tained in Appendix G of ASPR, provides, insofar as it is pertinent to the instant case, as follows:

2. If a contractor agrees to prepare and furnish complete specifications covering nondevelopment items to be used in competitive procurement, that contractor shall not be allowed to furnish such items, either as a prime or subcontractor, for a reasonable period of time including, at least, the initial procurement.

On the record before us, the question of whether the design contractor "agrees to prepare and furnish complete specifications” must be considered in the context of the possibility of an independent purchase of automatic data processing equipment by the Army for TARMOCS II in the event the WWMCCS is not implemented, since the hardware ban has no effect if the WWMCCS proceeds as scheduled. The two parts of the specifications covered by the instant design contract do not constitute the whole of the Army specifications, but the contracting officer apparently found that the specifications for those two parts were complete enough to produce a conflict of interest between the design contractor and the hardware supplier. In our opinion, this finding is adequately supported by the facts of record. Once the provisions of the Directive have been invoked, however, there remains a question of whether the determination of the extent of the exclusion carries out the intent of the Directive.

We have considered questions involving the applicability of the conflicts of interest provisions of DOD Directive 5500.10 in two recent decisions, 48 Comp. Gen. 702 (1969) and 49 Comp. Gen. 463 (1970). The protestants in each of those cases advocated application of the Directive to successful bidders but in neither case had the contracting officer made a finding that a conflict existed. We held in both cases that the provisions of the Directive were not self-executing, but depended upon exercise of judgment or discretion on the part of the contracting officer.

ASPR 1-113.2 points out in subsection (a) that the Directive cannot of itself impose any obligations on the contractor, and such obligations must be imposed by a contract clause designed to carry out the intent of the Directive. Subsection (b) further provides that the contracting officer is responsible for applying the rules in the Directive to contracts under his cognizance. Paragraph 1-113.2 (b) (2) states that a clause which excludes a contractor from a subsequent procurement "may run to the date of award of the first production contract or for a stated period."

Although exclusion to the date of award of the first production contract is stated first in order of preference in ASPR 1-113.2(b)(2),

the contracting officer chose the second alternative of setting the exclusion for a stated period in the expectation that all hardware procurements will be completed by the expiration of the exclusion. The Army's assigned priority in the WWMCCS phasing schedule makes this a reasonable expectation, since the Army must be prepared to set forth its requirements shortly after April 1, 1971, although it is possible that subsequent changes in plans or programs could delay the procurement and render the exclusion ineffective. The contracting officer was, however, within the bounds of his administrative discretion since the applicable regulation allows him to set the exclusion for a fixed period.

Accordingly, we find no legal basis upon which to object to the actions of the contracting officer and your protest must therefore be denied. We are, however, sending a copy of our decision of today to the Secretary of the Army with a letter suggesting that a modification of the exclusion date from April 30, 1971, to the date of award of the first production contract in accord with ASPR 1-113.2(b) (2) would be a more certain means of carrying out the intent of DOD Directive 5500.10.

[B-169645]

Contracts-Negotiation-Evaluation Factors-Criteria

A request for proposals that failed to include evaluation criteria or indicate the criteria's relative importance because of the erroneous belief these standards were inapplicable to civilian procurement was defective and was not in accordance with sound procurement policy and the public interest. Also the scoring of an offer by comparison with a predetermined score, overlooked that a primary consideration in negotiated procurement is discussion with all offerors in a competitive range and that borderline cases should not automatically be excluded from consideration, and as a result maximum competition was not obtained. The request for proposals should be amended to establish the omitted criteria and offerors permitted to submit additional information or revise proposals, and if within a competitive range, afforded the opportunity for discussion to the extent required by section 1-3.802(c) of the Federal Procurement Regulations.

Contracts Protests-Filing Before or After Award

Under the procedure in 4 CFR 20.1, a bid protest may be filed with the United States General Accounting Office before as well as after the award of a contract and, therefore, in filing a protest to an award under a request for proposals, the regulation does not require, as a prerequisite to standing or timeliness, that an award should have been made or that an offeror should have been informed of the unacceptability of his proposal.

General Accounting Office-Decisions-“Dictum"

To categorize the views of the United States General Accounting Office concerning areas in an agency's procurement practices brought to light by a protest

where revisions are desirable as "dictum"-an abbreviation of obiter dictum which means a remark or opinion uttered by the way-appears futile when it is obvious that any administrative actions taken that are contrary to such stated positions may result in the disallowance of credit in the disbursing officer's account.

To the Secretary of Transportation, July 24, 1970:

Reference is made to a letter dated May 22, 1970, from the Administrator, Federal Railroad Administration, furnishing a report in response to the protest of the Economic Sciences Corporation, Inc. (ESC), against any award under request for proposals (RFP) No. DOT-FR-00027.

The Administrator recommended that the protest be denied as untimely since:

At the present time no award has been made, nor have those offerors whose proposals were not technically acceptable been so informed. Thus, it would appear that the complainant's protest is untimely, and there is some doubt that he lacks any standing at this time.

In this regard, our bid protest regulations provide at 4 CFR 20.1:

An interested party wishing to protest the proposed award of a contract, or the award of a contract, by any agency of the Federal Government whose accounts are subject to settlement by the U.S. General Accounting Office may do so by addressing a telegram or letter to the Comptroller General of the United States * * *. [Italic supplied.]

The above regulation does not require, as a prerequisite to standing or timeliness, that award be made or that an offeror be informed of the unacceptability of his proposal.

While we have rejected in our decision of today to ESC, ESC's contentions that the statement of work contained in the solicitation is vague and unclear, and that the solicitation is ambiguous as to whether a normal cost-reimbursement contract was to be awarded thereunder, we believe there is certain merit in other portions of the protest.

As indicated in our decision, it appears that the Administrator concluded that ESC was not entitled to a negotiation opportunity inasmuch as its proposal failed to attain the 75 points established for an acceptable proposal, and therefore was not within a competitive range. Although ESC's proposal may, or may not, have been within a competitive range of the two acceptable proposals, we have serious reservations that a decision in such respect based on a comparison of an offeror's score with a predetermined score for acceptability constitutes a proper method of determining which proposals are within a "competitive range," or that such a method is conducive to obtaining the maximum practicable competition contemplated by the statutes and regulations. This would appear to be especially applicable in situ

ations such as the instant procurement in which five offerors with scores ranging from 71.4 to 74.8 were considered outside the competitive range. In this connection, it must be borne in mind that the primary consideration in negotiated procurements is discussions with all offerors within a competitive range, and borderline proposals should not be automatically excluded from consideration if they are reasonably susceptible to being made acceptable by additional or clarifying information. Cf. B-167417 (2), September 12, 1969.

The protestant's contention, that the RFP is deficient in that it does not disclose the criteria for proposal evaluation and their relative importance, is based upon a series of decisions by our Office in which we have stated that sound procurement policy dictates that offerors be informed of all evaluation factors and of the relative importance or weight of each factor. 49 Comp. Gen. 229 (1969); 48 Comp. Gen. 314, 318 (1968); 47 Comp. Gen. 252, 262-263 (1967); 44 Comp. Gen. 439, 442 (1965); B-167867, January 20, 1970; B-167508, December 8, 1969; B-167473, November 13, 1969; B-166213, July 18, 1969; B-166233, June 17, 1969; B–166052, May 20, 1969. ESC places particular reliance upon our letter to the Secretary of the Air Force, 49 Comp. Gen. 229, in which we observed:

While we have never held, and do not now intend to do so, that any mathematical formula is required to be used in the evaluation process, we believe that when it is intended that numerical ratings will be employed offerors should be informed of at least the major factors to be considered and the broad scheme of scoring to be employed. Whether or not numerical ratings are to be used, we believe that notice should be given as to any minimum standards which will be required as to any particular element of evaluation, as well as reasonably definite information as to the degree of importance to be accorded to particular factors in relation to each other.

RFP No. DOT-FR-00027 did not include the evaluation criteria. or an indication of their relative importance, and it may be significant that only two of the 26 proposals received were rated as acceptable under the criteria and weights used by the evaluation personnel. However, it is the administrative position that amendment of the solicitation to include such criteria and their relative importance is not warranted for several reasons. It is argued that the above-quoted portion of our decision, 49 Comp. Gen. 229, is merely "dicta.” In an analogous situation, we advised the Secretary of the Army that an administrative report furnished this Office had informed us:

that while the Corps has followed the specific "decisions" in the abovecited cases (presumably in identical factual situations), the views of this Office as expressed in our letter to you and to the Secretary of the Navy concerning the undesirable situations evidenced by those protests have not been followed for the reason that such letters were considered to be "dictum" accompanying the decisions.

The term "dictum" is generally used as an abbreviation of "obiter dictum" which means a remark or opinion uttered by the way. 21 C.J.S.-page 311. We find a distinction as to the effect (for administrative purposes) between the actual decision to a protesting bidder in a particular case and our letter to the head of the agency, concerning areas in the agency's procurement practices brought to light by the protest where revisions are considered desirable, to be somewhat novel. To have the positions of this Office as stated in such letters disregarded by a Federal organization merely by categorizing them as dictum seems particularly futile when it is obvious that administrative actions taken contrary to such stated positions may result in the disallowance of credit in the disbursing officer's accounts. 47 Comp. Gen. 236, 249-250 (1967).

It is also indicated in the administrative report that the failure to disclose evaluation criteria and their relative importance may be objectionable in procurements by the military departments and yet unobjectionable in civilian procurements, because such failure violates a provision of the Armed Services Procurement Regulation (ASPR) which has no counterpart in the Federal Procurement Regulations (FPR). In this connection, it should be noted that our initial decision on the disclosure of evaluation factors preceded formalization of the Armed Services regulations on the disclosure of evaluation factors, and such decisions were, we believe, instrumental to promulgation of regulations on this point. Further, our subsequent decisions to the military departments have emphasized the requirement of ASPR 3501(a) that "Solicitations shall contain the information necessary to enable a prospective offeror or quoter to prepare a proposal or quotation properly." Virtually the same language appears at FPR 1–3.802 (c). Our letter B-167054 (2), January 14, 1970, to the Secretary of Health, Education, and Welfare, illustrates that we regard the same policy of informing offerors of the evaluation factors and their relative weight as applicable to both military and civilian departments.

In further support of the administrative position the Administrator cited several decisions of our Office in which we did not direct contract cancellation or resolicitation, even though the solicitations had not included evaluation criteria or an indication of their relative importance. In this connection, it may be generally stated that our Office directs cancellation of a contract only if the contract is clearly contrary to the public interest or in violation of law. Conversely, we regard the failure to inform offerors of the criteria for evaluation of their proposals and the relative importance of such criteria as not in accordance with sound procurement policy and the public interest, even though there may not be a mandatory requirement of such information in the applicable regulation. We have not regarded such failures as justifying our intervention as a standard procedure without consideration of the practical aspects involved in each individual case.

The instant protest was made before award and our Office has not