhibit 23.  On  May 17, 1994, an independent analysis team
   prepared  its report  concerning  the  results  of  I-Net's  PCD.
   Protest File, Exhibit 24. 
 
        The second evaluation  of I-Net's proposal was  completed on
   May 20, 1994.   Protest File, Exhibit 25.   On June 3,  1994, the
   SSRB met  with the TEB  chairperson, who reported that  I-Net met
   the   mandatory  requirements  of  the  solicitation.    The  TEB
   chairperson also reported that  neither offeror's imaging  system
   was fully  compliant with the  IQS, possibly  because there  were
   ambiguities in the IQS and  possibly because the offerors had not
   had sufficient time  to implement their  systems before the  PCD.
   For this  reason, the SSRB  decided to amend the  solicitation to
   change portions of the IQS and to schedule a second PCD.  Protest
   File, Exhibits 64-67.  
 
        On  June 28,  1994, the  Army  sent a  set of  clarification
   requests  to I-Net.   Protest File,  Exhibit 27.   On  August 10,
   1994, I-Net responded to the clarification requests and submitted
   another revision to its proposal.  Protest File, Exhibits 27, 28.
   The  Army  sent  additional clarification  requests  to  I-Net on
   August  25, 1994.    I-Net  responded to  the  requests and  also
   revised  its  proposal  on  September  1,  1994.   Protest  File,
   Exhibits 29, 30.  I-Net conducted a second PCD on September 7 and
   8, 1994.  On September 16,  1994, I-Net provided the Army with  a
   report concerning its second PCD  and additional revisions to its
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 1     Not all of the documents prepared by the Army
   during   the  course   of  the   procurement   contain  identical
   definitions of a  yellow rating.  The  inconsistency was resolved
   by the  testimony of  a witness who  clearly understands  how the
   documents were prepared and who knows which definitions were used
   by the evaluators.  Transcript at 539-40.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   proposal.  Protest File, Exhibits 33, 34.  On September 21, 1994,
   the  independent analysis team prepared its report concerning the
   results of I-Net's second PCD.   The report is the result of  the
   team's  analysis  of  magnetic tapes  containing  the  image data
   actually produced  by I-Net during  the second PCD.   The report,
   which contains approximately  six hundred pages of  test results,
   states  in its summary,  "The image  quality requirements  of the
   Government  were met  by [I-Net]  for [all  stages] of  the PCD."
   Protest  File,  Exhibit 35  at  3.   On  September  22,  1994, in
   response to  a question  asked by the  Army, I-Net  submitted its
   sixth revision to its proposal.  Protest File, Exhibits 36, 37.
 
 
        The  third evaluation of  I-Net's proposal was  completed on
   September  30,  1994  (technical  area),  and  October  11,  1994
   (management  area).   Protest File,  Exhibit 38.   The  technical
   panel leader and  the evaluators discussed comments  contained in
   the  factor  worksheets  in order  to  determine  whether I-Net's
   proposal   contained  any   deficiencies.     Based   upon  these
   discussions, the  technical panel leader determined  that I-Net's
   proposal contained weaknesses in some areas,  but did not contain
   deficiencies.   That is,  the Army did  not determine  that I-Net
   failed   to  meet  any  of  the  mandatory  requirements  of  the
   solicitation.  Transcript at 519-26.  The third evaluation of the
   technical  area  contains fifteen  factor  summaries for which I-
   Net received      overall " " ratings and    
   overall "-"  ratings.   In the factor  summaries for  which I-Net
   received "-" ratings, the Army notes that, although I-Net met the
   image quality requirements, I-Net's proposal contained weaknesses
   in the areas of                                  .  Protest File,
   Exhibit  38.   The technical  panel  leader reviewed  all of  the
   factor summaries  with the  authors of the  summaries, and  again
   determined  that  I-Net's  proposal   contained  weaknesses,  not
   deficiencies.  Transcript at 527-28.  The third evaluation of the
   technical  area contains  three item  summaries  for which  I-Net
   received overall            ratings.   Protest File,  Exhibit 38.
   The  technical panel  leader reviewed  all of the  item summaries
   with the authors of the summaries and found no indication that I-
   Net  had  failed   to  meet  a   mandatory  requirement  of   the
   solicitation.   Transcript at 529-30.   The item  summaries state
   that,  although I-Net's  proposal  contained weaknesses,  I-Net's
   problems could  be overcome.   One of  the item  summaries states
   that I-Net proposed  a "marginal, but correctable  solution," and
   another  states that  "all  these  weaknesses  are  correctable."
   Protest File, Exhibit  38 at 73, 138.   I-Net received an overall
   rating  of         for the technical area.  Protest File, Exhibit
   38 at 1.
 
        On  October 5, 1994,  the TEB  again met  with the  SSRB and
   provided  a  draft briefing  concerning the  offerors' technical,
   management,  and cost  merits.    The TEB  noted  that its  major
   objective  in negotiating  with I-Net  was to  improve its       
                  .  The TEB members stated that I-Net was proposing
   a viable solution and that its problems were readily correctable.
   Protest File, Exhibits 71, 5005.  The TEB told the SSRB that both
   offerors' proposals were acceptable and that no deficiencies were
   noted.  Protest File, Exhibit 5005.  
 
 
        On  October  12,   1994,  the  Army  sent  I-Net   a  letter
   transmitting a set of points for negotiation (PFNs) and informing
   I-Net that negotiations would be held on October 20, 1994.  Among
   the PFNs were these:
 
        PFN 2606.  The Army stated that                             
                                                           ,     and
   asked  I-Net to                                                  
                                     .
 
        PFNs  2602  and   2609.                                     
                                                .  The  Army told I-
   Net          that                                                
                                                           
                                                              .  The
   Army asked I-Net to                                              
                                                                  
                     .  The  Army also asked I-Net                  
                                                                 
                .  
 
        PFN 2605.   The Army stated that                            
            .   The  Army explained  that                           
                                                         , and asked
   I-Net                                                            
                                   .  
 
        PFN  2607.   The  Army  stated  that                        
                                                              
                                                               
                   .    The  Army  asked  I-Net                     
                                 .
 
        PFN 2608.  The Army noted that I-Net's report concerning the
   second PCD                                                       
   .                                                                
                        .   The  Army  also  noted  that,           
                                                                   
                                                      .    The  Army
   asked  I-Net                                                     
                                                       .  
 
        PFNs  2610 and  2611.   The  Army pointed  out that  I-Net's
   proposed   scanner   configuration                               
                                                                   
                                                             
                                 .  The  Army asked I-Net           
                           .   The Army  stated that, at  the second
   PCD,                                                             
                                                       
                                                  .  
   Protest  File, Exhibit  39.   These PFNs  reflect the  weaknesses
   identified  in  the factor  and  item summaries.    Protest File,
   Exhibit 38.  
 
 
        I-Net submitted  responses to  the PFNs  incrementally, both
   before and  after negotiations.   Transcript  at 726-27;  Protest
   File,  Exhibits 39,  68.   Negotiations were  held with  I-Net on
   October 20, 1994.  The Army and I-Net discussed I-Net's responses
   to  the  PFNs.   The Army  stated that  I-Net had  only partially
   responded  to some  of the  Army's concerns,  and that  I-Net was
   being given another opportunity to improve its proposal.  Protest
   File, Exhibit  68.  I-Net's  final responses to the  PFNs contain
   both explanations and  revisions to its proposal.   Protest File,
   Exhibit 39.
 
        On  October 31, 1994,  the Army requested  that I-Net submit
   its  best  and  final  offer.   The  Army's  letter  states,  "As
   indicated in our  points for negotiation, your  proposal included
   weaknesses  and risks  to  the  Government in  the  area of      
          .  As noted in our  face-to-face discussions, your initial
   responses  to  these  points  for negotiation  included  residual
   weaknesses and  risks in  areas related to               .   Your
   updated responses continue to leave a measure of concern in these
   same areas."  Protest File, Exhibit 40 at 1.  
 
        I-Net submitted  its best  and  final offer  on November  7,
   1994.  The offer contains numerous revisions to I-Net's proposal.
   Protest File, Exhibit  41.  The Army completed  its evaluation of
   I-Net's best and  final offer  on November  18, 1994  (management
   area) and November 21, 1994  (technical area).  I-Net received an
   overall  rating of           for the  technical area and  for the
   management area.  Protest File,  Exhibit 42.  The technical panel
   leader  again   discussed  the  factor  worksheets,   the  factor
   summaries,  and  the  item  summaries  with  their authors.    He
   determined that I-Net's  proposal contained  weaknesses, but  not
   deficiencies.    Transcript  at  533-37.    The  results  of  the
   evaluation of  I-Net's best  and final offer  are discussed  in a
   report prepared by  the TEB for  the SSRB on  November 21,  1994.
   The report  shows that, although  I-Net received "-"  ratings for
   some  factors and although  the evaluators believed  that I-Net's
   offer contained some  weaknesses, I-Net did  not receive a  "red"
   rating in any item or area.  The report states that, although the
                portions of I-Net's  proposal needed improvement, I-
   Net  met  all  of the  Government's  image  quality requirements.
   Protest File, Exhibit 71.
 
        The SSRB  prepared its  report for the  SSA on  November 22,
   1994.    The  SSRB  stated  that  both  offerors' proposals  were
   compliant  with the requirements of the solicitation and eligible
   for award.  Protest File, Exhibit 72 at 11, 32.  In the course of
   discussing  the appropriate weighing of technical merit and cost,
   the SSRB states that Morpho's proposal "will achieve             
   well  above  both   the  defined  requirements  and   the  higher
   evaluation standards  while the  I-NET offer  will produce       
 
                                      .  . .  . It  could  be argued
   that the                                                         
                                                                    
         ."  The SSRB also notes that I-Net's proposal "could render
   up to                                                      .  . .
   ."[foot #] 2     Protest  File,  Exhibit   72  at  39.     As  is
   clear  from the SSRB's  forty-page report, it  did consider I-Net
   for award.   Based upon an examination of  the relative technical
   merits  of  the  Morpho and  I-Net  proposals,  of  the offerors'
   management, and of the offerors'  cost proposals, the SSRB report
   recommends   that  award  be   made  to  Morpho.[foot #] 3     On
   December  13, 1994,  the  Army awarded  the  contract to  Morpho.
   Protest File, Exhibit 75.
 
        At the hearing, I-Net introduced  the testimony of an expert
   in the evaluation of computer  systems.  In the expert's opinion,
   based upon his review of a portion of the record in this protest,
   the  Army's evaluators determined  that I-Net's proposal  did not
   meet mandatory solicitation requirements.  His opinion concerning
   the   evaluators'  determination  is  based  primarily  upon  the
   comments  written on the  evaluation worksheets.   I-Net's expert
   did not  offer any opinion  as to whether I-Net's  proposal meets
   the solicitation's requirements.  Transcript at 326, 368-69, 454,
   464-65, 483.
 
   Fingerprint Conversion Experience
 
        The solicitation does  not state that offerors  are required
   to have fingerprint conversion experience in  order to be awarded
   the  contract.   Protest  File, Exhibit  10;  Transcript at  166.
   However,  within the management area, one of the evaluation items
   is  "Company Experience  with Similar  Projects."   This  item is
   divided into the following factors:
 
             FACTOR:  Conversion  Experience.    Evaluates  the
        Offeror's   experience   in   converting   very   large
        quantities  of   data,  providing   quality  assurance,
        maintaining  conversion  records,  and  delivering  the
        product   that  meets   image   quality  and   schedule
        requirements.     Evaluates  Offeror's   experience  in
        safeguarding documents  of various  physical conditions
        and delicacies.
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 2     A fingerprint card  contains fourteen images.
   Protest File, Exhibit 10 at  Att B-11.  Approximately thirty-five
   million cards were  to be  converted by  the successful  offeror.
   Protest File, Exhibit 10.    Therefore,                          
    is approximately     percent of the total number of images to be
   converted.
 
        [foot #] 3     In both  the technical and  management areas,
   Morpho  received the           overall rating                   .
   Protest File, Exhibit 63. 
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
             FACTOR:     Customer   Satisfaction.     Evaluates
        previous clients' assessment  of the Offeror's  ability
        to manage  a program, understand a  customer's business
        area,  and execute  a  solution which  enhances mission
        accomplishment.
 
   Protest File, Exhibit 10 at M-7, M-8.  Offerors are instructed to
   describe their experience with at least three projects of a scope
   and  nature similar to  the fingerprint conversion  project which
   the offerors deem relevant to the requirements of the fingerprint
   conversion project.  Protest File, Exhibit 10 at Sec L/Appendix 1
   page 15.
 
        In  its  proposal,   I-Net  identifies  three  projects   as
   evidencing  its experience  with similar  projects.   Two of  the
   projects  were  large  records conversion  projects.    The third
   project,  for  which  I-Net  was  a  subcontractor,  was  for the
   conversion of  approximately 110,000 fingerprint  cards, which I-
   Net  stated  was  completed  two  months  later  than  scheduled.
   Protest File, Exhibit 15 at  Volume 3, pages 3-A1-2 through 3-A1-
   8.                                                              .
   Transcript at 96-97, 136.   The two  customers for the two  large
   conversion  projects were generally  satisfied with I-Net's work,
   although  they indicated  some  dissatisfaction with  management.
   Protest  File, Exhibit  1004 at  57-91.   The contractor  for the
   fingerprint  conversion project  confirmed that  the project  was
   completed late.  The contractor stated that I-Net was supposed to
   provide  a scanner  operator and  to train  the operator.   I-Net
   hired  someone from a local temporary employment agency, provided
   approximately one hour of training and did not provide a training
   manual.    After its  initial visit  to the  site, I-Net  did not
   return to  provide  any  management or  supervision.    When  the
   operator quit, the contractor had to train a replacement operator
   and hire another operator to work in the evening in order to meet
   the conversion schedule.  Protest File, Exhibit 1004 at 88-91.  
 
        The technical area summary prepared  on April 22, 1994, does
   not mention  I-Net's fingerprint conversion experience.   Protest
   File, Exhibit 20 at  1.  The management area  summary prepared on
   April  22, 1994,  mentions  that  I-Net's fingerprint  conversion
   experience is        , and  also mentions  that I-Net's  proposed
   subcontractor  was   currently  working   on  fingerprint   image
   conversion.   I-Net's fingerprint  conversion experience was  not
   identified  as a  weakness.    The  overall rating  (      )  was
   primarily due  to concerns  about I-Net's                        
                                             .       Protest   File,
   Exhibit 20 at 167.  
 
        The  technical area summary  prepared on May  20, 1994, does
   not mention I-Net's fingerprint  conversion experience.   Protest
   File, Exhibit 25 at 1-2.  The management area summary prepared on
   May  20,  1994,  mentions  that  I-Net's  fingerprint  conversion
   experience consists of                 and that its managers lack
   experience  in                                  .  The management
   area summary also mentions  that I-Net's proposed  subcontractors
   provide  the needed technical support and have experience working
   with the  Government's fingerprint imaging  efforts.   As far  as
   weaknesses are concerned, the management area summary states that
   I-Net has                                                        
 
                                                                    
                                     .      The    risk   assessment
   expressed some  concern about                              .  The
   management  area  summary  also  discusses  management tools  and
   procedures, conversion methodology,  and other management factors
   and  states,  "Overall,  the  Offeror's  proposal  demonstrates a
   satisfactory  approach and  understanding  of the  requirements."
   The area received a rating of      .  Protest File, Exhibit 25 at
   240-41.  
 
        The technical area  summary prepared on September  30, 1994,
   does  not mention I-Net's fingerprint conversion experience.  The
   summary  does  mention   that,  during  the  second   PCD,  I-Net
   demonstrated   a   lack   of  understanding   of   the   problems
   with                                                             
                                                                  .
   The  comments contained in  the technical area  summary are based
   upon the results of the second PCD and are not based upon I-Net's
   prior fingerprint  conversion experience.  Protest  File, Exhibit
   38 at 1-2.  
 
        The  management area summary  prepared on October  11, 1994,
   mentions the size  of I-Net's previous fingerprint  card project.
   Also, one of  several comments made concerning  I-Net's personnel
   is that they                                                     
                                                          .  I-Net's
   fingerprint  conversion   experience  is  not   identified  as  a
   weakness, and the overall rating for the management area is      
   .   Concerning risk, which was rated        , the management area
   summary states that I-Net's previous experience had              
                          , and that I-Net's                        
         posed a risk because                                       
                                     .  The  management area summary
   also discusses weaknesses in I-Net's proposed                    
   which could lead to  a                   .  Protest File, Exhibit
   38 at 177-78.  
 
        PFNs 2620 and 2623, which were sent to I-Net by the  Army on
   October  12,  1994, mention  that  I-Net and  its  personnel have
                                         .  These PFNs ask I-Net  to
   provide more  description of its                                 
                              , and ask I-Net how it will           
                                                                    
                         .   I-Net  provided extensive  responses to
   both  of these PFNs and also made some revisions to its proposal.
   Protest File,  Exhibit 39 at  51-54, 61-62.   During face-to-face
   negotiations  concerning PFN 2620,  the Army  told I-Net  that I-
   Net's "conversion experience is compliant" and noted that it  had
   not issued any  deficiency notices.  Protest File,  Exhibit 68 at
   4.  
 
 
        The November 21,  1994 technical area summary  mentions that
   I-Net's second PCD demonstrated "                                
                                                                   
        ."   Protest File,  Exhibit 42  at 1.    The technical  area
   summary   does   not  mention   I-Net's   fingerprint  conversion
   experience.   Protest File,  Exhibit 42.   The November  18, 1994
   management area summary  discusses all of I-Net's  experience and
   concludes, "                                                     
                                                                 
                                            ."       Protest   File,
   Exhibit 42  at 104.   The management  summary notes  that I-Net's
   proposed  subcontractors have  some  experience with  fingerprint
   conversion and states that I-Net's personnel                     
                      , which presents one risk                     
           .  Another risk was due to I-Net's proposed              
        .  The management area summary mentions                     
                                                                    
                                    ,   and   the   management  area
   received an  overall  rating of        .   Concerning  risk,  the
   management area  summary  states that  I-Net's prior  fingerprint
   conversion experience was       and had                          
                    , that the problems encountered by I-Net  during
   performance  of its fingerprint  conversion project posed  a risk
   concerning                                                       
                                                                .
   The management area summary also mentions that I-Net's           
             poses a risk.  Protest File, Exhibit 42.  
 
        The individual  who prepared the  management area  summaries
   testified  that a lack of fingerprint conversion experience would
   not  have disqualified I-Net  from award.   He considered I-Net's
   management  proposal  to   have  a   weakness,  because   I-Net's
   participation in the fingerprint conversion project identified in
   its proposal "was           " and  because that project "        
                                                             
          ."    Transcript  at  168-73.    He  also testified  that,
   although  his  assessment  of the  risk  associated  with I-Net's
   management proposal was due, in part, to its                     
                        , his assessment was due, in larger part, to
   the                                                              
                                             .   Transcript at  198-
   200, 207-10.   He  testified that  I-Net's                       
   experience was  not a serious  problem that ended  I-Net's chance
   for award.  Transcript  at 206.  He also testified  that the Army
   never   issued  a   clarification   request  concerning   I-Net's
   fingerprint  conversion experience  because I-Net's  proposal was
   not unclear concerning  its experience, and because it would have
   been "like leveling  the field" if the  Army had told  I-Net that
   its  experience was weak  and asked I-Net  to provide information
   showing better experience.  Transcript at 192-93.  
 
        In its  November 22, 1994 report, the SSRB notes that one of
   Morpho's advantages  in the  management area  is its  comparative
                                                                   
                .   The  SSRB also  notes  that                     
                                                             
                                                                    
                          .  Protest File, Exhibit 72 at 35-36.  The
   program manager,  who was  also a member  of the  SSRB, testified
   that the flaws in I-Net's  conversion process could have been the
   result  of   I-Net's  lack   of  understanding   of  the   Army's
   requirements or could have been the result of poor performance by
   I-Net.  Transcript at 238, 243.  
 
        I-Net's  expert testified that,  in his opinion,  the Army's
   evaluators  treated   fingerprint  conversion  experience   as  a
   mandatory requirement.  Transcript at 435, 484-85.
 
                               Discussion
 
        There are  two  bases for  I-Net's  protest.   First,  I-Net
   complains that the Army determined that I-Net's proposal contains
   deficiencies and  never  told  I-Net  about  those  deficiencies.
   Second,  I-Net  complains  that  the  Army  imposed  an  unstated
   requirement for a certain minimum level of fingerprint conversion
   experience.   As explained below,  we conclude that the  Army did
   not  determine  that   I-Net's  proposal  contains  deficiencies.
   Although the  Army determined  that, in  some instances,  I-Net's
   proposal  contains weaknesses  and does  not  fulfill the  Army's
   requirements  as well as  Morpho's proposal, the  Army determined
   that   I-Net's  proposal  meets  the  Army's  requirements.    In
   addition,  we  conclude  that  the   Army  did  not  establish  a
   requirement  for  a  minimum  level  of   fingerprint  conversion
   experience.    I-Net's  fingerprint   conversion  experience  was
   appropriately  considered and evaluated by the Army in accordance
   with the relevant solicitation provisions.
 
   Requirements and Deficiencies
 
        In  a negotiated procurement,  the Government  establishes a
   competitive  range   by  determining   which  proposals   have  a
   reasonable chance of  being selected for award.   48 CFR   15.609
   (1993)  (FAR 15.609).   The Government then  conducts discussions
   with   responsible  offerors  who  submit  proposals  within  the
   competitive range.  FAR 15.610.  One purpose of discussions is to
   advise offerors of deficiencies  in their proposals so  that they
   are  given   the   opportunity  to   satisfy   the   Government's
   requirements.  A "deficiency" means  "any part of a proposal that
   fails to satisfy the Government's requirements."  FAR 15.601.  
 
        I-Net argues that  the IQS and sections 3.5,  3.5.1, and 5.0
   of   Attachment   B  to   the   solicitation   contain  mandatory
   requirements,  and that the Army determined that I-Net's proposal
   fails  to  meet  these  requirements.   I-Net  asserts  that  the
   Government violated the procurement  regulations discussed in the
   preceding paragraph  because the  Government did  not tell  I-Net
   that its proposal fails to satisfy these requirements. 
 
        The Army  decided that  the IQS  does not  contain mandatory
   requirements.  The provisions of the IQS are not contained in the
   Army's  proposal compliance validation  checklist, which was used
   to   determine   whether   proposals   met   the   solicitation's
   requirements.   The IQS states that it  would be used during PCDs
   as an  indication of capability  to perform.  At  the preproposal
   conference, offerors were  told that the IQS  contains attainable
   goals.  In  response to a  vendor question, the Army  amended the
   solicitation to explain that, during PCDs, offerors were expected
   to show  how well --  not whether --  their systems met  the IQS.
   The  amendment  states  that  offerors  could  deviate  from  the
   parameters  established by  the IQS,  and that  the Army  was not
   establishing  pass/fail  criteria  for image  quality.    The IQS
   provides one means for evaluating  proposals, and that is how the
   IQS was utilized by  the technical area evaluators.  The Army did
   not determine that I-Net's proposal contains deficiencies related
   to the IQS  because the Army evaluators properly  understood that
   the IQS does not contain mandatory requirements.  
 
 
        Sections  3.5,  3.5.1,  and  5.0  of  Attachment  B  to  the
   solicitation contain mandatory requirements.  According to I-Net,
   these  requirements  are  included  in  the   considerations  and
   standards that  were evaluated  by the  Army.   Protester's Post-
   Hearing  Brief   at  11,  n.3.     As  evidence  of   the  Army's
   determination   that  I-Net's   proposal   fails   to  meet   the
   requirements of Attachment  B, I-Net points to the  fact that the
   evaluators'  factor  worksheets  contain  "-"  ratings  for  some
   standards and  considerations  and  contain  comments  concerning
   problems  with I-Net's proposal.   Protester's Post-Hearing Brief
   at 15-16.
 
        The ratings and comments contained in the evaluators' factor
   worksheets do not establish that the Army determined that I-Net's
   proposal fails  to meet  the requirements of  Attachment B.   The
   worksheets  comprise only the  notes made by  the evaluators when
   they were reviewing  each proposal.  The ratings  assigned by the
   evaluators  reflect how well  they believed I-Net's  proposal met
   the  standards  contained   in  the  worksheets.     Because  the
   worksheets  express some  concerns  about  I-Net's proposal,  the
   technical  panel leader  met with  the  evaluators and  discussed
   their  comments  in  order to  ascertain  whether  the evaluators
   believed  that  I-Net's  proposal  fails  to   meet  any  of  the
   solicitation's  requirements.  Based  upon these discussions, the
   technical panel leader determined  that I-Net's proposal contains
   no deficiencies.  This decision is consistent with the conclusion
   reached  by the validators who, using their checklist, determined
   that I-Net's proposal meets the  solicitation's requirements.    
 
 
        The  factor, item,  and area  summaries  contain the  Army's
   decision   concerning   whether   I-Net's   proposal  meets   the
   requirements of  Attachment B.   After  the evaluators  completed
   their individual  worksheets, they met, discussed  their ratings,
   and resolved  any differences in  order to arrive at  a consensus
   rating which  is contained in  the factor summaries.   The factor
   summaries  were  combined  into  item  summaries,  and  the  item
   summaries were  combined into area summaries.   The factor, item,
   and  area  summaries  consistently refer  to  I-Net's  proposal's
   problems  as weaknesses, not deficiencies, and state that I-Net's
   problems  were  correctable.   A  "red"  rating  would have  been
   assessed  in the  item  and area  summaries  if I-Net's  proposal
   failed to meet  a mandatory requirement, and no  "red" rating was
   ever assigned by the evaluators.
 
        The PFNs issued by the Army establish that I-Net experienced
   problems with                                                    
                                                              
 
         .     I-Net contends  that  these PFNs  reflect the  Army's
   determination   that  I-Net's   proposal  contains   deficiencies
   concerning   image   quality.[foot #] 4       Protester's   Post-
   Hearing Brief at 16.   The Army never considered I-Net's proposal
   to be  deficient as a result of  encountering these problems.  As
   required  by  Attachment  B,  I-Net  scanned  and  converted  the
   fingerprint cards, applied pass/fail criteria,  and implemented a
   quality control program.   The Army consistently  determined that
   I-Net met  the Army's image  quality requirements.   The problems
   experienced by I-Net  affected the Army's assessment  of how well
   I-Net met the requirements of Attachment B, not whether I-Net met
   those requirements.
 
        Although  the  SSRB  report  states  that  I-Net's  proposal
   complies with the solicitation's requirements and is eligible for
   award, I-Net asserts that the SSRB report  contains evidence that
   the Army determined that  I-Net's proposal contains deficiencies.
   I-Net states that the SSRB noted that the I-Net offer "should" be
   barred from award.   Protester's Post-Hearing Brief at  35.  This
   is not what  the SSRB report says.   In the course  of discussing
   the  appropriate tradeoff between technical merit and cost, which
   is not an issue in this protest, the SSRB report states that     
                                                                 
        .  But, the  SSRB did not bar  I-Net from consideration  for
   award.   Instead, it  thoroughly examined  the merits  of I-Net's
   proposal and considered  whether to award to I-Net  or to Morpho.
   I-Net also states  that the SSRB determined that  one-third of I-
   Net's images would  be unusable.  Protester's Reply  Brief at 17.
   Again, this is not what the SSRB  report says.  The report states
   that                                              ,  and this  is
   approximately     percent -- not one-third -- of the total images
   to be converted.
 
        The  Army  did  not  determine  that  I-Net's  proposal  was
   deficient and then fail to discuss this determination with I-Net.
   The  record  establishes  that  the  Army  decided  that  I-Net's
   proposal  addressed  all   of  the  solicitation's  requirements,
   although   I-Net's  proposal   did  not   always  address   those
   requirements as well as I-Net might have wished.
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 4     I-Net also contends that the Army  determined
   that I-Net's lack of sufficient fingerprint conversion experience
   constituted  a  deficiency.    This  issue  is  addressed  in the
   following section of this opinion.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   Fingerprint Conversion Experience
 
 
        The  Army was  required  to  state  clearly  the  evaluation
   factors  that it  would  consider  during  its  source  selection
   process.   FAR 15.610(e).   I-Net alleges that the  Army violated
   this regulation because it required offerors to possess a certain
   minimum level of fingerprint conversion experience and never told
   offerors of this requirement.  
 
        Neither the technical nor the management summaries establish
   that  the Army  imposed  a  requirement for  a  minimum level  of
   fingerprint  conversion  experience.    The  solicitation  states
   clearly that  the Army  intended to  consider I-Net's  experience
   with similar projects when it evaluated the management area of I-
   Net's proposal.  The record establishes that, when evaluating the
   management area,  the Army considered the  fingerprint conversion
   experience  identified by I-Net.   The management  area summaries
   establish that the Army was concerned about I-Net's              
                                                                    
                                                                    
                                                                    
     .  The Army considered  I-Net's proposal to have a  weakness in
   the management area due to its                                   
      , although a  lack of fingerprint conversion  experience would
   not have disqualified I-Net from  award.  In none of the  factor,
   item, or area summaries did  the Army ever determine that I-Net's
   proposal was  deficient because  I-Net was  lacking some  minimum
   level of fingerprint conversion experience.  
 
        The SSRB  speculated that perhaps I-Net's                   
              is the basis  for flaws in I-Net's  conversion process
   and for I-Net's lack of  understanding of the conversion process.
   Perhaps  the SSRB  is correct and  perhaps not.   Either way, the
   SSRB's speculation as  to the cause of I-Net's  problems does not
   establish that the Army imposed a requirement for a minimum level
   of fingerprint conversion experience.
 
        There  is no  evidence  to suggest  that  the Army  required
   offerors to  possess a certain  number of years of  experience in
   fingerprint conversion,  to have  completed a  certain number  of
   fingerprint  conversion  projects, to  have  converted  a certain
   number of  fingerprint cards,  or to have  achieved any  level of
   expertise  in fingerprint  conversion.   The  Army evaluated  the
   fingerprint  conversion   experience  identified  by   I-Net  and
   determined that I-Net's experience                               
                                                                    
              .  The Army's evaluation is consistent with  the terms
   of the  solicitation.  The  evidence does not establish  that the
   Army imposed  a requirement  for a  minimum level of  fingerprint
   conversion experience.  
 
                                Decision
 
        The protest is DENIED.   The suspension of the delegation of
   procurement authority lapses by its terms.
   _______________________________
 
                                      MARTHA H. DeGRAFF
                                      Board Judge
 
   We concur:
   _______________________________
   ________________________________
   CATHERINE B. HYATT                 ALLAN H. GOODMAN
   Board Judge                        Board Judge