B-184203, MARCH 10, 1976, 55 COMP.GEN. 859

B-184203, MARCH 10, 1976, 55 COMP.GEN. 859

CONTRACTS - NEGOTIATION - EVALUATION FACTORS - METHOD OF EVALUATION - DEFECTIVE WHERE AGENCY DID NOT DISCUSS CERTAIN AREAS IN PROPOSALS SIMPLY BECAUSE THEY WERE CONSIDERED "WEAKNESSES," IN THAT THEY RECEIVED LESS THAN MAXIMUM NUMBER OF EVALUATION POINTS, AS OPPOSED TO "DEFICIENCIES," WHICH WOULD NOT SATISFY GOVERNMENT'S REQUIREMENTS, AND AGENCY ALSO CHANGED AWARD EVALUATION COST FACTORS WITHOUT COMMUNICATING INFORMATION TO OFFERORS, IT IS RECOMMENDED THAT OPTION IN CONTRACT NOT BE EXERCISED AND THAT REQUIREMENT FOR OPTION YEARS BE RESOLICITED.

IN THE MATTER OF THE DYNALECTRON CORPORATION, MARCH 10, 1976:

REQUEST FOR PROPOSALS (RFP) NO. DAAGO8-75-R-0006, ISSUED SEPTEMBER 18, 1974, BY THE SACRAMENTO ARMY DEPOT, SACRAMENTO, CALIFORNIA, SOLICITED OFFERS TO PERFORM TECHNICAL AND ENGINEERING SERVICES AT FORT HOOD, TEXAS, ON A COST-PLUS-AWARD-FEE BASIS FOR 1 YEAR WITH AN OPTION FOR 2 ADDITIONAL YEARS. TWELVE OFFERS WERE RECEIVED. FIVE WERE DETERMINED TO BE WITHIN THE COMPETITIVE RANGE. DISCUSSIONS WERE HELD WITH THE OFFERORS WHO SUBMITTED THE LATTER OFFERS. THEY WERE PROVIDED UNTIL MAY 5, 1975, TO SUBMIT BEST AND FINAL OFFERS WHICH WERE THEREAFTER EVALUATED. BY LETTER OF MAY 27, 1975, THE FOUR UNSUCCESSFUL OFFERORS IN THE COMPETITIVE RANGE WERE NOTIFIED THAT AN AWARD HAD BEEN MADE TO RAYTHEON SERVICE COMPANY (RAYTHEON) COMMENCING AS OF THAT DATE. BY TELEGRAM OF MAY 29, 1975, DYNALECTRON CORPORATION (DYNALECTRON) SUBMITTED QUESTIONS TO THE SACRAMENTO ARMY DEPOT REGARDING THE EVALUATION OF OFFERS. FOLLOWING THE ARMY'S REPLY ON JUNE 4, 1975, DYNALECTRON PROTESTED THE AWARD TO OUR OFFICE.

DYNALECTRON ESSENTIALLY PROTESTS ON FIVE GROUNDS: (1) THE GOVERNMENT'S STATEMENTS AND FAILURE TO POINT OUT ALLEGED DEFICIENCIES TO DYNALECTRON DURING THE NEGOTIATIONS LED DYNALECTRON INTO NOT MAKING MODIFICATIONS OF ITS TECHNICAL PROPOSAL; (2) ORAL AMENDMENTS WERE MADE TO THE WORK DESCRIPTION PROVISIONS OF THE RFP; (3) THE EVALUATION BOARD EVALUATED WORK STANDARDS NOT SPECIFICALLY IDENTIFIED IN THE RFP; (4) CONSIDERING THE CLOSENESS OF THE TECHNICAL SCORES OF DYNALECTRON AND THE AWARDEE, THE AWARD TO RAYTHEON AT A SUBSTANTIALLY HIGHER COST WAS IMPROPER; AND (4) THE GOVERNMENT CHANGED THE BASIS FOR EVALUATION OF COST PROPOSALS DURING THE COURSE OF EVALUATION WITHOUT INFORMING ALL OFFERORS.

BY LETTER OF APRIL 8, 1975, THE ARMY ADVISED DYNALECTRON THAT ITS PROPOSAL WAS WITHIN THE COMPETITIVE RANGE AND THAT THERE WERE CERTAIN ENUMERATED DEFICIENCIES IN ITS PROPOSAL WHICH WERE BEING BROUGHT TO ITS ATTENTION TO PROVIDE AN OPPORTUNITY FOR REVISION. DYNALECTRON ASSERTS THAT SUBSEQUENT TO THE RECEIPT OF THE LETTER BUT PRIOR TO THE LAST ORAL DISCUSSION WITH THE ARMY, IT RECEIVED A TELEPHONE CALL FROM THE ARMY CONTRACT NEGOTIATOR WHO RELATED THAT IT WAS THE GOVERNMENT'S INTENTION TO TRY TO BRING EACH OFFEROR UP TO 100 PERCENT TECHNICALLY SO THAT COST COULD BE THE CONTROLLING FACTOR FOR AWARD AND THAT, IF DYNALECTRON WOULD RESPOND TO ALL DEFICIENCIES NOTED BY THE GOVERNMENT, IT WAS ANTICIPATED THAT THE AWARD WOULD BE DETERMINED ON AN OVERALL COST BASIS. A SIMILAR ASSERTION HAS BEEN MADE BY AERONUTRONIC FORD CORPORATION (PREVIOUSLY PHILCO WORLDWIDE SERVICES, INC.), ANOTHER OFFEROR IN THE COMPETITIVE RANGE.

DYNALECTRON ARGUES, HOWEVER, THAT THE FOLLOWING ALLEGED DEFICIENCIES IN ITS PROPOSAL WERE NEVER DISCUSSED DURING NEGOTIATIONS: (TABLE OMITTED)

DYNALECTRON NOTES THAT IN THE FINAL EVALUATION TOTAL SCORE THERE WAS ONLY A 3.88 DIFFERENCE BETWEEN ITS OFFER AND THE SUCCESSFUL OFFER AND THAT THE THREE LATTER DEFICIENCIES WERE RESPONSIBLE FOR 2.21 POINTS OF THE DIFFERENCE.

DYNALECTRON ALSO STATES THAT THOSE OFFERORS WHICH THE AGENCY INDICATED HAD A RELATIVELY LARGE NUMBER OF DEFICIENCIES AND MATTERS DETERMINED TO REQUIRE ADDITIONAL CONSIDERATION AND/OR EXPLANATION RECEIVED THE HIGHEST TECHNICAL SCORES IN THE INITIAL EVALUATION. THE PROTESTER CONCLUDES THAT CERTAIN OFFERORS MAY HAVE BEEN GIVEN MORE ATTENTION IN RESOLVING "DEFICIENCIES" THAN OTHER OFFERORS.

IN RESPONSE TO THESE ALLEGATIONS, THE CONTRACTING OFFICER STATED:

* * * THE GOVERNMENT TEAM * * * AT NO TIME STATED THAT THE GOVERNMENT WOULD BRING ALL OFFERORS TO 100% TECHNICALLY SO THAT AWARD COULD BE MADE SOLELY ON THE BASIS OF COST AS ALLEGED BY PROTESTER. THE GOVERNMENT DID STATE ITS DESIRE TO GIVE OFFERORS THE BEST POSSIBLE UNDERSTANDING OF THE REQUIREMENTS OF THE RFP SO THAT OFFERORS, THROUGH THEIR OWN EFFORTS, WOULD HAVE THE MAXIMUM OPPORTUNITY TO BRING THEIR PROPOSALS TO 100% TECHNICALLY, IN WHICH CASE AWARD COULD BE MADE ON THE BASIS OF COST ALONE. * * *

THE CONTRACTING OFFICER ALSO STATED THAT THE ARMY DID NOT ATTEMPT TO DISCUSS ALL AREAS WHERE OFFERORS RECEIVED LESS THAN THE MAXIMUM NUMBER OF POINTS (SITUATIONS WHICH THE ARMY DEFINES AS WEAKNESSES) AND THAT ONLY DEFICIENCIES IN PROPOSALS AS DEFINED IN THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) WERE DISCUSSED. ASPR SEC. 3-805.3(A) (1974 ED.) STATES "A DEFICIENCY IS * * * THAT PART OF AN OFFEROR'S PROPOSAL WHICH WOULD NOT SATISFY THE GOVERNMENT'S REQUIREMENTS."

IN 10 U.S.C. 2304(G) (1970), IT IS STATED IN PERTINENT PART THAT:

* * * WRITTEN OR ORAL DISCUSSIONS SHALL BE CONDUCTED WITH ALL RESPONSIBLE OFFERORS WHO SUBMIT PROPOSALS WITHIN A COMPETITIVE RANGE, PRICE, AND OTHER FACTORS CONSIDERED * * * .

WE HAVE HELD THAT THE DISCUSSIONS MUST BE MEANINGFUL. RAYTHEON COMPANY, 54 COMP.GEN. 169, 177 (1974), 74-2 CPD 137; AND 51 ID. 431 (1972). FURTHER, IN 50 COMP.GEN. 117, 123 (1970), IT WAS STATED:

* * * WHEN NEGOTIATIONS ARE CONDUCTED THE FACT THAT INITIAL PROPOSALS MAY BE RATED AS ACCEPTABLE DOES NOT INVALIDATE THE NECESSITY FOR DISCUSSIONS OF THEIR WEAKNESSES, EXCESSES OR DEFICIENCIES IN ORDER THAT THE CONTRACTING OFFICER MAY OBTAIN THAT CONTRACT WHICH IS MOST ADVANTAGEOUS TO THE GOVERNMENT. WE HAVE STATED THAT DISCUSSIONS OF THIS NATURE SHOULD BE CONDUCTED WHENEVER IT IS ESSENTIAL TO OBTAIN INFORMATION NECESSARY TO EVALUATE A PROPOSAL OR TO ENABLE THE OFFEROR TO UPGRADE THE PROPOSAL. * *

HOWEVER, THAT IS NOT TO SAY THAT ALL INFERIOR ASPECTS OF TECHNICAL PROPOSALS CAN BE RELATED TO OFFERORS DURING DISCUSSIONS. AS WE STATED IN 51 COMP.GEN. 621, 622 (1972):

* * * ANY DISCUSSION WITH COMPETING OFFERORS RAISES THE QUESTION AS TO HOW TO AVOID UNFAIRNESS AND UNEQUAL TREATMENT. OBVIOUSLY, DISCLOSURE TO OTHER PROPOSERS OF ONE PROPOSER'S INNOVATIVE OR INGENIOUS SOLUTION TO A PROBLEM IS UNFAIR. WE AGREE THAT SUCH "TRANSFUSION" SHOULD BE AVOIDED. IT IS ALSO UNFAIR, WE THINK, TO HELP ONE PROPOSER THROUGH SUCCESSIVE ROUNDS OF DISCUSSIONS TO BRING HIS ORIGINAL INADEQUATE PROPOSAL UP TO THE LEVEL OF OTHER ADEQUATE PROPOSALS BY POINTING OUT THOSE WEAKNESSES WHICH WERE THE RESULT OF HIS OWN LACK OF DILIGENCE, COMPETENCE, OR INVENTIVENESS IN PREPARING HIS PROPOSAL.

* * * WE THINK CERTAIN WEAKNESSES, INADEQUACIES, OR DEFICIENCIES IN PROPOSALS CAN BE DISCUSSED WITHOUT BEING UNFAIR TO OTHER PROPOSERS. THERE WELL MAY BE INSTANCES WHERE IT BECOMES APPARENT DURING THE COURSE OF NEGOTIATIONS THAT ONE OR MORE PROPOSERS HAVE REASONABLY PLACED EMPHASIS ON SOME ASPECT OF THE PROCUREMENT DIFFERENT FROM THAT INTENDED BY THE SOLICITATION. UNLESS THIS DIFFERENCE IN THE MEANING GIVEN THE SOLICITATION IS REMOVED, THE PROPOSERS ARE NOT COMPETING ON THE SAME BASIS. LIKEWISE, IF A PROPOSAL IS DEEMED WEAK BECAUSE IT FAILS TO INCLUDE SUBSTANTIATION FOR A PROPOSED APPROACH OR SOLUTION, WE BELIEVE THE PROPOSER SHOULD BE GIVEN THE OPPORTUNITY, TIME PERMITTING, TO FURNISH SUCH SUBSTANTIATION. * * *

IN THIS REGARD, A NUMBER OF DECISIONS HAVE ECHOED THE VIEW THAT THE QUESTION OF WHETHER A GIVEN INADEQUACY MUST BE DISCUSSED IS DETERMINED BY THE NATURE OF THE INADEQUACY AND THE IMPACT THAT ITS DISCLOSURE WOULD HAVE ON THE COMPETITIVE PROCESS. SEE, E.G., RAYTHEON COMPANY, 54 COMP.GEN. 169 (1974), 74-2 CPD 137; 52 ID. 870 (1973); DORSETT ELECTRONICS DIVISION, LABARGE, INC., B-178989, MARCH 6, 1974, 74-1 CPD 120; BELLMORE JOHNSON TOOL COMPANY, B-179030, JANUARY 24, 1974, 74-1 CPD 26. FURTHERMORE, WE HAVE HELD THAT A DECISION NOT TO CONDUCT TECHNICAL DISCUSSIONS IN A GIVEN CASE SHOULD BE GIVEN CLOSE SCRUTINY SPECIFICALLY FOR THE REASON THAT THERE MAY BE INSTANCES WHERE CERTAIN WEAKNESSES OR DEFICIENCIES IN PROPOSALS COULD BE DISCUSSED WITHOUT RISK OF TECHNICAL TRANSFUSION OR THE DIVULGENCE OF OTHER OFFERORS' PROPRIETARY CONCEPTS. 52 COMP.GEN., SUPRA; BELLMORE JOHNSON TOOL COMPANY, SUPRA.

THUS, AN AGENCY CANNOT LIMIT ITS DUTY TO CONDUCT MEANINGFUL DISCUSSIONS MERELY BY LABELING SOME AREAS "WEAKNESSES." ACCORDINGLY, IT WAS ERRONEOUS FOR THE ARMY NOT TO DISCUSS CERTAIN AREAS SIMPLY BECAUSE OF "WEAKNESSES." SINCE THE ARMY'S FAILURE TO POINT OUT "WEAKNESSES" WAS A FUNDAMENTAL DEFICIENCY IN THE DISCUSSION PROCESS, ANY NUMBER OF OFFERORS MAY HAVE BEEN PREJUDICED BY NOT HAVING HAD AN OPPORTUNITY TO EXPLAIN OR IMPROVE THE "WEAKNESSES" IN THEIR PROPOSALS. IN THIS REGARD, WE NOTE THAT THERE WAS ONLY A 5.36 SPREAD BETWEEN THE SUCCESSFUL OFFEROR AND THE LAST OF THE FIVE OFFERORS IN THE COMPETITIVE RANGE IN THE FINAL EVALUATION TOTAL SCORE, THE RANGE OF SCORES BEING 95.39, 94.12, 92.17, 91.51 AND 90.03.

FURTHER, WE FIND THAT THERE WAS A CHANGE IN THE RFP AWARD EVALUATION FACTORS WHICH WAS NOT COMMUNICATED TO ALL OFFERORS. THE ARMY CHANGED THE BASIS FOR THE EVALUATION OF COST. RFP SECTION D-4.1.D. PROVIDED FOR EVALUATION OF COST AS FOLLOWS:

COST. (15 POINTS TOTAL, 5 POINTS EACH ELEMENT)

(1) REALISTIC COSTING OF ALL COST ELEMENTS (LABOR, MATERIALS, DIRECT COST, INDIRECT COSTS, ETC.).

(2) COMPLETENESS AND VALIDITY OF SUBMITTED COST DATA.

(3) CONTRACTOR'S PAST COST PERFORMANCE.

SECTION "D" WAS MODIFIED BY AMENDMENT 0002 WHICH PROVIDED AS FOLLOWS:

ALL NUMERICAL WEIGHTING POINTS (IN PARENS) WHICH FOLLOW THE CATEGORIES OF EVALUATION IN D-4.1.B, C, AND D ARE HEREBY DELETED. OFFERORS ARE CAUTIONED TO DISREGARD THE NUMERICAL WEIGHTING POINTS OF EVALUATION AS THEY ORIGINALLY APPEARED IN THE SOLICITATION AS THE ACTUAL NUMERICAL WEIGHTS USED IN EVALUATION MAY DIFFER FROM THOSE.

HOWEVER, BY LETTER OF AUGUST 4, 1975, DYNALECTRON WAS ADVISED THAT COST PROPOSALS RECEIVED WEIGHTED POINTS IN THE FOLLOWING THREE AREAS:

(1) BOTTOM LINE PRICE (MAXIMUM 10 POINTS)

(2) FEE (MAXIMUM 2.5 POINTS)

(3) FEE RISK (MAXIMUM 2.5 POINTS)

IN THE MEMO FOR RECORD, EVALUATION OF COST PORTION OF BEST AND FINAL OFFERS, BOTTOM LINE PRICE IS REFERRED TO AS REASONABLENESS.

DYNALECTRON ARGUES THAT THE LATTER CRITERIA CONFLICT WITH THOSE SET FORTH IN THE RFP. THE ARMY, HOWEVER, STATES THAT IN SO ARGUING DYNALECTRON INDICATES A MISUNDERSTANDING OF THE EVALUATION PROCEDURE. THE ARMY'S POSITION IS AS FOLLOWS:

* * * AS STATED IN THE RFP, COST AREAS WERE EVALUATED AS FOLLOWS:

A. REALISTIC COSTING OF ALL COST ELEMENTS: AUDITS WERE OBTAINED ON ALL COMPETITIVE OFFERS TO DETERMINE THAT THE RATES BID CONFORMED TO THEIR CURRENT OR PROJECTED ACCEPTABLE RATES. RATES WHICH WERE NOT ACCEPTED BY DCAA WERE MADE THE SUBJECT OF NEGOTIATIONS. DYNALECTRON'S G & A RATE WAS QUESTIONED, AND THE .3% FOR I.R. & D. WAS SPECIFICALLY DISCUSSED (SEE ATTACHMENT 11 TO ADMINISTRATIVE REPORT).

B. COMPLETENESS AND VALIDITY OF COST DATA: ALL OFFERS WERE, IN ADDITION TO AUDIT, REVIEWED BY THE PRICE ANALYST TO INSURE THAT ALL REQUIRED DATA WERE PRESENT.

C. CONTRACTOR'S PAST COST PERFORMANCE: PRE-AWARD SURVEYS WERE OBTAINED ON ALL COMPETITIVE OFFERORS.

WITHIN THESE AREAS, HOWEVER, IT WAS NECESSARY TO GIVE CONSIDERATIONS TO THE INDIVIDUAL PRICES AND TO DETERMINE THE SIGNIFICANCE OF THE DIFFERENCES IN PRICES BID. TO ACCOMPLISH THIS, PRIOR TO THE INITIAL CLOSING DATE FOR OFFERS, WEIGHTED CRITERIA WERE ESTABLISHED AND APPLIED EQUITABLY AND CONSISTENTLY THROUGHOUT THE PROCUREMENT. THESE WERE: BOTTOM-LINE (10 POINTS), FEE (2.5 POINTS), AND FEE RISK (2.5 POINTS). ASPR 3-501(B)(3) SECTION DI) PRECLUDES CONTRACTING OFFICER FROM DISCLOSING THESE WEIGHTINGS TO OFFERORS. THE FACT THAT OFFERORS WERE NOT AWARE OF THESE SPECIFIC CRITERIA IS IMMATERIAL SINCE THEIR PRICES WERE DETERMINED BY CONFORMANCE TO REALISTIC COSTING STANDARDS, AND ALL WERE INFORMED DURING NEGOTIATIONS THAT THE GOVERNMENT WOULD LET THE "COMPETITIVE ATMOSPHERE" DETERMINE THE FEES RATHER THAN TO NEGOTIATE THEM. THESE CRITERIA WERE ESTABLISHED PRIOR TO FIRST CLOSING TO DETERMINE THE RATIO OF TECHNICAL WEIGHT TO COST WEIGHT (17.3) AND TO ASSURE THAT THE EVALUATION AND THE FINAL MANAGEMENT DECISION WERE COMPLETELY OBJECTIVE.

THE ASPR SECTION REFERENCED IN THE QUOTATION DEALS WITH THE PREPARATION OF REQUESTS FOR PROPOSALS. WHILE WE AGREE THAT ASPR SEC. 3 501(B)(3) SEC. DI) (1974 ED.) DOES STATE THAT NUMERICAL WEIGHTS, WHICH MAY BE EMPLOYED IN THE EVALUATION OF PROPOSALS, SHALL NOT BE DISCLOSED IN SOLICITATIONS, THAT DOES NOT GIVE AN AGENCY THE RIGHT TO CORRECT AN ERROR RELATING TO THE INCLUSION OF NUMERICAL WEIGHTS BY ALSO CHANGING THE EVALUATION CRITERIA WITHOUT COMMUNICATING THAT TO THE OFFERORS. IT IS TRUE THAT THE COST FACTOR WAS WORTH 15 POINTS OUT OF 100 BOTH UNDER THE RFP AS ORIGINALLY WRITTEN AND AS THE PROPOSALS WERE EVALUATED. HOWEVER, WHILE THE TOTAL POINTS ASSIGNED THE FACTOR REMAINED THE SAME, IT APPEARS THAT THE ARMY WITHOUT NOTICE TO ANY OFFEROR CHANGED THE COST SUBFACTORS AND IN DOING SO AFFECTED THE WAY IN WHICH OFFERORS COULD ACHIEVE A MAXIMUM SCORE. THE FACT THAT OFFERORS WERE NOT APPRISED OF THE CHANGE IN COST SUBFACTORS WAS NOT "IMMATERIAL" AS THE ARMY CHARACTERIZES IT. IF OFFERORS KNEW THAT COST SUBFACTORS DIFFERENT THAN THOSE STATED IN THE RFP WERE GOING TO BE EMPLOYED, IT MAY BE THAT THEIR PRICE PROPOSALS WOULD HAVE BEEN ADJUSTED TO ACCOMMODATE FOR SUCH SUBFACTORS. IT IS DIFFICULT TO CONCLUDE WHETHER THIS WOULD HAVE BEEN AWARD DETERMINATIVE. HOWEVER, IT DOES CAST DOUBT ON THE EVALUATION PROCESS. OUR OFFICE HAS HELD THAT WHERE A POINT EVALUATION FORMULA IS USED IN THE EVALUATION OF OFFERS, SOUND PROCUREMENT POLICY DICTATES THAT OFFERORS BE INFORMED OF THOSE FACTORS AND THE RELATIVE WEIGHTS OR INPORTANCE TO BE ATTACHED TO EACH FACTOR. FREQUENCY ENGINEERING LABORATORIES, B-181409, OCTOBER 16, 1974, 74-2 CPD 208; 50 COMP.GEN. 788, 792 (1971); 49 ID. 229 (1969). AS A COROLLARY, WHENEVER THE EVALUATION FACTORS OR THEIR RELATIVE WEIGHTS ARE CHANGED, THE RFP MUST BE AMENDED SO THAT ALL OFFERORS HAVE THE OPPORTUNITY TO SUBMIT A PROPOSAL BASED ON THE ULTIMATE FACTORS UPON WHICH AWARD WILL BE MADE. SEE BELL AEROSPACE COMPANY, 55 COMP.GEN. 244 (1975), 75-2 CPD 168. SEE ALSO AEL SERVICE CORPORATION, 53 COMP.GEN. 800, 804 (1974), 74-1 CPD 217. HERE, THE RELEVANT COST SUBFACTORS USED IN THE EVALUATION DIFFERED FROM THOSE SET OUT IN THE RFP.

IN VIEW OF THE FOREGOING, WE RECOMMEND THAT THE OPTION IN THE CONTRACT NOT BE EXERCISED AND THAT THE REQUIREMENT FOR THE OPTION YEARS BE RESOLICITED. IT IS THEREFORE UNNECESSARY FOR US TO CONSIDER THE OTHER ASPECTS OF THE DYNALECTRON PROTEST. ALSO, IN VIEW OF THE RECOMMENDATION, IT IS UNNECESSARY TO CONSIDER THE QUESTION OF ENTITLEMENT TO PROPOSAL PREPARATION COSTS RAISED BY DYNALECTRON.

SINCE OUR DECISION CONTAINS A RECOMMENDATION FOR CORRECTIVE ACTION, WE HAVE FURNISHED A COPY TO THE CONGRESSIONAL COMMITTEES REFERENCED IN SECTION 236 OF THE LEGISLATIVE REORGANIZATION ACT OF 1970, 31 U.S.C. 1176 (1970), WHICH REQUIRES THE SUBMISSION OF WRITTEN STATEMENTS BY THE AGENCY TO THE COMMITTEES ON GOVERNMENT OPERATIONS AND APPROPRIATIONS CONCERNING THE ACTION TAKEN WITH RESPECT TO OUR RECOMMENDATION.