THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING RELEASED TO THE PUBLIC IN ITS ENTIRETY ON DECEMBER 3, 1992. ____________________________________________________ MOTION FOR CLARIFICATION GRANTED: August 31, 1992 ____________________________________________________ GSBCA 11736-P-R, 11745-P-R DENRO, INC., and WESTINGHOUSE ELECTRIC CORPORATION, Protesters, v. DEPARTMENT OF TRANSPORTATION, and DEPARTMENT OF DEFENSE, Respondents, and LITTON SYSTEMS, INC., Intervenor. William H. Butterfield, Jed L. Babbin, Charlotte F. Rothenberg, and Lori Beth Feld of McGuire, Woods, Battle & Boothe, Washington, DC, counsel for Protester Denro, Inc. Rand L. Allen, Philip J. Davis, Paul F. Khoury, and Eric W. DeSilva of Wiley, Rein & Fielding, Washington, DC, counsel for Protester Westinghouse Electric Corporation. Richard J. McCarthy, John R. McCaw, Jr., and Anthony L. Washington, Office of the Chief Counsel, Federal Aviation Administration, Washington, DC, counsel for Respondent Department of Transportation. Roger B. Sabin and Captain Richard B. Wingate, Office of General Counsel, Defense Information Systems Agency, Arlington, VA, and Clifton M. Hasegawa, Virginia Farrier, and Douglas G. White, Defense Commercial Communications Office, Defense Information Systems Agency, Scott Air Force Base, IL, counsel for Respondent Department of Defense. David V. Anthony and Richard P. Rector of Pettit & Martin, Washington, DC, counsel for Intervenor. Before Board Judges NEILL, HYATT, and WILLIAMS. Board Judge HYATT. By decision issued under protective order on May 29, 1992, the Board granted the protests of Denro, Inc. and Westinghouse Electric Corporation challenging their exclusion from the competitive range of a procurement by the Federal Aviation Administration (FAA) of voiceband switching systems. Denro, Inc. v. Department of Transportation, GSBCA 11736-P, et al., (May 29, 1992).[foot #] 1 Respondent, the Federal Aviation Administration (FAA) has timely moved the Board to reconsider or clarify its decision with respect to the remedy it fashioned. Specifically, the FAA urges that the Board's order that evaluators be replaced unduly infringes on the agency's discretion and as such should either be clarified or modified. In addition, the FAA asserts that in the interest of efficient procurement, it should be allowed, for purposes of conducting a second round of operational capability demonstrations (OCDs), to incorporate post-OCD discussion responses in the proposals to be provided to evaluators. Background The Board's decision granting these protests concluded that full and open competition had not been achieved in this procurement, in part by reason of the flawed conduct of the OCDs and post-OCD evaluations, which resulted in the exclusion of protesters from the competitive range, leaving only one offeror, intervenor Litton, Inc., eligible for award. The Board held that Denro and Westinghouse must be restored to the competitive range of the procurement and authorized another round of OCDs. In conducting further evaluations, however, the Board held that the agency should use new personnel, expressing concern that the results of the original OCDs might otherwise unduly influence subsequent evaluations.[foot #] 2 ----------- FOOTNOTE BEGINS --------- [foot #] 1 A redacted version of the decision was released on July 24, 1992. [foot #] 2 Although not expressly stated in the Board's discussion of this remedy, the Board reached this conclusion (continued...) ----------- FOOTNOTE ENDS ----------- Discussion Respondent urges the Board to revisit the relief ordered in this protest to the extent that it precludes the FAA from using any of the prior evaluators to continue with the procurement. As its first line of argument respondent points to several Board cases adopting the general proposition that the Board should not interfere with an agency's discretion in the selection of evaluators. See Koh Systems, Inc., GSBCA 9388-P, 88-2 BCA 20,690, 1988 BPD 59; Computervision Corp., GSBCA 8601-P, 86-3 BCA 19,266, 1986 BPD 139. These cases indeed state the proposition that the selection of evaluators is a matter charged largely to the agency's discretion in the absence of a showing of bias or predisposition on the part of the evaluators. These cases do not, however, present factual scenarios remotely resembling the circumstances of this case. Although neither protesters nor the Board question the good intentions of any of the individuals involved in the original evaluation process, their intense reaction to the systems demonstrated by protesters caused the Board to be concerned that further demonstrations of the equipment would be no more persuasive to them than were the detailed answers submitted in response to the post-OCD discussion items. As such, the Board deemed it appropriate to order their replacement in the evaluation process. The Board's order does not otherwise dictate how the agency shall select its evaluators. The point requiring further clarification pertains to the agency's concern that wholesale replacement of the evaluation team will unduly hinder its ability to make a timely award selection. We agree, and that was not in fact the intent of our order. There is no reason to replace evaluators who 1) did not attend the OCD or 2) did not participate in scoring the technical requirements criteria that were so radically impacted by the conduct of the OCDs. In particular, the Board sees no need to replace the evaluators responsible for scoring the technical services and management areas of the proposals.[foot #] 3 The Board's primary concern was ----------- FOOTNOTE BEGINS --------- [foot #] 2 (...continued) after hearing the testimony of certain of the technical evaluators who participated in the OCDS. The adamant testimony of these individuals concerning the perceived inadequacies of the Denro and Westinghouse systems constrained the Board to conclude that these individuals would have difficulty separating in their minds the results of earlier OCDs with those of any later tests that might be conducted. [foot #] 3 We say this, even though some of these individuals may have attended the OCDs. Both Denro and Westinghouse express grave concern that any evaluator who attended the OCDs, and participated in the OCD team caucuses, would necessarily have been influenced negatively by the OCDs. (continued...) ----------- FOOTNOTE ENDS ----------- with the technical requirements evaluators who so firmly manifested the belief at the hearing that these offerors were incapable of producing the required equipment in a reasonable time frame, and who rejected all proposed technical solutions to the discussion items generated as a result of the original OCDs. Although protesters seem to be of the view that any evaluator who attended any OCD may be predisposed to view their systems with disapprobation, this is not an assumption the Board can make on the record before it. Accordingly, we rule that technical evaluators who both attended the OCDs and who participated in post-OCD rescoring of the technical requirements areas of the proposals should be replaced. With respect to other evaluators, respondent is free to proceed as it deems appropriate. Respondent also seeks clarification of the extent to which it may rely on the technical solutions offered by the protesters in their responses to post-OCD discussion items. Many of these solutions are reflected in revised pages to technical proposals. Westinghouse, in its response to this inquiry, suggests that the FAA may achieve the same result by allowing all offerors to update and amend the proposals as they existed just prior to conduct of the OCDs, assuming a reasonable time frame is permitted for this to be accomplished. We are inclined to agree that this would be the best approach. To the extent that the FAA wishes to make post-OCD technical changes available to new evaluators, it should do so by permitting all offerors to formally amend their pre-OCD proposals. Decision Respondent's motion for clarification is GRANTED to the extent stated above. ______________________________ CATHERINE B. HYATT Board Judge We concur: ----------- FOOTNOTE BEGINS --------- [foot #] 3 (...continued) We are not fully persuaded that the mere fact of being exposed to the strong views of the technical requirements evaluators would make it impossible for those individuals who are responsible for evaluation areas that were not significantly impacted by the initial OCDs to treat the protesters fairly in a second OCD. ----------- FOOTNOTE ENDS ----------- ______________________________ _______________________________ EDWIN B. NEILL MARY ELLEN COSTER WILLIAMS Board Judge Board Judge