B-198782, DEC 2, 1980

B-198782, DEC 2, 1980

DIGEST: 1. AGENCY MAY PROCURE TELEPROCESSING SERVICES FOR EXISTING TRAINING SYSTEM AND SECOND GENERATION SYSTEM IN SINGLE PROCUREMENT, SINCE TECHNICAL REQUIREMENTS OF BOTH SYSTEMS ARE CURRENTLY KNOWN, SUBSTANTIALLY SIMILAR AND ADEQUATELY DESCRIBED IN RFP. 2. BENCHMARK USED IN COST COMPARISON IS NOT SUBJECT TO OBJECTION BY GAO, SINCE (1) IT REASONABLY TESTS OFFEROR'S CAPABILITY TO PROVIDE TYPES OF COMPUTING RESOURCES REQUIRED, (2) COST COMPARISON ASPECT OF BENCHMARK WAS BASED ON AGENCY'S THEN BEST ESTIMATE OF REPRESENTATIVE WORKLOAD, AND (3) AGENCY REPORTS THAT RFP WILL BE AMENDED BEFORE BEST AND FINAL OFFERS TO REFLECT NOW CURRENT REPRESENTATIVE WORKLOAD IF MORE THAN ONE VENDOR IS IN COMPETITION AT THAT TIME.

UNITED COMPUTING SYSTEMS, INC.:

UNITED COMPUTING SYSTEMS, INC. (USC), PROTESTS AGAINST ANY AWARD UNDER REQUEST FOR PROPOSALS (RFP) NO. DABT19-80-R-0030 ISSUED BY THE ARMY FOR CERTAIN TELEPROCESSING SUPPORT SERVICES IN CONNECTION WITH OPERATING THE EXISTING COMPUTER-ASSISTED MAP MANEUVER SYSTEM (CAMMS I) AND ITS SECOND GENERATION CALLED CAMMS II.

CAMMS IS A WAR GAME FOR GROUND FORCES DESIGNED TO SIMULATE COMMAND COMMUNICATIONS IN A TACTICAL SITUATION. UCS, THE INCUMBENT CONTRACTOR, ESSENTIALLY CONTENDS THAT THE RFP IS IMPROPERLY STRUCTURED, SINCE IT CALLS FOR SUPPORT OF CAMMS I AND CAMMS II, BUT, AT PRESENT, ONLY CAMMS I CAN BE FULLY DESCRIBED AND PROPERLY BENCHMARKED. IN RESPONSE, THE ARMY REPORTS THAT A SINGLE PROCUREMENT FOR SUPPORT OF BOTH SYSTEMS IS JUSTIFIED, BECAUSE (1) CAMMS I AND CAMMS II BOTH REQUIRE THE SAME TECHNICAL CAPABILITIES AS OUTLINED IN THE RFP AND (2) A SINGLE BENCHMARK CAN BE USED TO PROVIDE AN ADEQUATE BASIS OF COST COMPARISON. WE CONCLUDE THAT (1) THE CAMMS II REQUIREMENT IS ADEQUATELY DEFINED AND PROPERLY REFLECTED IN THE RFP, (2) IT IS NOT IMPROPER TO STRUCTURE THE RFP FOR PROCURING SERVICES FOR BOTH SYSTEMS EVEN THOUGH THEY ARE IN DIFFERENT STAGES OF REALIZATION, AND (3) UCS HAS NOT PROVIDED A BASIS FOR OUR OFFICE TO OBJECT TO THE RFP'S COST EVALUATION SCHEME (INCLUDING THE BENCHMARK).

UCS STATES THAT THE CENTRAL ISSUE OF THE PROTEST IS THE PROPRIETY OF ACQUIRING, IN A SINGLE PROCUREMENT, SUPPORT FOR MULTIPLE SYSTEMS IN DIFFERENT STAGES OF REALIZATION. THE PARTIES ARE AGREED THAT THE INSTANT SOLICITATION INVOLVES, AT A MINIMUM, THE PROCUREMENT OF OPERATIONAL SUPPORT FOR CAMMS I AND DEVELOPMENT AND OPERATIONAL SUPPORT FOR A SUCCESSOR SYSTEM CALLED CAMMS II. IN UCS'S VIEW, THE LEGAL ISSUES ARISING FROM THIS COMBINATION OF VARIOUS REQUIREMENTS IN A SINGLE PROCUREMENT GENERALLY FALL INTO TWO CATEGORIES - DEFECTS RELATING TO THE SPECIFICATION AND EVALUATION OF TECHNICAL REQUIREMENTS AND DEFECTS RELATING TO THE PRICE EVALUATION (INCLUDING THE BENCHMARK).

UCS ARGUES THAT THE ARMY CANNOT KNOW WHETHER THE TECHNICAL REQUIREMENTS OF THE SOLICITATION ARE NECESSARY OR EVEN WHETHER THEY ARE EXHAUSTIVE, SINCE, UNTIL CAMMS II BECOMES OPERATIONAL (OR A MORE DEVELOPED SYSTEM THAN IT CURRENTLY IS), THE ARMY CANNOT KNOW WHETHER IT IS BUYING TOO MUCH OR TOO LITTLE.

MOREOVER, CURRENT DESIGNS REVEAL TO UCS THAT CAMMS II WILL HAVE EIGHT FEATURES WHICH ARE NOT A PART OF CAMMS I, FOR EXAMPLE: MEDICAL AID, COMBAT SUPPORT, AND ELECTRONIC WARFARE. UCS CONCLUDES THAT CAMMS II WILL BE QUITE DIFFERENT FROM CAMMS I WITH THE RESULT THAT THE MIX OF COMPUTING RESOURCES COULD BE DIFFERENT; HOWEVER, THE AGGREGATE IMPACT OF THE CHANGES IN MIX CANNOT BE DETERMINED UNTIL AFTER A SUBSTANTIAL PORTION OF THE PROGRAMMING IS COMPLETE. IN UCS'S VIEW, THIS UNSTABLE ENVIRONMENT HAS ONE CERTAIN EFFECT - THERE IS VERY LOW PROBABILITY THAT THE MIX OF RESOURCES NEEDED TO SERVICE CAMMS II WILL BE SIMILAR TO THE MIX OF RESOURCES HISTORICALLY USED BY CAMMS I. HERE, UCS NOTES THAT ONLY CAMMS I PROGRAMS ARE BEING BENCHMARKED AND FORM THE BASIS OF COST EVALUATION. UCS CONTENDS THAT A BENCHMARK IS ONLY USEFUL IF IT CORRECTLY MIRRORS THE PROPORTIONATE MIX OF COMPUTER RESOURCES AT THE EXPECTED LEVEL OF USE; IF IT DOES NOT, THEN COSTS DETERMINED USING THE BENCHMARK WILL BE UNINFORMATIVE AND AN AWARD DECISION BASED ON AN INCORRECT BENCHMARK MAY BE ERRONEOUS, BUT IT CERTAINLY WOULD BE IRRATIONAL.

UCS CONCLUDES THAT, SINCE BENCHMARKS ARE GENERALLY RUN ONCE AND THEN THE RESULTANT DATA ARE MULTIPLIED BY A VERY LARGE FACTOR TO EXTRAPOLATE SYSTEM LIFE, A SMALL VARIANCE BETWEEN THE BENCHMARK AND THE PRODUCTION ENVIRONMENT IS COMPOUNDED INTO A LARGE DIFFERENCE OVER THE CONTRACT LIFE; THUS, THE BENCHMARK OF CAMMS I PROGRAMS CANNOT PREDICT CAMMS II COSTS WITH ANY DEGREE OF CONFIDENCE AT ALL.

UCS ALSO CONTENDS THAT THE ARMY IS IN VIOLATION OF THE REQUIREMENT THAT THE PROCUREMENT BE LIMITED TO THE APPROPRIATE "SYSTEMS LIFE." UCS RELIES UPON THE FOLLOWING DEFINITION OF THIS TERM:

"SYSTEMS LIFE. THE PERIOD OF TIME ESTABLISHED BY THE USER WHICH BEGINS WITH INITIATION OF TELEPROCESSING SERVICES FOR A GIVEN APPLICATION SYSTEM AND IS PREDICTED TO END WHEN THE NEED FOR COMMERCIAL TELEPROCESSING SERVICES TO SUPPORT SUCH APPLICATION SYSTEMS WILL TERMINATE. SYSTEMS LIFE IS ESTABLISHED BY THE GOVERNMENT ON THE BASIS OF ITS REQUIREMENTS *** (COST EVALUATION FOR REQUIRED SERVICES IS DONE ON A SYSTEM'S LIFE BASIS.)."

UCS ARGUES THAT THE VIOLATION HERE IS TWOFOLD: (1) THE CONTRACT ENDS WELL AFTER "THE NEED FOR COMMERCIAL TELEPROCESSING SERVICES TO SUPPORT GIVEN APPLICATION SYSTEMS WILL TERMINATE," IN THAT IT GOES BEYOND THE SYSTEM LIFE OF CAMMS I, AND (2) THE CONTRACT COMMENCES BEFORE THE "INITIATION OF SERVICES FOR A GIVEN APPLICATION SYSTEM," IN THAT IT BEGINS BEFORE THE BEGINNING OF A NEED TO SERVICE CAMMS II.

UCS FURTHER CONTENDS THAT THE BENCHMARK VIOLATES SOUND PROCUREMENT POLICY, SINCE, IN ITS VIEW, THE BENCHMARK IS NOT REPRESENTATIVE OF THE ACTUAL WORKLOAD EXPECTED UNDER CAMMS I OR CAMMS II.

AT THE OUTSET, THE ARMY STATES THAT, WHILE UCS'S PROTEST AGAINST ALLEGED DEFECTS IN THE SOLICITATION IS TIMELY UNDER OUR BID PROTEST PROCEDURES, 4 C.F.R. PART 20 (1980), BECAUSE IT WAS FILED HERE PRIOR TO THE CLOSING TIME FOR RECEIPT OF INITIAL PROPOSALS, WE SHOULD REJECT IT. THE ARMY ARGUES THAT THE PROTEST WAS FILED HERE ONLY A FEW WORKING HOURS BEFORE THE CLOSING TIME WHEREAS UCS HAD ADEQUATE OPPORTUNITY TO MAKE A WRITTEN REQUEST TO THE CONTRACTING OFFICER FOR ANY REQUIRED EXPLANATIONS. THE ARMY CONCLUDES THAT THE TARDY PROTEST WAS MEANT TO BE A DELAYING TACTIC BY THE INCUMBENT TO FORESTALL THE DATE IT WOULD BE CALLED UPON TO COMPETE FOR THE FOLLOW-ON REQUIREMENT. IN THE ARMY'S VIEW, UCS'S PROTEST IS UNTIMELY AND DEFICIENT, BECAUSE UCS DID NOT FOLLOW THE RFP'S INSTRUCTIONS TO RAISE QUESTIONS WITH THE CONTRACTING AGENCY IN WRITING IN SUFFICIENT TIME TO BE CONSIDERED BY THE CONTRACTING OFFICER AND, IF NECESSARY, TO MODIFY THE RFP IN SUFFICIENT TIME TO BE CONSIDERED BY ALL OFFERORS; OTHERWISE, INCUMBENTS COULD USE OUR PROCEDURES TO INTERFERE WITH AND DELAY THE PROCUREMENT PROCESS.

SECTION 20.2(B)(1) OF OUR BID PROTEST PROCEDURES PROVIDES THAT, IN ORDER TO BE CONSIDERED TIMELY, PROTESTS AGAINST ALLEGED RFP IMPROPRIETIES MUST BE FILED PRIOR TO THE CLOSING DATE FOR RECEIPT OF INITIAL PROPOSALS. THE ARMY RECOGNIZES, UCS SATISFIED THIS REQUIREMENT. WE HAVE NO REQUIREMENT THAT PROTESTS AGAINST ALLEGED SOLICITATION IMPROPRIETIES BE FILED INITIALLY WITH THE CONTRACTING AGENCY BEFORE THEY ARE FILED HERE - THIS IS SO EVEN WHEN THE PROTESTER HAD THE TIME TO SEEK RESOLUTION OF ITS PROTEST WITH THE AGENCY BEFORE FILING HERE. THUS, UCS'S PROTEST IS TIMELY AND WILL BE CONSIDERED ON THE MERITS.

IN RESPONSE TO THE MERITS OF UCS'S PROTEST, THE ARMY REPORTS THAT (1) THE FUNCTIONS OF CAMMS II ARE KNOWN AND STATED IN THE RFP AND (2) DIFFERENCES BETWEEN CAMMS I AND CAMMS II DID NOT HAVE A SUBSTANTIAL EFFECT ON THE ARMY'S BENCHMARKING OR COST COMPARISON AND EVALUATION. THE ARMY REPORTS THAT CAMMS II MAY USE A DIFFERENT MIX OF COMPUTING RESOURCES, BECAUSE ONE COMPONENT (CENTRAL PROCESSING UNIT (CPU) USAGE) IS EXPECTED TO DOUBLE WHEN CAMMS II IS OPERATIONAL, BUT THE OTHER COMPONENTS SHOULD REMAIN IN THE SAME RATIO.

THE ARMY STATES THAT, ALTHOUGH THE ESTIMATE FOR CPU USAGE WHEN CAMMS II BECOMES OPERATIONAL IS DOUBLE WHAT IT WAS IN THE RFP, UCS WAS NOT HARMED IN THE COST EVALUATION FORMULA BY THE CHANGE IN THE ESTIMATE. IN THAT REGARD, IN PREPARING ITS FINAL SUBMISSION, THE ARMY ANALYZED THE HAWAIIAN BENCHMARK DATA, WHICH REFLECTED THAT UCS'S COST WAS HIGHER THAN THE ONLY FIRM NOW IN THE COMPETITION, GENERAL ELECTRIC INFORMATION SERVICES COMPANY. FURTHER, THE ARMY CONCLUDES THAT THE GOVERNMENT'S INTERESTS WILL NOT BE HARMED, BECAUSE THE CONTRACTING OFFICER WILL REQUIRE CONFIRMATION OF THE BENCHMARK RESULTS WHEN CAMMS II IS OPERATIONAL.

REGARDING UCS'S SYSTEMS LIFE CONTENTION, THE ARMY NOTES THAT, BY THE DEFINITION, THE GOVERNMENT ESTABLISHES THE SYSTEMS' LIFE BASED ON ITS REQUIREMENTS; HERE, THE NEED WAS DETERMINED TO BE FOR BOTH CAMMS I AND CAMMS II AND THAT DETERMINATION WAS APPROVED BY THE ARMY TRAINING AND DOCTRINE COMMAND AND THE GENERAL SERVICES ADMINISTRATION. REGARDING UCS'S BENCHMARK CONTENTION, THE ARMY STATES THAT IT WAS DESIGNED TO BE REPRESENTATIVE OF THE BULK OF THE EXPECTED WORKLOAD.

LASTLY, THE ARMY POINTS OUT THAT ITS ESTIMATED COSTS ASSOCIATED WITH THIS PROCUREMENT ARE MORE THAN $110,000, INDICATING THAT IT IS IN THE GOVERNMENT'S BEST INTERESTS TO SATISFY THIS REQUIREMENT IN ONE PROCUREMENT, IF POSSIBLE.

TO ADDRESS THE ESSENCE OF UCS'S PROTEST, WE MUST CONSIDER THESE TWO QUESTIONS: (1) DOES THE ARMY KNOW ENOUGH ABOUT ITS CAMMS II REQUIREMENTS TO ADEQUATELY DESCRIBE THEM AND IS THAT DESCRIPTION REFLECTED IN THE RFP, AND (2) DOES THE ARMY KNOW ENOUGH ABOUT CAMMS II TO REASONABLY ESTIMATE THE MIX OF COMPUTING RESOURCES REQUIRED TO OPERATE CAMMS II COMPARED TO THE MIX OF RESOURCES REQUIRED FOR CAMMS I SO THAT THE RFP'S COST EVALUATION (INCLUDING THE BENCHMARK) WILL BE MEANINGFUL? WE CONSIDER THESE TWO QUESTIONS RELATIVE TO THIS STANDARD OF REVIEW: AN AGENCY'S DETERMINATION OF ITS MINIMUM NEEDS AND THE PROCUREMENT METHOD OR APPROACH NECESSARY TO RESULT IN THE SUCCESSFUL FULFILLMENT OF THOSE NEEDS WILL NOT BE DISTURBED BY OUR OFFICE ABSENT A CLEAR AND CONVINCING SHOWING BY THE PROTESTER THAT THE DETERMINATION IS NOT REASONABLY BASED. SEE INFORMATICS, INC., B-190203, MARCH 20, 1978, 78-1 CPD 215, AFF'D, 57 COMP. GEN. 615 (1978), 78-2 CPD 84; MEMOREX CORPORATION, B-187497, MARCH 14, 1977, 77-1 CPD 187.

WITH REGARD TO THE FIRST QUESTION, THE ARMY'S SUBMISSIONS HAVE CONVINCED US THAT CAMMS II IS ESSENTIALLY A SUBSTANTIALLY SIMILAR EXTENSION OF CAMMS I AND THAT THE RFP HAS ADEQUATELY DESCRIBED BOTH SYSTEMS' REQUIREMENTS. OUR CONCLUSION IS BASED ON THE ARMY'S EXPLANATION THAT BOTH SYSTEMS (A) ARE MULTIPLE LEVEL FILE-BASED OR DATA BASED, (B) SIMULATE WEAPON SYSTEMS, MOVEMENT RATES, AND LOGISTICS, (C) REQUIRE FOUR OR MORE TERMINALS, AND (D) PROVIDE A COMMANDER WITH A REALISTIC METHOD FOR EVALUATING THE TRAINING REQUIREMENTS OF HIS COMMAND. THE ARMY EXPLAINS THAT THE DIFFERENCES BETWEEN BOTH SYSTEMS IS IN THE AMOUNT OF INFORMATION PROCESSED, THE NUMBER OF FUNCTIONS TO BE SIMULATED, THE SIZE OF THE DATA BASE, AND THE TIME AT WHICH THE REPORT IS PRINTED. THE ARMY HAS DEMONSTRATED TO OUR SATISFACTION THAT THE CAMMS II SYSTEM IS SUFFICIENTLY DESIGNED SO THAT ITS TECHNICAL REQUIREMENTS CAN BE ADEQUATELY DESCRIBED. SINCE CAMMS I'S TECHNICAL REQUIREMENTS WERE ADEQUATELY SET FORTH IN THE RFP AND SINCE CAMMS II'S TECHNICAL REQUIREMENTS ARE ESSENTIALLY THE SAME AS CAMMS I'S, WE MUST CONCLUDE THAT THE RFP ADEQUATELY DESCRIBED BOTH SYSTEMS' REQUIREMENTS.

WITH REGARD TO THE SECOND QUESTION, WE MUST CONCLUDE THAT THE ARMY INITIALLY HAD A REASONABLE BASIS FOR ITS ESTIMATE OF THE QUANTITY AND MIX OF COMPUTING RESOURCES REQUIRED TO OPERATE CAMMS I AND CAMMS II. THE ARMY'S ESTIMATES FOR CAMMS I ARE NOT CHALLENGED AND IT INITIALLY ESTIMATED THAT THE SAME MIX OF RESOURCES WOULD BE REQUIRED FOR CAMMS II. WE RECOGNIZE THAT THE ARMY NOW HAS MORE REFINED INFORMATION, WHICH PROVIDES THE BASIS FOR ITS CONCLUSION THAT CAMMS II CPU USAGE WILL RANGE FROM .5 TO 3 TIMES CAMMS I CPU USAGE AND CAMMS II INPUT/OUTPUT (I/O) UTILIZATION - DEFINED AS THE NUMBER OF CHARACTERS TRANSMITTED BETWEEN THE TERMINAL AND THE COMPUTER IN EITHER DIRECTION - WILL RANGE FROM .75 TO 1.25 TIMES CAMMS I I/O UTILIZATION; THE MOST PROBABLE CAMMS II USAGES WILL BE 2.0 AND 1.0, RESPECTIVELY, TIMES CAMMS I USAGE. WHILE THE LATEST ARMY ESTIMATE DIFFERS FROM THE INITIAL ESTIMATE OF 1.0 FOR BOTH USAGES, THE ARMY HAS DEMONSTRATED THAT ITS CURRENT ESTIMATE IS REASONABLE.

TO EXPLAIN ITS CURRENT ESTIMATES, THE ARMY REFERS TO THE INFORMATION, WHICH FOLLOWS:

"RELATIONSHIP BETWEEN CAMMS I AND CAMMS II CAMMS I

CAMMS II EXPECTED POTENTIAL RANGE*

CPU 1X 2X (.5X - 3X)

I/O 1X 1X (.75X - 1.25X)

OTHER 1X 1X

NOTE: X IS EQUAL TO THE AVERAGE RESOURCES USED DURING

THE BENCHMARK.

* DEPENDENT UPON THE INTENSITY OF PLAY AND THE LEVEL OF THE EXERCISE." THE ARMY EXPLAINS THAT RELATIVE CPU USAGE WILL INCREASE IN CAMMS II OPERATION BECAUSE OF THE INCREASED DATA BASE SIZE, THE NUMBER OF FUNCTIONS SIMULATED, AND WAITING TIME ASSOCIATED WITH CONCURRENT ATTEMPTS TO ACCESS THE SAME DATA. THE ARMY ALSO EXPLAINS THAT I/O USAGE IS EXPECTED TO REMAIN ABOUT CONSTANT, SINCE THE INCREASE DUE TO CAMMS II REQUIREMENTS FOR ADDITIONAL REPORTS IS EXPECTED TO BE OFFSET BY MORE CONCISE AND MORE DIRECTLY INFORMATIVE REPORTS THAN PROVIDED WITH CAMMS I. THE ARMY FURTHER EXPLAINS THAT THE "OTHER" COSTS - CONNECT TIME AND DATA STORAGE - WILL NOT DIFFER, SINCE CAMMS II'S LARGER DATA BASE WILL BE MORE TAILORED THAN CAMMS I'S, WHICH CONTAINED MUCH UNNECESSARY DATA.

AFTER REVIEWING THE ARMY'S PRESENTATION AND UCS'S REPLY, WE MUST CONCLUDE THAT, WHILE UCS HAS DISAGREED WITH THE ARMY'S DETERMINATION, UCS HAS NOT DEMONSTRATED THAT IT IS UNREASONABLE. THUS, WE HAVE NO BASIS TO OBJECT TO THE STRUCTURE OF THE RFP IN CALLING FOR SUPPORT FOR BOTH SYSTEMS EVEN THOUGH BOTH ARE IN DIFFERENT STAGES OF REALIZATION. FURTHER, THE PROTESTER HAS NOT DEMONSTRATED A BASIS FOR OUR OFFICE TO OBJECT TO THE BENCHMARK OR COST EVALUATION SCHEME EMPLOYING THE CURRENT BEST GOVERNMENT ESTIMATE OF ITS NEEDS. THE ARMY REPORTS THAT IT WILL AMEND THE RFP TO REFLECT THE LATEST ESTIMATE IF MORE THAN ONE VENDOR IS IN THE COMPETITION AT THE POINT WHERE BEST AND FINAL OFFERS WOULD BE REQUESTED.

FINALLY, WE NOTE THAT THE ARMY STATES THAT WHEN CAMMS II IS OPERATIONAL, IT WILL PERFORM A TEST TO ASCERTAIN WHETHER THE BENCHMARK RESULTS OF THIS PROCUREMENT ARE CONFIRMED BY THE ACTUAL IMPLEMENTED CAMMS II DESIGN. THE RESULTS ARE NOT CONFIRMED, THEN THE ARMY WILL CONSIDER A NEW PROCUREMENT FOR OPERATION OF CAMMS II. THIS PROCEDURE SHOULD PROVIDE ADDED PROTECTION FOR THE GOVERNMENT. SEE INFORMATION INTERNATIONAL, INC., B-191013, B-191013.2, AUGUST 8, 1980, 80-2 CPD 100 (THERE WE MADE A RECOMMENDATION SIMILAR TO THE SAFEGUARD PROPOSED HERE BY THE ARMY).

IN ITS COMMENTS DATED NOVEMBER 21, 1980, UCS RAISES AN ADDITIONAL BASIS OF PROTEST - BASED ON DOCUMENTS IT RECEIVED ON NOVEMBER 17, 1980 THAT THE COMPUTER SCIENCES CORPORATION (CSC) RECEIVED CLARIFICATION OF RFP REQUIREMENTS AND OTHER VENDORS WERE NOT SO NOTIFIED. WE CONSIDER THIS ASPECT OF UCS'S PROTEST TO BE ACADEMIC BECAUSE CSC IS NOT IN THE COMPETITION SO THAT ANY ADVANTAGE IT MIGHT HAVE GAINED FROM THE CLARIFICATION IS MEANINGLESS.

ACCORDINGLY, UCS'S PROTEST AGAINST THE STRUCTURE OF THE RFP WITH RESPECT TO THE ISSUES DISCUSSED ABOVE IS DENIED.