THIS OPINION, ORIGINALLY ISSUED UNDER PROTECTIVE ORDER,
            IS RELEASED WITHOUT REDACTION ON AUGUST 1, 1995
 
                   _________________________________
 
                   GRANTED IN PART: December 8, 1994
                   _________________________________
 
 
                             GSBCA 12999-P
 
 
                     COLUMBIA SERVICES GROUP, INC.,
 
                                        Protester,
 
                                  and
 
                        TRESP ASSOCIATES, INC.,
 
                                        Permissive Intervenor,
 
                                   v.
 
                         DEPARTMENT OF ENERGY,
 
                                        Respondent.
 
        David  R. Smith, General Counsel of Columbia Services Group,
   Inc., Arlington,  VA; and John R.  Tolle and William  T. Welch of
   Barton, Mountain & Tolle, McLean, VA, counsel for Protester.
 
        Mary Beth  Bosco, Timothy B.  Mills, Glenn T.  Reynolds, and
   Christy L. Gherlein of Patton Boggs,  Washington, DC, counsel for
   Permissive Intervenor.
 
        Mary D. Copeland,  Wendy E. Ojeda, and Nicole Porter, Office
   of Chief  Counsel, Department of  Energy, Oak Ridge,  TN, counsel
   for Respondent.
 
   Before Board Judges PARKER, HYATT, and VERGILIO.
 
   VERGILIO, Board Judge.
 
        On October 3, 1994, Columbia Services Group, Inc. filed this
   pre-award  protest  challenging  actions of  the  respondent, the
   Department   of  Energy,  Oak   Ridge  Operations  Office  (ORO).
   Following submission  of initial  proposals and  evaluations, the
   agency   determined  that  the   protester  is  not   within  the
   competitive range.  The protester maintains that the agency lacks
   procurement authority to proceed with the procurement, improperly
   evaluated the cost  and technical volumes  of the proposals,  and
   improperly  made the  competitive  range  determination.   Having
   previously filed a protest with the Comptroller General involving
   this  procurement,   TRESP  Associates,  Inc.  is   a  permissive
   intervenor.
 
 
        The  Board  concludes  that   the  agency  has   procurement
   authority  to proceed  with  this procurement.    Aspects of  the
   evaluations  were not  consistent  between  the  offerors.    The
   protester  has  established  that  with  proper  evaluations  and
   discussions   of  weaknesses,   as  required   by  the   agency's
   regulations, the  protester has  a reasonable  chance for  award.
   The  agency  erred   in  its  competitive  range   determination.
   Accordingly, the Board grants in part the protest.
 
                            Findings of Fact
 
   The solicitation
 
        1.   In  January 1994,  the  agency  issued  a  request  for
   proposals to result in  a contract for  one year, with four  one-
   year options.   Protest  File,  Exhibit 8  at  17 (  F.1).    The
   solicitation  contemplates the  award of  a labor-hour  contract;
   however, the  agency expressly  reserves the  right to  negotiate
   whatever contract type it determines to be most appropriate.  Id.
   at  83 (  L.13).    The solicitation  specifies  that, under  the
   contract,  reimbursed  costs  are  to be  incurred  only  in  the
   performance of contracting officer-issued task orders.  Id. at 29
   (  H.8).
 
        2.   The  solicitation's  statement  of  work describes  the
   project as requiring the contractor  "to provide a broad array of
   information  resources  and   facilities  management  functions."
   Protest  File, Exhibit 8, Attachment at 1  (  II).  A "summary of
   tasks" within  the statement of work  states that the work  to be
   performed  shall include eight particular services, each of which
   is   described:   computer  operations,   software   engineering,
   networking support, hardware maintenance, user support,  computer
   security,  special studies,  and office  administration services.
   Id. at  1-3 (  III).   The contractor  is to provide  training as
   well.  Id. at 4 (  VI).
 
        3.   The solicitation,  as amended  at the  time of  initial
   proposals, describes eleven labor categories of non-key personnel
   whose services may be ordered under the contract.  For each labor
   category,  the   solicitation  specifies   a  number   of  direct
   productive labor hours (DPLH) for  the base and each of the  four
   option years,  as well  as the DPLH  of overtime  anticipated, if
   any.  The given DPLH, which total  410,562.5, are to form a basis
   for proposals, award  and contract.  Two of  the eleven positions
   are Secretary I and Switchboard Operator-Receptionist.  The total
   DPLH for these  two categories is  29,062.5; the individual  DPLH
   are, respectively, 14,062.5  and 15,000.  The total  DPLH for the
   remaining  categories  (different  levels of  computer  operator,
   programmer, and systems  analyst, as well  as a technical  writer
   and  an  instructor)  is  381,500.    Protest  File, Exhibit  10,
   Attachment E at 1.[foot #] 1
 
 
        4.   In  addition to  non-key personnel,  an  offeror is  to
   propose  key  personnel--those  individuals "considered  [by  the
   offeror] to be  essential to the work being  performed" under the
   contract.    Protest  File,  Exhibit   8  at  27  (  H.5).    The
   solicitation does not  specify any number of  key personnel which
   an  offeror  is to  provide  or otherwise  define  any particular
   position within  the key personnel  category.   Id., Exhibit  10,
   Questions and  Answers at  1 (  2).   The solicitation  specifies
   that  the described labor categories and associated DPLH, Finding
   3, do not include key  personnel, although offerors "are required
   to propose key personnel positions."  Id. at 2 (  9).
 
        5.   The proposal of each offeror  is to contain a volume on
   technical and business management and  a volume on cost.  Protest
   File, Exhibit 10 at 90 (  L.35.b.1).  The            solicitation
   establishes criteria for  purposes of  proposal preparation,  and
   evaluation  and selection.  The criteria fall under the headings:
   planning and organization; key personnel; experience  of offeror;
   organizational structure; and corporate commitment.  Id., Exhibit
   8  at 90-107 (   L.35  to L.38), Exhibit  10 at 90,  96, 97, 101;
   Finding 14 (  M.3).  
 
   Technical and business management volume
 
        6.   Regarding the technical and business management volume,
   the  proposal preparation  instructions specify,  under criterion
   1.b, planned approach  to assure an effective  diversity program,
   what an offeror is to do:
 
        Describe the planned approach to assure effective equal
        employment   opportunity   and    affirmative   action,
        including:
 
        --   offeror's     current    equal     employment
             opportunity and  affirmative action  policies
             and practices.
 
        --   past, present  or future  planned initiatives
             or activities which  demonstrate a commitment
             to innovative  affirmative actions  affecting
             direct-hire work  force, subcontractors,  and
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 1                      As amended, the solicitation
   requires the  contractor to  give the right  of first  refusal of
   employment  and  other  benefits  to  non-key  employees  of  the
   predecessor  contractor, under  specified  terms and  conditions.
   Protest File, Exhibit 10 at 34 (  H.20).
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
             any       community      involvement/outreach
             activities.
 
        --   the  extent  and  nature of  experience  with
             federal,  state  and   local  compliance  and
             complaint handling agencies in the past  five
             years.
 
   Id., Exhibit 10 at 96 (  L.37.b.2(b)(1)).
 
        7.   The  "key personnel"  portion  of the  proposal  "shall
   describe  the offeror's  personnel resources  which are  integral
   factors for successfully completing the work under the contract."
   Protest File, Exhibit  10 at 97 (  L.37.b.2.(b)(2)).  In addition
   to requiring a  resume for each key  personnel position proposed,
   the solicitation instructs offerors:
 
        Provide a signed commitment letter from each of the key
        personnel proposed, and state the percentage of time to
        be devoted to the contract  by these personnel.  In the
        event any  of the key  personnel will not  be committed
        full  time  to  this contract  an  explanation  must be
        provided.   The commitment letter  from each of the key
        personnel    must    reflect     each    individual[']s
        unconditional agreement  to accept the  position if the
        offeror is awarded the contract.  Failure to submit the
        letter(s) of  commitment will  result  in the  proposal
        being evaluated as deficient in this area.
 
        Provide a letter of intent for any individuals proposed
        as   key  personnel   (including  any   consultants  or
        subcontractors)  who are  not  currently on  the  prime
        offeror's payroll.
 
   Id.  In  response to a  question asking how  the agency plans  to
   order  program  manager  (i.e.,  a  key  individual)  hours,  the
   solicitation  states:  "The  government  will  not order  Program
   Manager  Hours.     The  offeror  is   expected  to  propose   an
   organizational  structure   and  identify   responsibilities  and
   authorities.    If the  offeror  determines  a  need for  Program
   Manager  functions,  it  should  be  reflected  in  the  proposed
   organizational  structure and costed  out in the  cost proposal."
   Id., Questions and Answers at 14 (  68).
 
        8.   The  third  section  of  the  proposal,  experience  of
   offeror,  "shall describe  the total  experience  of the  offeror
   which will contribute  to successfully completing the  work under
   the   contract."       Protest    File,   Exhibit    8   at    98
   (  L.37.b.2.(b)(3)).   The related criterion  considers "[r]ecent
   (past 3  years), relevant  experience, technical competency,  and
   past record in providing services comparable to those required by
   the statement of work."  Id.  The solicitation specifies that the
   proposal is  to identify  not more than  four recent  projects of
   comparable  type, size,  and complexity  and  provide a  customer
   point of  contact for reference.   For each of  the projects, the
   proposal   is   to   describe   relevant  experience,   technical
   competency, and customer relations.  Id.
 
 
        9.   The  fourth  section  of  the proposal,  organizational
   structure, "shall describe  the organization to be  instituted by
   the Contractor to ensure that  all requirements of the  Statement
   of   Work  are   met."      Protest  File,   Exhibit   8  at   99
   (  L.37.b.2.(b)(4)).  The  instructions state that a  proposal is
   to  provide "a  comprehensive  staffing  plan,  and  discuss  the
   allocation of skills in  relation to effort required  and ability
   to respond to changing needs."  Id. 
 
   Cost volume
 
        10.  For the base  and each option year, each  offeror is to
   provide  a fixed, hourly  rate (including wages,  indirect costs,
   general and administrative  expenses, and profit) for  each labor
   classification which  the offeror  identifies; these  unit prices
   are subject  to change only  if required by the  Service Contract
   Act of  1965.  Protest  File, Exhibit  10 at  4-9 (   B.3,  B.5),
   Questions and Answers at 3 (  16).
 
        11.  A portion of the cost volume is to consist of mandatory
   exhibits.   One exhibit  is to contain  the labor  categories and
   hours that form  the basis of the  offer.  Another exhibit  is to
   "show the  details of  how  the labor  rates used  in [the  other
   exhibit] were derived.  . . .   Identify Key and Resume personnel
   by  name and  labor category."   Protest  File, Exhibit 8  at 103
   (   L.38.d.2,  4).    Through  an  answer  to  a   question,  the
   solicitation  highlights that,  for key  personnel, offerors  are
   required  to propose  fully loaded  labor rates,  as well  as the
   estimated direct productive labor hours  for the positions.  Id.,
   Exhibit 10, Questions and Answers at 2 (  9).
 
        12.  The agency  fails to provide  a responsive answer  to a
   question asking how the agency will evaluate an offeror proposing
   labor rates below  those of the  incumbent; rather, the  response
   states  that a  "new clause,  H. 20, Right  of First  Refusal for
   Employment,  has been  added to  the  solicitation.   This clause
   states   that  the   successful  contractor  must   provide  both
   compensation  and benefits which are equivalent to those provided
   by  the predecessor  contractor."    Protest  File,  Exhibit  10,
   Questions and Answers  at 5 (  24).  The  clause does not require
   an offeror to directly charge the agency at or above the rates of
   the incumbent,  although the  contractor may  be required  to pay
   such rates.
   Evaluation and selection criteria
 
 
        13.  The   cover   letter    within   the   initially-issued
   solicitation summarizes  the evaluation process  and states  that
   the  "DOE Draft Source  Evaluation Board Handbook  dated November
   1992 will be  used as guidance only."  Protest File, Exhibit 8 at
   2  (  Evaluation  Criteria).   Amendment  2  to  the solicitation
   deletes the  reference to the  Handbook.   Id., Exhibit 10  at 1.
   The  amendment does  not  state  that the  handbook  will not  be
   used.[foot #] 2     Instead,  section   M  of   the  solicitation
   specifies:  "Proposals  will  be  evaluated  in  accordance  with
   applicable Federal and DOE  acquisition policies and procedures."
   Id. at 120 (  M.2.a).
 
        14.  The solicitation  contains the criteria under which the
   technical and business management aspects of proposals  are to be
   evaluated.   Within  each criterion,  subcriteria  are listed  in
   descending order of importance:
 
        1.   Planning and Organization
 
        Criterion   1.a. Planned   approach   to   successfully
        accomplish  the   work  including   management  control
        systems to  assure cost  efficiency, customer  service,
        responsiveness/timeliness, quality  of work,  efficient
        utilization   of   resources,    and   application   of
        information resources technology.
 
        Criterion   1.b. Planned  approach   to  an   effective
        diversity program.
 
        2.   Key Personnel
 
        Criterion 2.a. Relevant experience, qualifications, and
        commitment of key  personnel, (those whom you  consider
        to  be critical to the successful accomplishment of the
        Statement   of  Work)   including  the   experience  in
        comparable  work,  technical   skills,  and  management
        experience.
 
        3.   Experience of Offeror
 
        Criterion   3.a. Recent   (past  3   years),   relevant
        experience, technical  competency, and  past record  in
        providing services comparable to  those required by the
        Statement of Work.
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 2                      Although   some  counts   of
   protest allege that the  agency has failed to abide  by the draft
   handbook, the protester has not introduced that document into the
   record and has not made any argument with respect to a particular
   aspect of the draft handbook.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        4.   Organizational Structure
 
        Criterion   4.a. Proposed   organizational   structure,
        proposed staffing plan and delegation of responsibility
        and authorities.
 
        5.   Corporate Commitment
 
        Criterion  5.a. Interest  and commitment  of  corporate
        management to achievement  of excellence in performance
        of  the  work  (for prime  and  any  subcontractors, if
        applicable).
 
   Protest File, Exhibit 10 at 120-21 (  M.3).
 
        15.  The  solicitation specifies that  cost proposals are to
   be evaluated to establish  the reasonableness and appropriateness
   of the costs, and the  evaluated probable cost to the Government.
   Cost criteria  are not  to be  assigned numerical  weights, point
   scored or  adjectivally rated.   Protest File, Exhibit 10  at 121
   (  M.3.B).
 
        16.  The selection criteria specify the relative  weights of
   the technical evaluation  criteria, and state that  the technical
   proposal  is  of  greater  importance  than  the  cost  proposal;
   however, if  "two or more competing overall  proposals are within
   the  competitive range, evaluated probable cost to the Government
   may be the deciding factor for selection."  Protest File, Exhibit
   10 at 122 (  M.5).
 
        17.  The solicitation  addresses discussions  with offerors:
   "The  Contracting Officer may conduct written or oral discussions
   with any or  all of the offerors.   Offerors will be  notified of
   the  date, time,  and place for  any such oral  discussions.  Any
   such  discussions  will  be  conducted  in  accordance  with  DOE
   acquisition policies and procedures."  Protest File, Exhibit 8 at
   89 (  L.29).
 
   Initial proposals and the evaluation process
 
        18.  Initial  proposals were received  by April 15,  the due
   date.  Protest File, Exhibit  12.  The protester, the intervenor,
   and others submitted  initial proposals.  Id., Exhibit  21 at 10-
   11.
 
        19.  The  agency  source  evaluation  board  (SEB)  for this
   procurement established a technical evaluation committee (TEC) to
   evaluate  the  technical   and  business  management   volume  of
   proposals, and  a cost committee  to evaluate the cost  volume of
   proposals.  Two of the three voting  members of the SEB served as
   evaluators on the  TEC.  Each SEB member  evaluated the technical
   and business management volume of  proposals.  With reports  from
   the TEC and cost committee available, and after discussions among
   agency personnel, the SEB computed final scores for each proposal
   (the  average scores  of the  three voting  members).   The final
   scores were reported to the  source selection official (SSO) in a
   report   and  presentation   regarding   the  competitive   range
   determination proposed  by  the SEB.    Transcript at  210,  338;
   Protest   File,   Exhibit   21    at   11-12[foot #] 3,   Exhibit
   22.
 
 
        20.  Although not part of  the solicitation (and  presumably
   not  released  to  offerors such  that  there  exists  no offeror
   reliance), the  agency established a  rating plan for the  SEB to
   use in evaluating proposals.  Protest File, Exhibit 21 at 126a to
   126d.  The rating plan establishes the following guidelines to be
   used in assigning scores to proposals:
 
        score     guideline
        10   Offeror  fully addresses  all aspects  of the
             criterion, convincingly demonstrates  that it
             will  meet the  performance requirements  and
             demonstrates no weaknesses.
 
        8    Offeror fully  addresses all  aspects of  the
             criterion,   convincingly  demonstrates   the
             ability to meet  the Government's performance
             requirements  and  demonstrates  only  a  few
             minor weaknesses.
 
        5    Offeror fully  addresses all  aspects of  the
             criterion,  demonstrates   a  likelihood   of
             meeting the Government's  requirements, an[d]
             demonstrates several minor weaknesses.
 
        2    Offeror does  not address all  aspects of the
             criterion,   nor   is    evidence   presented
             indicating  the  likelihood  of  successfully
             meeting the Government's requirements.
 
        0    Offeror  does not address  all aspects of the
             criterion,  and  the   information  presented
             indicates a  strong likelihood of  failure to
             meet the Government's requirements.
 
   Id. at 126b.
 
        21.  The rating plan  further specifies: "Following  initial
   evaluations, the  SEB may  conduct written  and oral  discussions
   with  each  offeror  in  the  competitive  range  to  clarify  or
   substantiate  questionable aspects of the proposal; to assess the
   key  personnel; to review experience on  related projects; and to
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 3                      The  evaluation  methodology
   does not  fully comply with the  SEB rating plan.   Protest File,
   Exhibit 21 at 126a.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   gauge  the  degree of  capacity  and  interest to  undertake  the
   project  in light of other work planned  or in process."  Protest
   File, Exhibit 21 at 126b.  
 
 
        22.  The final scoring by the SEB as reported to the  SSO is
   not consistent  with the  SEB rating plan.   For  each evaluation
   criterion, the SEB report details the strengths and weaknesses of
   the proposals.   Despite the recognition by the  SEB members that
   weaknesses exist  for  particular aspects  of various  proposals,
   perfect scores were awarded.   Protest File, Exhibit 21 at 29-30,
   32, 66, 104, 151-52.   This is contrary to the  plan which states
   that a  perfect score will be  awarded only if  no weaknesses are
   present.  Finding 20.
 
        criterion 1.b
 
        23.  Regarding  criterion 1.b, the  SEB noted a  weakness in
   the  protester's   proposal:   "The   offeror's   discussion   of
   initiatives  for  community  involvement/outreach  activities  is
   weak."  Protest File, Exhibit 21 at 105.  The protester specifies
   in  its proposal  simply  that  it  externally  communicates  its
   affirmative action program by disseminating it through recruiting
   sources and  various  organizations within  the  community,  that
   prospective employees are informed of  the existence of the plan,
   and that newspaper advertising indicates that the protester is an
   equal opportunity employer.  Id.,  Exhibit 14 at II-36.  The  SEB
   rated the protester  at 8 for this criterion.  Id., Exhibit 21 at
   151.
 
        criterion 2.a
 
        24.  Regarding criterion 2.a, the SEB rated the protester at
   5.  Protest File, Exhibit 21 at 151.   The SEB report notes seven
   paragraphs  of  weaknesses.    Id.  at  106-07.    One  paragraph
   highlights an inconsistency between the letters of commitment and
   availability  of  the  individuals and  the  requirements  of the
   solicitation.   The  protester states  in its  proposal that  key
   personnel are  currently available  and fully  committed to  this
   project.   Further, the proposal  states that  all key  personnel
   have signed letters of commitment acknowledging a willingness and
   intent  to work  100 percent  on the  project for  the protester.
   Id.,  Exhibit 14  at II-49  (  2.2.3).   For  each key  personnel
   position,  the proposal contains  two letters on  the protester's
   stationery.   A "contingency  offer letter" which  establishes an
   initial  salary  and   benefits,  and  is  contingent   upon  the
   Government awarding  the contract at  the level projected  in the
   solicitation,  is  dated March  17,  1994, to  each  proposed key
   employee.    Id.,  Appendix  B  (pages  following  II-90).   Each
   employee has  "accepted and  agreed to" the  terms of  the letter
   with a signature  and date of  either March 19  or 21.   However,
   each proposed key  employee has also signed  (without a signature
   date) a letter also on the protester's stationery and dated March
   18,  which  states: "I  intend to  accept this  position if  I am
   available  for employment and  under mutually agreeable  terms of
   employment between [the protester] and me."  Id.
 
 
        25.  Consistent  with  the   information  contained  in  the
   resumes  and proposal,  the SEB  report also  identifies  in four
   paragraphs other weaknesses  in the key personnel  portion of the
   protester's proposal; the weaknesses reflect  concerns about what
   the  individuals  have  actually  done  and  how  relevant  their
   experience is to the contract.  Protest File, Exhibit 14 at II-42
   to II-49, II-79 to II-88, Exhibit 21 at 106.
 
        26.  The final two paragraphs  of the protester's weaknesses
   state:  "None  of  the  key  personnel  currently  work  for  the
   proposer,"  and "None  of  the  key personnel  have  worked in  a
   support  services environment  similar to  ORO."   Protest  File,
   Exhibit 21 at 107.  Similarly, for other offerors, in  its report
   the SEB identifies  as a weakness that proposed  key personnel do
   not and have  not worked for the offeror (or subcontractor).  Id.
   at 31,  68, 112.  Other  weaknesses are identified for  each such
   offeror.  Id.   No SEB evaluator  gave such an offeror  a perfect
   score.   Id.  at 151.   The rationale  of the  SEB in  support of
   treating as a  weakness a key employee's lack  of work experience
   with the  employer  is  that working  with  the  employer  brings
   particular knowledge  (e.g., the philosophy of  the organization)
   to the process.  Transcript at 305-09, 407-08.
 
        criterion 3.a
 
        27.  The  SEB's  final  evaluation  of  the  "experience  of
   offeror" portion of the protester's proposal resulted in  a score
   of  5.   Protest  File,  Exhibit  21  at  151.   The  SEB  report
   identifies four  paragraphs of  weaknesses, one  related to  each
   project identified by the protester:
 
        [One] contract  appears to  provide project  management
        and  planning expertise  for  a  major  software  ($500
        million)  project.   There  is  not  enough  detail  to
        determine  the specific project duties or relevance  to
        the ORO SOW.  Also, the number of personnel or the size
        of [protester's] portion  of this large project  is not
        clear.
 
        [Another]  project is relevant in some respects, but is
        smaller in size [a full-time staff of eleven employees]
        than  the ORO project  [and] does not  include computer
        operations, or software development.
 
        The number  of personnel provided  and the size  of the
        network  for  the   [third  contract]  is  not   clear.
        Computer operations is not  addressed in the  proposal,
        nor  is  the   number  of  people  provided   as  staff
        addressed. (pg. 58-60)
 
        [The  fourth] project  does not  provide  experience in
        software engineering.
 
   Id. at  107.   The weaknesses relate  to the  eight tasks  of the
   solicitation, Finding 2.
 
        28.  For one offeror  within the competitive range,  the SEB
   awarded  a  higher  score  in  this  area,  identifying  only one
   weakness in the identified projects:
 
        The contract with [] only required 3-4 analysts and was
        not  very similar in several respects  to the Oak Ridge
        project (service  desks too  narrow  a task,  security,
        hardware and software support not that similar).
 
   Protest File, Exhibit  21 at 32, 151.   The comments characterize
   as  strengths  the  offeror's   other  two  identified  projects.
   However,  the offeror  specifies no  price for  the value  of one
   contract  which utilizes  a  technical staff  of  ten; the  other
   contract  value  is specified  as  less than  $800,000,  with the
   offeror  utilizing a  staff  of twelve  on-site personnel.   Id.,
   Exhibit 35 at 78-85.
 
        criterion 4.a
 
        29.  The  SEB final  report  gives  a  perfect  score  under
   criterion  4.a to  one  offeror  within  the  competitive  range.
   Protest  File,  Exhibit  21  at 152.    The  offeror's  proposal,
   however, contains a staffing plan for the base year only, and not
   any of the option years.  Id., Exhibit 35 at 91-96.  Although the
   report identifies some weaknesses in  the proposal, the lack of a
   staffing  plan for  the entire  period is  not a  noted weakness.
   Id., Exhibit 21 at 32.
 
        cost evaluations
 
        30.  The SEB relied upon the  analysis of the cost committee
   revealed in the committee's report and  through a presentation by
   the committee.  Protest File,  Exhibit 21 at 2, 11-12; Transcript
   at 177.
 
        31.  The  proposal  of one  offeror  within  the competitive
   range fails  to  identify salaries  and  burdened rates  for  key
   employees; the section  B pricing table includes no  cost for key
   personnel as  a direct charge.  Protest File, Exhibit 34 at 11-20
   (Exhibit  B), 28-37 (Exhibit D).  The proposal specifies that the
   project director (one of the  proposed key employees) will not be
   directly charged to  the DOE ORO contract.  Id., Exhibit 35 at 7,
   92,  98.    Given  the  proposed  level  of  effort  for  non-key
   personnel,  the  staffing  plan  submitted  for  the  first  year
   suggests that  key personnel  will fall  under specified  non-key
   personnel  labor  categories;  however,   no  specific  hours  or
   burdened  rates are  provided  for  key personnel.    Id. at  96,
   Exhibit 34 at 11.
 
        32.  In  evaluating the cost  volume of proposals,  the cost
   committee  recognized that some offerors calculated a price based
   on DPLH at variance with those identified in the solicitation and
   not every  offeror specified  the rates for  key personnel.   The
   cost  committee attempted  to establish  a probable  cost  to the
   agency for each proposal.   However, the probable cost intends to
   focus only  on costs  of non-key personnel  and not costs  of key
   personnel.  Protest File, Exhibit  19 at 2-3, 5-6, 12-15; Exhibit
   21 at 164-65.
 
        33.  The protester proposes a fringe rate  below that of the
   incumbent; the cost  committee calculated the "proposed  cost" to
   the  agency with the higher fringe.   The committee was under the
   impression  that the solicitation required the offeror to propose
   a  fringe  rate  at  least   equal  to  that  of  the  incumbent.
   Transcript at  88.  The SEB repeated  this notion in relating its
   cost consideration.  Protest File, Exhibit 21 at 125.
 
   Competitive range determination
 
        34.  The  SEB  determined the  competitive  range.   Protest
   File,  Exhibit 23.    The  SEB states  in  its competitive  range
   report:
 
        The Cost  Committee evaluated the  financial aspects of
        the proposals,  with emphasis  on determining  probable
        evaluated cost.   . . .  Adjustments were  performed to
        provide  a  level  basis for  comparison  based  on the
        requested  core  labor hours.    Due to  the  number of
        technically  adequate   proposals  and   the  lack   of
        significant  deviation   in  cost  from   the  adjusted
        average, cost  was not considered  in establishing  the
        competitive range.  Further  clarification of cost data
        is required prior to concluding reasonableness of cost.
 
   Id., Exhibit 21 at 2 (emphasis  added).  The SEB report does  not
   explain or attempt  to reconcile the proposed costs  with the net
   adjusted prices for  the various offerors.   Id. at 161-65.   The
   members  of the SEB credibly testified  that despite the language
   in the report,  the SEB did consider  cost; to convey  the notion
   more properly, the  report could have stated that  no offeror was
   excluded from  the competitive range  because of the cost  of its
   proposals.  Transcript at 172-74, 240, 361, 382-83, 389-90.
 
        35.  The SEB placed neither the protester nor the intervenor
   within  the competitive  range.    The  letters  of  notification
   provide the  following explanation: "Other proposals  were deemed
   to be superior to such a degree that there is no real possibility
   that your proposal  can be improved  to the point  that it  could
   become the most acceptable."  Protest File, Exhibits 23, 24.
 
        36.  As  determined above, the scores utilized in making the
   competitive range determination  are not consistent with  the SEB
   rating plan  and are not  fully consistent between  the offerors.
   Findings 22,  27-29.  The testimony  of the SEB  members that the
   competitive  range contains only  those with a  reasonable chance
   for  award is  not borne out  by the  record when one  allows for
   adjustments  in scoring to achieve consistency and recognizes the
   strengths and correctable weaknesses of the offerors.
 
 
        37.  In  a  document  relating  to   the  competitive  range
   presentation  to the  SSO, the SEB  described the  procurement as
   having an estimated dollar value of $15.4 million.  Protest File,
   Exhibit  22 at 3.  The  basis for this figure  is not apparent in
   the record.  The actual proposed prices clearly enable the agency
   to  award a contract for the  solicited requirement (inclusive of
   key personnel costs) for  less than $15 million.  Id., Exhibit 21
   at 161.
 
   Procurement authority
 
        38.  Pursuant  to  the  Brooks  Act,  40  U.S.C.   759(b)(2)
   (1988), and  the regulations  implementing the  Act, the  Federal
   Information  Resources Management Regulation (FIRMR), 41 CFR 201-
   305-2 (1993),  by memorandum  dated and  effective September  30,
   1991,  the General Services  Administration (GSA) granted  to the
   Department  of Energy a specific agency delegation of procurement
   authority to  contract for  federal information  processing (FIP)
   resources without further approval by GSA.  The granted authority
   enables the agency to contract for
 
        ADP  [automatic data  processing] equipment,  software,
        services,  maintenance  and support  services  when the
        aggregate dollar value of such resources  including all
        optional  quantities and periods  over the life  of the
        contract  does   not  exceed   $15,000,000  for   fully
        competitive actions . . . .
 
   Protest File, Exhibit 38.
 
        39.  A cost estimate dated December  6, 1993, is premised on
   a total of 460,315 hours of direct labor over a five-year period.
   The   particular  categories  and  related  labor  hours  do  not
   precisely match  those in  the solicitation;  however, there  are
   hours  for key  personnel type  positions, such  as  managers and
   directors.   The analysis,  which projects  costs (consisting  of
   direct labor, fringe,  overhead, other direct costs,  general and
   administrative costs,  and  fee) for  four existing  contractors,
   results  in total  estimated costs  of $13,096,001,  $14,488,550,
   $15,450,043,  and $18,024,899,  for the  four  companies, and  an
   average  total  estimated  cost of  $15,264,873.    Protest File,
   Exhibit 42.
 
        40.  A cost estimate  dated January 21, 1994, is premised on
   a total of 385,316 hours of direct labor over a five-year period.
   The   particular  categories  and  related  labor  hours  do  not
   precisely match  those in  the solicitation;  however, there  are
   hours for  key personnel  type positions,  such  as managers  and
   directors.   The analysis,  which projects  costs (consisting  of
   direct labor, fringe,  overhead, other direct costs,  general and
   administrative  costs, and  fee) for  four existing  contractors,
   results  in total  estimated  costs of  $17,106,997, $14,121,572,
   $13,150,810,  and $11,928,810,  for the  four  companies, and  an
   average  total  estimated  cost of  $14,076,956.    Protest File,
   Exhibit 39.    The high  estimate of  $17,106,997, is  calculated
   using  salary escalation rates  slightly greater than  those used
   for the  other three contractors, and different from those stated
   on the summary sheet.
 
 
        41.  After  the solicitation  in this  procurement had  been
   released, the agency's ORO Deputy Director, Information Resources
   Management Division, sought from within the agency a redelegation
   of  the GSA  procurement  authority.   This  was  done through  a
   memorandum dated February 1, which specifies that the
 
        proposed contract  will cover a  five year period  at a
        total estimated cost of  $11,928,809 for 385,316 direct
        production labor hours.  . . .  Services provided under
        the   proposed   contract   include   computer   center
        operations;  installation and  maintenance of  personal
        computers   and    related   software;    installation,
        operation, and  maintenance of  networks; software  and
        data base development/maintenance; and general computer
        hardware/software user support.
 
   Protest File, Exhibit 5.
 
        42.  By  memorandum dated  April  4,  to  the  agency's  ORO
   Director,   Procurement  and   Contracts  Division,   the  agency
   redelegated  the  specific   agency  delegation  of   procurement
   authority   previously  granted  by   GSA,  Finding  38.     This
   redelegation is expressly based on the review  of the information
   in  the agency  procurement request which  estimates the  cost at
   $11,928,809.     The  redelegation  does  not  specify  that  the
   authority is limited to purchasing  or contracting for only up to
   that amount.  Protest File, Exhibits 7, 46.
 
   The protest
 
        43.  Following its  debriefing,  the  protester  filed  this
   protest with  the Board on  October 3.  It  formally supplemented
   the protest, adding  counts of protest,  with filings on  October
   31, November 1  (corrected on November 3) and November 4.  On the
   first day  of the hearing  on the merits, the  protester withdrew
   two counts of protest.  Transcript at 19, 165.
 
                               Discussion
 
        The protester contends that the agency lacks the procurement
   authority  to  conduct   the  procurement,  improperly  evaluated
   various  aspects of  the  proposals,  and  incorrectly  made  the
   competitive  range determination so  as to exclude  the protester
   from the competition.
 
   Procurement authority
 
 
        from GSA (statutory)
 
        The  protester contends  that the  agency  lacks procurement
   authority for this procurement and concludes that the procurement
   is  void under  CACI,  Inc. v.  Stone, 990  F.2d 1233  (Fed. Cir.
   1993).
 
        The protester contends  (count XIII) that the amount  of the
   procurement exceeds the  $15 million  specific agency  delegation
   from   GSA  to   the   agency,   Finding   38.[foot #] 4      The
   record does not support the protester's contention.
 
        The agency estimate  of December 1993, Finding  39, utilizes
   more  total hours (460,315) than reasonably anticipated under the
   actual   solicitation--the   sum  of   non-key   personnel  hours
   (410,562.5) and five  key personnel over five years (1875 x 5 x 5
   =   46,875)  totals  457,437.5.    Even  so,  the  dollar  values
   determined  in the estimating  process (which includes  costs for
   key and  non-key personnel) reveal  two estimates within  the $15
   million threshold.
 
        The agency  estimate of January 1994, Finding 40, utilizes a
   total  number  of  labor  hours  below  the  requirement  in  the
   solicitation.     The  hours  utilized  are  erroneous  and  low.
   However, key  and non-key personnel  costs are  reflected in  the
   overall  estimates.  The protester's "correction" of the estimate
   prices key hours separately, and  prices the non-key hours at the
   agency's  average estimated  hourly  cost--a  rate that  includes
   costs  for key and  non-key personnel.   Hence,  the "correction"
   does not  consider the  hourly  costs of  those labor  categories
   omitted  from  the   estimate.    Moreover,  the   dollar  values
   determined  in  the  estimating  process  reveal three  potential
   sources   within  the  $15  million  dollar  threshold.    Making
   adjustments for missing hours results in two estimates within the
   $15 million threshold.
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 4                      Although,   in   its   post-
   hearing brief,  the protester urges the Board  to draw inferences
   against  the agency  regarding the  cost  estimates, because  the
   agency failed to call witnesses with personal knowledge regarding
   some  of  the  estimates,  the  protester has  not  identified  a
   specific discovery request  which required the agency  to produce
   material relating to  the estimates or to identify  an individual
   with  the  specific  knowledge.    The  protester  did  not  seek
   additional discovery on  this matter and did not  request to keep
   the record  open to  pursue the matter.   Accordingly,  the Board
   declines to follow the suggestion of the protester.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        The $15.4  million estimate found  in materials used  in the
   presentation to the SSO  is not in line with the actual proposals
   then before the agency.   The proposals clearly enable the agency
   to award a contract for  the solicited requirements for less than
   $15 million.  Finding 37.  As  early as February, when the agency
   formulated its  internal  procurement  request,  Finding  41,  it
   utilized  the low estimate  from January, Finding  40, apparently
   believing  that  such  represented  a  reasonable  cost  for  the
   procurement.     The  value,  when  adjusted  for  the  solicited
   requirements is below $1 million.  Thus, at all times, the agency
   could validly and reasonably have concluded that it could procure
   its   requirements  for   a   cost   within   the   $15   million
   authority.[foot #] 5
 
        internal (within the agency)
 
        The protester also contends (counts IV, XIV) that the agency
   lacks  the   internal  procurement  authority   to  conduct   the
   procurement.   In reaching this conclusion, the protester asserts
   that  the internal redelegation of the procurement authority from
   GSA was premised on and limited to the incorrect and low hour and
   dollar estimates.
 
        The protester's  argument fails  given the  language of  the
   internal  delegation which  redelegates  the authority  from GSA.
   Finding  42.   The  internal  delegation is  not  limited to  the
   specific hour and dollar estimates in the request; hence, the low
   figures  do  not  invalidate the  authority  which  the procuring
   activity received before the submission of initial proposals.
 
   Cost and price evaluations
 
        The protester maintains (count V) that, in several respects,
   the agency improperly evaluated an offeror within the competitive
   range  which has  failed to  provide the  labor hours  and direct
   costs for its key personnel, Finding 31.
 
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 5                      Further,  the  protester has
   assumed that all  labor hours under the  contract are ADP or  FIP
   resources  within the  meaning  of  the Brooks  Act.   40  U.S.C.
     759(a)  (1988); 40  CFR 201-4.001 (1993).   The  delegation and
   dollar limitation relate to  "the aggregate dollar value of  such
   resources"  where the  identified  resources are  "ADP equipment,
   software, services,  maintenance and support services."   Finding
   38.   The record  does not demonstrate that  two of the positions
   (secretary and switchboard operator-receptionist), Finding 3, are
   "such resources"  to be used  in calculating the dollar  value of
   the procurement.  Hence, the estimated dollar value of the ADP or
   FIP resources  being  procured appears  to  be below  the  values
   discussed by the agency and the protester.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        The protester  contends that  the agency  should have  found
   that the offeror  "failed to meet a mandatory  requirement of the
   solicitation by not pricing its five key personnel.  By not doing
   so, [the  agency] accepted  a proposal which  failed to  meet the
   minimum  requirements   stated  in  the  solicitation."     First
   Supplemental Protest at 4 (  40).   The agency has not "accepted"
   the  offeror's  proposal.    Rather, the  agency  has  placed the
   offeror  within  the  competitive range.    Although  the offeror
   failed to  meet a solicitation requirement, the protester has not
   referenced  any  statute,  regulation, provision  of  procurement
   authority,  or portion  of the  solicitation  which the  agency's
   actions may have violated.
 
        The protester  also maintains  that the  agency should  have
   adjusted  the proposed price  significantly upwards.   Again, the
   protest fails  to  cite a  provision which  the agency's  actions
   violate.   Moreover,  the  protester  has  not suggested  in  its
   protest that  the adjustment  would have  made  a difference  for
   purposes of the competitive  range determination, where technical
   is  more important  than cost  in the  selection process,  and an
   upward adjustment  would not have  removed the  offeror from  the
   general price range of offers.
 
        Finally,  the   protester  asserts  that  by   not  properly
   evaluating the proposed price of  the offeror, the agency  failed
   to conduct a  proper cost realism and price  analysis and thereby
   violated  the Federal Acquisition Regulation (FAR), 48 CFR 15.805
   (1993), and applicable  (but unstated) case law.   The referenced
   regulation does not direct the  agency to conduct a more thorough
   cost realism  and price analysis  at the time of  the competitive
   range  determination.   The record  does  not demonstrate  that a
   different  analysis would  have led  to a  different  result with
   respect to the offeror.
 
        The  protester further contends (count VIII) that the agency
   improperly  evaluated its price proposal by adjusting upwards its
   fringe  rate,  Finding 33.    The  adjustment  by the  agency  is
   premised on  an apparent  misinterpretation of  the solicitation.
   The  agency  has  pointed  to  no  solicitation  provision  which
   requires an  offeror to establish  its fringe rate no  lower than
   that  of the  incumbent.    Although an  offeror  is required  to
   provide  retained   non-key  incumbents  with   compensation  and
   benefits equivalent  to those  provided by  the predecessor,  the
   provision  does not  require the offeror  to directly  charge the
   agency for these costs as an element of the fringe rate.  Finding
   12.  Accordingly, the agency's  adjustment is improper.  However,
   for  purposes   of  the  competitive  range   determination,  the
   adjustment was not relevant.
 
   Technical and business management evaluations
 
        The protester  maintains that  the agency  improperly scored
   some of the evaluation criteria and applied unstated criteria  in
   the evaluation process.
 
        criterion 1.b
 
        The  protester contends (count I) that the agency misapplied
   the outreach and community involvement area by making it outweigh
   all other subfactors contained in this criterion.
 
        The  solicitation specifies that  a portion of  the proposal
   responding to  this criterion  is  to address  "past, present  or
   future planned  initiatives  or activities  which  demonstrate  a
   commitment  to innovative  affirmative actions  affecting direct-
   hire   work    force,   subcontractors,    and   any    community
   involvement/outreach  activities."  Finding  6.  This  element of
   evaluation  falls  within  the  evaluation  criterion  stated  in
   section  M, Finding  14.   Given  the language  in its  proposal,
   Finding 23, the protester has  not demonstrated that its proposal
   is not weak in this area or otherwise must have obtained a higher
   score.
 
        criterion 2.a
 
        The  protester  contends   (count  VII)   that  the   agency
   improperly down-graded its proposal  for proposing key  personnel
   who were  not employed by it  and who had  never worked together.
   The  protester also alleges (count XI) that the agency-identified
   weaknesses  are inaccurate and  not reflected in  protester's key
   personnel.    The  protester claims  inconsistent  treatment,  in
   alleging  that others were  not down-graded; however,  the agency
   did not treat the protester any differently than it treated other
   offerors in this matter.  Finding 26.
 
        The protester  correctly asserts that the  solicitation does
   not require  (or express  a preference  for) key personnel  being
   employed by the offeror or key personnel to have worked together.
   Neither the proposal preparation instructions, Finding 7, nor the
   related   evaluation   criterion,   Finding   14,  contain   such
   indications.   The rationale urged by  the SEB in support  of the
   evaluated weakness is not persuasive.  Finding 26.   Thus, it was
   improper to treat these aspects of the proposals as weaknesses.
 
        The  other  weaknesses  identified  by  the  SEB  are  fully
   consistent with the  terms of the protester's proposal.  Findings
   24, 25. 
 
        Given  the  strengths  and  weaknesses  of  the  protester's
   proposal and of the other  proposals, the protester has failed to
   establish that it  was improperly or inconsistently  scored.  Its
   proposal   has  significant   (albeit  potentially   correctable)
   weaknesses  regarding the commitments and the relevant experience
   of its proposed  key personnel.  The record  does not demonstrate
   that the  agency acted  improperly by rating  this aspect  of the
   proposal as a 5.
 
        criterion 3.a
 
        The protester contends  (counts II, IX, XI)  that the agency
   departed  from the solicitation in evaluating this criterion, and
   inaccurately  identified weaknesses in its proposal.  As portions
   of the latter  two counts, the protester also  maintains that the
   agency evaluated the protester inconsistently with its evaluation
   of one offeror within the competitive range.
 
        The  protester faults  the  agency  for  categorizing  as  a
   "weakness"  instances  where  the  protester-identified  projects
   allegedly fail to involve all aspects of work required under this
   procurement or are dissimilar in terms of size and dollars.   The
   solicitation expressly instructs offerors to provide  information
   regarding relevant experience, technical competency, and services
   comparable to those  required by the statement of  work.  Finding
   8.    Section  M similarly  describes  the  evaluation criterion.
   Finding 14.    The solicitation  permits the  agency to  evaluate
   different  projects as  meriting higher (or  not so  high) scores
   because  of the  relevancy of  work  and similarity  of size  and
   value.  The protester has  pointed to no provision which mandates
   a  different  evaluation  approach.    It  is  not  unreasonable,
   irrational,  or inconsistent with  the terms of  the solicitation
   for  the evaluators  to distinguish  in  the scoring  between the
   comparability  to  the  procurement   of  the  offeror-identified
   projects.
 
        The protester,  however, is correct that the  agency has not
   consistently  evaluated the  proposals of  the  protester and  an
   offeror within the competitive range.  The SEB failed to describe
   as weaknesses aspects of that offeror's identified projects which
   were dissimilar  in  size  and  dollar value  from  the  procured
   requirements.  Finding 28.
 
        criterion 4.a
 
        The protester contends (count XI) that the agency improperly
   scored an offeror within the competitive range in this criterion,
   because the offeror received a  perfect score despite providing a
   staffing plan for only the base year of the requirements.
 
        The   solicitation   requires   proposals   to   contain   a
   comprehensive staffing plan  and to describe the  organization to
   ensure that  all requirements of  the statement of work  are met.
   Finding  9.    These  elements  are  to  form  a portion  of  the
   evaluation.    Finding  14.    The  offeror's  proposal  fails to
   demonstrate  how   requirements  of  the  solicitation   will  be
   satisfied  over  the contract  period.    The proposal  does  not
   warrant a perfect  score.  The agency should  have identified the
   matter for discussions.
 
   Competitive range determination
 
        The protester contends (count XII) that the agency failed to
   consider  cost   in  establishing  the   competitive  range  and,
   therefore, violated FAR 15.609(a).   Despite the language in  the
   SEB  report, Finding  34, the  agency  did consider  cost in  the
   competitive range determination.   The  agency was  aware of  the
   proposed  costs and  prices of  the various  offerors and  of the
   general range  of such  costs.  The  agency did  not use  cost or
   price as a basis to keep offerors outside the competitive range.
 
 
        The  protester  maintains   (count  III)  that  the   agency
   improperly constituted  the competitive  range because  it has  a
   reasonable chance for receiving the award.
 
        In  section M, the solicitation specifies that the proposals
   will  be evaluated in accordance with  the applicable federal and
   agency policies and  procedures.  Finding 13.   Regarding written
   and  oral discussions,  the  FAR  states  that  "the  contracting
   officer  shall  conduct  written  or  oral  discussion  with  all
   responsible offerors who submit proposals within  the competitive
   range.  The content and extent of  the discussions is a matter of
   the contracting officer's judgment, based on the particular facts
   of each acquisition (but see paragraphs  (c) and (d) below)."  48
   CFR 15.610(b) (1993).  The agency's regulations supplementing the
   FAR state, regarding the written and oral discussions  with those
   within  the competitive range:  "Where the proposed  award is not
   for research, development, or demonstration, (e.g.,  supplies and
   services) the contracting  officer should point out  instances in
   which aspects of a proposal contain a weakness in relation to the
   Government's requirements."  48 CFR 915.610(c) (1993).
 
        Under the agency's  implementing regulations, the agency  is
   required  to  utilize   the  discussion  process  to   point  out
   weaknesses in  proposals.   The nature of  the weaknesses  in the
   protester's proposal are susceptible to elimination or reduction.
   Findings 23-27.   With consistent scoring  of the proposals,  and
   the  opportunity  to  engage   in  discussions,  the  protester's
   proposal has a reasonable chance for award.  Finding 36.
 
                                Decision
 
        The Board GRANTS  the protest with respect to  count III and
   portions  of counts IX and XI, and DENIES all remaining counts of
   the protest.  The Board  revises the procurement authority of the
   agency  as follows: before  proceeding with the  procurement, the
   agency  must  make a  competitive range  determination consistent
   with   the   above   findings  and   conclusions.      40  U.S.C.
     759(f)(5)(B)  (1988).    The  Board-entered  suspension of  the
   agency's applicable  procurement authority  lapses by  its terms.
   40 U.S.C.   759(f)(2) (1988); Order (Oct. 12, 1994).
 
 
 
                                        _________________________
                                        JOSEPH A. VERGILIO
                                        Board Judge
   We concur:
   _________________________            _________________________
   ROBERT W. PARKER                     CATHERINE B. HYATT
   Board Judge                          Board Judge