THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE
            ORDER AND IS BEING RELEASED TO THE PUBLIC IN ITS
                     REDACTED FORM ON MAY 20, 1994
          ___________________________________________________
 
                 GRANTED IN PART AND DISMISSED IN PART:
                             March 15, 1994
          ___________________________________________________
 
 
                             GSBCA 12692-P
 
 
                     SPRINT COMMUNICATIONS COMPANY,
 
                                       Protester,
 
                                  and
 
 
                  GTE GOVERNMENT SYSTEMS CORPORATION,
 
                                       Intervenor,
 
                                   v.
 
                  DEFENSE INFORMATION SYSTEMS AGENCY,
 
                                       Respondent,
 
                                  and
 
                       GOVERNMENT SYSTEMS, INC.,
 
                                       Intervenor.
 
        Carl  J. Peckinpaugh, Scott M. Heimberg, Janet Z. Barsy, and
   Sheila C. Stark of Akin, Gump, Strauss, Hauer & Feld, Washington,
   DC; and Julie  Lunceford Witcher, George J.  Affe, and Anthony L.
   Cogswell of Sprint Communications  Company, Herndon, VA,  counsel
   for Protester.
 
        George   W.  Stiffler,   Charles M.   Reifel,  and   Nick R.
   Hoogstraten of Bastianelli,  Brown & Touhey, Washington,  DC; and
   Sidney  G. Masri of  GTE Government Systems  Corporation, counsel
   for Intervenor.
 
        Douglas G. White and H.  Jack Shearer, Office of the General
   Counsel,  Defense Information  Systems  Agency,  Scott Air  Force
   Base,  IL; and  John  R.  McCaw, Gregory  C.  Carter, and  Robert
   Zuckerman,  Office  of  the   Chief  Counsel,  Federal   Aviation
   Administration, Washington, DC, counsel for Respondent.  
 
 
        Jeffrey  H. Smith, J. Robert Humphries, Ronald A. Schechter,
   and Susan B. Cassidy of  Arnold & Porter, Washington, DC, counsel
   for Intervenor Government Systems, Inc.
         
   Before Board Judges PARKER, NEILL, and HYATT.
 
   NEILL, Board Judge.
         
        This protest,  filed by Sprint Communications  Co. (Sprint),
   challenges  the award  of a  contract  by the  Defense Commercial
   Communications Office (DECCO) of the  Defense Information Systems
   Agency (DISA).   The award  was made to Government  Systems, Inc.
   (GSI).    The contract  was  awarded by  DECCO  on behalf  of the
   Federal   Aviation  Administration  (FAA).    It  calls  for  the
   furnishing  of an agency data telecommunications network for FAA.
 
 
        GSI and GTE  Government Systems  Corporation (GTE),  another
   participant in  this procurement,  have both  intervened in  this
   protest as intervenors of right.  
 
        Sprint's  protest, as amended, includes seven counts.  Count
   I  alleges  that  the  Government  failed  to  evaluate  properly
   Sprint's  technical  proposal.     Count  II  alleges   that  the
   Government misapplied the  award criteria of the  solicitation by
   selecting  a  higher cost  offer  that did  not  provide material
   advantages  to  the  Government.    Count  IV  alleges  that  the
   Government  failed to  award to  the  most advantageous  offeror.
   Count V alleges  that the Government failed to conduct meaningful
   discussions.   Count  VI alleges  that the  Government failed  to
   properly  evaluate  Sprint's  management  proposal.    Count  VII
   alleges  that   the  GSI   proposal  fails   to  meet   mandatory
   requirements of the solicitation, and Count VIII alleges that GSI
   and the  Government engaged in  post-best and final  offer (BAFO)
   discussions.[foot #] 1
 
        For  reasons explained  in the  discussion  portion of  this
   opinion, we grant Counts I, II, IV, V and VI of Sprint's protest.
   We dismiss Count VII as untimely filed  and we dismiss Count VIII
   for failure to state a valid basis of protest.      
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 1  Sprint's  original protest included  six counts.
   Sprint withdrew  one of  those counts (Count  III) and  added two
   others (Counts VII and VIII) by amendment.  
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
                            Findings of Fact
 
   The Solicitation  
 
        1.  On July 27, 1992,  DECCO issued a  solicitation, request
   for    proposals   (RFP)    no. DCA200-92-R-0029,   to    provide
   telecommunications  services  for  the FAA  under  what  was then
   called the Administrative Data Transmissions Network 2000.  DECCO
   subsequently issued twelve  amedments to this RFP.    Amendment 1
   (issued   on  September 21,  1992)   changed  the  name   of  the
   procurement  to  Agency  Data  Telecommunications  Network   2000
   (ADTN2000).  Protest File, Exhibit 5, Appendices A, A-2.
 
        2.  The current FAA Administrative Data Transmission Network
   (ADTN)  is a nationwide,  private, packet switched  network which
   provides connectivity  between users and information  system host
   computer  resources.  The  DECCO's solicitation for  the ADTN2000
   calls for a new end-to-end network service which will use FTS2000
   [Federal Telecommunications System  2000] for all long  haul data
   transport and connectivity and replace the current ADTN.  Protest
   File,  Exhibit  5,  Appendix  A  at  C-2.    The  ADTN2000  is to
   (i) provide data network services  among geographically dispersed
   FAA  users and  computer resources;  (ii) be internetworked  with
   local  and wide-area  national  and international  networks;  and
   (iii) provide video  conference capabilities.   Id.,  Appendix A,
   Section  J-2, Functional  Specification at  1.  This  new network
   service is  to be  provided by  an integration  contractor having
   total  responsibility to  meet  approved  user  requirements  for
   intersite  administrative  data  communications.    A  five  year
   requirements contract with five option years is envisioned.  Id.,
   Appendix A at C-2.   
 
 
   Instructions on Preparation of Proposals
 
        3.  Solicitation  clause  L.18  provided offerors  with  the
   instructions  for the  preparation  of  offers.    Protest  File,
   Exhibit 5,  Appendix A at  L-9.  Pursuant to  these instructions,
   offerors were directed  to submit their proposals in  four parts:
   Part I --  Technical, Part II -- RFP  and associated information,
   Part III -- Management, and Part IV -- Price Proposal.  Id. at L-
   10.  Detailed formats were  provided for the technical  proposal,
   id. at L-11 to  L-15; the management proposal, id. at  L-15 to L-
   18; and the price proposal, id. at L-18 to L-23.
 
        4.  With respect to the technical proposal, the instructions
   directed:
 
        The technical proposal  shall respond to each  Task and
        SubTask in  the Statement of Work (SOW) and  Functional
 
        Specification (FS).  The technical proposal shall be in
        sufficient  detail  and include  a  written description
        which is complete enough for the Government to validate
        the degree of compliance to the stated requirements.
 
        The proposal shall outline the offerors'  understanding
        of  the operational  environment, technical  solutions,
        implementation,  and  any  risks   inherent  with  each
        task/subtask  recognized   by  the  offeror   with  the
        proposed  solutions thereto.    The technical  proposal
        will use the same paragraph numbering system as the SOW
        and/or  FS,   and  shall  be   self-sustaining  without
        reference to  any  other  response  or  literature  for
        support.
 
            . . . .
 
        2.  Completeness.
 
            a.  Technical proposals shall  identify and explain
        any  exceptions  or  deviations  taken  or  conditional
        assumptions made with respect to the offeror's proposal
        versus the RFP requirements.  Any exceptions taken must
        contain sufficient  amplification and  justification to
        permit evaluation. . . .
 
            . . . .
 
            c.  Technical proposals  should be  straightforward
        and  free of extraneous  information.  Proposals should
        be   sufficiently  detailed   to   clearly  and   fully
        demonstrate   that   the   offeror   has   a   thorough
        understanding of all the  RFP requirements.  Statements
        that  the offeror "has  read, understands, can  or will
        comply"   with  the   specifications,  and   statements
        paraphrasing the  specification or  parts thereof,  are
        not  satisfactory,   and  phrases  such   as  "standard
        procedures will be employed"  or "well known techniques
        will be used," will not be acceptable and may result in
        rejection of the proposal.
 
            The technical proposal must set forth enough of the
        technical  approach,  including technical  methods  and
        engineering  approaches to sufficiently  show how it is
        proposed  to meet RFP requirements.  A full explanation
        of techniques  and procedures proposed  to be  followed
        shall  be included.  Block diagrams, drawings or charts
        should  be included, as appropriate, to present a full,
        complete and clear explanation. . . .
 
            d.  In   addition   to   responding   to  all   RFP
        requirements,   the  following   information  must   be
        included in  the appropriate section  of the  technical
        proposal:
 
            . . . .
 
            (ii)  The   manufacturer's   name,   model  number,
        nomenclature  and  operating characteristics  for  each
        type of equipment proposed for use  in the network must
        be  provided.  A description of  the technology used in
        the proposed equipment must be included, as well as any
        modifications, necessary to meet FAA requirements.
 
   Protest File, Exhibit 5, Appendix A at L-12 to L-13.
 
 
   Technical Requirements
 
        5. Four technical requirements in the RFP are  of particular
   importance  in  this  protest.    The  first  concerns  multilink
   procedures.  The basic requirement is described as follows:   
 
        3.4.2.4  Link Control - Where a packet network solution
        is employed,  ADTN2000 link  control shall  comply with
        the following mandatory requirements: 
 
             . . . . 
 
        b.  Multilink procedures,  as specified in  CCITT X.25-
        1988,  shall  be  implemented  where multiple  physical
        circuits  are  required  between the  user  DTEs  [Data
        Terminating Equipments] and  network DCEs [Data Circuit
        Terminating Equipments]. 
 
   Protest  File, Exhibit  5, Appendix  A,  Section J-2,  Functional
   Specification  at  17.    The  second  technical  requirement  of
   importance  in this protest concerns dial-up  access service.  It
   is described as follows: 
 
        3.5.3 Dial-up access service -  Users needing switched,
        or  alternate  connection  to  the  ADTN2000  shall  be
        provided access via dial-up connections.  Users outside
        the local calling area of  an ADTN2000 node or user end
        point shall  access the ADTN2000  via FTS2000 services.
        Users within the  local calling area of a  node or user
        end point  shall be  provided access  via ADTN2000  via
        access  ports   which  meet  the   following  mandatory
        requirements: 
 
        a.  Dial access ports shall be installed at appropriate
        ADTN2000 nodes and user end points as required to  meet
 
        user  dial-in and  dial-out requirements  in  the local
        calling area of those sites. 
 
            . . . . 
 
        e.  X.25    dial-up    in   accordance    with    CCITT
        recommendation X.32 shall be provided  initially at all
        major concentrations of users for synchronous circuits.
 
 
        f.  All synchronous circuits shall  use X.32 facilities
        for    authentication,    billing,    and   optionally,
        encryption.    The  intent of  this  requirement  is to
        support  evolution  to  a  more  sophisticated  dial-up
        access capability.  
    
   Id.  at 22.   The  third technical  requirement relevant  to this
   protest concerns inactivity timers.  The RFP provides:  
 
        3.5.4.1  h.  The  ADTN2000 shall terminate  the logical
        connection when failure of the user DTE occurs  or when
        there is no activity on  the call for a selectable time
        from 1  to 30 minutes.   The time value  shall be under
        configuration  control  of  the  NCC  [Network  Control
        Center].  
 
   Id. at 23.   The fourth  and final requirement relates  to closed
   user groups (CUGs) and is described as follows: 
 
        3.5.4.3  User Groups -  The contractor shall  develop a
        system    of   user    groups   with    the   following
        parameters/capabilities: 
 
        a.  A user may be a  member of one or more  user groups
        (no limit).  The extended format shall be supported.  
 
   Id. at 24.    
 
 
   The Solicitation's Commerciality Requirement
 
        6.  Amendment 1 of  the solicitation contains the  following
   provision regarding the commerciality of the equipment offered: 
 
        H.25 COMMERCIALITY - DECCO/RPFF (JUL 1992)
 
        The contractor  shall provide equipment that  meets the
        requirement for commercial  or commercial-type products
        as defined in FAR [Federal Acquisition Regulation] Part
   1                             1                             .    
        The  contractor shall substantiate  the claim  that the
        equipment offered  are [sic] commercial  or commercial-
        type  products  by    completing  the  certification in
        Section K.
 
        The commerciality  requirements shall apply at the time
        proposals are submitted.
 
   Protest File,  Exhibit  5, Appendix  A-2,  Tab 1  at H-8.    With
   Amendment 4  to the RFP,  dated October 29, 1992,  the Government
   added Section K.26  (CERTIFICATION  COMMERCIAL  ITEMS).      This
   clause requires  offerors to  certify that  equipment offered  in
   response to the RFP qualified as  one of four types of commercial
   items.  One  of the four types is a commercial item that requires
   "only minor modification in order to meet the requirements of the
   procuring agency."   Id.,  Tab 4 at  K-14.   Section K.26 defines
   minor  modification as "a modification to  a commercial item that
   does not alter  the commercial items'[sic] function  or essential
   physical characteristics."  Id.
 
        7.  On  August 11, 1993,  DECCO issued  Amendment 11  to the
   RFP.    This  amendment  added  the  following  provision  to the
   solicitation's statement of work: 
 
        C.3.1.2   Commerciality.  Offerors shall use commercial
        products  for  the  ADTN2000  technical  solution.    A
        commercial  product  is  an item,  material  component,
        subsystem,  or system  sold or  traded  to the  general
        public in the  course of normal business  operations at
        prices based  on established catalog  or market prices.
        Commercial products  shall be available to  the general
        public  no  later  than  proposal  submission  to  meet
        commerciality criteria.  
 
   Protest File, Exhibit 5, Appendix A-2, Tab 11 at 13 (unnumbered).
 
        8.  On September 14,  1993, DECCO issued Amendment 12 to the
   RFP.   A cover  letter explained  that the  amendment "eliminates
   inconsistencies    among   three    proposal   areas    regarding
   commerciality."   These sections  are  said to  be clauses  H.25,
   C.3.1.2, and  K.26.   The letter  goes on  to advise  offerors to
   review their commerciality certifications called for in Section K
   and recertify as appropriate.  Protest  File, Exhibit 5, Appendix
   A-2, Tab 12 at 1 (unnumbered).  
 
        9.  Amendment 12 of  the RFP revises clause H.25  to read as
   follows:
 
        H.25 COMMERCIALITY - DECCO/RPFF (SEP 1993)
 
        The contractor  shall provide equipment  that meets the
        requirement   for    commercial   or    commercial-type
        products/items  as  defined in  the  Statement of  Work
        (SOW),  paragraph   C.3.1.2.    The   contractor  shall
        substantiate the claim   that the   equipment   offered
        are  commercial or
 
        commercial-type   products/items   by   completing  the
        certification  in   Section  K.     The   commerciality
        requirements  shall apply  at  the  time proposals  (or
        amendments thereto) are submitted.
 
   Protest File, Exhibit 5, Appendix  A-2, Tab 12 at 4 (unnumbered).
   Amendment 12 also  revises and expands clause C.3.1.2  to read as
   follows:  
 
        C.3.1.2  Commerciality.  Offerors  shall use commercial
        or  commercial-type  products/items  for  the  ADTN2000
        technical solution.  
 
        C.3.1.2.1  Commercial  Products/Items.    A  commercial
        product is  an item, material, component, subsystem, or
        system sold  or  traded to  the general  public in  the
        course of normal business operations at prices based on
        established  catalog  or  market  prices.    Commercial
        products/items shall be available to the general public
        no  later  than  proposal   submission  (or  amendments
        thereto) to meet commerciality criteria.  
 
        C.3.1.2.2  Commercial-type     Product/Items.         A
        commercial-type    product/item    is    a   commercial
        product/item  (a)  modified  to  meet  some  Government
        peculiar  physical  requirement  or  addition,  or  (b)
        otherwise  identified   differently  from   its  normal
        commercial   counterparts.       Any    commercial-type
        product/items  shall require  only minor  modifications
        from  its commercial counterpart  in order to  meet the
        Government's requirements,  where a  minor modification
        means a modification that does not alter the commercial
        product's/item's   function   or   essential   physical
        characteristics.  Commercial-type  products/items shall
        be  available for delivery  prior to the  earliest time
        established for delivery of the required service.  
 
   Id. at 5 (unnumbered).  
 
 
   The Solicitation's Evaluation Scheme 
 
        10.  Section M of  the RFP addressed "Evaluation Factors for
   Award."  Section M.3  listed three evaluation factors  for award:
   (1) technical,  (2) management,  and (3) price.    Section M.3.a.
   described the relationship among the three factors as follows:
 
        The technical  factor is  significantly more  important
        than management, and  technical/management combined are
        more  important than  price.    Cost  may  become  more
        important as
 
        the  difference  between  combined technical/management
        scores decrease[s].  
 
   Protest File, Exhibit 5, Appendix A at M-1.  
 
        11.  Section M.4 addresses  eligibility for  award.   To  be
   eligible for award:  (1) the proposal must comply in all material
   respects  with  the  requirements  of  the  law,  regulation  and
   conditions set forth  in the solicitation; (2) the  proposal must
   meet all mandatory solicitation requirements; and (3) the offeror
   must be  determined responsible.   RFP  Section M.5 governed  the
   evaluation  of  the  technical,  management  and  price  factors.
   Protest File, Exhibit 5, Appendix A at M-3.  
 
 
   Evaluation of Technical Proposals
 
        12.  Section M.5.a. outlines the procedure for evaluating an
   offeror's  technical proposal.   It  requires  the Government  to
   consider    specific   information    including   a    proposal's
   "feasibility, soundness and any risks."  Protest File, Exhibit 5,
   Appendix A at M-3.  Section M.5.a. also provides that all  of the
   technical  requirements in the  functional specification  and the
   statement  of work are mandatory requirements, with the exception
   of specification paragraph  3.6.6 which relates to  the operating
   environment.  This provision of the RFP expressly provides: 
 
        Failure   to   fully  meet   or  address   a  mandatory
        requirement  will  be  cause   for  rejection  of   the
        proposal.    
 
   Id. 
 
        13.  Section M.5.a.  requires  the technical  evaluation  to
   address eight technical  subfactors, namely, (1) network  design,
   (2) network functional requirements,  (3) network implementation,
   (4) network  performance,  (5) network   management,  (6) network
   equipment  requirements,  (7) training,   and  (8) documentation.
   Each  technical  subfactor  contains  a  multitude  of  specified
   elements  and  subelements   within  the  individual  subfactors.
   Offerors are advised that a technical score will be developed for
   each subfactor by  computing a weighted average  of the numerical
   scores  assigned   to  every   requirement  applicable  to   that
   subfactor.  Protest File, Exhibit 5, Appendix A at M-4 to M-6.   
 
        14.  Section M.5.a.  provides that  each requirement  of the
   specification  and statement of work will be evaluated separately
   and assigned a score of zero to 130 points as follows:
 
        0............  fails   to   meet/address   a  mandatory
                       requirement
 
        100..........  fully meets the stated requirement
 
        101-130......  exceeds  the  stated   requirement,  and
                       provides  additional  value/advantage to
                       the Government.
 
   Protest File, Exhibit  5, Appendix A  at M-4.   In the  technical
   evaluation, offerors  were scored in  this fashion on a  total of
   413 items.  Id., Exhibit 130. 
 
 
   Evaluation of Management Proposals
 
        15.  RFP Section M.5.b. governs the evaluation of management
   proposals.   It provides that the scoring  shall "be based on the
   evaluator's ability  to obtain,  from the  proposal, an  in-depth
   understanding   of   the    offeror's   comprehensive   corporate
   capabilities  to perform the  ADTN2000 contract."   Protest File,
   Exhibit 5, Appendix A at M-7.   Section M.5.b does not state that
   the  management requirements are mandatory but only that "[m]ajor
   deficiencies in any one of the factors may be cause for rejection
   of the proposal."  Id. at M-10.  
 
        16.  Section M.5.b.   establishes    the   following    five
   management  subfactors:   (1) contract  management,  (2) previous
   performance,  (3) key  personnel,   (4) financial  capacity,  and
   (5) proposed exceptions.  Protest File, Exhibit 5,  Appendix A at
   M-8 to M-10.   The first three  of these subfactors are  the most
   important and of equal weight.  Id., Exhibit 5, Appendix A at M-8
   to  M-10.  Offerors are  advised that a  management score will be
   developed for each subfactor  by computing a weighted  average of
   the  numerical scores assigned to every requirement applicable to
   that subfactor.  Id. at M-10.   
 
        17.  Section M.5.b. provides  that each  requirement of  the
   statement  of work  and the  RFP  related to  management will  be
   evaluated separately and assigned a score from zero to 130 points
   as follows:  
 
        0............. inadequate or fails to  address a stated
                       requirement
        70-99......... less   than  fully   meets  the   stated
                       requirement, but is adequate
        100........... fully meets the stated requirement
        101-130....... exceeds  the  stated   requirement,  and
                       provides  additional  value/advantage to
                       the Government.
 
   Protest File, Exhibit 5, Appendix A at M-8.  In the evaluation of
   management  proposals, offerors were scored in  this fashion on a
   total of 58 items.  Id., Exhibit 130. 
 
        18.  Despite  the   solicitation's  characterization   of  a
   management  score of 70-99  as "adequate," a  typical score sheet
   nevertheless  describes the  score of 70-99  as "Less  Than Meets
   Requirements."  E.g., Protest File, Exhibits 111, 113.    
   Evaluation of Price Proposals
 
 
        19.  Section  M.5.c. provides that price proposals are to be
   evaluated  on the  basis of  the  prices offered  in response  to
   section B  of the  solicitation and on  the quantities  listed on
   site worksheets for each location  of the model system  solution,
   and  the  network  quantity   worksheet  for  non-site   specific
   services.  Offerors  are also expected to provide  an estimate of
   FTS service costs based on the mandatory use of  the AT&T Service
   Analysis Tool pricing model.  Protest File, Exhibit 5, Appendix A
   at M-11.  
 
 
   The Technical/Management Evaluation Plan 
 
        20.  The  Government prepared  for its  own  internal use  a
   Technical/Management Evaluation Plan (TMEP), dated December 1992,
   to  provide   the  organization  and  procedure   for  evaluating
   technical and management proposals.  The TMEP:  (1) established a
   technical/management evaluation  team  (T/MET)  to  evaluate  the
   proposals,  and  (2) provided  evaluator/scoring  guidelines  for
   those of its members who  served on its Technical Evaluation Team
   (TET) and for those who  served on its Management Evaluation Team
   (MET).  Protest File, Exhibit 4.
 
        21.  Four members  of the T/MET served as scoring members of
   the  TET and three T/MET members served as scoring members of the
   MET.   Protest File, Exhibit 4, Table 2.  The work of the TET and
   MET extended over a nine-month  period.  Transcript at 817, 1029-
   30.
 
        22.  Section 3.1 of the TMEP, purporting to use a definition
   found in the FAR, defines "deficiency" as "any part of a proposal
   that   fails   to   satisfy   (fully   meet)   the   Government's
   requirements."[foot #] 2     Protest  File,   Exhibit  4  at   3-
   1.  Elsewhere in the TMEP, section 3.4.2 provides:  
 
             A discussion item (DI) should be prepared whenever
        an evaluator, after Group  discussion, concludes that a
        proposal, as  it relates  to a  specific sub-factor  is
        either   (1)    unclear,   confusing,    or   otherwise
        insufficient
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 2   We note that  the definition  found in  the FAR
   15.601 does not  include the terms "fully meet"  which appears in
   the TMEP definition.  See 48 CFR 15.601 (1993) (FAR 15.601).   
                         ___
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        to  enable a firm  scoring decision, or  (2), deficient
        (i.e., less  than  fully meets  the  stated  sub-factor
        requirement).   All  DI's should  be  forwarded to  the
        Contracting  Officer,   who  will  request   a  written
        response from the Offeror.  
 
   Id. at 3-5.  
 
        23.  The  MET team leader  has testified that  in evaluating
   and  issuing discussion  items  with  regard  to  the  management
   proposals,  the evaluators did  not consider an  "adequate" score
   between 70-99 to be deficient.  Transcript 984-85, 1033-34.  
 
        24.  Appendix F  of  the  TMEP  contains  the  weighing  and
   scoring database procedures.   It provides that  this information
   is not to be distributed to evaluators.  Protest File, Exhibit 4,
   Appendix F.
 
 
   Initial Offers
 
        25.  Offerors were  directed to submit initial technical and
   management  proposals on December 7, 1992.  Protest File, Exhibit
   5, Appendix  A (Amendment 5).   Seven offerors,  including Sprint
   and  GSI, submitted  timely  technical and  management proposals.
   Id., Exhibit 14 at 1 (unnumbered).  The TET and MET commenced the
   proposal evaluation process in  early January.  Id., Exhibit  10,
   Parts B at 5, C at 4.  
 
 
   Negotiations with Sprint
 
        26.  According to Sprint's opportunity manager for ADTN2000,
   Sprint  understood that  the Government  wanted  each offeror  to
   propose  the most  cost-effective and  optimum  solution that  it
   could with  the items that  it was proposing.   Sprint understood
   that  the  combined  technical  and  management  aspects  of  the
   proposals were to  be accorded  more importance  than price,  but
   that   price  could  become  relatively  more  important  as  the
   difference  between  combined  technical  and  management  scores
   decreased.   Given the requirements  of the solicitation, and the
   fact that the Government had "fairly narrowly defined what it was
   looking for in ADTN2000,"                                        
                                                                    
                                                                    
                                                Transcript at 36-38.
 
 
        27.  The  initial  evaluation  of  Sprint's  management  and
   technical proposals led to the issuing of over             DIs to
   Sprint.   These     various   DIs    were   identified    either 
   as
   "deficiencies,"  "ambiguities," or,  in a  few  cases, "requested
   exceptions."  Protest File, Exhibit 161 at 75-94, 133-256.  
 
   Negotiations with Sprint on its Technical Proposal
 
 
        28.   In their  review of the  initial Sprint  proposal, the
   evaluators   noted   that  Sprint   did  not   propose  multilink
   procedures, as  required by  Functional Specification  3.4.2.4.b.
   Accordingly, in  DI E101-D20T (issued April 28, 1993), Sprint was
   asked to explain  how it intended to comply  with the requirement
   for  implementation of CCITT Multilink procedures.  Protest File,
   Exhibit 161 at 347.   In its response to the  DI on May 12, 1993,
   Sprint answered:        
                                                                    
   Id.  
 
        29.  In  their  initial  review   of  the  Sprint  technical
   proposal, the evaluators also  noted that Sprint did not  specify
   how it  would meet X.32  dial-up access, as required  by numerous
   RFP specifications.   As a result, DI  E205-055T was issued.   It
   asked  how Sprint  intended  to meet  that requirement.   Protest
   File, Exhibit 161 at 411.  Sprint responded:                     
                                                                    
                                                                    
                       Id.  
 
        30.  In responding to other DIs sent out initially by DECCO,
   Sprint  also  indicated  that it  planned  to  add               
   enhancements to its switches to comply  with two other functional
   requirements --  closed user group  (CUG) formats  and inactivity
   timers.  Protest File, Exhibit 161 at 271, 350. 
 
        31.  In a  second round  of DIs issued  on August  11, 1993,
   DECCO  questioned how  Sprint's plans  to  engage in             
   development to meet the multilink, X.32 dial-up access, CUG,  and
   inactivity timer  requirements  squared  with  the  commerciality
   provision  of the RFP.   DECCO was  pointed out  that clause H.25
   requires  the   contractor  to  provide  equipment   which  meets
   commerciality requirements  at the time  proposals are submitted.
   Protest File, Exhibit 161 at 15, 22, 26, 43.  
 
        32.  This second round  of DIs,  questioning Sprint's  plans
   for           development to  meet certain technical requirements
   of the RFP,  was issued at  the same time  as Amendment 11  which
   added to the SOW clause  C.3.1.2 dealing with commerciality.  See
   Finding 7.   Upon receipt  of Amendment 11,  Sprint's opportunity
   manager concluded that the new provision regarding commerciality,
   which had  been added to  the SOW, was inconsistent  with related
   provisions already in  sections H and  K.  He has  testified that
   this apparent
   conflict  caused   him  to  question  whether  the  commerciality
   requirement was being changed.  Transcript at 68. 
 
 
        33.  On August  17, 1993, Sprint's  opportunity manager  and
   some other Sprint representatives placed a conference call to the
   DECCO  contracting officer.   In  that  conversation, the  Sprint
   representatives  sought to  determine  whether a  commercial-type
   item  would be compliant with the Government's requirement, where
   the item  is defined  as a commercial  item requiring  only minor
   modification to meet the requirements  of the procuring agency as
   described in paragraph  K.26 of  the solicitation.   See  Protest
   File,  Exhibit 19,  Contracting Officer's  Memorandum for  Record
   (Aug. 17, 1993).  The issue was revisited in another conversation
   with  the  contracting officer  the  following  day.    See  id.,
   Contracting   Officer's    Memorandum   for    Record   (Subject:
   Teleconference with Sprint) (Aug. 18, 1993).  By the end of these
   conversations, DECCO had agreed with Sprint that the terms of the
   solicitation  should  be  read to  allow  an  offeror  to propose
   commercial-type items or  products, which would include  items to
   which  minor  modifications were  required in  order to  meet the
   requirements of  the solicitation.   Transcript at  72-73.   What
   would  constitute an acceptable minor modification was defined by
   reference to solicitation paragraph K.26.  Id. at 73.
 
        34.  DECCO confirmed  the two telephone  conversations in  a
   letter to Sprint, dated August  19, 1993.  The letter noted  that
   the commerciality requirements  were to be met as  of December 7,
   1992, the proposal submission date;  it pointed out that Sprint's
   original certification of commerciality  under paragraph K.26  of
   the  solicitation had  not indicated  that  Sprint was  proposing
   minor modifications.   See Protest File, Exhibit  19, Contracting
   Officer's  Letter  to Sprint  (Aug.  19,  1993).     The  letter,
   therefore, asked Sprint to address five specific points regarding
   the proposed modifications as part of its responses to the second
   round  of technical DIs.  The five  points were identified in the
   letter as follows:
 
        a.  Specify  what  enhancements  will be  made  to  the
        equipment;
 
        b.  Specify how the enhancements will be achieved;
 
        c.  Certify that  the enhancements  will not alter  the
        functionality or physical characteristics of the item;
 
        d.  Specify the associated risk; and
 
        e.  Specify  when   testing  and   validation  of   the
        enhancement's functionality will be achieved.
   Id.   The letter  closes with  a request  that Sprint confirm  in
   writing   by  August   23,  1993,   its   understanding  of   the
   commerciality requirement for ADTN2000.  Id. 
 
 
        35.  By  letter dated  August 20,  1993,  Sprint replied  to
   DECCO.  Sprint's letter explained  that the items it was offering
   were commercial items as of  December 7, 1992, although the minor
   modifications would be completed subsequently.  See Protest File,
   Exhibit 19, Letter  from Sprint to the  Contracting Officer (Aug.
   20, 1993).   Accordingly, Sprint asserted  that its products  met
   the commerciality requirement as of the proposal submission date.
   Sprint's  letter closes  with  a  request  that  the  Contracting
   Officer  confirm  in  writing  that  she  concurs  with  Sprint's
   position as stated in the letter.  Id.
 
        36.  In a  telephone conversation  on August  23, 1993,  the
   DECCO   contracting   officer   informed   a   senior    contract
   administrator at Sprint  that she was in  agreement with Sprint's
   position regarding commerciality  but that  she did  not plan  to
   send a  letter confirming this  fact.  She also  pointed out that
   the Government is more concerned with Sprint's ability to address
   the  risk issue. See Protest  File, Exhibit 343 (handwritten note
   at bottom of  second page); Transcript at 1120.   The contracting
   officer's reference in that conversation to "risk" was understood
   by Sprint's opportunity manager as referring to the issue of risk
   raised as the fourth point of concern in DECCO's letter of August
   19 (see Finding 34).  Transcript at 77-80.
 
        37.  On August 26,  1993, Sprint submitted its  responses to
   the second round of technical DIs.   Protest File, Exhibit 161 at
   12.   As requested,  Sprint addressed  DECCO's five points  under
   each  of the four  DIs.  Transcript  at 80-89; see  Protest File,
   Exhibit 161 at 15-18 (Sprint's  response to DI E007a070T),  22-25
   (Sprint's  response to DI E101aD20T), 26-29 (Sprint's response to
   DI E104aD77T),  42-49 (Sprint's response  to DI E205a055T).   For
   each DI, Sprint specified what  enhancements would be made to the
   equipment,  specified how  the  enhancements  would be  achieved,
   certified that the enhancements would not alter the functionality
   or physical characteristics  of the item at issue,  specified the
   associated risk, and specified when testing and validation of the
   enhancement's functionality would  be achieved.  With  respect to
   the issue of associated risk,                                    
                                                                    
                                                                    
                     Id. 
 
        38.  Also,  on or  about  August  26,  Sprint  provided  the
   contracting  officer with  a revised  commerciality certification
   pursuant   to  solicitation   paragraph  K.26.      This  revised
   certification  indicated that Sprint  was offering some equipment
   that  would  include  minor  modification in  order  to  meet the
   Government's requirements and some that would not.  Protest File,
   Exhibit 104.
 
        39.  On   September  2,  1993,   the  FAA  sent   the  DECCO
   contracting officer a draft letter  which it wanted DECCO to send
   to  Sprint.   The draft  letter would  have provided  Sprint with
   additional DIs and  advised Sprint that the Government  had found
   its proposal to be unacceptable.  The basis for this position was
   FAA's belief that  no equipment modifications after  the original
   proposal due date were allowed under the  solicitation as amended
   (by Amendment 11).  Protest File, Exhibit 105.  
 
        40.  On  September 7,  1993, in  preparation  for an  Source
   Evaluation Board (SEB) teleconference scheduled for September  8,
   the  contracting officer sent the DECCO  SEB members a memorandum
   regarding the  ADTN2000  commerciality  requirements.    In  that
   memorandum, the contracting officer noted: 
 
             Per teleconference  Fri.,  the FAA  does NOT  want
        modifications,  minor  or otherwise,  to  any equipment
        proposed  for ADTN2000.  However, this is allowable per
        the K.26  definition for  a commercial  item.   The FAA
        cited bad experiences with  allowing previous equipment
        modifications on other contracts.
 
             The FAA thought that the SOW  paragraph superseded
        the  Section H  and  Section  K  requirements.    DECCO
        advised that this is not  so.  According to the Section
        I clause, Order of Precedence, Section H and Section  K
        take precedence over the SOW and FS.
 
             FAA wants the Section  K certification deleted  or
        changed.   There is no  FAR certification -  only DFARS
        [Defense Federal Acquisition Supplement].
 
   Protest File, Exhibit 19, Contracting Officer's Memorandum (Sept.
   7, 1993).  
 
        41.  A memorandum  from counsel, attached to the contracting
   officer's memorandum, also noted: 
 
        FAA  seems to insist  on the SOW  provisions [regarding
        commerciality].   It  is  unwilling  to  risk  what  it
        considers the loophole of a "minor modification."  
 
   Protest  File, Exhibit  107.   The  legal memorandum  goes on  to
   recommend that the Government amend the solicitation to eliminate
   the offering  of minor modifications as an acceptable approach to
   meeting the requirements of ADTN2000.  Id. 
 
        42.  The  contracting officer's  memorandum  of September  7
   describes two options:
 
             1.  Issue Amendment  0012 changing  the Section  K
        "commercial item"  certification and definition.   (See
        attached Legal recommendation.  Note Legal subsequently
        advised  that the  evaluators  interpret the  offerors'
 
        proposed modifications as a  change to the  equipment's
        functionality.)
 
             2.  Issue  D/I   to  the  two   offerors  not   in
        compliance with  the commerciality  requirement stating
        the Government's interpretation (we need to discuss and
        reach  an  agreement  on  our interpretation)  of  what
        constitutes a commercial  item, and specifically  state
        that   the   proposed   modification(s)   changes   the
        functionality  of the commercial item and does not meet
        the commerciality requirement, as defined in K.26,  for
        ADTN2000.
 
             The D/I should request current  data regarding the
        proposed enhancements.  The offeror has to provide hard
        data,  such  as the  equipment  component/feature/model
        identification codes,  industry standard  requirements,
        and  GOSIP conformance,  to  substantiate the  proposed
        modification meets the ADTN2000 technical requirements.
 
   Protest File, Exhibit 19, Contracting Officer's Memorandum (Sept.
   7, 1993).
 
        43.  The  contracting officer  has  no  recollection of  the
   discussion  regarding  the  RFP commerciality  requirement  which
   presumably took  place at the SEB teleconference  on September 8.
   However, she agrees that she wrote at the bottom of the file copy
   of her September 7 memorandum to the DECCO SEB members: 
 
        SEB interpretation  - minor modifications  are allowed.
        Inconsistencies  between Secs  H, K,  and  SOW will  be
        resolved  in  Amendment  0012.  Offerors  will  need to
        recertify as appropriate.  
 
   Protest File, Exhibit 19, Contracting Officer's Memorandum (Sept.
   7, 1993); Transcript at 1114-15.  
 
        44.  The record contains nothing which indicates that Sprint
   was  ever informed of  this internal Government  debate regarding
   the commerciality requirement  of the RFP and its  application to
   the Sprint  proposal.  Rather,  on September 3, 1993,  Sprint was
   sent a third  round of technical DIs, which  included one related
   to the use of modems for the X.32 dial-up feature.  Protest File,
   Exhibit 161 at  7.  Neither  it nor any  other DIs indicates  any
   lingering  concern with respect to the modifications described by
   Sprint in its reply to the earlier round of DIs.  
 
        45.  On  receiving  this   third  round  of   DIs,  Sprint's
   opportunity  manager concluded that Sprint and the Government now
   clearly understood  each other.   Transcript at 89-90.   This was
   further confirmed in his mind  when, on September 14, 1993, DECCO
   issued Amendment 12 (Findings 8-9), which expressly corrected the
   conflicts in the RFP provisions which had prompted Sprint to seek
   clarification from the contracting  officer on August 17 and  18.
   Transcript at 90-92.  Sprint  responded to Amendment 12 by noting
   that  it  had already  recertified  as required.    Protest File,
   Exhibit 344.
 
 
        46.  In  order  to   be  certain  that  it  could  meet  the
   requirements  of the  solicitation, Sprint held  discussions with
   its primary equipment  supplier,                                 
   [foot #] 3  to  secure commitments                 would  do what
   was required  to meet the  Government's schedule.   Transcript at
   93-97.  The record contains documentation indicating that Sprint 
              very much aware that                                  
   development would  be required to  meet the  requirements of  the
   solicitation using equipment                                     
   Protest File, Exhibits 349, 351-353.                             
                                                                    
                                         Id., Exhibits 354, 364-365.
   There is  no indication  that any of  these concerns  or internal
   estimates of the time and  effort required were shared with DECCO
   or FAA by Sprint during negotiations.   
 
        47.  A  representative              testified  that         
   development  can be accomplished  much faster than  apparent from
   the   estimates  only.     Transcript  at  250.[foot #] 4     For
   example,                                                         
                                                                    
                                       
   Transcript at 250-51.  
 
 
        48.  Sprint's opportunity  manager for this  procurement has
   testified under  oath that  he still  believes Sprint's  proposal
   fully 
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 3                                                  
                                                                    
                                                                    
                     Id. at 247.
                     ___
 
        [foot #] 4                                                  
                           Transcript at 250.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   meets the stated requirements of the solicitation.  Transcript at
   92.
 
 
   The TET Report Regarding Sprint's Proposal
 
 
        49.  In  describing  the  evaluation of  Sprint's  technical
   proposal, the TET report states: 
 
             There were  numerous deficiencies  and ambiguities
        identified  in the  initial  Sprint proposal,  many  of
        which persisted  until the  third round of  DIs.   As a
        result  of many  poorly written and  incomplete changes
        made to the proposal, a  DI was issued stating that the
        proposal had  become  nearly  unintelligible.    Sprint
        responded  by  submitting  an  updated  proposal  which
        cleared up much of the confusion but some minor  errors
        remained.  
 
   Protest File, Exhibit 10, Part B at 50.  
    
        50.  Despite the remaining "minor errors," the TET concluded
   that  Sprint's   proposal   did  not   meet   certain   technical
   requirements of the RFP.  The TET report reads: 
 
        Despite  DIs  on  deficiencies   related  to  mandatory
        requirements for X.25/X.32  dial-up services, providing
        extended CUG format,  inactivity timers on native  X.25
        circuits  and implementing  X.25 multilink  procedures,
        the  Technical  Evaluation  Team  assessed  the  Sprint
        proposal (as amended  by response to these DIs)  as not
        adequate to meet requirements of the RFP.  As a result,
        the  failure  to  meet  these  mandatory   requirements
        significantly lowers their overall technical evaluation
        results.  
 
   Protest File, Exhibit 10, Part B at 50.  
 
        51.  Contrary to the TET report, the TET evaluators  did not
   find Sprint noncompliant with all four of the mandatory technical
   requirements mentioned in  the report.  Sprint was  given a score
   of       points  (the requirement  fully met) on  the requirement
   dealing  with  inactivity  timers and  the  extended  CUG format.
   Sprint's  perceived failure to meet the X.32 dial-up requirements
   and the X.25 multilink  procedures, however, resulted in a  score
   of   for eight related items.  Protest File, Exhibits 109, 130.  
 
        52.  The TET's reason  for concluding that Sprint  could not
   meet the remaining  two requirements stemmed from  its conviction
   that, in  the aggregate,  all of  the               modifications
   required  to comply  with the  RFP's  requirements constituted  a
   single, major integrated             development  effort  and, as
   such,  did  not
   satisfy the commerciality requirement of  the RFP.  Protest File,
   Exhibit 10, Part B at 48.  
 
 
        53.  The individual  score sheets covering  the eight  items
   relating to  multilink and  X.25/X.32 dial-up  services on  which
   Sprint was  given a  score of        confirm that  the individual
   evaluators considered more than minor modifications were required
   to meet the requirements in question.  For example, one evaluator
   wrote: 
 
                      for X.32 dial-out  and authentication and
        multilink procedures for the        , together with the
        other   planned   modifications   proposed   for   this
        equipment, constitutes  a major  modification which  is
        not  permissible under  Amend[ment]  12 for  commercial
        type equipment.
 
   Protest File, Exhibit 109 (Cossa Evaluation Item Score Sheet).  
 
        54.  In scoring the  same eight items relating  to multilink
   and X.25/X.32 dial-up services, a  second member of the TET wrote
   that the  multilink functionality is no trivial                  
   implement and the addition of the required X.32 functions to the 
                   switches  would  alter  the  function  of   these
   commercial products.  Protest File, Exhibit 109 (Ellis Evaluation
   Item  Score  Sheet).    The  third evaluator  put  it  even  more
   succinctly.  He wrote: 
 
        In view of the other changes being planned for the     
              ,  the "minor changes" being proposed are, in the
        aggregate, major.  
 
   Id. (Kaiser Evaluation  Item Score Sheet).   This same evaluator,
   however, testified  that in  distinguishing between  a major  and
   minor   modification,  he   was  not   using   the  term   "minor
   modification" to mean one which does not change the functionality
   or central  physical characteristics  of the  device.   He agreed
   that the addition of a  function such as multilink to the        
   switch  does  not   change  the  functionality  of   the  switch.
   Transcript at 852.  
 
        55.  In  a similar  vein, the  fourth evaluator  on the  TET
   wrote on  his score sheets  relating to the eight  items covering
   multilink and X.25/X.32 dial-up services the following: 
 
        Vendor states that the  four               developments
        that he explicitly proposes are independently minor and
        that,   therefore,  he   satisfies  the   Commerciality
        requirement.   However, this effort must be viewed as a
        single, major,  integrated                  development
        effort . . . . 
   Protest  File, Exhibit 109 (Newcomb Evaluation Item Score Sheet).
 
 
 
   Negotiations with Sprint on its Management Proposal
 
 
        56.  In  evaluating  Sprint's management  proposal,  the MET
   ultimately scored Sprint  above    points on all 58 scored items.
   Twelve of these scores, however, fell between    and   .  Protest
   File,  Exhibit  130.   In  this  protest,  Sprint challenges  the
   correctness  of  those  twelve  scores.    For  purposes of  this
   opinion, we  make  the  following  findings  (namely  57  to  84)
   regarding the twelve scores in controversy.  
 
        57.  The  manager of the  MET has testified  that during the
   course of the first round of evaluation of management  proposals,
   DIs were sent to offerors  whenever an evaluator rated an offeror
   at less than  100 points on a  management evaluation item.    She
   has confirmed, however, that if  the reply received did not raise
   the offeror's  score to  100 points, no  additional DI  was sent.
   Transcript  981-82.   When  asked  why  this  was not  done,  she
   replied:
 
        Because  we felt we discussed the information that came
        in and if we thought  that it would be leading them  to
        another  conclusion of  telling them  how to do  it, we
        didn't send another DI.
 
   Id. at 982. 
 
        58.  [Organization, Item  E-02]   The solicitation  requires
   each offeror to submit  a contract management  plan.  One of  the
   requirements of  this plan,  on which  management proposals  were
   scored,  concerned the  requirement for  organization.   The  RFP
   reads:
 
        Organization:  The Plan shall describe the Contractor's
        organizational  structure and  flows  of authority  for
        administrative and business  matters arising under this
        contract . . . . 
 
   Protest File, Exhibit 5, Appendix A, Section  J-4, CDRL/DID AOO1.
   Upon  review  of Sprint's  proposal,  the three  MET  members all
   scored Sprint               points on  this item.   One evaluator
   wrote: 
 
        Your proposal has the NCC [Network Coordination Center]
                                                               
                                                               
                                                               
                                                               
                                                               
                                                
   Id., Exhibit 127.  A DI was issued asking what the specific      
 
                                                                    
        Id., Exhibit 128.  Sprint replied that                      
                                                                    
                                                                    
                                                                    
                                                                    
                                                      Id. 
 
        59.  Upon  review  of  Sprint's reply  to  the  DI regarding
   organization, two evaluators revised their score on this item to 
      .  The third, left her score of    unchanged.  She wrote: 
 
        Response does not fully  demonstrate affirmative action
        on             [sic] part.              has tech[nical]
        expertise and what extent can                          
                              
 
   Protest File, Exhibit 127.  
 
        60.  [Key  Personnel, Item E-03]  Another requirement of the
   contract management plan called for in the solicitation concerned
   key personnel.  The solicitation provided:   
 
        The plan shall identify key management personnel, their
        organizational  relationships,  their   authority  with
        respect   to  contract   and  program   administration;
        [s]taffing and resumes of key  technical and management
        personnel . . . . 
 
   Protest  File, Exhibit 5, Appendix A, Section J-4, CDRL/DID AOO1.
   This was  a specific item  on which offerors  were scored  in the
   evaluation  of  their  management   proposals.    Initially,  one
   evaluator  concluded  that  the  proposal  fully  satisfied  this
   requirement.  Two other evaluators, however, rated Sprint        
    because there had a question whether  there would be a change in
   key personnel and positions following transition to the new ADTN.
   Id., Exhibit 123; Transcript at 1058.  
 
        61.  In  response to a DI on these key management personnel,
   Sprint assured the Government                                    
                              Protest  File,  Exhibit  124.    As  a
   result of this explanation, one evaluator, who  had scored Sprint
   at           , revised his score to 100.  The remaining evaluator
   noted the clarification but raised his original score from       
   .  The MET team leader has testified that this evaluator  did not
   raise the score on this  item any higher because, although Sprint
   had clarified the issue, it  had not gone back into the  proposal
   to change  the part which had given rise  to the ambiguity in the
   first place.  Transcript at 1058.
 
        62.  [Project Tracking, Item E-04]   The contract management
   plan called for in the  solicitation was also expected to include
   a section on:
 
        Project  Tracking:   Procedures  for automated  project
        tracking  and progress reporting  including how the FAA
        can access the system to obtain status information  . .
        . .   
 
   Protest File, Exhibit 5, Appendix  A, Section J-4, CDRL/DID AOO1.
   Related  to  this  requirement  was  a  provision  in  the  RFP's
   functional specification  requiring the Network Control Center of
   the ADTN2000 to be equipped: 
 
        with  an  automated  project  scheduling  and  tracking
        system that can  be accessed by the FAA  (read only) to
        determine, on  a near  real-time basis,  the status  of
        service  orders  for new  installs,  moves,  changes or
        upgrades.
 
   Id., Functional Specification at 33.  
 
        63.  In response to the project tracking requirement, Sprint
   proposed                                                         
                                  All  three  members   of  the  MET
   scored Sprint                  on  the project  tracking item  as
   originally  proposed.   See  Protest  File,  Exhibit  117.    One
   evaluator scored Sprint at  ; the other two scored it at         
   .  Id.  Two DIs were issued.  They sought clarification on the   
                   mentioned by Sprint and on how the FAA would have
   access  on  a near  real-time  basis to  check  on the  status of
   service orders.  Id.  
 
        64.  Sprint  answered the DIs  on project tracking.   Sprint
   explained that                                                   
                                                                    
                                                                    
                                                                    
                                                                    
                                                                    
                                                                    
                                                                    
                          
            Protest File, Exhibit 161 at 98, 118.
 
        65.  The MET evaluator who originally  scored Sprint at   on
   the project tracking item raised that score  to    upon review of
   Sprint's  answer to  the two  DIs  which were  issued.   Although
   recognizing  the FAA would  have access to the                 he
   remained  convinced that the  proposal did not  meet requirements
   since the                                                        
                                                             
   Protest 
   File, Exhibit 117.  The second evaluator left her score unchanged
   at   .  She wrote: 
 
 
        The offeror has neglect[e]d to address the  procedures,
        definition of      process/procedure.  Less  than meets
        requirements of RFP because of this omission. 
 
   Id.  The  third evaluator likewise left  her original score of   
   unchanged after  reviewing Sprint's  reply to the  two DIs.   She
   wrote: 
 
        The response states that FAA will                      
                                                               
                                                               
                                                              
   Id.
 
        66.  [Automated Project Scheduling,  Item E-30]  In addition
   to an evaluation  item for project tracking, the  MET also scored
   offerors on  the related  item of  automated project  scheduling.
   The  item, like  the  project  tracking item,  was  based on  the
   contract  requirement  that  the Network  Control  Center  of the
   ADTN2000 be equipped: 
 
        with  an  automated  project  scheduling  and  tracking
        system that can  be accessed by the FAA  (read only) to
        determine, on  a near  real-time basis,  the status  of
        service  orders  for new  installs,  moves,  changes or
        upgrades.
 
   Protest  File, Exhibit  5, Appendix  A,  Section J-2,  Functional
   Specification at 33.  
 
        67.  Initially, all  three  of  the  MET  evaluators  scored
   Sprint at      on the automated project scheduling item.  Protest
   File, Exhibit  125.  However,  in responding to the  DI regarding
   project tracking,                                                
                                          Id., Exhibit  161 at  118.
   This prompted  one evaluator to  revise her score on  the project
   scheduling item               .  She wrote: 
 
        Offeror's resolution to DI introduces                  
                                                   will require
        learning curve of FAA user.
 
   Id., Exhibit 125.  This evaluator has testified that avoidance of
            is  not  a  stated   requirement  of  the  solicitation.
   Transcript at 1013.  
 
        68.  [Sprint Coordination, Item E-05]  As already noted, the
   solicitation required  offerors to  submit a  contract management
   plan.  Among other items, the plan was to include a section on:  
 
        Sprint Coordination:   Procedures for  the coordination
        with    U.S.   Sprint    during   implementation    and
        cutover . . . .  
 
   Protest  File, Exhibit 5, Appendix A, Section J-4, CDRL/DID AOO1.
   This  was  an  item  on  which  all  offers  were  scored  in the
   evaluation of management proposals.  
 
        69.  Relying on its incumbency, Sprint dealt with the Sprint
   Coordination  requirement  in  a   cursory  fashion.     Sprint's
   management proposal simply stated: 
 
        SPRINT COORDINATION
                                                               
                                                               
                                                               
                                                               
                                                               
             
 
   Protest File,  Exhibit 8, Appendix  G at III-Appendix C-36.   All
   three members of the MET initially assigned a score of           
       to Sprint on this item.  Id., Exhibit 119.  A discussion item
   was  issued.    It  advised  Sprint of  an  "ambiguity"  in  that
   "procedures for  facilitating  the transition  within the  Sprint
   organization  have not  been  documented."    Id.,  Exhibit  120.
   Sprint's reply to the DI,                                        
                                                                    
                                                                  
   Two  of the  MET evaluators declined  to increase  their original
   scoring to    .  The third evaluator did increase his score to   
   but with the explanation that  a technical explanation was deemed
   sufficient since the  "original question was aimed  at non-Sprint
   bidders."  Id., Exhibit 119.  
 
        70.  [Risk Management,  Item E-22]    Within the  management
   evaluation, section  M of  the RFP  provided that  the Government
   would  evaluate the soundness  of the corporate  approach to risk
   management.   The solicitation,  however, included no requirement
   that risk management be addressed in any particular way or in any
   particular part  of the proposal.   See Protest File,  Exhibit 5,
   Appendix A at M-8.  The MET  found that Sprint's proposal did not
   fully  meet this requirement.   A DI  was prepared  but was never
   issued.   Transcript at  986.  The  average raw  score eventually
   given by  the MET to Sprint on  that item was    .  Protest File,
   Exhibit 130.  In determining this score, the evaluators relied on
   information provided by Sprint in response to two other DIs.  The
   one dealt  with the  experience of the  project manager,  and the
   other dealt  with a  management tracking  system.   Protest File,
   Exhibit 111.  
 
 
        71.  [Quality  of Proposal,  Item  E-24]    As  noted  above
   (Finding 16), RFP  Section M.5.b. lists the subfactors to be used
   for   evaluation  of  management  proposals.    Under  the  first
   subfactor, Contract Management, the solicitation advises offerors
   that they will be evaluated in this section on five of nine items
   listed above on  the same page of  the solicitation.  One  of the
   items included in this list of nine items, but not among the five
   to  be  used  in  this  part of  the  evaluation,  is:  "clarity,
   sufficiency, completeness,  and substantiation of  the management
   proposal."  Protest File, Exhibit 5, Appendix A at M-8.  A review
   of  the evaluation  items corresponding  to this  portion  of the
   subfactor on  contract management  clearly reveals  that an  item
   entitled "Quality of Proposal" was  included to cover this  sixth
   item   dealing  with  the  "clarity,  sufficiency,  etc."  of  an
   offeror's proposal.  Id., Exhibit 130.  
 
        72.  Two of the three MET evaluators assigned  a score of   
   to  Sprint  on  the  "quality  of  proposal"  item.    The  third
   evaluator, however, scored Sprint  at     on this item,  pointing
   out  that "[t]here are some  important topics which are addressed
   but not elaborated very  well."  Protest File,  Exhibit 121.   No
   express DI appears to have been generated on this item.  Instead,
   the third evaluator's score sheet refers to a DI which was issued
   to Sprint regarding  the solicitation requirement of  delivery of
   ADTN2000 services 180 days after issuance of the initial delivery
   order.    Id., Exhibit  122.    This  third evaluator  found  the
   response to that DI to be ambiguous and nothing more than another
   example of the poor quality of the  proposal.  He, therefore, did
   not make any upward revision of his  original score of    on  the
   "quality of proposal" item.  Id., Exhibit 121. 
 
        73.  [Proposed  Personnel/Previous  Work,   Item  E-45]  The
   solicitation  also   required  offerors   to  include  in   their
   management proposal  information regarding experience  in similar
   areas of endeavor.  Section L of the RFP provides: 
 
        Experience.  Offerors  should submit individual project
        summaries of recent  experience in performing  work for
        industry and Government  similar to  that described  in
        the RFP.  
 
   Protest File, Exhibit 5, Appendix A at L-16.  This section of the
   RFP then  goes on to provide a detailed  format to be followed in
   providing the information sought.  Id.  
 
        74.  The initial scoring of Sprint on the previous work item
   was rather     .  One  evaluator gave a score of      .   Another
   listed a  score of    .   The  third scored Sprint  at    .   The
   perceived problem common to all  these scores was that Sprint had
   failed  to  include data  elements  called for  in  the specified
   format.  Protest File, Exhibit 113.  A DI was issued pointing out
   to Sprint that its proposal did not address all elements required
   for each of the cited experiences.  The DI spoke to missing data,
   not conflicting data.  It offered Sprint the opportunity to amend
   the proposal.   Id., Exhibit 114.   Sprint did so.   As a result,
   two  evaluators revised their original scores to     .  The third
   evaluator left her score of    unchanged.  She wrote: 
 
 
        Response   to  DI  presents  doubts  in  tally  of  the
        percentage  of  time  individuals  were  on   projects.
        Offeror shows some individuals, e.g.,        using 153%
        of his time.  How can one individual do that?
 
   Id., Exhibit 113.   This evaluator has testified  regarding other
   inconsistencies in time claimed by Sprint  in its reply to the DI
   for  certain individuals  working  on  various  Sprint  projects.
   Transcript  at 989-97.    Notwithstanding these  inconsistencies,
   however, there is no indication in the record that a follow-up DI
   was  issued  on this  item  or  that Sprint  was  advised of  any
   existing inconsistencies in the initial DI.  
 
        75.  [Competing  Projects, Item E-51]  Another item on which
   offerors  were scored in  the evaluation of  management proposals
   concerned  other  projects  that  are  competing   for  essential
   personnel.   The  solicitation required  offerors  to include  in
   their management proposals: 
 
        [i]dentification of  personnel considered  essential to
        the work described  herein and to be  designated as key
        personnel.  The resume's  [sic] of key personnel  and a
        description  of  how  they  will  be  employed  in  the
        performance of  this contract, including the  extent of
        their commitment to the effort necessary to satisfy the
        requirements of the specified  tasks in accordance with
        the work schedule and staff assignments proposed by the
        offeror.  
 
   Protest File, Exhibit 5, Appendix A at L-17.  
 
        76.  Two of the  MET evaluators assigned a score  of      to
   Sprint on  the  competing projects  item.   The  third  evaluator
   assigned a score of    .  Protest  File, Exhibit 115.  This  gave
   rise to a DI which noted that                                    
                                                                    
                                   Id., Exhibit 116.  Sprint replied
   that
 
                                                                    
                                                                    
                                                               Id.
   The MET evaluator who previously scored Sprint at    on this item
   did not  change that score after review  of Sprint's reply to the
   DI.  He noted: 
 
        DI  response indicates  that they  less  than meet  the
        requirement in that  they propose to simply  share some
        of the key people with other projects; score unchanged.
 
   Id., Exhibit 115.  
 
        77.  [Resumes - Personnel  Commitment, Item E-53]   Based on
   the  same  contract  provision  supporting  the  evaluation  item
   regarding  competing projects is  another item on  which offerors
   were  scored in  the  evaluation  of  management proposals.    It
   concerns the  degree of commitment of identified key personnel to
   the ADTN program.   Two of the evaluators assigned a score  of   
   to Sprint on  this item.   The third did  not raise his  original
   score of     on this item -- even after review  of Sprint's reply
   to  the  DI  generated  for  the competing  projects  item.    He
   apparently  remained  convinced,  as  he  was  on  the  competing
   projects item, that  the 80% commitment level did  not fully meet
   the requirements of the RFP.  Protest File, Exhibit 115.  
 
        78.  [Project Manager, Item E-55]  The solicitation directed
   offerors to identify a proposed project manager (PM): 
 
        who  should have successfully  managed projects of this
        type, magnitude,  and complexity within the  past three
        years.    A  concise  description  of  his  experience,
        duties, and responsibilities should be included.
 
   Protest File,  Exhibit 5, Appendix  A at L-17.   The solicitation
   did not require that the  project manager have any minimum number
   of months  managing telecommunications  projects.   In fact,  the
   evaluators did not  believe that the project manager  had to have
   any  minimum   number  of   months  managing   telecommunications
   contracts.   Transcript  at 1016-17.   As  explained by  the team
   leader  for the  MET, the  appropriate minimum  number  of months
   which might be sufficient would vary, depending upon how directly
   related  the experience  was.    Id.   Thus,  a proposed  project
   manager   with   fewer   months   of   very   directly   relevant
   telecommunications experience  might be better than  another with
   more months of less directly relevant experience.  Id. at 1017.
 
        79.  Sprint proposed as its ADTN2000 project manager        
                                                            See
   Protest File, Exhibit 8, Appendix G at III-6.0-4, III-7.0-1 to 0-
   4, 
   III-Appendix C-5 to C-6; see also Transcript at 125.             
 
                                                          
   Transcript at 126.  
 
        80.  The  Government sent  Sprint two  DIs  related to  this
   proposed project manager.   The narrative description  of each DI
   is that of "proposal deficiency."  The DIs each noted that Sprint
   had not provided sufficient information on              and asked
   whether Sprint wished to amend its proposal to provide additional
   information.   Protest File, Exhibit 161  at 65-67.  Based on the
   reply received from Sprint, the MET assigned Sprint a raw average
   score of        on this item.  Id., Exhibit 130.  
 
        81.  In  scoring Sprint on the proposed project manager, all
   three evaluators  gave Sprint  a score of  less than      .   One
   evaluator was of the opinion that Sprint had provided evidence of
          telecommunications  experience  relevant   to  managing  a
   program  such as  ADTN but  remained  less than  satisfied.   The
   second   was  of  the   opinion  that              simply  lacked
   telecommunications experience.   The third concluded  that Sprint
   was not entitled  to a score of      on this  item because it had
   not  provided information  sufficient  to  demonstrate  that  the
   requirements for  this assignment  could be  met.  Protest  File,
   Exhibit 155.  
 
        82.  [Capacity of  Workforce, Item  E-57]   The solicitation
   directs  offerors to address  the following requirement  in their
   management proposals: 
 
        Capacity.   Data on  the offeror's  total capacity  for
        work  of  the  type  covered  by  this  RFP,  including
        relevant sales or production figures for the past year.
        The  offeror's   existing  commercial   and  government
        business commitments, and  backlog of work  which would
        utilize the same  facilities and resources as  proposed
        for use under this requirement should be presented with
        an  explanation  of  how  the  work  required  will  be
        accomplished in view of those other commitments.  
 
   Protest  File, Exhibit  5, Appendix  A at  L-16.  The  MET scored
   offerors  on this  requirement  under  item  E-57,  "Capacity  of
   Workforce."
 
        83.  Two of the  MET evaluators scored Sprint  below      on
   the capacity of workforce item.  Protest File, Exhibit 156.  This
   gave rise to a DI already mentioned with regard to the scoring of
   the competing  projects item (E-51)  above (see Finding 76).   As
   noted, that DI pointed out that some key personnel proposed      
                                                                    
                                       Sprint was  asked to  explain
   if these people                                                  
            
 
                                                                    
                                                                    
                                                                    
                                       Id., Exhibit 166.  
 
        84.  Sprint's  reply to  the DI  regarding  capacity of  the
   workforce lead to revised scores below     from all three members
   of the  MET.  All three evaluators rated Sprint  below     points
   because the key personnel                                        
                                                                    
         Protest File, Exhibit 156.  
 
 
   GSI's Technical Proposal       
 
        85.  In response to the requirement for multilink procedures
   (Finding   5),  GSI's  proposal   stated  with  respect   to  the
   requirements  in   paragraph  3.4.2.4.b  of   the  solicitation's
   functional specification:  
 
                                                               
                                                               
                                                               
                                                               
                                                               
                                                               
                                                               
                                                               
                                                               
                                                               
                                                               
                                                               
                                                               
                                                               
                                         
 
   Protest File, Exhibit 6, Appendix B at I-B-1-14 to 1-15.  
 
        86.  A  considerable amount  of time  was  spent during  the
   hearing  and subsequent  briefing of  this case  on the  issue of
   whether the                                                      
                                                                    
                                                                    
                       See  Protest  File, Exhibit  159.   Protester
   contends that in stating that                                    
                                                                    
                     This,  according  to protester,  is  consistent
   with                                           a number  of other
   provisions of its 
   technical  proposal   such  as  paragraphs   1.B.2.d.1,  2.B.1.1,
   2.B.1.3.a, 2.C.4.e, and  2.C.4.f.  Sprint's Posthearing  Brief at
   15.
 
 
        87.  A member of GSI's technical team who actually wrote the
   initial   draft[foot #] 5    of    this    section    of    GSI's
   technical proposal dealing with multilink procedures testified   
                                                                    
            Transcript at 460.  GSI's business  development official
   responsible for the  ADTN2000 procurement, when asked  about this
   provision in GSI's proposal, testified that he did not           
                                    Id. at 314-15.  However, he also
   testified that, at the time GSI submitted its proposal,          
                                                                    
                      Id. at 316-17.   Not until after  this protest
   was filed did he discover,                                       
                                                          Id.     at
   317.
 
        88.  One member of the TET has  testified that references in
   GSI's proposal to the provision of functions through the use of  
                              were "high level" statements devoid of
   "a lot of detail in  terms of diagrams or anything."   Transcript
   at 647.  In the  absence of more detailed information, statements
   such  as these  did not  permit the  evaluators to  conclude with
   certainty  what                        would be involved.  Id. at
   642-43,  646-47, 649-50.   This evaluator appeared  untroubled by
   the  absence of such detail since, in his words, "We were looking
   for a  level of  commitment and we  found it in  that statement."
   Id. at 649.  With regard to the GSI's specific reference to      
                                                                    
              this  evaluator  testified   that  he  was   initially
   confused by  the terms  because he  was looking  specifically for
   what was  being proposed.   He  was not prepared  at that  point,
   however, to assume GSI meant                                     
     He states that it "would have been nice" to know               
    GSI intended  to use but  that information was not  contained in
   the statement.   Id.  at 655.   This evaluator  further explained
   that what  the evaluators were  looking for  with this  provision
   regarding                           people have the capability to
   offer the service  and did what  they propose sound  reasonable."
   In his opinion  it did.  Id.  at 656.   When asked what level  of
   detail he was looking for in this procurement, he stated: 
    
        The reality is in this procurement, it's not a hardware
        procurement.    The  Government  is  simply  purchasing
        services  and one of the services is multilink.  Did we
 
 
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 5  This individual  left the employ of  GSI shortly
   before the initial proposal submission.  Transcript at 456.  
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        really have to                                      Not
        necessarily, as long as the service worked.  
 
   Id. at 659.   
 
        89.  The team leader for the  TET, when asked at the hearing
   whether the evaluators understood GSI to state that the multilink
   function would be provided by                                    
   testified that he did not recall.   He explained that it was  not
   an issue at the time.  He further explained: 
 
        At  the point  we saw  what they  said, they  said they
        would support it, and it looked like a good solution to
        us.   And  so  we didn't  -- we  didn't  pursue it  any
        further. 
 
   Transcript at 814.  Elsewhere he explained: 
 
        What we were after was  a commitment and we were buying
        a  service  and they  had  committed to  provide  it at
        contract  award and it turns out  they could do exactly
        that.  
 
   Id. at 847.  This same evaluator, however, also testified that he
   assumed the evaluators "probably" thought GSI intended           
                                              Id.  at 812.   It  was
   not  until  after  this protest  was  filed  that  this evaluator
   learned that                                                     
                     Id. at 848.  
 
        90.  GSI's  technical proposal was the first to be evaluated
   by the TET.  Particular items were not reviewed again unless they
   were subject  to  a DI.   Transcript  at 646,  653.   The  record
   contains no  indication that  a DI was  sent out  regarding GSI's
   statement that it would provide multilink functions              
                                         Protest  File,  Exhibit  9,
   Appendix H.  
 
 
   GSI's Management Proposal
 
        91.  In the evaluation of GSI's management proposal, the MET
   assigned a score  of               of the twelve items  for which
   Sprint was given a score of                   On the remaining   
   items, GSI was given an average raw score of                     
                                           Protest   File,   Exhibit
   424.   
 
 
   The TET Report Regarding GSI's Proposal
 
        92.  The TET report regarding GSI's proposal concludes: 
 
        Throughout the  technical proposal  evaluation process,
        GSI   was   consistently   compliant   with   the   RFP
        requirements  and as a  result, very few  technical DIs
        were issued.   The large number of  strengths discussed
        above   reflects  a   highly   credible  solution   for
        implementing the ADTN2000.  The fact that the Technical
        Evaluation Team felt no need to identify a single issue
        or other  consideration  to highlight  in  this  report
        speaks for itself.  
 
   Protest File, Exhibit 10, Part B at 43.  
 
        93.  In its report regarding GSI's  management proposal, the
   MET listed several strengths and noted the following weaknesses: 
 
                                                               
             
 
                                                               
                                                               
                
 
                                                               
                        
 
   Protest File, Exhibit 10, Part C at 23.  
 
 
   Evaluation Scores and Prices
 
        94.  The ranking of  all offerors on this  procurement based
   on their combined weighted                                  is as
   follows: 
 
                                                                 
                                                                 
                                                                 
                                                                 
                                                                 
                                                                 
                                                                 
 
   Protest File, Exhibit 10, Part A, Attachment 2.
 
        95.  If the scores for all of Sprint's  technical/management
   evaluation items  in which  Sprint was deemed  to not  fully meet
   requirements   were   raised  to                 Sprint's   total
   technical/management score  would increase  to              or to
   within        points of the GSI score.  Protest File, Exhibit R-7
   (Version 3).
 
        96.  The Government                                         
   as follows:  
 
                                                           
                                                           
                                                           
                                                           
                                                                  
                                                           
                                                           
                                                           
 
   Protest File, Exhibit 14.
 
 
   Competitive Range Determination
 
        97.  The   Source  Selection   Authority   (SSA)  for   this
   procurement has  testified that at  an SEB meeting held  prior to
   his being briefed by  the SEB, there was a  discussion of whether
   Sprint should be eliminated  from the competitive range since  it
   had been  determined that Sprint  did not meet  certain mandatory
   requirements of the RFP.  Transcript at 546-51.  The SSA attended
   that meeting.    He  explained  that a  collective  decision  was
   arrived at  to "give  Sprint the benefit  of the  doubt" and  not
   eliminate it.  Id. at 549.  At that meeting, the SEB directed the
   DECCO  contracting officer  to issue  a call  for best  and final
   offers  (BAFOs).  Minutes  of the  SEB meeting  reflect, however,
   that  the BAFO submissions  were to be  for price  only.  Protest
   File, Exhibit 12  (Meeting of Oct. 19, 1993);  Transcript at 550,
   912. 
 
 
   Source Selection
 
        98.  Following  the  submission  of BAFOs,  the  SEB  met to
   review  the final  offers and  prepare  a briefing  for the  SSA.
   Transcript  at 914.    The  SEB developed  a  series of  briefing
   charts, including a  number of bar charts  reflecting differences
   in the offerors' scores, and a "Significant Discriminators" slide
   for   each   factor-level   bar    chart.      The   "Significant
   Discriminators"  slide was  intended  to  describe  some  of  the
   reasons for the score(s) of the  one or two offerors whose  point
   scores  on a  given  factor  were, in  the  opinion  of the  SEB,
   significantly different  from those of  the other offerors.   See
   id. at 925.
 
        99.  On  November 18,  1993, the  SEB co-chairman,  together
   with the SEB members, briefed the SSA.  Transcript at 514-15.   A
   set  of  summary briefing  slides  or  charts  was used  for  the
   briefing.  Id. at 515;  see Protest File, Exhibit 158 (the  SSA's
   copy of the briefing charts).  During the briefing, the  SSA made
   various  notations on his copy of the charts.  Transcript at 516.
 
 
        100.  The  SSA's  briefing  took  approximately  two  hours.
   Transcript  at 516-17.   Other  than the  briefing slides,  and a
   three-page  decision memorandum which  he signed on  November 19,
   1993,  the  SSA   reviewed  no  other  documents   regarding  the
   evaluations.   Id. at 516.   The SSA never read  the solicitation
   for this procurement.  Id. at 518-19.
 
 
        101.  One bar chart shown to  the SSA displayed the weighted
   technical  evaluation  scores  of all  offerors.    Protest File,
   Exhibit 158 at 11.  The SSA has testified that for him what stood
   out  in that  chart was that  "Sprint was  the only one  of seven
   offerors  that failed to meet the  mandatory requirement . . . ."
   Transcript at 526-28.   In the same vein,  the SSA testified that
   the critical difference, as seen  on this same chart, between GSI
   and  Sprint was  that Sprint  had  failed to  meet the  mandatory
   requirements of  the solicitation.   Id.  at 538.   The  SSA also
   admitted under examination that the spread of      points between
   GSI  and  Sprint  as  shown  on  that  same  chart  is close  but
   nonetheless does  represent a differentiation and a  value to the
   Government.  Id. at 539-40.  
 
        102.  Another  briefing  slide contained  a  bar chart  that
   showed  the  final  combined  weighted technical  and  management
   scores of  all offerors.  Protest File, Exhibit  158 at 14.  When
   asked whether a difference of                     between GSI and
   Sprint,  as shown on this bar chart,  was "pretty close," the SSA
   answered  "[p]erhaps,  but  there  was  clearly  a   difference."
   Transcript at 542.
 
        103.  As  already noted  (Finding 98),  in  addition to  the
   technical,  management,  and   combined-level  bar  charts,   the
   briefing  slides for  the SSA  included  a series  of bar  charts
   corresponding to the individual technical and management factors,
   and a slide  labelled "Significant Discriminators" for each.  See
   Protest File, Exhibit 158 at 16-41.  On the first such bar chart,
   for technical factor number one, the SSA noted on his copy of the
   slide  that  Sprint  was "unable  to  provide  [services without]
   significant        develop[ment;]    unacceptable   because    of
   [unintelligible]."  Protest  File, Exhibit 158 at  16; Transcript
   at 544.  The SSA has testified that this note was in reference to
   Sprint and  meant it was  unacceptable because it could  not meet
   the mandatory requirements of the solicitation since additional  
         modification was required.  Transcript at 544-45, 555.  
 
        104.  With  regard  to  Sprint's  plans  for                
   development,  a   briefing  slide   identifying  a   "significant
   discriminator" for  the comparison of  the scores of  offerors on
   technical  factor one  states:   "Sprint unable  to provide  X.25
   multilink  procedures  capability without  development  effort." 
   Protest File,  Exhibit  158 at  17.   The SSA,  however, was  not
   briefed on the details of Sprint's proposal in  this  regard,  or
   even whether  or how the
   facilities to be developed by  Sprint might be needed in contract
   performance.  Transcript at 555-58.
 
 
        105.  Similarly, a briefing slide identifying a "significant
   discriminator" for the  comparison of the  scores of offerors  on
   technical  factor  two   states:  "Sprint  unable   to  implement
   X.25/X.32 packet mode terminal dial-up access without development
   effort."  Protest File, Exhibit  158 at 18-19; transcript at 559-
   60.  
 
        106.  Another  briefing  slide  identifying  a  "significant
   discriminator" for  the comparison of  the scores of  offerors on
   technical factor  four  states:  "Sprint  deficient  in  ADTN2000
   concept due to  lack of capability  to support dial-up  X.25/X.32
   service   and  other   technical   design  deficiencies   pending
   development  efforts."   Protest  File,  Exhibit  158  at  22-23;
   Transcript at 565.
 
        107.  On the first slide among those dealing with individual
   management factors, the SSA added  the note that there were "[n]o
   mandatory requirements in management."  Protest File, Exhibit 158
   at 32.   The SSA has testified that  this was to reflect the fact
   that  in  the  management  area,  the evaluation  was  not  on  a
   pass/fail basis.   Transcript at  566-67.  The  only "significant
   discriminator" slide  in the  management area  that contains  any
   mention of Sprint is on a slide  referring to a bar chart showing
   the  scores of  all offerors  under  factor number  three of  the
   management evaluation.  The statement regarding Sprint reads: 
 
                                                          
                                                               
          
 
                                                          
                                                 
 
                                                          
                     
 
   Protest  File, Exhibit 158  at 37.   The SSA does  not recall any
   details regarding these comments.  Transcript at 567-70.
 
        108.  The briefing slides shown to the SSA also included two
   pages that listed a "Summary of Concerns."  Protest File, Exhibit
   158 at 49-50.  These included four "concerns" with respect to the
   Sprint proposal, namely:
 
                                                               
                                         
 
                                                               
                                                               
 
                                                               
                                                               
                                                               
                                                               
                              
 
        8.  Pricing note suggests                            
 
   Id. at 50.
 
        109.  The SSA states the he did not consider the last two of
   these  comments in  his  deliberations, and  that  they were  not
   factors    in    his    decision.        Transcript    at    573-
   75.[foot #] 6        The   SSA    understood   the    first   two
   comments to reflect the same information that was conveyed on the
   technical  factor slides regarding  multilink and  X.32.   Id. at
   572-73.  
 
        110.  The  briefing charts  included  a "Recommended  Source
   Selection Methodology" which reads as follows:
 
        (1)  Rank offers by  combined technical/management
             scores.
        (2)  Examine list  and eliminate any  offers where
             there  is   a  clearly   better  alternative.
             (higher technical/management, lower cost, and
             no "concerns")
        (3)  Compare  highest  technical/management  offer
             vs. lowest  cost offer -- eliminate the offer
             which is not the better value.
        (4a) Compare           highest           remaining
             technical/management    offer    vs.   lowest
             remaining cost  offer -- eliminate  the offer
             which is not the better value.
        (4b-c)Continue step 4 until a "winner" emerges.
        (5)  Double-check  by comparing  the "winner"  vs.
             all offers.
 
   Protest File, Exhibit 158 at 52.  
 
        111.  In  deciding to  award the  contract to  GSI,  the SSA
   followed this methodology recommended by  the SEB.  Transcript at
   577.   Under the  methodology, various combinations  of proposals
   were 
 
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 6  Protester challenges  the accuracy of these  two
   statements.   Sprint's Posthearing Brief  at 66 n.39.   Given the
   relief we are providing protester  in this decision and the SSA's
   testimony that he did not rely  on these statements in making his
   decision, we see  no need to  reach the issue  of whether or  not
   these two statements were, in fact, correct.    
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   compared, culminating in a head-to-head comparison of each of the
   other  proposals  against the  GSI proposal.   See  Protest File,
   Exhibit 158 at 53-62.  
 
 
        112.  In  step five of the selection procedure, a comparison
   is  made of  the  GSI and  Sprint  proposals.   A  briefing slide
   reflects the following comments:
 
                                                               
                         
 
                                                      
 
                                                               
                           
 
                                           (see    also   "step
        4(a)").
 
   Protest File, Exhibit 158 at 61.  
 
        113.  In testifying regarding  the briefing slide containing
   comments comparing GSI and Sprint's proposal, the SSA stated that
   he  understood  GSI's  proposal to  be  dramatically  superior to
   Sprint's   because  Sprint  had  failed  to  meet  the  mandatory
   requirements and GSI  had a higher score.   Transcript at 578-79.
   The  SSA  testified  that he  was  told  that  Sprint's technical
   proposal  was  bare   bones,  but  he  admits  that   he  has  no
   understanding of what that  comment meant except that  Sprint had
   not scored as highly as others.  Transcript at 611-13.
 
        114.  The reference  to step  4(a) in  the final comment  on
   comparison of  the GSI  and Sprint proposals  does not  involve a
   comparison of those two proposals  but rather a comparison of the
   Sprint proposal to  that of     .   This slide dealing with  step
   4(a) contains the following comments regarding Sprint's proposal:
 
 
                                                          
                                                          
                                                          
                                                    
 
                                                          
                                                          
                                                          
                                                          
                                                          
                                                
   Protest File, Exhibit 158 at 56-57.  
 
        115.  The SSA  testified regarding the comments  on Sprint's
   proposal which are contained in the slide dealing with step 4(a).
   He  stated that he understood the  concerns of the SEB to include
   Sprint's failure  to meet the  mandatory requirements of  the RFP
   and  its submission  of what  has been  characterized as  a "bare
   bones  proposal."   Transcript  at  611-12.   As  to the  comment
   regarding  the need to  continue the existing  contract if Sprint
   failed  to perform,  the SSA  recognized at  the hearing  that it
   would  apply   equally  to   any  offeror.[foot #] 7     Id.   at
   612-14.  
 
 
        116.  The SSA  also testified  that he was  not told  of the
   strengths found to exist in the Sprint proposal.  As a  matter of
   fact, he explained that  he was not  told about the strengths  of
   any   of   the   proposals  other   than   the   few  significant
   discriminators.   Transcript  at  588-91.    Similarly,  the  SSA
   testified that he was not advised  of any of the weaknesses found
   in the GSI proposal.  Id. at 591-94.
 
        117.  During his testimony, the SSA was asked to comment  on
   what  he considered  to  be nothing  more  than the  hypothetical
   possibility that  Sprint's proposed development efforts  were, in
   fact,  minor  modifications  allowed by  the  solicitation.   His
   response was:  
 
        Well, obviously that  would be significant and  then it
        would  depend   upon  the   relative  scores   and  the
        competition.
 
   Transcript at 586-87.  
 
 
   The Protest
 
        118.  This  protest was initially filed on December 3, 1993.
   On December  16, 1993,  Sprint filed  a first  amended complaint.
   This amendment did not contain any new counts.  
 
        119.  On January  11, 1994,  Sprint filed  a second  amended
   protest complaint.   With this amendment, Sprint  added a seventh
   count alleging that GSI failed to  meet mandatory requirements of
   the RFP, and an eighth count alleging that the Government and GSI
   had engaged in  post-BAFO discussions.  Second  Amended Complaint
   at 21-22.  
 
        120.  In a  third amended  complaint, filed  on January  14,
   1994, Sprint further specified the allegation that GSI's proposal
   was noncompliant by alleging that                                
                                                                  
   mandatory requirements.  Third Amended Complaint at 18-19.
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 7   As  to  the  comment  on  the  slide  regarding
   possible pricing irregularities, we do  not discuss it here since
   the  SSA made  clear in  his  testimony that  he disregarded  the
   supposed  "concerns" with Sprint's  price proposal.   See Finding
                                                         ___
   109.  
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        121.  In  its initial  discovery  requests  to  GSI,  Sprint
   served several interrogatories  which concerned GSI's  compliance
   with the                                      requirements of the
   RFP.   At the  same time,  Sprint requested  GSI to  identify and
   produce all documents that relate to how                         
         commerciality  requirements of  the ADTN2000  solicitation.
   Protest File, Exhibit 133.  Answers were provided.  Id. 
 
        122.  Sprint received the GSI proposal for  this procurement
   as  part of  the Rule  4  file on  December 17,  1993.   Sprint's
   Opposition to Joint  Motion to Dismiss Counts VII  and VIII at 5.
   The  proposal contained explanations of how  GSI intended to meet
   the  solicitation's                                 requirements.
   Protest File, Exhibit 6, Appendices B, C.
 
        123.  On December 20, 1993, GSI provided Sprint with answers
   to Sprint's interrogatories regarding GSI's compliance with the  
                                requirements  of the  RFP.   Protest
   File, Exhibit 133; Transcript at 368-69.
 
        124.  Sprint  readily admits that in response to its request
   to GSI for production of documents, it received on December 20  a
   large    box    of   documents    several    of   which[foot #] 8
   showed that certain                                              
                                 requirements of the  RFP.  Sprint's
   Opposition to Joint Motion to Dismiss Counts VII and VIII at 6-7,
   13. 
 
        125.  As  a result  of  the  Sprint  protest  and  discovery
   requests received from Sprint regarding the ability of           
            
   representatives of GSI                                           
                                                       Transcript at
   327-28.
 
        126.  At this meeting of the GSI and         representatives
   on or around December 16,                                        
                                                                    
                                                                    
                                                                    
                                                    Transcript    at
   332, 341-42.  
 
        127.  Following  the mid-December meeting            and GSI
   representatives, GSI contacted  the FAA project officer  for this
   procurement  to  schedule  a  technical  meeting  with government
   representatives.  Transcript at 875, 894.  
 
        128.  The  meeting  of  GSI representatives  and  government
   personnel  took place on December 28, 1993.  At that meeting, the
   GSI official responsible  for the company's proposal  briefed the
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 8  E.g., Protest File, Exhibits 134-38.
                    ___
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   Government representatives.   The meeting  took place at  the law
   offices  of counsel  for GSI.    It was  attended  by a          
   representative  as well.    Also  in  attendance  were  attorneys
   representing GSI,  the Government,                    During  the
   meeting, it was explained how GSI intended to                    
 
                                                                 It
   was explained that                                               
                                                                    
                 Transcript at 332-38, 426-29. 
 
        129.  Counsel for  Sprint contends that  after responding to
   written discovery requests, "GSI admitted in the depositions that
   its  solution is  noncompliant"   --  "to the  extent that  GSI's
   proposal was to meet the                                         
 
   Sprint's  Opposition to Joint  Motion to  Dismiss Counts  VII and
   VIII at 8.  Similarly, Sprint contends: 
 
        [D]uring the  depositions, Sprint learned that  the GSI
        proposal to the Government does not provide support for
                                                               
                                                               
                                                               
         
   Id. at 13-14.  
 
                               Discussion
 
        We turn now to a discussion of the individual counts in this
   protest.  
 
 
   Count I - Improper Technical Evaluation
 
        In this  count of  its protest, Sprint  alleges the  SEB was
   required to evaluate Sprint's proposal solely on the basis of the
   criteria set forth in the  solicitation.  Protester contends that
   this was  not done and  that its proposal was  accorded disparate
   treatment during the technical evaluation.  
 
        We agree.   We find  the evaluation scores  of        on the
   eight technical evaluation  items relating to multilink  and X.32
   dial-up  requirements  are  in   fundamental  conflict  with  the
   solicitation's commerciality provisions.  Since the evaluation of
   these portions of  Sprint's proposal has not been  carried out in
   accordance  with  the  terms  of the  solicitation,  it  must  be
   rejected as contrary to statute  and applicable regulation.   See
   10 U.S.C.   2305 (1988); 41 U.S.C.   253b (1988); FAR  15.608(a).
 
 
        Pursuant to the commerciality provisions in clauses H.25 and
   C.3.1.2,  vendors are  permitted  to  offer commercial  equipment
   subject  to minor modification.  Finding 9.  "Minor modification"
   is defined as a "modification  that does not alter the commercial
   product's/item's function or essential physical characteristics."
   Findings 6, 9.  
 
        During negotiations, Sprint made known its intent to rely on
   the "minor  modification provision"  in the RFP.   On  receipt of
   Amendment 11 and  a second round of DIs,  Sprint became seriously
   concerned regarding the continued availability of this provision.
   This  prompted an  extensive  exchange  between  Sprint  and  the
   contracting officer on  the subject.  Findings 32-36.   The final
   outcome of their  discussions was an acknowledgement  on the part
   of  the  contracting  officer  that  she  was in  agreement  with
   Sprint's position regarding commerciality.  Finding 36.  
 
        Having reached  what it  considered to  be an  understanding
   with the contracting  officer on this matter,  Sprint recertified
   its compliance with the RFP's commerciality requirement.  Finding
   38.  
        As  a result  of  this protest,  it has  come to  light that
   during  this procurement,  the FAA  felt extremely  uncomfortable
   with the "minor modification loophole" and attempted  to close it
   by proposing  DIs and a  letter to Sprint advising  that Sprint's
   plans for  extensive              development were  unacceptable.
   Finding 39.  The contracting officer rightly advised that without
   a change  in the language of the  solicitation, this could not be
   done.   Findings  40-42.    The  contracting  officer's  position
   appears to have carried the day -- at least initially.  Her notes
   confirm that the  SEB agreed with her interpretation and contract
   modification 12 was issued to clarify matters.  Finding 43.  
 
        The  score sheets of the technical evaluators, however, tell
   a different story.  The evaluators seized on the concept of minor
   modifications  becoming major  modifications  when taken  "in the
   aggregate."  Findings 52-55.   This notion of  major modification
   "in  the aggregate" is not found  in the commerciality provision.
   Indeed, we  do not  consider  that it  is even  implicit in  that
   provision.   The wording  of the  clause  is clear.   The  factor
   distinguishing major from  minor modification is said  to rest in
   the 
   degree   to  which  the  modification  changes  the  function  or
   essential  physical characteristics  of the  product  or item  in
   question.   See Finding  9.   It is  this and  not the  aggregate
   complexity of the proposed alterations which distinguishes  major
   from minor modification as that term is used in the commerciality
   provisions of the RFP.    
 
 
        During the hearing  in this case, one of the  members of the
   TET testified  that the  enhancements of  multilink or  X.25/X.32
   dial-up  services do  not change  the  functionality of  Sprint's
   switches.   We agree.   We likewise  agree with  this evaluator's
   candid admission that, in determining whether Sprint's proposed  
         developments constituted "minor modifications," he used the
   term "minor modification" in a sense different from that given to
   it in the clause itself.   See Finding 54.  Indeed, we  find that
   this error was  made by all three technical  evaluators.  Compare
   Finding 9 with Findings 53-55.  
 
        We find the       scores given  Sprint by the evaluators  on
   the eight technical  evaluation items in  question to be  clearly
   unjustified  since they obviously  conflict with language  in the
   solicitation's commerciality provisions.  We agree with protester
   that  the  risk recognized  by  the  evaluators  as  inherent  in
   Sprint's                   development plans was within the RFP's
   specified acceptable level of risk.  Consequently, any conclusion
   that  Sprint failed to meet the mandatory requirements supporting
   these eight items  is unjustified and  should be set aside.   We,
   therefore, grant Count I of the protest.  
 
 
   Count II - Misapplication of Award Criteria
   Count IV - Failure to Award To Most Advantageous Offeror
 
        Because Count II  and Count IV both relate  to the selection
   process, we treat them together.  
 
        Under  applicable regulation,  following  the evaluation  of
   BAFOs,  the  SSA is  to  select the  source  whose offer  is most
   advantageous  to the Government, considering only price and other
   factors included in the solicitation.  See FAR 15.611(d).        
 
        In this case,  the solicitation provided that  the technical
   factors were  significantly more  important than management,  and
   that   technical/management  combined were  more  important  than
   cost.   The  RFP also noted,  however, that cost  may become more
   important as the difference between combined technical/management
   scores decrease.  Finding 10.  
 
        We have examined in detail  the facts relating to the source
   selection  made  in this case.  It is  our  conclusion  that  the
   selection is substantially defective, based as it is on extremely
   limited information most of which is fundamentally flawed.  Given
   these facts,  we cannot conclude  that the selection made  by the
   SSA  was the most  advantageous to the Government  or that it was
   made in accordance with the RFP's criteria for award.        
 
 
        The   SSA's  decision  making  process  was  a  simple  one.
   Following the methodology recommended by the SEB, he looked for a
   low  priced proposal with  a relatively high technical/management
   score.   He eventually chose GSI.   Then, in accordance with step
   five of the selection methodology, he  made one last head-to-head
   comparison of  GSI's proposal to  all other proposals.   Findings
   110-11.  
 
        GSI's price was        higher than that of  Sprint which was
   the                    of all offerors.   Finding 96.   As to the
   difference between  the combined,  weighted, technical/management
   evaluation scores of GSI and Sprint, the difference was less than
              out of a total of over  270 points.  Findings 94, 102.
 
 
        Given the prices and combined  scores of Sprint and GSI, the
   fact that Sprint  was presumably still  in the competitive  range
   (Finding  97), and  the  solicitation's  provision regarding  the
   greater  importance of  technical/management  factors over  cost,
   with the prospect of cost becoming more important in the event of
   close  technical/management scores, one  would expect the  SSA to
   have engaged in some form  of cost/technical tradeoff analysis to
   support the  selection of  the higher priced  GSI proposal.   CRC
   Systems, Inc., GSBCA  9720-P, 89-1 BCA   21,411, 1988  BPD   302.
   The  closest we  come to  such  an analysis  is the  head-to-head
   comparison of GSI's  proposal to that of Sprint.   This analysis,
   however, is entirely  unsatisfactory given the findings  made and
   the  conclusions reached elsewhere in this decision regarding the
   defective  technical and  management scores  for  Sprint and  the
   inadequacy of discussions.   
 
        The SEB briefing slide outlining the head-to-head comparison
   of the  GSI  and  Sprint  proposals notes  that  GSI's  technical
   management  proposal   is  dramatically  superior   to  Sprint's.
   Finding  112.   The SSA  has  explained that  he understood  this
   superiority to be  based on the fact  that Sprint failed to  meet
   mandatories  and had a lower technical/management score.  Finding
   113.    As  we  have  noted,  however,  the  conclusion regarding
   Sprint's failure to meet mandatory requirements is incorrect.  As
   to  the                 difference in scores, it  is difficult to
   understand  how  one could  consider this  significant in  and of
   itself in view of the total number of  points involved.  However,
   this ceases  even to be  an issue after Sprint's  technical score
   and  management  scores are  corrected  (Counts I  and  VI), thus
   reducing the point spread to         Finding 95.  
 
        In comparing the GSI and Sprint  proposals, the SEB briefing
   slide also points  out to the SSA that the  discounted life cycle
   cost of the GSI  proposal is      higher  than Sprint's.  Finding
   112.  Under the solicitation provision regarding the role of cost
   in the evaluation process, this price differential argues against
   the  selection  of  GSI  when one  takes  into  consideration the
   diminished   differential   in   point   scores  resulting   from
   corrections  made herein to the original technical and management
   scores.    
 
        The  briefing slide comparing  the GSI and  Sprint proposals
   also notes  that  the SEB  had  serious concerns  about  Sprint's
   proposal but none about GSI's.  Id.  Such an observation conveyed
   nothing  to the SSA  beyond that which  he had  already been told
   regarding  the  alleged  failure  of  Sprint  to  meet  mandatory
   requirements because  of the need for software  development.  The
   SSA has testified  that he was told  nothing of the  strengths of
   Sprint's proposal or  of the weaknesses found in  GSI's.  Finding
   116.  He  admits to having been  told that Sprint's proposal  was
   "bare bones" but does not  claim to understand what that entailed
   beyond  Sprint's score being  lower than that  of other offerors.
   Finding 113.  
 
        Particularly telling is the testimony of the  SSA when asked
   to  comment on a  hypothetical possibility that  Sprint's planned
   development  efforts  were in  accordance  with the  solicitation
   requirements.   Under such  a scenario,  the assumption  would be
   that Sprint met the mandatory requirements.  The SSA replied that
   this would  be "significant" and  that the  selection would  then
   depend upon the relative scores and competition.  Finding 117.  
 
        Based  on  the  evidence reviewed  in  our  discussion above
   regarding  Count I, we  conclude that the  hypothetical situation
   offered to  the SSA for  comment is that which  actually existed.
   We agree --  this is "significant."  Clearly  with the correction
   of  Sprint's combined, weighted   technical/management  score and
   the consequent reduction in the difference  between the scores of
   GSI and Sprint, the earlier  selection must be revisited.  Counts
   II and IV of the protest are, therefore, granted.  
 
 
   Count V - Lack of Meaningful Discussions
 
        The  FAR  provides  that   in  conducting  discussions,  the
   contracting officer shall: 
 
        Advise the offeror  of deficiencies in its  proposal so
        that the offeror is given an opportunity to satisfy the
        Government's requirements; 
 
        Attempt  to resolve  any  uncertainties concerning  the
        technical proposal  and other terms  and conditions  of
        the proposal . . . .
   FAR 15.610(c)(2), (3).  
 
 
        Unfortunately  this  has  not occurred  in  the  discussions
   between Sprint  and the  Government in this  procurement.   It is
   clear from the scores  given by the TET members to  Sprint on the
   items  relating to  multilink and  X.32 dial-up  access that  the
   members  considered  Sprint's proposal  deficient with  regard to
   these mandatory requirements.  It is equally clear, however, that
   the Government failed to inform Sprint of this fact.  
 
        During negotiations, Sprint  readily revealed its  intention
   to  meet the requirements for multilink,  closed user group, X-32
   dial-up  access  and  inactivity  timers  through                
   development.   Findings 28-30, 37.   The issue of how  this would
   square with  the solicitation provisions  regarding commerciality
   was expressly discussed.  Findings 31-38.  
 
        The record does show  that during the exchanges between  the
   contracting officer and Sprint on  these matters, she shared with
   Sprint officials  her concerns  regarding the  risk attendant  to
   Sprint's              development plans.   Findings 34, 36.   The
   record  likewise confirms that  Sprint, in responding  to various
   DIs, attempted to address this concern.  Finding 37.
 
        At no time, however, was  Sprint informed that its  approach
   was unacceptable.   On  the contrary, receipt  of a  follow-up DI
   regarding  the use  of modems  for the  X.32 dial-up  feature was
   reasonably  interpreted by  Sprint  as  an  indication  that  the
   approach it planned  to use  was satisfactory.   Findings  44-45.
   Similarly,  the   issuance   of  Amendment   12  was   reasonably
   interpreted by Sprint  as confirmation of the  understanding that
   the              development  planned for  Sprint's equipment was
   allowable under the solicitation's  commerciality provision.  See
   Finding 45.   
 
        During the course of this protest, respondent and intervenor
   have dwelt  on the fact  that internal documentation  produced by
   Sprint in response to discovery  indicates that if award had been
   made to Sprint,                                                  
                                                    See Findings 46-
   47.   Respondent  and  intervenor  apparently  believe  that  the
   information reflected in this internal  documentation should have
   been furnished  by Sprint during  negotiations.  We do  not fault
   Sprint for not doing  so.  The  risk which Sprint was  apparently
   willing  to take  was within the  level of risk  permitted by the
   solicitation.    The  Government,  for  all  practical  purposes,
   confirmed   this  fact  for  Sprint  by  agreeing  with  Sprint's
   interpretation  of  the   RFP's  commerciality  provisions  while
   knowing  the  degree of  development Sprint  planned to  take on.
   Under  circumstances such as these, where presumably both parties
   were  aware  of the  risks  involved,  it  would have  made  poor
   business sense  for Sprint  to share  spontaneously its  concerns
   with  the  Government.    Had  the  Government  chosen  to  press
   discussions further, some  disclosure might  have been  required.
   This, however, did not occur.    
 
        In short, if the Government believed Sprint's proposal to be
   deficient  with regard  to  the multilink  and  the X.32  dial-up
   access requirements, it  was required  to advise  Sprint of  this
   fact.   It failed to  do so.  Indeed,  it led Sprint  to conclude
   reasonably that its  proposal was compliant with regard  to these
   requirements.  For this reason we grant Count V. 
 
        In reviewing  the facts  relating to  the negotiations  with
   Sprint on  the multilink and X.32 dial-up  access requirement, we
   find  an additional  basis for  granting  Count V.    We have  no
   problem with the DIs issued by  DECCO on these requirements.  See
   Findings  28-29.     The   solicitation  clearly   calls  for   a
   considerable  degree  of  technical  detail.    Finding  4.   Our
   objection is to  what we consider disparate treatment  of GSI and
   Sprint regarding that  portion of their proposals relating to the
   multilink procedures.  See Finding 85.  
 
        The  technical evaluators who  have testified on  this issue
   have attempted to  explain their failure  to issue a  DI on  this
   portion of GSI's proposal in various ways.  We are told  that the
   statement  in  the  proposal  was  not intended  to  serve  as  a
   technical explanation.   Rather it  is a  "high level  statement"
   indicating a "commitment"  to provide the service.   This, we are
   told,  is  sufficient  since the  Government  here  is purchasing
   services and not equipment.  Findings 88-89.  
 
        The solicitation states:
 
             The  technical proposal must  set forth  enough of
        the technical approach, including technical methods and
        engineering approaches  to sufficiently show  how it is
        proposed  to meet RFP requirements.  A full explanation
        of  techniques and  procedures proposed to  be followed
        shall  be included.  Block diagrams, drawings or charts
        should  be included, as appropriate, to present a full,
        complete and clear explanation . . . .
 
   Finding  4.   In  view of  this  and related  provisions,  we are
   unpersuaded by the  justifications offered by the  evaluators for
   not scrutinizing GSI's proposal more  closely and issuing a DI on
   the multilink procedures.  
 
        The TET report  points to the                             of
   technical DIs issued for GSI's proposal as a sign of its superior
   quality.  Finding 92.   We have no intention of  passing judgment
   on  the validity of this observation  with regard to the whole of
   GSI's technical  proposal.   Nevertheless, with  regard to  GSI's
   multilink statement, we  are more inclined  to conclude that  the
   TET's failure to issue a DI  on this item was attributable rather
   to the fact that GSI was the first proposal reviewed and  the TET
   had not yet warmed to its task.  See Finding 90.  
 
 
        The  TET's  failure  to  issue  a DI  to  GSI  on  multilink
   contrasts strikingly  with the  more aggressive  tack taken  with
   Sprint  on  the same  issue.   We  find it  reflects  a disparate
   treatment  of offerors during discussions which ultimately led to
   distorted technical evaluation scores for  GSI and Sprint.  It is
   a fundamental principle of  competitive negotiation that offerors
   must  be treated  equally by  a procuring  activity.   CPT Corp.,
   GSBCA 8134-P-R, 86-1 BCA   18,727 at 94,240, 1986 BPD   12, at 68
   (citing  Computek  Inc., 54  Comp.  Gen.  1080 (1975),  75-1  CPD
     384);  accord, Wisconsin  Physicians  Service Insurance  Corp.,
   GSBCA 9674-P,  89-1 BCA    21,366, 1988 BPD    268.   We conclude
   that  the  disparate  treatment  found  to  exist  in  this  case
   regarding the  proposal of multilink  function by GSI  and Sprint
   constitutes   additional   support   for   our  conclusion   that
   discussions with Sprint were inadequate and that Count  V should,
   therefore, be granted.  
 
        Finally,  we find that discussions with Sprint regarding its
   management proposal were likewise marred  by a failure to  advise
   the  offeror of  perceived deficiencies  in its  proposal.    For
   reasons  discussed in  detail under  Count  VI, we  have found  a
   discrete category of  management evaluation scores which  must be
   rejected  because  of  inadequate discussions.    These defective
   scores likewise  support  our  conclusion  that Count  V  of  the
   protest should be granted.  
 
 
   Count VI - Improper Management Evaluation
 
        Protester has  challenged all  twelve management  evaluation
   scores which  were  given to  Sprint  and which  were  under     
   points.  
        The judgments of  evaluators will normally not  be disturbed
   unless it can  be demonstrated that the conclusions  reached were
   unreasonable ones.   See Computer Sciences Corp.,  GSBCA 11497-P,
   92-1 BCA   24,703,  at 123,297, 1992  BPD   6,  at 32 (and  cases
   cited  therein).   In  the  instant  case,  after review  of  the
   applicable  solicitation  provisions,  the  score  sheets of  the
   evaluators and applicable provisions of the  technical/management
   evaluation  plan, we  hold  that  the  conclusions  reached  were
   unreasonable.  
 
        Protester's   principal   contention  in   challenging   the
   technical  evaluation scores  is that  its  proposal deserved  at
   least a  score of       on each of  the twelve items  because the
   particular requirement in  question was, in fact, met.   We agree
   that in nearly all cases the requirement in question was met.  As
   for the limited number of scores  where this may be in doubt,  we
   conclude that the lower score is unjustified and should be raised
   at least  to                         in view of  the Government's
   failure to alert  Sprint through discussions that  its management
   proposal was deemed deficient regarding these few items.  
 
 
        The  major  difficulty with  the              MET scores  in
   controversy stems from the scoring scheme used for the management
   evaluations.   In  describing  the  scoring,  the RFP  employs  a
   perplexing distinction  between a  score which  indicates that  a
   specific requirement is  adequately but not fully met  (70 to 99)
   and a  score which  indicates that the  requirement is  fully met
   (100 to 130).   See Finding 17.  This gives  rise to the question
   of whether an "adequate" score signifies that the requirement has
   or has not been met.  
 
        Our  conclusion is that  a score of  adequate indicates that
   the proposal is at least in some respect noncompliant with regard
   to the item on which it is being evaluated.  We say this first of
   all because of  the wording of the  RFP itself.  Given  the plain
   meaning of the  terms "fully meets  requirement," we consider  it
   reasonable to  conclude that  if a proposal  falls short  of that
   level  of  scoring,   it  obviously  has  failed  to   meet  that
   requirement.  
 
        Our  interpretation   is  supported  by   language  in   the
   Technical/Management  Evaluation Plan as well.  The plan contains
   a definition of  "deficiency" which is  said to be  based on  the
   definition of that term found in the FAR.   The definition in the
   plan specifically explains that the term "satisfy" as used in the
   FAR phrase  of "fails  to satisfy  the Government's  requirement"
   should be understood as equivalent  to "fully meet."  Finding 22.
   The plan also explains that a proposal is "deficient" if it "less
   than fully meets the stated sub-factor requirement."  Id.
 
        In a similar  vein, the narrative  description found in  all
   MET score sheets describes  the adequate score between 70-99  as:
   "Less Than Meets Requirements."   See Finding 18.  Finally, there
   is the language written in some technical evaluation score sheets
   by the evaluators themselves.   On occasion, they have assigned a
   score between 70 and 99  specifically because they found that the
   offeror did not  meet the requirement in question.   Findings 65,
   76, 81.   
 
        Despite  the  actual  language  of  the   solicitation,  the
   guidance contained in the evaluation plan, the description of the
   "adequate" score on  the evaluation score sheets  and the entries
   made by some  evaluators   on  their   scoring   sheets, the  MET
   team  leader has
   testified that the evaluators did  not consider an adequate score
   to be deficient.   Finding 23.  Nevertheless,  DIs were sent  out
   when an offeror was rated by an evaluator at less than 100 points
   but  no subsequent DIs  were sent.   The  reason for  not sending
   additional DIs  appears to  have been a  concern that  this might
   lead to some form of leveling.  Finding 57.
 
       On  balance, we  find  the  scoring  of  Sprint's  management
   proposal  to be  both inconsistent  and unreasonable.   If Sprint
   actually met  a particular  management requirement,  then it  was
   entitled  to  a  score  of 100.    If  Sprint  did  not meet  the
   requirement, then, in accordance with instructions set out in the
   TMEP, it  was entitled to a deficiency DI.   See Finding 22.  Our
   analysis  of  the facts  regarding  the  scoring  of  the  twelve
   contested items  convinces us that  in each case,  the evaluation
   score given to Sprint lacks a reasonable basis.  
 
 
        In addressing the individual scoring of the twelve contested
   items in  this discussion, we need  not discuss them in  the same
   detail found in our findings of fact.   Several of the items fall
   into  general categories  which can  be dealt  with in  a summary
   fashion.  
 
        One large  group of  contested evaluation  items is  that in
   which final adequate scores were  given when, in reality,  Sprint
   was entitled to a score of at least 100 points because it clearly
   met the  requirement in question.   The objections  registered by
   the  evaluators on  these items  may  have justified  a score  no
   higher than  100 points  but they did  not justify a  score below
   that level.  We include in this category the following items:  
 
        E-02, Organization:   The contract  requirement was for
        an  organization plan  showing structure  and flows  of
        authority.                                             
                                                               
                            See Findings 58-59.    
 
        E-30,  Automated  Project  Scheduling:    The  contract
        requirement was for an automated scheduling system that
        can be  accessed by  FAA (read only)  to determine  the
        status of service orders.                              
                                                               
                                                               
                                                               
                                      See Findings 66-67.  
 
        E-51,  Competing  Projects; E-53,  Resumes  - Personnel
        Commitment;  E-57,  Capacity  of  Workforce:     Sprint
        received a final evaluation score of                   
                 
 
                                                              
                                                              
        We find nothing in the contract requirements supporting
        these three items  which precludes this.   See Findings
        75-77, 82-84.  
 
        E-55, Project Manager:  All three evaluators assigned a
        score of less                                          
                                                               
                                                               
                                                               
                                                               
                                                           See
        Findings 78-81. 
 
        The  second  category  of  contested  management  evaluation
   scores involves those  items on which Sprint received  a score of
   less than 100  but was not advised of deficiencies on these items
   or, where initial DIs were issued, of continued deficiencies.  We
   recognize that respondent now argues that deficiency notices were
   not  required  for  items  scored  between  70  and   99  points.
   Nevertheless,  since we find  that position in  conflict with the
   language of  the  RFP,  the evaluators'  score  sheets,  and  the
   guidance in the  evaluation plan, we reject it  and conclude that
   additional discussion was required on the following  items.      
 
 
        E-04, Project Tracking:                                
                                                               
                                                               
                                                               
                                                               
                                                               
                                                               
                                                               
                                                               
                                                               
                                                               
                                       
 
        E-05, Sprint  Coordination:   A DI  was issued on  this
        item but noted an ambiguity  not a deficiency.  Finding
        69.  The inadequacy of the reply was never communicated
        to Sprint.  
 
        E-22, Risk Management:  The  MET recognized the need to
        issue a DI on this item but failed to send it.  Finding
        70.  
 
        E-45, Proposed  Personnel/Previous Work:  The DI issued
        for  this item spoke  to missing data,  not conflicting
        data.                                                  
                                                               
 
                     No  follow-up  DI  was  provided  on  this
        deficiency.  Findings 73-74.  
 
        Having examined the individual items relating to this second
   category of scores, we can  find no basis to support respondent's
   reluctance to  pursue discussion of  deficiencies out of  fear of
   leveling.   For the  instances outlined above,  any additional DI
   or, in  the case  of Risk  Management, a  make-up DI  should have
   served rather to remedy defects associated with the original DIs.
    
 
        The eleventh contested evaluation  score concerns item E-03,
   Key  Personnel.   A  DI  issued  to  Sprint regarding  this  item
   produced a  reply which prompted  two of the three  evaluators to
   revise their scores on  this item to         The third  evaluator
   declined to revise her score to that level.                      
                                                                    
                                                           Finding
   61.   We  have examined  the  contract requirement  which is  the
   subject of this evaluation  item and are convinced  that Sprint's
   proposal, as  clarified by the  response to the DI,  did meet it.
   See Findings 60-61.                                              
                                                                  
 
        The  last contested  evaluation  score concerns  item  E-24,
   Quality of Proposal.   We find that  scoring on this item  was in
   conflict with the  language of the solicitation.   The Quality of
   Proposal item  relates to  an area  expressly excluded  under the
   terms of the  RFP from the  factor and subfactor  to which it  is
   said to relate.  Findings 71-72.  For this reason the item itself
   should not  have been  included among  the management  evaluation
   scoring  items   and   any   score  based   on   it   should   be
   ignored.[foot #] 9    
 
        In  sum,  we find  the  management  evaluation substantively
   defective  in all  twelve areas  claimed by  protester.   For the
   reasons set out above, we grant Count VI of the protest.      
 
 
   Count  VII -  GSI Fails  To  Meet Mandatory  Requirements Of  The
   Solicitation
 
        This count  was  added to  Sprint's  protest by  its  second
   amended complaint, filed on January  11.  Respondent and GSI both
   argue that it is untimely and urge us to dismiss it.  
 
 
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 9   In calculating a corrected score for Sprint and
   comparing  it to  that of  GSI,  we have  left this  item  in our
   calculations and  simply raised it  to the minimum score  of 100.
   See Finding 95.  
   ___
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        Our Rules of Procedure provide that protests:
 
        shall be filed  no more than 10 working  days after the
        basis for the ground of protest is known or should have
        been known, whichever is earlier.
 
   58 Fed.  Reg. 69,246,  69,254 (1993)  (to be  codified at  48 CFR
   6101.5(b)(3)(ii)).
 
        In its initial discovery requests served on GSI, Sprint made
   several inquiries regarding GSI's compliance with                
                      requirements  of the  RFP.  Sprint  also asked
   GSI to identify and produce all documents relating               
                                                                    
       Finding 121.  This information  was provided on December  20.
   Findings 121, 123-24.  
 
        On December  17, Sprint received  a copy of  GSI's proposal.
   The proposal contained explanations  of how GSI intended  to meet
   the                                                              
   Finding  122.   Sprint  readily  admits  that  the  documentation
   provided by GSI in response to Sprint's request for production of
   documentation                                                    
                                                                    
      Finding 124.
    
        The  question of GSI's compliance with RFP requirements has,
   therefore, been an obvious matter  of interest to Sprint from the
   start  of this  protest.   Sprint's  original discovery  requests
   confirm this.  Indeed, Sprint's initial probing                  
                                                                    
                              Finding  125.    When  GSI  failed  to
   produce                                                          
                                                                    
                                                                    
                                                                    
                         We can find  no justification for  Sprint's
   waiting until  well past  the tenth working  day from  receipt of
   GSI's document production to amend its protest.  
 
        Subsequent discovery may  have clarified  issues for  Sprint
   and flushed  out the closely  related issue of GSI's  decision to
   rely  on                                                         
   Nevertheless, this  does not excuse Sprint from putting the basic
   question of GSI's compliance in issue upon receipt of GSI's reply
   to its earlier discovery request.   We, therefore, agree with the
   contention  of  respondent  and  GSI  and  dismiss  Count VII  as
   untimely filed.  
 
 
 
   Count VIII - Post-BAFO Discussions
 
        This count  is based in  part on GSI's  noncompliance, which
   protester  has attempted to allege in Count  VII.  In this count,
   Sprint  contends  that  although GSI's  proposal  failed  to meet
   mandatory  requirements of the solicitation at the time of award,
   the  Government and GSI have  engaged in post-BAFO discussions in
   an effort to cure the alleged deficiencies in GSI's proposal.  
 
        GSI and respondent have filed a joint motion to dismiss this
   count for failure to state a valid basis for protest.  They point
   out that FAR 15.611(c), on  which Sprint relies, is applicable to
   preaward discussions and  not to events occurring  after contract
   award.  
 
        Sprint in reply cites decisions of this Board as well as the
   General Accounting  Office where protests alleging actual changes
   in proposals subsequent to award have been  sustained.  Berkshire
   Computer  Products v. Department of Commerce, GSBCA 12172-P, 93-2
   BCA   25,724,  1993 BPD   36;  Federal Data Corp., 69  Comp. Gen.
   196 (1990), 90-1 CPD   104; International Transcription Services,
   Inc., B-240488, 90-2 CPD   437 (Nov. 28, 1990).  Technically,
   Sprint is correct.  Nevertheless, we still dismiss this count for
   failure to state a valid basis for protest.  Our reason for doing
   so, however, differs  from that offered by respondent  and GSI in
   their joint motion.  
 
        Sprint alleges that GSI's proposal was modified after award.
   We are not at  all certain that this  did occur.  There is  ample
   evidence  of confusion -- even on the part of GSI's own personnel
   -- regarding the original intent of GSI's proposal.  However, the
   thrust  of GSI's  defense on  this issue  appears to  be that  no
   actual change or substitution was required,                      
                       See Findings 87, 89, 125-28.  
 
        For purposes of this count, we find no merit in pursuing the
   issue  of whether there was or was  not an actual modification of
   GSI's  proposal after  award.    We  have  already  dismissed  as
   untimely  filed Sprint's  Count  VII  which  alleges  that  GSI's
   proposal is noncompliant.  For purposes of Count VIII, therefore,
   we assume that GSI's proposal is compliant.  If the parties have,
   in fact,  agreed to  modify GSI's proposal  after award,  this is
   certainly  not prohibited and,  therefore, does not  constitute a
   valid basis for protest.  For this reason, the Board, sua sponte,
   dismisses Count VIII.   
 
                                Decision
 
        Counts I,  II, IV, V,  and VI  of this protest  are GRANTED.
   Count  VII is  DISMISSED as  untimely  filed and  Count  VIII  is
   DISMISSED as failing to state  a valid basis for protest.   Given
   the facts  in this  protest and the  conclusions we  have reached
   regarding  protester's   allegations,  it   is  clear   that  the
   Government is ambivalent regarding the allowable degree of       
    development  for modification  of the  equipment to  be  used in
   performing the ADTN2000  contract.  This has  led to inconclusive
   discussions,  incorrect technical  evaluations,  and a  defective
   selection  decision.   Problems  encountered  in  the  management
   evaluation  scheme   and  the  Government's   interpretation  and
   application  of it  have likewise  contributed  to the  defective
   selection.  Finally,  during the course  of this protest,  issues
   have arisen regarding GSI's proposal which also indicate the need
   for additional discussions.  
 
        We, therefore, direct  respondent to terminate its  award to
   GSI  and reopen  discussions  with offerors.    Before doing  so,
   respondent  should  amend  the  solicitation  to eliminate  those
   ambiguities which have given rise to this protest.  The amendment
   may also  address any refinement or change respondent believes to
   be  appropriate  with regard  to  its  actual requirements.    We
   expressly  amend   the  applicable   delegation  of   procurement
   authority  to  permit  this.    Our  oral  order  of  December  7
   (confirmed in writing  on December 8) suspending  that delegation
   of procurement authority expires in accordance with its terms.  
 
 
                                       ___________________________
                                       EDWIN B. NEILL
                                       Board Judge
 
 
   We concur:
 
 
   _____________________________       ___________________________
   ROBERT W. PARKER                    CATHERINE B. HYATT
   Board Judge                         Board Judge