THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER
          AND IS BEING RELEASED TO THE PUBLIC IN REDACTED FORM
                            ON JUNE 23, 1995
 
                                                  
 
                         DENIED: May 22, 1995 
                                                  
 
                           GSBCA 11643-P-REM
 
 
                   BIRCH & DAVIS INTERNATIONAL, INC.,
                                                              
                                                Protester,
 
                                   v.
 
                 AGENCY FOR INTERNATIONAL DEVELOPMENT,
                                                                  
                                                Respondent.
 
        Shelton H. Skolnick,  Judy D. Leishman,  Amy M. Hall,  Wayne
   Finegar, and Bruce Trimble of Skolnick & Leishman, P.C., Derwood,
   MD; and Brian P. Hochheimer,  General Counsel and Chief Financial
   Officer of Birch & Davis International,  Inc., Silver Spring, MD,
   counsel for Protester.
 
        Jeffrey  Marburg-Goodman,  Office  of  the General  Counsel,
   Agency for International Development, Washington, DC, counsel for
   Respondent.
 
   Before Board Judges PARKER[foot #] 1, NEILL, and HYATT.
 
   NEILL, Board Judge.
 
        This  protest was filed by Birch & Davis International, Inc.
   (BDI) on December 20, 1991.   The protest concerned the rejection
   of three offers  BDI had submitted on a  procurement conducted by
   the Department  of State's  Agency for International  Development
   (AID or USAID).      
 
        In accordance with Rule 11, the parties elected to have this
   case decided  on the  record without  benefit of  a hearing.   By
   decision  dated February 27, 1992, the  Board denied the protest.
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 1  Board Judge Vincent A.  LaBella, a member of the
   original  three-judge panel  assigned to  this  protest, died  on
   April 11,  1994.   A random selection  from the  remaining judges
   resulted in his replacement by Board Judge Parker.    
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   Birch &  Davis International,  Inc. v.  Agency for  International
   Development, GSBCA 11643-P, 92-2 BCA   24,881, 1992 BPD   63.  
 
 
        BDI appealed the decision of  the Board to the United States
   Court  of Appeals  for the  Federal Circuit.   By  decision dated
   September 13,  1993, the Court  of Appeals wrote: "On  the record
   before us there is an  absence of substantial evidence to support
   the conclusion that Birch has no 'reasonable chance' of  success.
   We thus are unable  to affirm the Board."  The  Court, therefore,
   vacated  our  decision and  remanded  the  case  to us  for  such
   proceedings  as may  be necessary  consistent  with its  opinion.
   Birch  & Davis  International,  Inc. v.  Christopher, 4  F.3d 970
   (Fed. Cir. 1993).
 
        Upon receipt  of the  case on remand,  the Board  convened a
   conference   with  counsel.    At  that  conference  counsel  for
   respondent  explained that  award of the  contract had  been made
   earlier in the year and that performance was underway.  The Board
   advised counsel that it did  not intend to reopen the evidentiary
   record  for this  case,  but  that it  would  welcome any  briefs
   counsel might wish to submit in view of the decision of the Court
   of Appeals.    Counsel accepted  the  invitation and  a  briefing
   schedule  was established.   Shortly  before its  brief  was due,
   protester  moved the  Board  to reopen  the  record to  introduce
   evidence that  approximately eleven months  of negotiations  were
   required for AID  and the awardee to correct  deficiencies in the
   awardee's  proposal.    Protester argued  that  this  evidence is
   relevant to  the issue of  whether protester's proposals  in this
   procurement had a reasonable chance of award.  
 
        The Board invited  counsel to brief the issue.   Upon review
   of the arguments  raised, the Board granted protester's motion to
   reopen the record.  In granting the motion, the Board observed:
 
        For reasons of fairness and efficiency, we see no  need
        to reopen  the record  regarding events which  occurred
        prior to  the date of  our original decision.   It does
        seem appropriate, however, since our review is de novo,
        that before deciding  this case anew, we  should reopen
        the record to permit the  parties to update it with any
        relevant evidence regarding events  which have occurred
        since our earlier review.
 
   Birch &  Davis International,  Inc. v.  Agency for  International
   Development, GSBCA 11643-REM, order at 2 (Feb. 4, 1994).  
 
        The Board  thereupon authorized  discovery regarding  events
   which  had  transpired  in AID's  procurement  since  the initial
   closing of  the evidentiary  record.  At  the conclusion  of this
   discovery, the parties  were given the opportunity  to supplement
   the evidentiary  record and to submit  a second set  of briefs on
   the merits.[foot #] 2  
 
 
        In  their most recent briefs, the parties have appropriately
   focused  almost   exclusively  on   the  reasonableness   of  the
   contracting officer's decision to eliminate protester's proposals
   from the  competitive range.   Nevertheless,  since our  original
   decision was vacated in its entirety, we address in this decision
   all counts of BDI's original protest.  
 
        In  its  first   count,  protester  has  alleged   that  the
   contracting  officer violated  section 15.609(a)  of the  Federal
   Acquisition  Regulation (FAR) by eliminating from the competitive
   range proposals  of BDI  which had a  reasonable chance  of being
   selected for award.  In Counts II and III, BDI has accused AID of
   using hidden evaluation factors in violation of FAR 15.605(e) and
   15.608(a),  which  require  that   all  significant  factors  and
   subfactors be identified in  the solicitation.  BDI's fourth  and
   final  count  is that  AID  has  failed  to  seek full  and  open
   competition  and thus violated the Competition in Contracting Act
   when it  eliminated BDI's proposals  for minor matters  that were
   not evaluation factors.  Complaint    17-25.
 
        For the reasons set out below, we deny this protest.    
 
 
                            Findings of Fact
 
   The Solicitation
 
        1.  On April 1, 1991, AID issued Request for Proposals (RFP)
   Egypt-91-008  for the design and implementation of a computerized
   management  information  system  (MIS) for  the  Egyptian  Health
   Insurance  Organization (HIO).  The solicitation envisioned award
   of  a cost-plus-fixed-fee,  level of  effort,  term contract  for
   non-personal technical services.  Protest File, Exhibit 1 at B-1,
   C-16.    
 
        2.  The solicitation  directs offerors to  explain in detail
   in their  technical  proposals how  they  will complete  each  of
   thirteen tasks, namely:
 
        Task 1:  Project Orientation and Planning
        Task 2:  Project Monitoring and Reporting
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 2  In submitting its second brief  on the merits of
   this  protest,  BDI  has  attached  several  exhibits  containing
   documentation  available at  the time  the  record was  initially
   closed.   Since this material  belongs to the  period of time for
   which  the evidentiary  record was  not reopened,  the Board,  by
   separate  order bearing the  same date as  this decision, rejects
   this material for inclusion in the evidentiary record.  
     
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        Task 3:  Physical Site Preparation
        Task  4:     Finalize  Functional  Design   Considering
        NWDB[foot #] 3
        Task  5:    Review  NWDB  Detail  Design,  Enhance  and
        Finalize
        Task 6:   Arrange for  Ordering and Delivery  of System
                 Hardware      and      Software      Including
                 Telecommunications 
        Task   7:      Arrange,   Coordinate,   and   Supervise
        Installation       of  System  Hardware   and  Software
        Including Tele-         communications
        Task 8:  Develop/Acquire Application Software
        Task 9:  Complete System and User Documentation
        Task 10: Plan and Conduct Training
        Task 11: Conversion
        Task 12: Implementation
        Task 13: Post-Implementation Audit
 
   Protest  File, Exhibit  1  at  C-21 to  C-22.   The  solicitation
   requires that offerors describe in detail: (1) how they intend to
   accomplish each task; (2) the time frame and level  of effort for
   each  (use of  Gantt charts,  Pert diagrams,  or some  other task
   mapping method is required); (3) the necessary staff resources by
   position  type; (4)  deliverables  for each;  and  (5) where  the
   activity will be conducted.  Id. at C-21.  
 
        3.  The solicitation's  evaluation  factors  for  award  are
   assigned weights as follows: 
 
         5% Understanding of the proposal requirements
        15% Technical approach task plan
        10% Hardware configuration
        15% Database management system, operating system, and  
            other software
        10% Management plan
        25% Project staffing
        10% Corporate qualifications
        10%   Cost  evaluation   criteria  of   reasonableness,
        realism,      and completion
 
   Protest  File, Exhibit  1  at  M-3 to  M-6.   Overall  evaluation
   scoring, therefore, is based on a total of 100 possible points of
   which  technical  considerations  were worth  a  total  of ninety
   points and cost was worth ten points.  Id., Exhibit 11. 
 
        4.  A requirement of  this RFP of particular  importance for
   this protest concerns portability.  The RFP states: 
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 3  NWDB  is  the Northwest  Delta Branch  Automated
   Information  System, a  pilot system  setup in  1987 by  HIO with
   USAID funding to  assist in the control of  health program costs.
   Protest File, Exhibit 1 at C-6.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        HIO  desires software  capable  of  operating  with  no
        modification  on a number of larger or smaller hardware
        configurations of the same manufacturer.  It is equally
        desirable for this  software to operate with  little or
        no   modification   across    hardware   of   different
        manufacturers.   In  its  proposal,  the  offeror  must
        describe  the  portability  of  the  software  products
        proposed.  
 
   Protest File, Exhibit 1 at J-6.  A subfactor under the evaluation
   factor  for "Database  management  system, operating  system, and
   other  software" (see Finding 3) reflects  the importance of this
   requirement.  It reads:  
 
        Portability and Flexibility --  This criterion will  be
        used to project the ease with which changes to hardware
        components and/or system software  can be accommodated.
        Specifically,  HIO  will  evaluate  technical  resource
        requirements  and required  down time  (in addition  to
        funding requirements for new equipment or software), in
        the event of a major hardware upgrade (i.e.,  moving to
        a  larger or  smaller cpu  of  the same  vendor as  the
        proposed   system,   or   changing   hardware   vendors
        completely). 
 
   Id. at M-5.  
 
        5.   The solicitation also contains  the following provision
   regarding the acquisition of application software: 
 
        The  contractor   should  consider   which  application
        software,  if  any,  should  be purchased  commercially
        instead  of being custom-built  by the contractor.   In
        the  proposal, the offeror must present its approach to
        deciding the make-vs-buy issue, and selecting a package
        when the decision is to  buy it.  Whenever a commercial
        package   is   recommended    by   the   offeror,   its
        specifications shall be attached to the proposal and an
        explanation shall  be provided showing  how the package
        meets  HIO's  requirements   and  fits  the  functional
        design.  
 
   Protest  File,  Exhibit  1  at  C-34.    A  subfactor  under  the
   evaluation  factor  for  "Database  management system,  operating
   system, and other  software" (Finding 3) reflects  the importance
   of this requirement.  It reads:  
 
        The  Appropriateness   of  System  Software   to  HIO's
        Applications  --  This   criterion  will  be  used   to
        determine how effectively and  efficiently the software
        will  facilitate  the  design  and  development of  the
        applications and  then process the  projected workload.
        The offeror must specify the number of copies installed
        and operating  in Egypt for each product proposed.  The
 
        offeror  must  demonstrate  his/her  knowledge  of  the
        required  application/module  functionality  through  a
        detailed  explanation  of  how  the  proposed  software
        products will satisfy the functional requirements.  
 
   Id. at M-5.
 
        6.  The solicitation is  specific about the level  of effort
   which offerors are to describe in their proposals.  The technical
   proposal is to contain a technical approach task plan which is to
   include, among other things:
 
        A chart showing the estimated level of effort that each
        staff  member  (prime  and  subcontractor  staff)  will
        devote to the project (by task) and distinguish between
        time spent on-site (i.e. working in or near HIO offices
        in Egypt) and time spent elsewhere.
 
   Protest File, Exhibit  1 at L-5.  A subfactor  for the evaluation
   factor  "Technical  approach   task  plan"  (Finding   3)  refers
   expressly  to  the requirement  that  offerors  state: "Estimated
   level of effort  for each project member by  task, and time spent
   in Egypt versus elsewhere."  Id. at M-3.  
 
        7.  With regard to cost proposals, the solicitation requires
   that  they "be  prepared  in  sufficient  detail to  permit  cost
   analysis."       Offerors  are  directed  to  submit  information
   reasonably  required   to  explain  their   estimating  process."
   Protest File, Exhibit 1 at L-11 to L-12.  
 
        8.  With  regard to staffing,  the solicitation calls  for a
   project contractor team consisting of the following: 
 
        1. Project Manager/Chief of Party
        2. Senior Systems Analyst (2)
        3. Senior Analyst/Programmer (2)
        4. Database Specialist
        5. Training Specialist
        6. Documentation Specialist
        7. Administrative Assistant
        8.  Procurement Specialist
        9.  Telecommunication Specialist
        10. On-call System Analyst/Programmers (to be specified
            in number and duration by offeror).
 
   Protest File, Exhibit 1 at C-45.  
 
        9.  The offeror's  staffing plan  is  to include  prescribed
   bio-data  forms for each  proposed team member  outlining his/her
   accomplishments,   and  academic   and  professional   experience
   relevant  to  the   project.    The  solicitation   outlines  the
   qualifications  and duties  of each  of  the team  members.   The
   positions  of Documentation  Specialist, Procurement  Specialist,
   Telecommunication    Specialist    and   the    On-call    System
   Analyst/Programmers are not full-time  positions.  Protest  File,
   Exhibit 1  at C-46 to  C-55.  Finally, the  solicitation provides
   that project  staffing will  be evaluated based  on how  well the
   proposed personnel  meet the  qualifications as  detailed in  the
   RFP.  Id. at M-6.    
 
 
        10.  The solicitation provides as part of accomplishing Task
   5  that  the contractor  present  a comprehensive  review  of all
   documentation, plans,  strategies, methodologies,  prototypes and
   other relevant aspects of the detailed design to selected AID and
   HIO personnel.  This is to be structured in the form of a "detail
   system design walk-through," integrating  all detail planning and
   design work.  Protest File, Exhibit 1 at C-29.
 
        11.  The solicitation expressly advises offerors that  award
   of  the  contract may  be  made on  the  basis of  initial offers
   received,  without  discussions.     The  offerors  are  advised,
   therefore, to submit  initial offers which contain  the offeror's
   best  terms  from  a  cost or  price  and  technical  standpoint.
   Protest File, Exhibit 1 at M-1.  
 
        12.  Offerors  are also  advised  that  a  demonstration  of
   operational  capabilities (DOC) shall  be required of  either the
   offerors  invited to participate in a BAFO  round or from the top
   ranked offeror if a BAFO is not called  for.  The DOC may be at a
   site of the offeror's choosing  within two weeks' notice from the
   contracting officer.  Protest File, Exhibit 1 at M-2.     
 
 
   Technical Evaluation of Offers
 
        13.  The technical evaluation  addressed all the  evaluation
   factors (except the cost criteria) which accounted for 90% of the
   total score.   See Finding 3.  A technical evaluation panel (TEP)
   of  four persons  was appointed for  the technical  evaluation of
   proposals.   Each member  of the  TEP was  to evaluate  and score
   individually  each proposal according  to an  agreed methodology.
   The methodology included use of 335 various criteria spanning the
   seven technical evaluation factors.  Each criterion was scored on
   the  basis  of  five   possible  ratings,  i.e.,  0=unacceptable,
   1=inadequate,  2=adequate,  3=good, 4=excellent.    Protest File,
   Exhibits 6, 19 at 82-83, Exhibits 21-24.  
 
        14.  Raw scores  from  the individual  evaluations were  fed
   into a special computer program which calculated an average score
   on each  technical evaluation  factor for  each proposal.   These
   scores  were  then matched  by  the program  against  the maximum
   possible score available for that factor.  The  actual percentage
   of  achievement  was  then weighted  by  the  relative importance
   assigned by the  RFP to that particular evaluation  factor.  When
   this figure was added to similar calculations made by the program
   for the remaining six technical evaluation factors,  one then had
   an overall score  from one to ninety  points for the proposal  in
   question.   For example, on a given proposal, evaluators assigned
   scores of 143, 147, 168 and 99 for the evaluation factor relating
   to  understanding the  proposal requirements.    This yielded  an
   average  score of 139.25, which represented  .7567 of the maximum
   possible  score for  that factor.    The solicitation  assigned a
   weight of  5% to  that  factor.   For the  proposal in  question,
   therefore,  a weighted  score  of 3.78  was  calculated for  that
   factor.   Protest  File,  Exhibits  2  (Evaluation  of  Technical
   Proposals/Consolidated Summary Worksheets), 6 at 1-2.
 
 
        15.  Between two  members of the  TEP, there was  a definite
   disparity in the technical evaluation scores they assigned to the
   proposals  found to be  technically acceptable.   This disparity,
   however, is seen  in the  evaluation of all  proposals.  The  one
   member  gave  to  each  evaluated  proposal  a  score  which  was
   consistently lower  than that assigned  to the same  proposals by
   the other.  In one instance, the difference was as great as 32.09
   points (out of  a possible ninety points).   In another instance,
   the difference was  no more than 7.27  points (out of  a possible
   ninety  points).   Protest File,  Exhibit  2 (Technical  Proposal
   Scoring Summaries  for ******  and ******).   With regard  to one
   particular  proposal, protester calls  our attention to  the fact
   that on at least  23 of the  335 individual criteria involved  in
   the technical  evaluation of that  proposal, one of the  same two
   TEP members assigned a  maximum score of 4 points while the other
   allowed no points.  Compare Protest File, Exhibit 22 with Exhibit
   24; see also  Protester's Brief    37.  The  TEP members did  not
   discuss among  themselves disparities  in  scoring on  individual
   criterion levels.  There was, however, some discussion of section
   scores  representing each  specific evaluation  factor.   Protest
   File, Exhibit 19 at 81-82.
 
        16.  By memorandum dated November 18, 1991, the TEP chairman
   informed  the contracting  officer of  the  panel's findings  and
   recommendations  relative to  the proposals  evaluated.   Of  the
   seven  proposals evaluated, the  TEP ranked three  as technically
   unacceptable  and four  as technically  acceptable.  Of  the four
   technically  acceptable proposals, one  was submitted  by Maximus
   Inc. (Maximus),  another was  submitted by  Seacor Services  Inc.
   (Seacor).   The remaining two were submitted by BDI.  BDI's first
   proposal  provided for the  utilization of equipment  produced by
   the  International  Business  Machines  Corporation  (hereinafter
   referred to as  the "BDI/IBM proposal").  The  other BDI proposal
   found  to be  technically acceptable  involved  use of  equipment
   produced by the  NCR Corporation (the  "BDI/NCR proposal").   The
   TEP report contains a detailed analysis of each proposal.  Before
   turning  to   the  individual  proposals,   however,  the  report
   discusses  some general  problems common  to  all or  at least  a
   number  of  the   proposals.    These  include   the  distributed
   processing  architecture  offered  by several  vendors,  proposed
   training  in the  United  States  versus Egypt,  and  a need  for
   additional information  regarding  the  reliability  of  proposed
   hardware in  a climate similar to  that of Egypt.   Protest File,
   Exhibit 6 at 4-6.  
 
        17.  Before discussing individual  proposals, the TEP report
   singles  out  the proposals  submitted by  BDI for  the following
   general comment: 
 
        Finally,  the  Panel  recommends  that the  Contracting
        Officer communicate  to  BDI  that  specifics  must  be
        emphasized in any BAFO process.   As we get to the  end
        of this  complex procurement,  it does  little good  to
        suggest  that AID  or HIO  should "trust us"  simply by
        invoking  their  past  reputation,   and  yet  fail  to
        indicate precisely how something is to  be done on this
        project.  
 
   Protest File, Exhibit 6 at 7.  
 
        18.  The  TEP report does not recommend that the contracting
   officer negotiate  with any specific vendor among  those found to
   be  technically  acceptable.    The  TEP  does,  however,  highly
   recommend  "the BAFO  process in  this  procurement" rather  than
   award  without  further  negotiations.    The  possibility  of  a
   competitive range determination  in which some offerors  would be
   eliminated from consideration nevertheless  appears to have  been
   recognized  by the  TEP as  a distinct  possibility.   The report
   states: 
 
        We understand that cost, totaling 10 additional points,
        will  be factored  into these technical  rankings, once
        the  Contracting Officer  completes her  cost analysis.
        From these separate  examinations, a final  competitive
        range will be determined, upon which the Best and Final
        Offers will be determined.  
 
   Protest File, Exhibit 6 at 7.    
 
        19.  The TEP report contains a  detailed individual analysis
   of all  four technically acceptable proposals.  The discussion of
   each proposal  mentions  numerous deficiencies.    Protest  File,
   Exhibit 6, Notes From the Evaluation of Technical Proposals.  
 
 
   Evaluation of Cost Proposals
 
        20.  Based  on  her  initial review  of  the  cost proposals
   received, the  contracting officer  concluded that  there was  an
   obvious problem  with the Government's  own cost estimate.   She,
   therefore,  suspended  her  evaluation  and  conferred  with  the
   individual responsible  for preparing  the Government's  original
   cost estimate.  This individual was an outside consultant working
   with  *********  **********  Corporation  *****.   Protest  File,
   Exhibit 18 at 9-10.  
 
        21.  The contracting  officer explains  that she  sought out
   the consultant because of the "vast difference" she found between
   most of the proposed costs and the Government's own estimate.  On
   conferring  with the  consultant, the  contracting  officer found
   that  the  consultant had  not  included such  items  as indirect
   costs,  fringe   benefits,  travel  allowances,  and   costs  for
   expatriates  living in Cairo.   Because she  considered that such
   costs  are normally included  in the Government's  estimates, she
   directed this  individual to revise  the cost estimate.   Protest
   File,  Exhibit  18  at  9-10,  14, 95,  101-2.    This  was done.
   Although  this  consultant  was   familiar  with  the   technical
   proposals received for  this procurement (he was a  member of the
   TEP), he has stated under oath at his deposition taken on January
   26, 1992, that  he had not otherwise been  involved with costs in
   this procurement.  Id., Exhibit 19 at 56.  
 
 
        22.  As  a  preliminary  step in  the  cost  evaluation, the
   contracting officer  also sought  the assistance  of another  ***
   consultant.  This consultant was asked to undertake a preliminary
   technical  review of  the cost  proposals.   The purpose  of this
   review was:  (1) to identify for the contracting officer anything
   which the consultant, based on  his own experience, considered to
   be out of  line, and  (2) to  make some  comparative analyses  of
   different  types of costs, such as hardware, software, personnel,
   and site preparation.  Protest File, Exhibit 20 at 8. 
 
        23.  Once  the  contracting  officer  received  the  revised
   Government cost estimate she resumed  her evaluation of the  cost
   proposals.  Protest File, Exhibit 18 at 6, 36, 104.  By  then she
   had received the report of the TEP.  She, therefore,  limited her
   evaluation of cost proposals to  those of the four offerors which
   the TEP had found to be technically acceptable.  Id. at 33-34.  
 
        24.  The contracting officer has  stated that, in conducting
   her evaluation of cost proposals, she made limited use of the ***
   consultant's report.   Protest  File, Exhibit 18  at 46-49.   The
   notes  she  made  during  her  detailed  evaluation of  the  cost
   proposals  are contained  in  the  protest  file.   Compare  id.,
   Exhibit  18  at 33  with  Exhibit  2.    In evaluating  the  cost
   proposals,  she divided the  ten evaluation points  available for
   scoring an offeror's  cost proposal as  follows: four points  for
   price reasonableness, three  points for price realism,  and three
   points  for completeness (i.e. following the RFP instructions for
   preparation of  cost proposals).   See id.,  Exhibit 2.   We have
   examined  the contracting officer's notes on cost evaluation and,
   in  particular, her stated  rationale in  support of  the various
   scores given.   We  find her comments  to be  in accordance  with
   applicable  guidelines.    As a  result  of  her  evaluation, the
   contracting officer scored the price proposals as follows:  
 
                       Maximus        9.55 
                       Seacor         5.76
                       BDI/IBM        5.61
                       BDI/NCR        5.34.    
 
   Id. at 1.   
   Evaluation of Protester's Offers
 
 
        25.  Protester's  response to  the RFP  was  threefold.   It
   proposed, in the  alternative, the use of three  separate systems
   which  would  utilize  equipment   provided  by  three  different
   suppliers.     The  contracting  officer  determined  that  BDI's
   submission  should  be  treated  and  scored  as  three  separate
   proposals.  As  already noted, the BDI/IBM proposal  was based on
   the use of  IBM equipment.  The BDI/NCR proposal was based on the
   use  of  NCR  equipment.    A  third  proposal,  the  "BDI/Unisys
   proposal,"  was based  on the  use of  equipment produced  by the
   Unisys Corporation.   Protest File, Exhibits 4 at 3-6, 6 at 1, 11
   at 1.  
     
        26.  The TEP ranked the BDI/Unisys proposal number six among
   the total  seven proposals.   This proposal  received a  score of
   46.3 technical points out of a possible  90 points.  It was found
   to contain  numerous statements  indicating that  Unisys did  not
   currently  have an  effective support  capability  in Egypt;  the
   number of field  engineers proposed was,  therefore, found to  be
   grossly  inadequate.    The  proposal  recommended  a  commercial
   hospital package to  meet all HIO application requirements.   BDI
   failed to  explain,  however,  how the  package  would  meet  the
   requirements or the  extent of modifications and  level of effort
   necessary to have it meet requirements.   The TEP also found that
   the proposal failed to address numerous RFP requirements, such as
   training, data entry configurations  to be used in both  branches
   and polyclinics,  PCs for  use by  HIO's application  development
   staff, and data  communication equipment.   The  TEP also  stated
   that  the BDI/Unisys proposal  could not be  effectively reviewed
   with the main BDI proposal because the Unisys proposal volume was
   completely different  in structure  from the  main BDI  proposal.
   The two  volumes, taken together,  simply did not mesh.   Protest
   File, Exhibit 6 at 2-3.
 
        27.  The  TEP did  find the  BDI/IBM  and BDI/NCR  proposals
   technically  acceptable.   Of  the  four  proposals found  to  be
   technically  acceptable,  however,  the TEP  ranked  the  BDI/IBM
   proposal  as fourth  with  a technical  score  of 55.5  out  of a
   possible 90.   The  BDI/NCR proposal was  ranked as third  with a
   technical score  of 56.7.  out of  90.   The Seacor  proposal was
   ranked  second with  a  technical  score of  59.1.   The  Maximus
   proposal was  ranked first by  the TEP with a  technical score of
   67.6 out of 90 points.  Protest File, Exhibit 6 at 8.   
 
        28.  The   contracting   officer   then  ranked   the   four
   technically acceptable  offers based on their  combined technical
   and cost scores.  The ranking was as follows:   
 
                       Maximus        77.05 
                       Seacor         64.86
                       BDI/NCR        62.04    
                       BDI/IBM        61.11
   Protest File, Exhibit 11.  
 
 
   The Competitive Range Determination
 
 
        29.  Once the  combined  scores  for  the  four  technically
   acceptable offerors were available, the  contracting officer made
   a  competitive  range  determination in  which  she  excluded all
   offers except that submitted  by Maximus.  Protest File,  Exhibit
   11.  
 
        30.  In her deposition, the  contracting officer has readily
   agreed  that, in excluding  offerors from the  competitive range,
   she was  required to  determine whether  they had any  reasonable
   chance to receive an award.  Protest File, Exhibit 18 at 106.  In
   this   regard,  she  has   testified  that   in  making   such  a
   determination she certainly did consider the possibility that the
   excluded companies  might have  increased their  scores had  they
   submitted  a BAFO.   Id.  at  62-63, 106.   She  states  that she
   recognized  that this  was a  possibility --  as it  was likewise
   possible that  Maximus could improve  at least  on its  technical
   score.  Id. at 59-60, 106.  Nevertheless, she concluded that  the
   remaining three offers did not  have a reasonable chance of being
   awarded the contract.  Id. at 63, 107.      
 
        31.  When asked to  explain the basis for  her determination
   that BDI  did not have a reasonable  chance of being selected for
   award, she replied:
 
        It  is based  on  the  technical  evaluation  that  was
        conducted and  reflected in  the notes  which you  have
        s e e n ,   a n d   i n f o r m a t i o n   i n   t h e
        letters[foot #] 4,    as     well    as     the    cost
        evaluation.  
 
   Protest File, Exhibit 18 at 112.  
 
        32.  Before making her final  determination, the contracting
   officer did confer with several individuals.  She has stated that
   she   discussed  with  the  "technical  people"  whether  it  was
   reasonable to expect  that these companies could receive an award
   after  a BAFO.   Protest File,  Exhibit 18 at  62.   She also has
   stated  that she  met with  her  supervisor and  with counsel  to
   discuss her intended competitive range determination.  Id. at 65.
   It  is her  testimony, however,  that  no one  ever suggested  or
   advised that all  four technically acceptable offers  be retained
   in the competitive range.  Id. at 52-55, 112.  
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 4   Although  not  expressly   identified  in  this
   quotation, it is  clear from the context that the reference is to
   letters  the contracting officer  wrote to BDI  and Seacor, dated
   December 10,  1991, informing  them  that their  offers had  been
   eliminated from the competitive range.  See Findings 37-40.  
                                           ___
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        33.  From the record  we cannot determine the  exact date on
   which   the  contracting  officer   made  her  competitive  range
   determination for  this procurement.   By December  10, 1991,  it
   obviously was already made.  See Protest File, Exhibits 7-9.  The
   contracting officer's written determination is, however, undated.
   Id., Exhibit 11.   In her deposition she stated that she does not
   recall  the exact date,  but believes that  the competitive range
   determination had been  made by November 24.  Id.,  Exhibit 18 at
   73.  The  TEP chairman, who met  with the contracting officer  on
   three   or   four   occasions  before   the   competitive   range
   determination was made, was unable to  testify with any certainty
   regarding when those meetings occurred.  Id., Exhibit 17 at 47.  
 
        34.  On   November   24,  1991,   the   contracting  officer
   telephoned a representative of Maximus to confirm that statements
   in Maximus'  proposal  regarding compliance  with the  authorized
   geographic codes did  in fact cover  all the equipment  proposed.
   Protest  File,  Exhibit  18   at  69-70,  84-85.    The   company
   representative contacted confirmed that  the statements did apply
   to  all  equipment.    The  representative  further  assured  the
   contracting  officer that the  company was "familiar  with [this]
   AID  requirement" and  was "very  conscious"  of the  requirement
   while working on the proposal.  The contracting officer asked for
   written confirmation.  Id., Exhibit 13.  Written confirmation was
   provided by facsimile transmission received  on November 25.   It
   stated: "Thank you for your phone inquiry . . . .   To  reaffirm,
   [our] proposal as written complies with the Authorized Geographic
   Code as stated  in the RFP."   Id., Exhibit 18 at  69-70, Exhibit
   25.   
 
        35.  It was  the contracting  officer's plan  to notify  all
   offerors at the same time regarding the status of the offers they
   had made on  this procurement.  Protest File,  Exhibit 18 at 110.
   On December 10, 1991, therefore, by separate  letters relating to
   each  proposal  received, the  contracting officer  notified each
   offeror, with the exception of Maximus, that its offer had either
   been  rejected as technically unacceptable or had been eliminated
   from the competitive  range.   The contracting  officer has  also
   stated that  because  of  the level  of  detail in  each  of  the
   letters,  it "took  quite a  while"  after the  competitive range
   determination  was made to  prepare these letters  for concurrent
   release on December 10.  Id. at 83.  
 
        36.  Each  of the contracting  officer's letters of December
   10 regarding the elimination  of BDI's three offers and  Seacor's
   one offer is  based almost entirely on  the specific observations
   provided to her by the TEP and on her own notes taken during  her
   evaluation of cost proposals.  Compare Protest File,  Exhibits 2,
   6 with  Exhibits 7-9,  34.   The  letters to  BDI demonstrate  in
   considerable  detail  the  underlying bases  for  the contracting
   officer's conclusion that the proposals  in question did not have
   a  reasonable expectation of  being selected for  award.  Because
   the  propriety of the contracting officer's decision to eliminate
   the BDI/IBM and BDI/NCR  proposals from the competitive range  is
   at issue in  this protest, we set  out here the verbatim  text of
   her letters on each of those proposals.    
 
 
        37.  The contracting officer's letter of December 10,  1991,
   to protester regarding the BDI/IBM proposal reads as follows:
 
        Thank you for  submitting your proposal in  response to
        the Request  for proposal Egypt-91-008.  The evaluation
        of proposals  has now been  completed and we  regret to
        inform you that your proposal which contains IBM as the
        computer vendor, is not within the competitive range of
        offerors with  whom the  Best and  Final Offers  (BAFO)
        process continues.  
 
        The following comments are those of the Technical Panel
        and are provided for your edification.  While generally
        well written, your proposal does not provide sufficient
        supporting    explanations,    is     unclear    and/or
        contradictory  in  places,  fails  to  provide  a  firm
        configuration, and contains some unacceptable staffing.
        Some  specific  deficiencies  and  weaknesses  of  your
        proposal are commented upon below.
 
        Portability
 
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        Compatibility
 
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        Data Entry in the Branch
 
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        Data Entry in the Polyclinics
 
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        RFP Requirements Omitted in Proposal
 
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        Software
 
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        Data Communication Equipment
 
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        Training in the United States
 
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        Level of Effort
 
        While  your proposal does  not contain level  of effort
        data   per   se,[[foot #] 5]    there   is   discussion
        related to  the level  of effort  which is  of concern.
        Page  38  of  your  proposal states  that  there  is no
        intention to  repeat the analysis already  developed by
        HIO,  but the  proposal goes  on  to describe  subtasks
        which appear  to repeat the work  previously performed.
        Considerable studies  have already  been performed  and
        documented,   and  are  not   to  be  repeated.     The
        responsibility  of Task  Four (4)  is  to finalize  the
        functional design, not develop it from scratch.
 
        Proposal's Response to RFP's Requirements Is Not Firm
 
        Your proposal contains comments indicating that you may
        change your mind  about certain  hardware and  software
        products  once a  contract is  signed  and the  project
        initiated.  Below are two examples:
 
             "Key  sizing  factors  are  not presented  in
             sufficient  detail in the RFP to enable us to
             propose a  final and  guaranteed architecture
             and configuration for the MIS  at this time."
             (page 16)
 
             "After this  workload projections  review, we
             will  subsequently  re-examine  our  proposed
             hardware and software  configurations for the
             various types of HIO facilities and fine tune
             them where necessary."  (page 56)[[foot #] 6]
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 5   The TEP reported  that BDI did not  provide any
   indication  of  the level  of  effort.    Because BDI  failed  to
   indicate  how many  people would  be  assigned to  each task  and
   subtask, the TEP found it  impossible to know the total estimated
   effort.   Protest File, Exhibit  6, Notes from the  Evaluation of
   the Technical Proposal BDI with IBM at 8. 
 
        [foot #] 6  These are but two  of five examples provided  to
   the contracting officer by the TEP regarding the lack of firmness
                                                      (continued...)
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        The RFP contains considerable  workload data which  was
        sufficient  to allow offerors  to propose  specific and
        firm configurations.
 
        Staffing
 
        Based  on  the staffing  information contained  in your
        proposal, a number of concerns are identified:
 
             The  two   (2)  people  proposed   as  Senior
             Computer  Operators  have   never  worked  as
             Computer Operators,
 
             The  proposed  Senior  Systems  Analysts  and
             Senior Analyst Programmers have no documented
             experience  in  the   proposed  hardware  and
             software, and
 
             No Training  Specialist is  proposed.   It is
             unacceptable  to state that one will be named
             later.
    
        It  was expected that  offerors would propose personnel
        who met  the position  qualifications specified  in the
        RFP.  Another  concern about staffing in  your proposal
        was your  intent to  utilize  the services  of Mr.  Don
        Pugliese, as  a resource  to the  project,  when he  is
        already  employed  full-time  on  another  contract  in
        Egypt.  This approach is not acceptable.
 
        The Business  Management Plan was  evaluated separately
        in  the Office of Contract Services.  Comments relative
        to the cost evaluation follow.
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 6 (...continued)
   for  the  products  proposed  in  the BDI/IBM  proposal  and  the
   associated  budget for  them.    The TEP  was  also concerned  by
   certain statements made  in this proposal such as  "[I]t would be
   poor judgment  to lock into  a large computer system  before such
   certain  questions are resolved."  The "questions," however, were
   not  identified.   Elsewhere in  its proposal  BDI stated:  "As a
   result of this process, we anticipate negotiating (at some future
   time, as  specified in  the technical proposal)  a list  of fixed
   ordering prices for  hardware and software, for each  year of the
   effective contract  period."  This  led the TEP to  conclude that
   BDI was  not at all  firm on the  products that it  had proposed.
   The TEP also was concerned that BDI had proposed little regarding
   subtask  11.1, the  development of  a conversion  plan.   BDI had
   argued instead that many questions  had to be answered before the
   conversion plan could be developed.   The TEP disagreed with this
   contention.   Protest File, Exhibit 6, Notes  from the Evaluation
   of the Technical Proposal BDI with IBM at 5.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        General
 
        The referred budget  notes are missing from  BDI's cost
        proposal.  This made evaluation extremely difficult, as
        explanations/justifications which were  alluded to were
        missing.
 
        Third country national costs  are proposed in  dollars.
        This would require waivers, which were  not anticipated
        by USAID.
 
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        ******** *** **** **** ** ****
 
        Statement  as  to  acceptability   of  the  terms   and
        conditions of the RFP was missing.
 
        There were a number of items omitted from the technical
        proposal, which thus  has a direct bearing  on the cost
        of the  proposal  and  its  realism  and  completeness.
        These  have been  mentioned  in  the  comments  of  the
        technical panel.
 
        The  omitted items and statements made in the technical
        proposal as to  BDI's inability to guarantee  the price
        of  its  system  equipment  due  to  a  need  for  more
        information led to  uncertainty in the  cost evaluation
        as  to the  realism and  completeness  of the  proposed
        price.   BDI  was also  not firm  on its  estimates for
        renovation,  and  remodeling site  prep[aration]  costs
        were missing.
 
        Fixed Fee
 
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        Personnel and Associated Costs
 
        Eight biodata  sheets were missing,  some biodatas were
        missing   complete   salary   history.      This   made
        verification of salary reasonableness impossible.
 
        Personnel policies  regarding differentials  and travel
        were not provided, personnel policies were not provided
        at  all for  the  subcontractors,  some  of  whom  were
        providing significant amounts of staffing.
 
        Nine  of  the  required  letters  form  [sic]  proposed
        personnel  stating  their   intention  to  serve   were
        missing.   The job  description on  the letter  was not
        always the same as on the biodata.
 
        Pugliese is proposed, however he is allocated full-time
        to  another  AID-funded  contract.    This  is  not  an
        accepted practice.   In addition, his proposed  rate is
        in excess of  the FS-l rate, while BDI  had stated that
        no one was proposed over the cap.
 
        Cost  proposed for  shipment of  vehicles is  extremely
        high - 2 POVs for $26,224?
 
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        Indirect Costs
 
        Letter from cognizant  audit agency confirming indirect
        cost rates and  bases was not provided as required, for
        BDI or for subcontractors.
 
        Statement  as to  impact that an  award would  have, if
        any,  on  indirect  cost  rates  was  not  provided  as
        required, either for BDI or subcontractors.
 
        Subcontracts
 
        The amount appearing in BDI's budget table for computer
        equipment does seem to be the same as that given by the
        hardware vendor, no explanation of discrepancy given.
 
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        BDI's proposal and its hardware vendor's (IBM) separate
        volume do  not  always  agree.   BDI  states  that  all
        equipment meets  with AID's requirements with regard to
        geographic code, IBM states that they do not.
 
        We recognize  that negotiations might  have resulted in
        an improved proposal.   However, it was  concluded that
        the   needed  improvements  were  so  great  that  your
        proposal, even  if  improved  through  negotiation  and
        submission of  a best and  final offer, did not  have a
        reasonable  expectation of being selected for award.  A
        revised  proposal is neither  requested nor will  it be
        accepted.
 
        We  sincerely appreciate  your  considerable effort  in
        preparing  and  submitting  and  [sic]  offer  on  this
        extremely technical (and  voluminous) requirement.   We
        regret  that it  was  not  sufficiently  strong  to  be
        considered in the competitive range.  We hope this will
        not  discourage you  from  responding to  future  USAID
        requests  for proposals.  Indeed, we would welcome your
        participation, and look forward to future opportunities
        to work together in USAID's development programs.
 
   Protest File, Exhibit 7.
 
        38.  The contracting officer's letter of December 10,  1991,
   to protester regarding the BDI/NCR proposal reads as follows:
 
        The following comments are those of the Technical Panel
        and are provided for your edification.  While generally
        well written, your proposal does not provide sufficient
        supporting    explanations,    is     unclear    and/or
        contradictory  in  places,  fails  to  provide  a  firm
        configuration, and contains some unacceptable staffing.
        Also,   the  main  proposal  volume,  which  prefers  a
        computer supplier other  than NCR, does not  easily fit
        with  the NCR  proposal.    Specific  deficiencies  and
        weaknesses of this proposal are commented upon below.
 
        Integration  Problems  Between  Main  and NCR  Proposal
        Volumes
 
        Because  the main volume  of the technical  proposal is
        written around a specific computer supplier  (not NCR),
        the evaluation of  the NCR proposal is  more difficult.
        The main  proposal contains sections  on the  Technical
        Approach and  Understanding of  the RFP's  Requirements
        and  so does NCR's proposal.  Performing the evaluation
        required  moving  back and  forth  between  the various
        volumes.  The table of contents in NCR's proposal  does
        not  break down the  hardware and software  into useful
        groupings, and there are no page numbers which makes it
        extremely difficult to locate information.
 
 
        Fully Distributed Architecture
 
        Your   proposal   recommends    a   fully   distributed
        architecture and identifies  the advantage of  limiting
        reliance on any single system.  However, there are also
        disadvantages to  a fully distributed architecture.   A
        fully distributed architecture implies at least ninety-
        eight  (six  branches,   sixty-seven  polyclinics,  and
        twenty-five  hospitals)  computer systems  which  would
        increase  by  one  with  the  implementation   of  each
        polyclinic  or hospital  to exceed  200 by  1997.   The
        following  list  contains  some of  the  considerations
        which  should   have  been   addressed  in   thoroughly
        exploring  the  feasibility  of  a  fully   distributed
        architecture for HIO:
 
             The more computer systems that are installed,
             the   greater  the   cost  (acquisition   and
             maintenance),
             The more equipment installed, the greater the
             likelihood of  a failure which  would require
             maintenance,
             The   more  sites   installed,  the   greater
             coverage  to be  provided by  the maintenance
             organization (i.e., a  higher ratio of  sites
             and equipment per Field Engineer),
             The approach to ensure data integrity between
             local data bases which may be updated and the
             branch database which is the master, and
             Local area  networks (LANs)  require constant
             technical  care  to  monitor   and  tune  for
             performance.
 
        The major concern  is that to  implement and support  a
        fully distributed architecture  on a national  scope in
        Egypt, of  the  size  envisaged  by  HIO,  could  be  a
        problem.     *************  ***   *******  **   *******
        ********** ********* ********* ** ********* **  *******
        ******** **  ********* **********  ******   * ****  ***
        ******** ******** ** *** ******** ************ ********
        ********** *** ***** ***** ** ****** *** ********** ***
 
        **** ******** ***** ********  ********* *** ******  ***
        **************    ********   ****  ********  ****   ***
        **********   *******    ***   *******    ***   ********
        ************    **     ***********    ***     *********
        **************
 
        Proposed Equipment
 
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        ********
 
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        **** ***** *** ***** ******** ***************
 
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        ********** ********* ** ***********
 
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        **** ********* ** *** *********  ** *** ****  ***** ***
 
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        *** **** ************ **** ** *********  ** ***********
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        *** ********* ********  ****** ********* ***  *********
        **** *** **** ********** ** ***** **********
 
        Data Communication
 
        ***** ******** ******** ********  ******* ***** **  ***
        ****  ********  ****   ******  ***  ***  ****   **  ***
        **********  ** **  *** ***** ** ****  ** * ******  ****
        *******  ***  ********  **  *********  **  ** **  **  *
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        ***** ****  ******* *********    ******** ***  ********
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        ********* ** * ****** ******* ****** ** ** ******* ****
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        ** *** **** *** ************* ************  ***********
        *** *** ** ** ***** ******** -- *** ** ** ********* ***
        ********* ** * ****** ***** ** ****** ***********
 
        Training in the United States
 
        ****  *** **** *** *** ********* ********* ******** ***
        *********  ** ***  **** ***  ******* ********  ********
        ********  **************     *****  ********  *********
        ********  **  ****  ***  *********   ****  *******  ***
        ******** ***  *** ** *  ***** *** ** *****  *** *******
        ** *** *******  ** *** ************** ****  ** ********
        ** *************
 
        Level of Effort
 
        While  your proposal does  not contain level  of effort
        data   per   se,[[foot #] 7]    there   is   discussion
        related  to the level  of effort  which is  of concern.
        Page  38 of  your  proposal  states  that there  is  no
        intention to  repeat the analysis  already developed by
        HIO,  but the  proposal goes  on  to describe  subtasks
        which appear to  repeat the work  previously performed.
        Considerable studies  have already  been performed  and
        documented,   and  are  not   to  be  repeated.     The
        responsibility  of Task  Four (4)  is  to finalize  the
        functional design, not develop it from scratch.
 
        Proposal's Response to RFP's Requirements Is Not Firm
 
        Your proposal contains comments indicating that you may
        change your  mind about  certain hardware and  software
        products  once a  contract is  signed  and the  project
        initiated.  Below are two examples:
 
             "Key sizing  factors  are  not  presented  in
             sufficient  detail in the RFP to enable us to
             propose a  final and  guaranteed architecture
             and configuration  for the MIS at this time."
             (page 16)
 
             "After this  workload projections  review, we
             will  subsequently  re-examine  our  proposed
             hardware and software  configurations for the
             various types of HIO facilities and fine tune
 
 
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 7   The TEP found  that the BDI/NCR  proposal, like
   the BDI/IBM proposal, contained estimated start and end dates but
   no indication of the  level of effort.  The  proposal provided no
   indication of how  many people would be assigned to each task and
   subtask.    It  was  impossible,  therefore,  to know  the  total
   estimated  effort.   Protest  File,  Exhibit  6, Notes  from  the
   Evaluation of the Technical Proposal BDI with NCR at 3.     
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
             them     where     necessary."          (page
             56)[[foot #] 8]
 
        The RFP contained considerable workload data which  was
        sufficient  to  allow  offerors   to  propose  specific
        configurations.
 
 
        Staffing
 
        Based  on the  staffing  information contained  in  the
        proposal, a number of concerns are identified:
 
             The  two  (2)   people  proposed  as   Senior
             Computer  Operators  have   never  worked  as
             Computer Operators,
 
             The  proposed  Senior  Systems  Analysts  and
             Senior Analyst Programmers have no documented
             experience  in  the   proposed  hardware  and
             software, and
 
             No  Training Specialist is  proposed.   It is
             unacceptable to state that  one will be named
             later.
 
        It was expected  that offerors would  propose personnel
        who met the  position qualifications  specified in  the
        RFP.  Another  concern about staffing in  your proposal
        was  your intent  to  utilize the  services of  Mr. Don
        Pugliese,  as a  resource to  the  project, when  he is
        already  employed  full-time  on  another  contract  in
        Egypt.  This approach is not acceptable.
 
        The Business Management  Plan was evaluated  separately
        in  the Office of Contract Services.  Comments relative
        to the cost evaluation follow.
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 8  As in  the case of  the BDI/IBM proposal,  these
   are but two of five  examples provided to the contracting officer
   by  the TEP  regarding  the  lack of  firmness  for the  products
   proposed  by BDI and the  associated budget for  them.  The TEP's
   additional concerns with the firmness of the BDI/NCR proposal are
   the  same as  those outlined  above in  footnote 5  regarding the
   BDI/IBM  proposal.    Protest  File,  Exhibit 6,  Notes from  the
   Evaluation of the Technical Proposal BDI with NCR at 8.     
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        General
 
        The referred budget  notes are missing from  BDI's cost
        proposal.  This made evaluation extremely difficult, as
        explanations/justifications which were  alluded to were
        missing.
 
        Third  country national costs  are proposed in dollars.
        This would require waivers,  which were not anticipated
        by USAID.
 
        ************ **  *******  ****  ***  *******  ****  ***
        ******** *** *** ** ****
 
        Reps and Certs not provided for NCR.
 
        Statement as to acceptability of of [sic] the terms and
        conditions of the RFP was missing.
 
        There were a number of items omitted from the technical
        proposal, which thus  has a direct bearing on  the cost
        of  the  proposal  and  its  realism and  completeness.
        These  have been  mentioned  in  the  comments  of  the
        technical panel.
 
        The  omitted items and statements made in the technical
        proposal as to  BDI's inability to guarantee  the price
        of  its  system  equipment  due  to  a  need  for  more
        information  led to uncertainty  in the cost evaluation
        as  to the  realism and  completeness  of the  proposed
        price.   BDI  was also  not firm  on its  estimates for
        renovation,  and   remodeling  site  prep   costs  were
        missing.
 
        Fixed Fee
 
        *** ***  ******** ***  *** ***  *** **************  ***
        ****   ****  **  ***  *******  *********  ****  ***  **
        ********* ***  ***** ***  ****************** **********
        *****  *****  ******  ** **  ****  ***  *** ***********
        *****  ***  *******  ****  ****  ****************   ***
        ************   *** *****  *** ************* **  *** ***
        *** *********
 
        Personnel and Associated Costs
 
        Eight biodata sheets  were missing, some  biodatas were
        missing   complete   salary   history.      This   made
        verification of salary reasonableness impossible.
 
        Personnel policies  regarding differentials  and travel
        were not provided, personnel policies were not provided
 
        at  all for  the  subcontractors,  some  of  whom  were
        providing significant amounts of staffing.
 
        Nine  of  the  required  letters  form  [sic]  proposed
        personnel  stating  their   intention  to  serve   were
        missing.   The job  description on  the letter  was not
        always the same as on the biodata.
 
        Pugliese is proposed, however he is allocated full-time
        to  another  AID-funded  contract.    This  is  not  an
        accepted practice.   In addition, his proposed  rate is
        in excess of  the FS-1 rate, while BDI  had stated that
        no one was proposed over the cap.
 
        Cost  proposed for  shipment of  vehicles  is extremely
        high - 2 POVs for $26,224?
 
        ******* *********  **** **** **** *** * ** *** ********
        ********* - **-****
 
        Very few expatriate  personnel were proposed for  long-
        term   assignments.     While   this  decreases   costs
        considerably, it does raise concerns over the abilities
        of the  local staff  to carry  out the  assignment with
        very little  expatriate TA  input.   Concerns over  the
        qualifications of some  proposed personnel were  raised
        in the technical panel's comments.
 
        Indirect Costs
 
        Letter from cognizant  audit agency confirming indirect
        cost rates and  bases was not provided as required, for
        BDI or for subcontractors.
 
        Statement  as to  impact that an  award would  have, if
        any,  on  indirect  cost  rates  was  not  provided  as
        required, either for BDI or subcontractors.
 
        Subcontracts
 
        ***** ******* ** ** *********** ** ****** ***** ** ****
 
        **  ********* ** ******** **** **** ******** ** *******
        **** ***** *********** ** ******** ** ***** ******
 
        We recognize  that negotiations might  have resulted in
        an improved proposal.   However, it was  concluded that
        the   needed  improvements  were  so  great  that  your
        proposal,  even  if  improved through  negotiation  and
        submission of  a best and  final offer, did not  have a
        reasonable  expectation of being selected for award.  A
        revised  proposal is neither  requested nor will  it be
        accepted.
 
        We  sincerely appreciate  your  considerable effort  in
        preparing and  submitting  an offer  on this  extremely
        technical (and voluminous) requirement.  We regret that
        it  was not sufficiently strong to be considered in the
        competitive  range.  We  hope this will  not discourage
        you  from  responding  to  future  USAID  requests  for
        proposals.       Indeed,   we   would    welcome   your
        participation, and look forward to future opportunities
        to work together in USAID's development programs.
 
   Protest File, Exhibit 8.
 
        39.  A third letter dated December 10, 1991, was sent by the
   contracting  officer  to BDI  regarding its  BDI/Unisys proposal.
   This  letter  sets out  the  principal  reasons reported  to  the
   contracting officer by the TEP  (Finding 26) for not finding this
   proposal technically acceptable.  Protest File, Exhibit 9.  
 
        40.  A  letter dated  December 10,  1991, was  also sent  to
   Seacor  by  the  contracting officer.    It  explains in  detail,
   similar to  that provided to  BDI, why Seacor's proposal  was not
   included in  the competitive  range.  Protest  File, Exhibit  34.
   Seacor has not protested this determination.    
 
 
   Negotiations With Maximus  
 
        41.  By letter also dated December 10, 1991, the contracting
   officer   advised  Maximus  that  its  proposal  was  within  the
   competitive range  but that there were  a number of items  in the
   proposal which needed to  be addressed in the BAFO.   Maximus was
   advised that its BAFO should be submitted on January 16, 1992.  A
   separate enclosure  with this  letter identifies  in considerable
   detail  various items which the contracting officer asked Maximus
   to consider before  submitting its BAFO.   Protest File,  Exhibit
   12.        
        42.  Among the areas and items Maximus was asked to consider
   in preparing its technical proposal for BAFO were the following:
 
        Source/Origin requirements; 
        Maintenance and warranty provisions; 
        Additional   justification   of   proposed  distributed
             architecture;  
        Justification of stateside training; 
        Clarification of proposed level of effort;
        Certain technical information regarding equipment; 
        Assignment of primary responsibility for the SOW tasks;
        More detail regarding possible recurring costs for HIO;
 
        Additional detail regarding site preparation;
        Future changes in proposed hardware and software;
        Additional detail  regarding certain  proposed hardware
        and  software;
        Additional detail regarding planned data communication;
 
        Adjustment  and changes in some proposed staffing; and 
 
        Leadtime for equipment delivery  and payment terms upon
             shipment.
 
   Protest File, Exhibit 12 at 2-8.
 
        43.  Among the areas and items Maximus was asked to consider
   in preparing its cost proposal for BAFO were the following:
 
        More detail for subcontractors' budgets;
        More   detail  regarding   staffing  levels,   staffing
             commitments, use of expatriate personnel, salaries
             and salary increases; 
        Information  regarding  offeror's  negotiated  indirect
        cost      rate agreement  and possible impact  of award
        on this   agreement;
        Accuracy of  rates used for  allowances, benefits,  and
             travel;
        Certificates  for  cost  and  pricing  data  and  other
             representations  and   certifications  from   some
             subcontractors;
        Additional   information   from   some   subcontractors
        regarding      local holidays and personnel policies;
        Clarifications regarding the  possible inclusion of tax
             and/or duty and vehicle  operational costs in some
             estimates;
        Information   regarding  method   of  estimating   site
             preparation costs; and
        More detail regarding calculation of fee.
 
   Protest File, Exhibit 12 at 9-13.
 
        44.  In her deposition,  the contracting officer  has stated
   that she did  not consider the  various deficiencies in  Maximus'
   proposal to be  major or to impede her from  determining that the
   offer was realistic and reasonable.   Protest File, Exhibit 18 at
   45-46.    
 
        45.  On   December  24,   1991,   the  contracting   officer
   responsible  for  the competitive  range  determination left  the
   USAID  mission  in  Cairo  in  anticipation  of  a  new  overseas
   assignment.  Protest File, Exhibit 18 at 6.  
 
        46.  Maximus submitted its  first BAFO on January  16, 1992.
   Protester's    Second    Protest   File    Supplement,    Exhibit
   2.[foot #] 9  
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 9   In response to the Board's order of February 4,
   1994, which  afforded the  parties an  opportunity to  update the
   record  with any  relevant evidence  regarding  events which  had
   occurred since  the Board's  first  decision on  the merits,  BDI
                                                      (continued...)
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        47.  In  February 1992,  a new  contracting  officer assumed
   responsibility for the procurement  which is the subject  of this
   protest.    He  served  in  this  capacity  until  January  1993.
   Declaration  of Braden W.  Enroth (Enroth Declaration)  (Dec. 20,
   1994) at 1.   
 
        48.  The  technical  proposal submitted  by  Maximus  in its
   first BAFO was evaluated and commented on  by the TEP in a report
   submitted in early April  1992.  Protester's Second Protest  File
   Supplement, Exhibit 7.        
 
        49.  The   same  ***   consultant  who   had  assisted   the
   contracting  officer  in  the  early  phase  of  the  first  cost
   evaluation (Finding 22) reviewed the cost proposal submitted with
   Maximus'  first BAFO.   He  was particularly  concerned with  the
   accuracy of the figures provided.   For any upcoming  negotiation
   session with Maximus, he recommended: 
 
        Maximus  should recheck  all  calculations and  correct
        mistakes.    Also,  they should  bring  all  details to
        support how the cost figures were derived and  be ready
        to  modify their  costs again,  based  on changes  made
        during negotiations.  
 
   Protester's Second Protest File Supplement, Exhibits 4 at 1, 6 at
   1.
 
        50.  One technical issue which received some attention after
   the submission of  Maximus' first BAFO concerned  the requirement
   to  provide a demonstration  of operational capability  (DOC) for
   the system proposed.   In a letter  dated March 18, 1992,  to the
   contracting officer, the *** consultant involved in the technical
   evaluation of proposals, noted that the local sites identified by
   Maximus in its demonstration plan did not  have the architectural
   configuration  or applications which  Maximus was bidding  in its
   proposal.     Instead,  the   consultant  proposed  a   stateside
   demonstration since more of the  equipment proposed was in use in
   the United States than in Egypt.  Protester's Second Protest File
   Supplement, Exhibit 3.  
 
        51.  In a letter  dated March 23, 1992, to  Maximus, the new
   contracting   officer  passed  on  the  concerns  voiced  by  ***
   regarding the  proposed demonstration of  operational capability.
   He explained: 
 
        We   are   looking   for   a[n]   integrated,   turnkey
        hardware/software  system  demonstration  that  closely
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 9 (...continued)
   filed this Second Protest File  Supplement which contains a total
   of sixty exhibits.  
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        replicates  the proposed system in terms of system load
        (use), configuration (capacities, types  and numbers of
        stations),   external   network   communications,   and
        functional    system    features    (health/information
        applications).  
 
   Protester's Second Protest File Supplement, Exhibit 5.  
 
        52.  Documentation  in   the  record   indicates  that   two
   demonstrations did take place in Egypt in March 1992 but, because
   they did not completely satisfy the Government's requirements, it
   was decided to continue the DOC in the United States.  In mid-May
   of 1992, a representative of Maximus and a *** consultant resumed
   the DOC with a visit to Shaw Supermarkets in Boston.  The purpose
   of  this visit  was  to review  Shaw's  computing environment  to
   determine  how similar  it was  to  HIO and  the computer  system
   proposed by Maximus.  Protester's Second Protest File Supplement,
   Exhibit 20.  
 
        53.  Shaw's operation was found to offer some but not all of
   the characteristics  of  the  ideal  site.   The  ***  consultant
   reported that  Shaw did  not regret its  decision to  utilize NCR
   equipment, that it  was pleased with the NCR  equipment, and that
   it found the NCR hardware very reliable.  At this point, however,
   the *** consultant recommended to the contracting officer that he
   not require Maximus to continue to provide a complete DOC in view
   of the time  and effort already expended.  He noted that the X.25
   network proposed has been widely used in the United States for at
   least fifteen years,  that the configuration proposed  by Maximus
   appears to be adequate to meet the needs of the RFP, and that the
   open systems  architecture provided  via UNIX does  not lock  HIO
   into  using only NCR equipment  forever.  Instead, he recommended
   that  Maximus   be  required   to  certify   that  the   proposed
   architecture  and system configuration will meet the HIO workload
   and  all  requirements stated  in  the RFP.    Protester's Second
   Protest File Supplement, Exhibit 20.     
 
        54.  There does not appear to have been a formal negotiation
   session  with Maximus  before  submission  of  its  second  BAFO.
   Instead,  by letter  dated  April  23,  the  contracting  officer
   provided Maximus with  extensive comments on  its first BAFO  and
   requested that it  submit a second BAFO  by May 17.   Protester's
   Second Protest File Supplement, Exhibit 9. 
 
        55.  In calling for  a second BAFO, the  contracting officer
   pointed  out to  Maximus that  the TEP  was of  the  opinion that
   Maximus' first BAFO had successfully addressed only twenty-one of
   the sixty  specific points or  questions listed  by the  previous
   contracting  officer with  her letter  of  December 10,  1991, to
   Maximus.  See Findings 41-43.   This, however, was interpreted by
   the  contracting  officer not  as  a  failure  of Maximus  to  be
   responsive but  simply  an indication  of the  complexity of  the
   remaining  thirty-nine items.    Protester's Second  Protest File
   Supplement, Exhibit 9.     
 
        56.  In  addition  to  requesting changes  in  the technical
   proposal,  the successor contracting  officer directed Maximus to
   revise its cost proposal completely.  He passed on to Maximus the
   specific  comments provided by  the *** consultant  regarding the
   cost proposal submitted  with the first BAFO and insisted: "Every
   figure and calculation must be explained.  Spreadsheets should be
   built from the bottom up starting  at the lowest level of  cost."
   Protester's Second Protest File Supplement,  Exhibit 9 at 1.  The
   demand for a complete revision  of the cost proposal was modified
   somewhat by the contracting officer  in a subsequent letter dated
   May 6  in which he advised Maximus that there would be no need to
   complete the additional cost tables included as Volume Two of the
   cost proposal submitted in the original BAFO.  Id., Exhibit 13.  
        
        57.  Although the record is somewhat unclear on this matter,
   it appears that  Maximus submitted its second BAFO  in advance of
   the May 17 deadline.  Protester's Second Protest File Supplement,
   Exhibit  14 at  1.   Both the  technical and cost  proposals were
   reviewed by  the agency  and its  consultants in  anticipation of
   formal negotiations.   Id., Exhibits 15-17, 21.   By letter dated
   May 21,  the contracting  officer provided  Maximus with  written
   comments  regarding certain aspects of the revised cost proposal.
   Id., Exhibit  17.   By letter  dated the following  day, May  22,
   Maximus  provided extensive cost  notes and replacement  pages in
   response  to  the  concerns  and   errors  pointed  out  by   the
   contracting officer in his letter  of May 21.  Id., Exhibits  18-
   19.  
 
        58.  Face-to-face discussions opened with Maximus during the
   last week  of May.   During these discussions,  various questions
   arose regarding subcontractor  costs and fees.  On  June 1, 1992,
   the  parties met  for  negotiations.    An  unsigned  memorandum,
   presumably written by the  contracting officer himself, regarding
   this session, states:  
 
        The opening  comments were  provided by  the C.O.  Buzz
        Enroth.   Maximus was informed,  as stated in  the RFP,
        that  the USAID  was contemplating  a  CPFF [cost  plus
        fixed  fee]  contract  and  because  of  this  type  of
        contract, it would necessitate  that all activities and
        approaches  be agreed to  prior to any  contract award.
        The Fixed  Fee would be  based on the  negotiated total
        estimated cost.
 
        I informed Maximus  that a field pricing  support audit
        would be  requested from DCAA  [Defense Contract  Audit
        Agency]  and this activity [would] need to be completed
        and analyzed prior to award of a contract.    
 
   Protester's Second Protest File Supplement, Exhibit 26 at 1.  
 
        59.  The negotiation session  of June 1 ended  abruptly when
   it became  clear that agreement  could not be reached  on matters
   relating  to Maximus'  fee.    Protester's  Second  Protest  File
   Supplement,  Exhibit 26  at  2.   However,  in  a letter  to  the
   contracting officer dated  June 2, Maximus reaffirmed  its second
   BAFO on its  own behalf and on behalf of  its subcontractors, but
   suggested  a week for  the parties  to take  some time  "to think
   through the issues  and possibilities away  from the crucible  of
   the negotiations."  Id., Exhibit 27.
 
 
        60.  By  letter dated  June 10,  Maximus  submitted for  the
   contracting officer's consideration, a number of counterproposals
   or suggestions  "in the  spirit of moving  the negotiations  to a
   swift conclusion."   Protester's Second  Protest File Supplement,
   Exhibits 29-30.     
 
        61.  A   lengthy    USAID   status    report[foot #] 10   on
   contract negotiations, dated  June 11, sums up  the progress made
   during negotiations with  Maximus and also briefly  describes the
   impasse reached regarding  Maximus' fee.  The report  anticipates
   resuming  negotiations in  mid-July provided  the  audit work  on
   Maximus' own  proposal as well as  on the proposals of  its local
   subcontractors can be completed by that time.  Protester's Second
   Protest File Supplement, Exhibit 31.  Maximus was provided a copy
   of this status report.  Id., Exhibit 32.   
 
        62.  In mid-June,  1992, the contracting officer  went ahead
   with his plan to seek field pricing support in the form  of audit
   assistance from  DCAA pursuant to FAR 15.805-5  and FAR 15.806-3.
   Protester's  Second Protest  File Supplement, Exhibit  33; Enroth
   Declaration at 1.     
 
        63.  In late July 1992, USAID's request for audit assistance
   from  the  DCAA was  renewed.    The letter  was  written  by the
   contracting officer's  supervisor and, in  accordance with  USAID
   procedures,  was  sent  to  the  audit  office  of  the  agency's
   inspector general.  The letter indicates that DCAA was apparently
   reluctant to provide  the audit assistance previously  requested.
   Protester's Second  Protest File  Supplement, Exhibit 35;  Enroth
   Declaration  at  2.    This  same letter  observes  that  if  any
   certified cost or pricing data is found to be erroneous,  "we may
   have  a fraud case for  you to look  into."  Supplemental Protest
   File, Exhibit 35 at 1.  The contracting officer has declared that
   with the exception of this one reference to fraud, he is aware of
   no other document  which he wrote or reviewed  in connection with
   the HIO procurement which raises concern over  any possible fraud
   by Maximus or its subcontractors.  Enroth Declaration at 2. 
 
        64.  The DCAA  audit process took  considerably longer  than
   originally  anticipated.   The  final audit  was not  received by
   USAID  in Egypt  until  September 21,  1992.   Protester's Second
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 10  This report  is not signed but  is acknowledged
   in other documentation  in the record as being the  report of the
   contracting  officer, Braden  Enroth.   E.g.  Protester's  Second
                                           ____
   Protest File Supplement, Exhibits 32, 47. 
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   Protest File  Supplement, Exhibit 42.   Maximus provided  its own
   comments  regarding this  final  audit  report  by  letter  dated
   October  20.   Id.,  Exhibit  44.   Documentation  in the  record
   indicates  that once the audit process was complete, negotiations
   became considerably more intense.  Id., Exhibits 45-59.  
 
 
        65.  A  handwritten  document  prepared by  the  contracting
   officer dated  "1/93" summarizes the major areas  of "savings" or
   "cuts"  as a  result of  negotiations with Maximus.   Protester's
   Second  Protest File  Supplement, Exhibit  53.   The  contracting
   officer explains  that this memorandum  represents notes prepared
   as  a review  sheet prior  to  a meeting  with USAID/Cairo's  top
   management  and project personnel to discuss the HIO procurement.
   He further  explains that  the negotiations  with Maximus  during
   1992 were dominated by cost issues.  He states: 
 
        It  is my opinion that as a result of BDI's protest and
        the  GSBCA's decision  denying  that protest  in  1992,
        Maximus  became  aware   that  it  was  alone   in  the
        competitive   range   of   the   HIO  Procurement   and
        essentially in a sole-source negotiating  position.  It
        is also  my opinion  that Maximus showed  intransigence
        regarding any lowering of its  fee in 1992, and in fact
        raised its fee by almost  $2 million between its BAFO I
        and BAFO II, due to its  awareness that it was alone in
        the competitive range of the HIO Procurement.
 
   Enroth Declaration at 3.    
 
        66.  The contracting  officer's notes of "1/93"  contain the
   following comment in the upper right-hand corner of page one: 
 
                             General Issues
                         BDI - Cost going down.
                             Sust. Protest.
 
   Protester's Second Protest File Supplement, Exhibit 53 at 1.  The
   contracting officer explains that this note refers:
 
        to the  fact that  the cost  negotiations with  Maximus
        were at that time finally starting to break, and refers
        as well to  my belief that at least  one reason Maximus
        was finally revising  its fee downwards was  because it
        had learned  that BDI was not dropping  its protest and
        had, in fact, appealed to the Federal Court of Appeals.
        It is my  opinion that Maximus finally  wanted to bring
        negotiations   to   closure   and   commence   contract
        performance,  just in case BDI's protest was ultimately
        sustained.  
 
   Enroth  Declaration at  3.   Protester  disputes the  contracting
   officer's reading of this note and claims instead that the phrase
   "Sust.  Protest." actually  reads  "Just. Protest."   Protester's
   Second Brief on the Merits at 64.  Having examined the writing in
   question as well  as the sworn statement of  its author regarding
   the  phrase,  we find,  as  fact,  that  the term  reads:  "Sust.
   Protest."  
 
 
        67.  By memorandum  dated January 18, 1993,  the contracting
   officer reported to his supervisor regarding the outcome of final
   negotiations  with Maximus.   He  states  that negotiations  with
   Maximus  should  result  in  a  contract of  $21  million  --  as
   contrasted  with the Government's  cost estimate of  $27 million;
   $1.4  million of  this  reduction is  said  to be  the result  of
   Maximus having obtained current pricing from  NCR on the original
   equipment  list.   Protester's  Second  Protest File  Supplement,
   Exhibit 59.  
 
        68.  On  January  21,  1993,  contract  award  was  made  to
   Maximus.  Protester's Second Protest File Supplement, Exhibit 60.
     
 
 
                               Discussion
 
        We   turn  now  to  a  discussion  of  protester's  specific
   allegations.  
 
   Count I
 
        In its first count, protester alleges:
 
        AID violated FAR 15.609(a) by disqualifying Protester's
        proposal   based  on  minor   matters  that   were  not
        evaluation  factors in  the Solicitation  -- and  which
        could  be   easily  corrected   by  clarifications   or
        negotiations.  
 
   Complaint   18.  
 
        The specific FAR provision which protester relies on in this
   count reads as follows:  
 
        The  competitive range shall be determined on the basis
        of cost or price and  other factors that were stated in
        the   solicitation and shall include all proposals that
        have a reasonable  chance of being selected  for award.
        When there is doubt as to whether a proposal is in  the
        competitive range, the proposal should be included.
 
   48 CFR 15.609(a) (1994) (FAR 15.609(a)).  
 
        Protester's  arguments in support  of Count I  fall into two
   basic  categories.   One  line  of argument  is  simply that  the
   contracting  officer's determination that  the BDI  proposals did
   not  have a  reasonable chance  of being  selected for  award was
   flawed  because  it was  based  on erroneous  technical  and cost
   evaluations.  The other line  of argument is that the contracting
   officer's  conclusion in  this regard  was  based on  unsupported
   facts.  We turn first to the argument that the technical and cost
   evaluations were erroneous.  
 
 
 
        Was the Contracting  Officer's Conclusion that  the BDI
        Proposals Did  Not Have  a Reasonable  Chance of  Being
        Selected  for Award  Based on  Erroneous  Technical and
        Cost Evaluations?
 
        In  support  of Count  I,  BDI argues  that  the contracting
   officer's competitive range determination was essentially  flawed
   because it was based on  an erroneous technical evaluation and an
   erroneous cost evaluation.      
 
        In challenging the reliability of the  technical evaluation,
   protester stresses  the disparity  between the  overall technical
   scores given to proposals by two  members of the TEP.   Protester
   also  points  to the  wide  disparity  in  the scores  these  two
   individuals  gave on  a limited  number  of individual  criteria.
   Protester's    First    Brief   on    the   Merits    at      33-
   39.[foot #] 11   
 
        The  presence  of disparity  among  the  scores of  the  TEP
   members is  certainly not unprecedented.   It is not  unusual for
   individual evaluators  to reach different conclusions  and assign
   different scores when  evaluating proposals since  both objective
   and  subjective  judgments are  involved.   Novel Pharmaceutical,
   Inc.,  B-255374, 94-1  CPD   149,  at 6  (Feb. 24,  1994) (citing
   Cybernated  Automation Corp., B-242511.3,  91-2 CPD    293 (Sept.
   26,  1991)).   The procedure  provided  for in  this procurement,
   Findings 14-15, of  averaging the technical  scores given on  the
   various evaluation factors is a common measure taken to safeguard
   against  the possibility of  an inadvertent, unfair  result where
   such disparity may exist.   We recognize that a quality review of
   scores  given on  the 335  individual criteria for  each proposal
   might   have   improved   the   accuracy   of   the   evaluation.
   Nevertheless, failure to  make such a  review certainly does  not
   constitute  a fatal  flaw in  the  technical evaluation  process.
   Given  the  large  number of  individual  criteria  involved, the
   consistency  in higher or lower  scoring among evaluators for all
   proposals, the averaging  technique employed, and the  occasional
   comparison of results on at least a  section-by-section basis, we
   conclude that  the technical  evaluation was  sound and  reliable
   under the circumstances.  
 
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 11  In referring here  to protester's "first  brief
   on the merits" and elsewhere  to respondent's "first brief on the
   merits," we  are  referring to  the briefs  submitted by  counsel
   prior to  the Board's original  decision on the merits  which was
   subsequently vacated by the Court of Appeals.   
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        Protester's  principal objection  to  the  accuracy  of  the
   contracting officer's cost evaluation is her requesting and using
   a  revised  Government  estimate  shortly  after  she  began  her
   evaluation of  cost proposals.   Protester's First  Brief on  the
   Merits at     40-44.   Protester apparently  believes this was  a
   deliberate ploy  on the part  of respondent to favor  one offeror
   over others.  The record does  not support this contention.   The
   original  error was  readily  understandable  and  the  need  for
   correction obvious.   See Findings 20-21.  Protester has provided
   us  with  no credible  reason  to  question  the motives  of  the
   contracting officer in calling for a revised estimate.  
 
        Protester  also contends that the contracting officer's cost
   evaluation  was  flawed because  her  "subjective  evaluation" of
   realism  and completeness  did not  reflect all  of the  comments
   provided by the  *** consultant who made a  preliminary review of
   cost proposals.   Protester's First Brief on the  Merits at   40.
   We find no merit in this  argument.  The contracting officer  has
   made it clear  that she herself performed the  evaluation of cost
   proposals and that,  in doing so, she  made selective use of  the
   information provided by the *** consultant.  Finding 24.  We find
   nothing wrong with  this.  In the final  analysis we would expect
   the evaluation to be based on her judgment and not on that of her
   consultant.  Protester has not demonstrated to us that any of the
   scores given by the contracting officer in her evaluation of cost
   proposals lacked  a rational  basis  or represented  an abuse  of
   discretion.    
 
        Furthermore,  in  view  of the  extraordinarily  high weight
   given in  this procurement to  the technical  merit of  proposals
   (90%),  even  if a  limited  number  of flaws  did  exist  in the
   evaluation  of cost  proposals, they  would  have to  be nigh  on
   egregious for the  overall evaluation of proposals  to be fatally
   flawed.  In this regard, protester does allege the existence of a
   blatant error  made in the evaluation of  Maximus' cost proposal.
   See Protester's First  Brief on the Merits  at   43.  We  are not
   convinced, however, that  the error was of  the magnitude alleged
   by  protester.   Protester's contention  is  based on  deposition
   testimony of the *** consultant who, at the contracting officer's
   request,  made an initial  review of the  various cost proposals.
   It  was his understanding that  Maximus' supplier proposed to add
   120%  to the  sales price  of certain  equipment to  cover taxes,
   duties, and  cost of money.   Protest File, Exhibit  20 at 34-39.
   Upon closer review,  however, it appears  that the adjustment  in
   question related  to a 20% markup calculated by multiplication of
   the net selling "by  1.2 (for customs duties, sales tax, and cost
   of money)."  See Respondent's Brief at 32.
 
        In   summary,   we  find   none  of   protester's  arguments
   questioning  the fundamental soundness  of the technical  or cost
   evaluation of  offers to be  convincing.  We turn,  therefore, to
   protester's other line of argument.
 
        Was the Contracting Officer's  Conclusion that the  BDI
        Proposals Did  Not Have  a Reasonable  Chance Of  Being
        Selected for Award Based on Unsupported Facts?
 
        In its  first brief  on the merits  of this  case, protester
   contends that the contracting officer's decision to eliminate BDI
   from the competitive  range was unsupported because  the combined
   evaluation  scores  for  the four  technically  acceptable offers
   showed  "there  was  ample opportunity  for  the  BDI  and Seacor
   proposals to  exceed the Maximus  score after a BAFO  for the top
   four proposals."  Protester's First Brief on the Merits at   26.
 
        This  argument,  based as  it  is  on  the raw  point-spread
   between  evaluation scores, provides no real support for Count I.
   As  already  noted,  that  count states  that  AID  violated  FAR
   15.609(a) by disqualifying BDI's proposals based on minor matters
   which  could be  easily corrected  through  clarifications.   The
   "point-spread  argument"  essentially   ignores  the  comparative
   review  conducted  by  the  contracting  officer  in  making  her
   competitive  range  determination.     Any  probability   of  BDI
   improving  its standing  vis a  vis Maximus  in the  BAFO process
   obviously depends on  the qualitative merit of the  proposals and
   not simply on  the quantitative relationship of  their evaluation
   scores.  For this  reason, an argument based solely on the point-
   spread  without reference  to reasons  behind  it is  of no  real
   value.   
 
        Protester  may  well  be  correct  in  suggesting  that  the
   point-spread  between  scores  in this  procurement  is  far from
   conclusive, on its face, as  to the prospects of the lower-scored
   offers  for award.   The  analysis, however,  must go  deeper and
   examine the facts specific to this procurement.  In rearguing its
   case on remand,  protester has finally done this,  turning to the
   specific  deficiencies listed by  the contracting officer  in her
   letters of  December 10  regarding  the BDI/IBM  and the  BDI/NCR
   proposals.  
 
        In discussing the contracting officer's letter regarding the
   BDI/IBM proposal, protester  has singled out forty-one  items for
   specific  analysis.   In  discussing  the  letter  regarding  the
   BDI/NCR proposal, protester identifies  and discusses thirty-nine
   items.   The conclusion reached  after this lengthy  treatment is
   that a  limited number of  the items touched upon  in the letters
   are   simply    based   on    incorrect   assumptions.[foot #] 12
   The  numerous concerns  remaining  in  the contracting  officer's
   letters are described as merely informational deficiencies  which
   could have been  easily remedied.  Assuming this to  be the case,
   protester argues that any determination that BDI's offers did not
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 12  We count eleven such  items said to be  present
   in the  letter regarding  the BDI/IBM proposal  and seven  in the
   letter regarding the BDI/NCR proposal.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   have a  reasonable chance  of award was  clearly without  basis. 
   See Protester's Second Brief on the Merits at 5-41, 44-60.  
 
 
        We are unpersuaded by this  new argument.  We turn first  to
   the argument that  some of the contracting officer's concerns are
   plainly  wrong because they  are based on  incorrect assumptions.
   In  support of  this  contention,  protester  has  submitted,  as
   exhibits with its  second brief on the merits,  excerpts from its
   original proposals.   These materials, although available  at the
   time,  were not offered for inclusion  in the record prior to its
   being  closed in  advance of  the Board's  first decision  on the
   merits.[foot #] 13  
 
        Respondent  has questioned  whether BDI  at  this late  date
   should be allowed  a second bite at the apple by setting forth in
   its second brief on the merits detailed  arguments contesting the
   substantive  elements  of the  contracting  officer's competitive
   range determination when it passed on the opportunity to do so in
   its first brief on the merits.   See Respondent's Second Brief on
   the Merits at 21.  
 
        In  deciding this case  on remand and  affording the parties
   the opportunity  to submit a second round of briefs on the merits
   of  this  case,   we  have  permitted  them   to  supplement  the
   argumentation previously provided  in the first round  of briefs.
   However, in making any new argument, the parties must comply with
   the  rules established regarding  the evidentiary record  in this
   case.   Those rules are  simple.  For  reasons of efficiency  and
   fairness, we have declined to reopen the evidentiary record as to
   matters which occurred prior to our first decision on the merits.
   We  have, however, in response to protester's requests, agreed to
   reopen  the  record to  permit  the  parties  to update  it  with
   evidence regarding events which occurred since our earlier review
   of the case.
 
        We, therefore,  will not  admit to the  record at  this late
   juncture those exhibits which protester  now offers in support of
   its  allegations  that  several of  the  statements  made in  the
   contracting    officer's   letters    of    December   10    were
   incorrect.[foot #] 14      We    likewise   decline   to   accept
   any argument based  upon this documentation.  Protester had ample
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 13  We note that the record does not contain copies
   of BDI's proposals.   At the start of this case, the parties were
   invited to propose for inclusion  in the record those portions of
   BDI's  and other vendors'  proposals considered relevant  to this
   protest.  Conference  Memorandum (Dec. 24, 1991).   This was done
   by both parties but on a very limited basis.  
 
        [foot #] 14  In a  separate order issued this  same date, we
   have identified the specific  exhibits proffered with protester's
   second  brief on  the merits,  which are  being rejected  for the
   reason set out herein.      
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   time prior to our first decision on the merits to include  in the
   evidentiary  record proof of  such allegations.   This litigation
   cannot continue ad infinitum.  Although  the TEP found two of the
   BDI  proposals technically  acceptable, protester,  in developing
   the  evidentiary record  to support  its original  case-in-chief,
   chose  not  to  include any  materials  which  might specifically
   disprove  the accuracy of  the many discrepancies  and weaknesses
   listed by the  contracting officer in her letters  of December 10
   to BDI.  We consider it  only fair that protester now accept  the
   consequences of that decision.    
 
 
        The  deficiencies which  protester  would  now eliminate  as
   plainly erroneous, however,  are relatively few when  compared to
   those which remain in  the two letters of December 10.  It is the
   contention   of  protester  that   all  of  the   remaining  cost
   deficiencies and  technical deficiencies, with  minor exceptions,
   are     merely     informational.[foot #] 15          Protester's
   Second Brief on the Merits at 5-24, 24-41.  
 
        There   are   undoubtedly  several   genuine   informational
   deficiencies  in  the   contracting  officer's  letters  to   BDI
   regarding its proposals.   This is obvious from  a review of each
   letter.  Nevertheless, we remain in radical disagreement with the
   protester  that  virtually all  of  the  concerns listed  by  the
   contracting officer in her letters fall into this category. 
 
        To describe the  concerns raised by the  contracting officer
   in her  letters, BDI has  adopted a definition  of "informational
   deficiency" which  exceeds the  limits traditionally  established
   for the term.  In defining an informational deficiency, protester
   states that it is: 
 
        one based on lack of information, lack of clarity, lack
        of explanation, or insufficient explanation.
 
   Protester's Second Brief on the Merits at 41.  
 
        Our understanding of the  term "informational deficiency" is
   similar to that of the Comptroller General, namely, "deficiencies
   that could readily  be remedied by additional  information during
   discussions, such as the omission of  letters of commitment . . .
   ."  Apt Corp., GSBCA 9237-P, 88-1  BCA   20,411, at 103,249, 1987
   BPD    284, at 12  (citing Associated  Corp., B-225562,  87-1 CPD
     436, at 8 (Apr.  24, 1987)).  Key to the  traditional notion of
   informational deficiency is the fact that this type of deficiency
   can be "readily  remedied."  The missing  information in question
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 15   The  only substantive  technical  deficiencies
   which  BDI is prepared to acknowledge are its failure to offer an
   embossing  machine and metaphor  graphic capability  software and
   its omission of  a proposed training specialist as  called for in
   the "staffing" requirements of the RFP.  Protester's Second Brief
   on the Merits at 42.    
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   need not  be developed by any extensive dialogue and often can be
   provided by a mere  unilateral submission by the offeror -- as in
   the case of a missing letter of commitment.  
 
 
        It  goes   without  saying   that  unless   truly  authentic
   informational deficiencies  in a proposal  are so numerous  as to
   require major revisions, a proposal  with nothing more than  this
   type of  deficiency should obviously not be  dismissed as lacking
   any reasonable  chance of  award.  This  is particularly  true in
   situations  where the elimination  of such proposals  would leave
   only one offeror in the  competitive range.  Falcon Systems Corp.
   B-213661, 84-1  CPD   658  (June  22, 1984).    This is  not  the
   situation confronting us in this protest however.  
 
        Looking at the quantity and quality of the specific concerns
   listed in  the  contracting officer's  letters, we  are far  from
   convinced that they  would have been readily resolved.   Many are
   simply  not informational deficiencies  as that term  is normally
   understood.     Rather  they   reflect  a  substantial   lack  of
   understanding of requirements or  a similar lack of  diligence in
   preparing the proposal.   Correction of these  deficiencies would
   have  undoubtedly  required   considerably  more  discussion  and
   substantive  revision of the  proposals.  Furthermore,  given the
   initial quality of  protester's proposals, we consider  it highly
   unrealistic to assume, as protester  does, that in each and every
   case,  additional discussion  would have  led  to a  satisfactory
   conclusion.       
 
        The  term  "informational  deficiency,"   as  normally used,
   simply does not aptly describe all the deficiencies  in question.
   For  example,  in the  BDI/IBM  proposal,  we  find the  concerns
   regarding portability, compatibility,  data entry, software,  and
   the  proposal's general  lack of  firmness  to be  far more  than
   informational deficiencies.  See Finding  37.  Similarly, in  the
   BDI/NCR  proposal  we   find  the  concerns  regarding   proposed
   equipment, data communication and the proposal's lack of firmness
   to be examples of far  more than informational deficiencies.  See
   Finding  38.   In  essence,  protester has  adopted  an expansive
   definition of  "informational deficiency" and  then proceeded  to
   avail  itself  of   the  benefit  of  precedents  based   on  the
   traditional meaning of the expression.  
 
        We conclude  this  part of  our  discussion with  one  final
   observation  regarding  protester's  efforts  to  categorize  the
   majority of the concerns raised by the contracting officer in her
   letters  of December 10  to BDI as  "informational deficiencies."
   Protester compares  these concerns  with those  mentioned by  the
   contracting  officer in  the  attachment she  sent to  Maximus by
   letter of the  same date.   According to protester,  many of  the
   items  mentioned  to  Maximus   were  relatively  "minor   issues
   specifically  implicated  in  the BAFO  process"  and  would most
   likely not have  been raised "if Maximus had not  been allowed to
   enter the negotiation  phase."  Protester's  Second Brief on  the
   Merits at 60.   The obvious implication is  that the deficiencies
   listed  for Maximus  were  purely  informational.    The  record,
   however, says  otherwise.  Of  the various "minor issues"  in the
   Maximus proposal, only approximately  one third were successfully
   addressed in the first BAFO.   Finding 55.  This hardly  supports
   BDI's  contention  that the  items  mentioned in  the  letters it
   received,  which were  of more  substantial  import, were  merely
   informational deficiencies.[foot #] 16  
 
 
        In its second brief  on the merits, protester has  fashioned
   an  additional argument in support of  Count I.  This argument is
   based upon an examination of events occurring in this procurement
   after  the competitive  range determination.    The duration  and
   complexity   of  these   negotiations   with  Maximus   allegedly
   demonstrate  that Maximus' offer was not sufficiently superior as
   to justify the conclusion that  BDI's proposals had no reasonable
   chance of being selected for  award.  Protester's Second Brief on
   the Merits at 61.  
        In presenting  this argument, BDI  calls our attention  to a
   number of  facts relating to  negotiations with Maximus.   In the
   area of costs, protester  argues that several events  support the
   contention  that Maximus'  price  was not  as good  as originally
   believed.   Protester describes the difficulties encountered with
   the costs provided by Maximus' subcontractors, the resultant need
   for an "emergency  audit," the problems and  delay encountered in
   negotiating  Maximus' fee, the contracting officer's demand for a
   complete revision  of Maximus' cost proposal, a  reduction of 1.4
   million   dollars  from   Maximus'  original  price   only  after
   respondent  was  allegedly  "forced  to  audit  Maximus  and  its
   subcontractors."   Finally,  protester contends  that  a marginal
   comment  written  into  the notes  of  the  successor contracting
   officer allegedly  indicates that  USAID's contract  estimate was
   excessive  and   that  concessions  wrung   from  Maximus  during
   negotiations brought  its price  closer to that  of BDI  and thus
   justify BDI's protest.  Protester's Second Brief on the Merits at
   61-64.  
 
        In the area of technical  discussions, protester refers to a
   "litany  of technical  problems" throughout  negotiations and  in
   particular to  USAID being forced  to waive the  demonstration of
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 16   We note in  passing that BDI's  admission that
   its deficiencies were "fundamentally  different" from the  "minor
   issues"  identified by  the contracting  officer  for Maximus  is
   somewhat surprising.  Nevertheless, BDI presses the argument that
   because its deficiencies were more  than mere "minor issues," the
   improvement  in  its  score after  negotiations  would  have been
   considerably  greater than that achieved by Maximus.  Protester's
   Second  Brief on  the  Merits  at  60.   We  find  this  argument
   conflicts  with and  severely undermines  BDI's  basic contention
   that its  own deficiencies  were merely  informational.   In this
   regard,  we readily  understand why  respondent aptly  complains:
   "BDI cannot have it both ways . . . ."  Respondent's Second Brief
   on the Merits at 50. 
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   operational capability (DOC)  requirement because the competitive
   range was reduced to only one offeror.  Id. at 64-67.  
 
 
        We have examined  the record, as supplemented  by protester,
   regarding events which occurred during negotiations with Maximus.
   Where necessary, we  have made various findings of  fact.  Having
   done so,  we find  protester's characterization  of events  which
   occurred during negotiations to be exaggerated and, at times,  in
   direct  conflict  with   the  evidence  offered  in   support  of
   protester's contentions.  
 
        We would expect USAID to examine Maximus' cost proposal with
   extreme  care  once the  competitive  range  was  reduced to  one
   offeror.  The  record confirms that respondent did so.   The cost
   proposal  submitted with Maximus' BAFO was closely scrutinized by
   the ***  consultant who  was advising  the successor  contracting
   officer.  Finding 49.  Based on the consultant's recommendations,
   this contracting officer insisted on substantial revisions of the
   cost  proposal which  was  submitted as  part  of Maximus'  BAFO.
   Finding 56.  
        As to the  contracting officer's decision to  audit Maximus'
   cost  proposal,  we  do  not  look upon  this  as  an  "emergency
   measure."  Rather,  it appears to us as  a logical, precautionary
   measure  appropriate  for a  situation  such  as this  where  the
   competitive range  was  reduced to  one offeror.   Field  pricing
   support was  available to the contracting officer,  and he wisely
   chose  to make  use of  it.   Documentation from  the procurement
   files indicates that  his plan to have the  cost proposal audited
   was  made  known  to  Maximus  even before  the  first  round  of
   discussions reached a snag on the issue of fee.  Findings 58-59. 
    
 
        As to the disagreement regarding  fee, it does not appear to
   have  significantly stalled  negotiations.  The  dialogue between
   respondent  and AID did not cease after face-to-face negotiations
   temporarily concluded on  June 1, 1992.  Indeed,  by letter dated
   June  2, Maximus was  careful to reaffirm its  second BAFO on its
   behalf  and on  behalf of its  subcontractors.   Finding 59.   In
   addition, by letter dated June  10, Maximus submitted a number of
   counter-proposals or suggestions to move negotiations "to a swift
   conclusion."  Finding 60.  
 
        As to the time consumed in auditing the costs of Maximus and
   its subcontractors, we are not convinced that the time ultimately
   required  for  the  audits   necessarily  demonstrated  that  the
   contracting officer's initial assessment of Maximus' proposal was
   substantially  flawed.   There were  clearly some  administrative
   problems associated with the start  of the process.  This was  an
   overseas  procurement not  without some  complexity  of its  own.
   Furthermore, the audits  were requested during the  summer season
   when vacation leave often results  in additional delay.  Findings
   61-64.  
 
        The  $1.4 million  reduction in  Maximus'  price is  readily
   explained in  terms of  a change in  current pricing  data rather
   than  the result  of  any  "forced" or  "emergency  audit."   See
   Finding 67.  As for the significance of the contracting officer's
   marginal note regarding Maximus' lowering of costs in the face of
   a  continuing  BDI  protest, we  find  the  contracting officer's
   explanation  considerably  more  credible  than  the  protester's
   suggested interpretation.  Finding 66.    
 
        It is  indeed true  that the original  price bid  by Maximus
   finally did go down significantly --  considerably more than $1.4
   million.  See Finding 67.   Protester has failed to  convince us,
   however,  that  this  ultimate price  reduction  proves  that the
   contracting  officer's  original assessment  of  Maximus' initial
   proposal was somehow flawed.   Rather, the facts strongly suggest
   that  this reduction was  attributable to the  persistence of the
   AID negotiating team and, ironically, to recognition on the  part
   of Maximus that continued delay might  lead to the return of  BDI
   to the procurement in the event it should prevail in this protest
   after a successful appeal.  Findings 65-67.  
 
        We  likewise  are  unconvinced  that  the  judgment  of  the
   original  contracting officer in  assessing BDI's  possibility of
   award is put into  question by the alleged emergence of a "litany
   of technical  problems" with  Maximus' technical  proposal.   The
   principal  problems  identified  by   the  successor  contracting
   officer in  writing to  Maximus after  BAFO  are basically  those
   which were identified by the  previous contracting officer in the
   attachment which she sent to Maximus under cover of her letter of
   December  10.   Findings  41-43, 55.   Certainly,  therefore, the
   first   contracting  officer   was  aware   of  these   technical
   deficiencies when  she made her  competitive range determination.
   As to  AID being  forced to waive  the DOC  requirement, we  find
   nothing  in the  record  suggesting  that the  DOC  could not  be
   completed.  Instead, the facts indicate that AID's consultant did
   not believe  the expenditure of  time and resources  justified in
   view  of  the  apparent  reliability  of  the  solution  actually
   proposed.    He,  therefore,  suggested  a  certification  as  an
   alternative   --  which   suggestion   the  contracting   officer
   apparently chose to accept.  Findings 50-53.  
 
        In  short, the events occurring during the negotiations with
   Maximus,  which  protester  would  have  us  focus upon,  do  not
   convince us that the contracting officer's original assessment of
   Maximus' proposal  and of  BDI's inability  to compete  seriously
   with it  was incorrect or  unrealistic.  The record,  as updated,
   does  not  indicate  the emergence  of  any  new and  substantial
   problems  with Maximus'  technical  proposal during  negotiations
   which  might have surprised  the original contracting  officer or
   prompted  her  to change  her  assessment of  Maximus'  and BDI's
   proposals.   As  to the  close  scrutiny given  to Maximus'  cost
   proposal, this is not particularly surprising given the fact that
   only  one  vendor remained  in  the competitive  range.   Indeed,
   protester  has not  convinced us  that  the original  contracting
   officer would not have been as exacting on subcontractor costs as
   was her successor  -- had  she remained  to conduct  negotiations
   with this sole vendor.  
 
 
        Protester  also calls  our attention  to the  fact  that the
   contracting officer conferred with several individuals  regarding
   her competitive range  determination before  actually making  it.
   This, according  to protester, indicates that there  was doubt in
   her mind  and, therefore, pursuant  to FAR 15.609(a),  BDI should
   have been included in the range.  Protester's First  Brief on the
   Merits at   32. 
 
        Protester would have us infer  solely from the fact that the
   contracting  officer conferred with others  that she was in doubt
   as to her proposed determination.  This is not an inference which
   we readily  draw.  Given the facts, as  we understand them, it is
   equally as probable  -- if  not more  so -- that  the purpose  of
   these meetings  was simply to test and/or confirm a determination
   already relatively firm  -- particularly since no  suggestion was
   made during these consultations that she  include all four offers
   in   the  competitive  range.     See  Finding   32.[foot #] 17  
 
 
        Conclusion Regarding Count 1
 
        In vacating our  first decision on the merits,  the Court of
   Appeals for the Federal Circuit observed: 
 
             To promote the  legislative and regulatory  policy
        favoring   competition   while   allowing   contracting
        officers  the full range of their discretion, the Board
        of Contract  Appeals and the  Comptroller General  have
        given   "close   scrutiny"   to   contracting   officer
        evaluations  that result in a competitive range of one.
        . . . 
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 17  Protester contends that the contracting officer
   disregarded the  TEP's recommendation  that all  four technically
   acceptable  proposals be  subject to  BAFOs.   Protester's  First
   Brief  on the Merits at   51.  This assertion is at odds with the
   contracting  officer's   statement  that  no  one  suggested  the
   inclusion   of  all  four   offers  in  the   competitive  range.
   Protester's  contention  appears  to  be  based  on  a  distorted
   interpretation of  the TEP's recommendation  that the contracting
   officer use the BAFO process.  The RFP provided for award without
   further  discussion.    Finding  11.    It  was   obviously  this
   alternative   which  the  TEP  was  attempting  to  dissuade  the
   contracting officer from using  when it urged her to  make use of
   the BAFO process.   As to the  possibility of a  more restrictive
   competitive range, this was expressly  recognized by the TEP as a
   distinct  possibility -- once  the cost evaluation  was complete.
   See Finding 18.     
   ___
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
             We agree with  this approach.  If  the contracting
        officer has determined an initial competitive  range of
        one, there  must be a  clear showing that  the excluded
        bids have "no reasonable chance" of being selected. . .
        .   
 
   Birch & Davis  International, Inc. v. Christopher, 4  F.3d at 974
   (citations omitted).  
 
        The prolonged  litigation of  this protest  has afforded  us
   ample  opportunity to  scrutinize  closely the  competitive range
   determination which is the subject  of this protest.  Upon review
   of the entire  record, as  updated, it is  our conclusion that  a
   convincing body of evidence has  been assembled in support of the
   affirmative  determination  that  the excluded  BDI  bids  had no
   reasonable chance of  being selected.  The reasons  stated by the
   contracting officer  in her  letters  of December  10 are  highly
   persuasive.  This is especially true  when they are taken in  the
   aggregate.  It is no less true, however, when one focuses instead
   on    substantive   deficiencies    relating   to    portability,
   compatibility, software, data  entry, data communication or  lack
   of firmness in the proposals.  See Findings 37-38.    
 
        We  find  the comments  of  the  TEP,  as they  confirm  and
   supplement  the  contracting  officer's comments,  persuasive  as
   well.  The qualitative difference between the proposal of Maximus
   and those  of BDI is reflected in  far more than the point-spread
   between  scores.   As a  matter of fact,  evidence in  the record
   convinces us that the TEP was somewhat generous in its scoring of
   the two BDI proposals.  BDI  was alone among offerors singled out
   for  criticism in  the  introduction  of the  TEP  report to  the
   contracting officer.  The incompleteness of BDI's proposals was a
   matter of special concern.  The report observed: 
 
        [I]t does little good to suggest that AID or HIO should
        "trust us"  simply by  invoking their past  reputation,
        and yet fail to indicate  precisely how something is to
        be done on this project.
 
   Finding 17.  This general comment on incompleteness was confirmed
   more specifically in  the TEP's specific comments on  each of the
   three BDI proposals.  See Finding 26, notes 6, 8.  Similarly, the
   TEP voiced  its concern over  the total absence  of any  level of
   effort  data in the  BDI proposals.  See  notes 5, 7.   This is a
   remarkable oversight  in a  vendor's response  to a  solicitation
   which indicated that a cost-plus-fixed-fee, level of effort, term
   contract was contemplated and which expressly called for level of
   effort data.   See Findings 1, 2, 6.   Finally, there is the fact
   that, despite the technical scores actually given to two of BDI's
   proposals, when the contracting officer discussed BDI's prospects
   for award  with her technical  people, none suggested  that BDI's
   proposals be kept in the competitive range.  Finding 32.  
 
        In addition, the genuine informational deficiencies actually
   present in BDI's proposals and listed by the contracting officer,
   although undeniably not in and of themselves sufficient to reject
   the proposals, certainly  do not evince a promising  potential on
   the part of  BDI to improve  significantly on the quality  of the
   proposals -- particularly  when the RFP itself  initially advised
   offerors that award might be made without discussions.  
 
        In   contrast  to  BDI's   proposals,  Maximus   obtained  a
   relatively superior score but one  which was far enough away from
   the total points  available as to  leave a significant  potential
   for improvement.  Findings 3, 28.  
 
        Admittedly, apart from the general deficiencies found by the
   TEP to be common to nearly all proposals  (Finding 16), there are
   some  deficiencies and  characteristics in  the  BDI and  Maximus
   proposals which at first blush appear somewhat similar.  We note,
   however,  that  even  in  these  instances  there  is  a  notable
   qualitative difference.  
 
        Perhaps the most obvious similarity is that the  BDI/NCR and
   Maximus proposal both indicate an intention to use NCR equipment.
   Nevertheless, the BDI/NCR proposal is  said to suffer from a lack
   of  integration  between  BDI's main  proposal  and  that portion
   dealing with NCR.  Finding 38.  Given the absence of  any similar
   comments regarding Maximus, it is apparent that the NCR  elements
   were   considerably   better   integrated   into   the    Maximus
   proposal.[foot #] 18  
 
        Two examples of the qualitative difference between seemingly
   similar deficiencies in the BDI and Maximus proposals concern the
   RFP  requirement  to   provide  level  of  effort  data  and  the
   requirement to  provide site preparation costs.   Notwithstanding
   an  express requirement  that vendors  indicate  how many  people
   would be assigned to each task and subtask, BDI failed to provide
   this data.   Findings  37-38.   Maximus, on  the other  hand, did
   provide the  data.   The contracting  officer did,  however, seek
   some  clarifications  regarding  the  data  which  was  provided.
   Finding 42.   Similarly,  the contracting  officer observed  that
   BDI's  proposals  did  not  contain  remodeling  site-preparation
   costs.  Findings  37-38.  Maximus, in contrast,  did provide this
   data but  was asked  to explain how  it developed  its estimates.
   Finding 43.
 
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 18  The fact  that both BDI and  Maximus envisioned
   use  of NCR equipment  also undermines BDI's  contention that any
   concerns regarding its technical solution could have been readily
   resolved.  Given the superior  technical score given initially to
   Maximus, there was clearly potential for technical leveling which
   would undoubtedly  have further complicated  any discussions with
   BDI.     
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        In   making  her   competitive   range  determination,   the
   contracting officer  relied, in  part, on  the evaluation  scores
   assigned  to the four  technically acceptable offers.   Protester
   has not convinced us that the process leading to these scores was
   substantially flawed.  
        The  contracting   officer,  however,   took  into   account
   considerably more than the raw numerical scores.  Her decision to
   exclude BDI was based on a careful comparison of proposals and on
   the conduct of an  in-depth review of the weaknesses and  gaps in
   the  four proposals  which were  evaluated.   She  looked to  the
   detailed  analysis  of  technical  proposals  by the  TEP.    She
   considered the  potential  of  each  offeror to  improve  on  its
   evaluation   score  during  the  course  of  negotiations.    She
   consulted with  her technical  staff regarding  the prospects  of
   offerors receiving an  award after BAFO.  She  likewise looked to
   her  own  analysis  of  the  cost  proposals submitted  by  those
   offerors.    Findings  30-31.    Nevertheless,  it  remained  her
   considered opinion that the  BDI offers had no reasonable  chance
   of being selected.    
 
        Given the  record before us,  we agree with  the contracting
   officer that the disparity between  the overall scores of the BDI
   proposals   and  that  of   Maximus  would  not   have  decreased
   significantly  during the BAFO  process and that  BDI, therefore,
   had  no   reasonable  chance   of  being   selected  for   award.
   Accordingly,  further  discussions  with   BDI  would  have  been
   meaningless.      The   elimination   of   the   BDI   proposals,
   notwithstanding  the fact  that this  resulted  in a  competitive
   range   of  one   was,   consequently,   reasonable   under   the
   circumstances.   American  Systems Corp.,  B-247923.3,  92-2  CPD
     158  (Sept. 8, 1992).  For this reason,  we deny Count I of the
   protest.    
 
 
   Counts II and III
 
        In  the second  and third  counts  of its  protest, BDI  has
   alleged  that  AID violated  FAR 15.605(e)  and 15.608(a)  by not
   identifying   significant   factors   and   subfactors   in   the
   solicitation.   The two FAR  sections cited by protester  read as
   follows:  
 
        The  solicitation shall  clearly  state the  evaluation
        factors,  including price or  cost and  any significant
        subfactors,  that  will  be considered  in  making  the
        source  selection and  their  relative importance  (see
        15.406-5(c)).  Numerical weights, which may be employed
        in the evaluation  of proposals, need not  be disclosed
        in  solicitations.     The  solicitation  shall  inform
        offerors  of   minimum  requirements   that  apply   to
        particular   evaluation    factors   and    significant
        subfactors.
 
   FAR 15.605(e).  
 
        Proposal  evaluation  is  an  assessment  of  both  the
        proposal  and the offeror's ability (as conveyed by the
        proposal)  to successfully  accomplish the  prospective
        contract.     An  agency  shall   evaluate  competitive
        proposals  solely  on  the  factors  specified  in  the
        solicitation.
 
   FAR 15.608(a).  
 
        In its  complaint, protester  offers three  examples of  the
   allegedly hidden subfactors.  They are listed as follows:  
 
        (a)  The   requirement   for  significant   levels   of
             expatriate personnel participation;
        (b)  The specific requirement of hardware and  software
             compatibility;
        (c)  The requirement  of local training as  compared to
             training in the United States. 
 
   Complaint    24-25.   During the course of  discovery, protester,
   in  response to an interrogatory posed  by respondent, provided a
   more  complete  listing   of  the  alleged  hidden   factors  and
   subfactors  said to  be contained  in  the contracting  officer's
   letters of  December 10 regarding  the BDI/IBM, the  BDI/NCR, and
   the BDI/Unisys offers: 
 
        The BDI/IBM offer: 
        "Compatibility" paragraph;
        "Data Entry in the Branch" paragraph;
        "Data Entry in the Polyclinics" paragraph;
        The software requirements in the "RFP Requirements 
             Omitted in the Proposal" paragraph;
        The "Data Communication Equipment" paragraph;
        The Third  Country  National  costs  statement  in  the
             "General paragraph;"
        The "Fixed Fee" paragraph;
        The "Indirect Costs" paragraph.
 
        In the BDI/NCR offer: 
        The "Fully Distributed Architecture" paragraph;
        The "Data Communication" paragraph;
        The  Third  Country  National  costs statement  in  the
             "General" paragraph;
        The "Fixed Fee" paragraph;
        The "Indirect Costs" paragraph.
 
        In the BDI/Unisys offer:
        Paragraph   3   on  page   1   discussing  data   entry
             configurations, data  communication equipment  and PC's
             for use by HIO application development staff.  
 
   Protest File, Exhibit 15.  
 
        In briefing these counts of  its protest, BDI has offered no
   argument or proof.   Instead, it  simply repeats the  allegations
   contained  in its  complaint  and further  elaborated  on in  its
   answer  to respondent's discovery request.  See Protester's First
   Brief on the Merits at    47-50.  
 
        We  have  examined  the  contracting  officer's  letters  of
   December  10 regarding the  BDI/IBM, BDI/NCR, and  the BDI/Unisys
   proposals.  See  Findings 26,  37, 38.   In  particular, we  have
   examined the  specific sections in  the letters dealing  with the
   BDI/IBM  and  BDI/NCR proposal  which  are said  by  protester to
   involve hidden evaluation factors and subfactors.  We find all of
   them   to  be  reasonably  related  to  the  technical  and  cost
   evaluation factors in the RFP.  See Finding 3.  In the absence of
   any specific showing  by protester to the contrary,  we deny both
   Counts II and III.  
 
 
   Count IV
 
        In the  fourth count of  its protest, BDI contends  that AID
   has failed  to seek full  and open competition and  thus violated
   the  Competition  in  Contracting Act  when  it  eliminated BDI's
   proposals for  minor matters  that were  not evaluation  factors.
   Protester has  failed  to convince  us  that its  proposals  were
   eliminated  for minor matters  that were not  evaluation factors.
   We, therefore, deny this count as well since the premise on which
   it rests has not been proven.  
 
 
   An Additional Count
 
        In  its first  brief on  the merits,  protester also  argues
   that, in violation of FAR 15.610(b), respondent began discussions
   with Maximus prior to establishing the competitive range for this
   procurement.    This   allegation  is  not  contained   in  BDI's
   complaint.  It is said to be based on protester's learning during
   discovery  that on  November 24,  1991,  the contracting  officer
   called a Maximus  representative to confirm that  statements made
   in  the  proposal  regarding   compliance  with  geographic  code
   requirements of the  RFP applied to all proposed  equipment.  See
   Finding 34.   We reject  protester's allegation for  two reasons.
   First, this contention of protester is based  upon the assumption
   that at the time the inquiry was made, the competitive range  had
   not yet  been determined.   The record remains uncertain  on that
   point.  See Finding 33.  Second, given the nature and  purpose of
   the inquiry, we  do not view it  as anything more than  a request
   for clarification as that term is understood in FAR 15.601.  
 
                                Decision
 
 
        This protest is DENIED.  
   ___________________________
 
                                           EDWIN B. NEILL
                                           Board Judge
 
   We concur:
 
 
   _____________________________
   ROBERT W. PARKER 
   Board Judge
 
 
   _____________________________
   CATHERINE B. HYATT
   Board Judge