BNUMBER:  B-261894.2
DATE:  November 22, 1995
TITLE:  DCT, Inc.

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Matter of:DCT, Inc.

File:     B-261894.2

Date:     November 22, 1995

John Biscoe Bingham, Esq., for the protester.
Jeffrey A. Lovitky, Esq., for NVT  Technologies, Inc., an interested 
party.
Michael Colvin, Department of Health and Human Services, for the 
agency. 
Katherine I. Riback, Esq., and Paul Lieberman, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision

DIGEST

1.  Awardee's proposal satisfied a solicitation requirement that the 
offerors provide resumes for key personnel where the awardee provided 
resumes for the project manager, quality control officer, and 
personnel responsible for the major functional areas; solicitation did 
not require that offerors submit resumes for other personnel.

2.  There is no basis for concluding that awardee's proposal misled 
agency concerning prospective employment of a particular individual as 
project manager (who withdrew from working as project manager after 
the award was made) where, although individual involved submitted 
conflicting affidavits in connection with the protest, other evidence 
corroborates version stating that awardee discussed employment with 
the individual and that he gave the firm permission to submit his 
resume for project manager position. 

DECISION

DCT, Inc. protests the award of a contract to NVT Technologies, Inc. 
under request for proposals (RFP) No. 222-95-2002(P), issued by the 
National Center for Toxicological Research, Department of Health and 
Human Services (HHS), for operations and maintenance services at its 
facilities in Jeffersonville, Arkansas.  DCT argues that the agency 
improperly evaluated NVT's proposal.  

We deny the protest.

The solicitation was issued as a competitive section 8(a) set-aside[1] 
on December 22, 1994.  The RFP contemplated the award of a fixed-price 
contract consisting of a
number of  line items, for a phase-in period of 1 month and a base 
year, with 
4 option years.  Offerors were to submit separate technical, 
management, and business proposals.   The RFP listed three technical 
factors to be considered, one of which was 
"experience/qualifications," which included as subfactors "corporate 
ability" and "individual qualifications."  The technical factors were 
worth a total of 100 points and were more important than price, but 
price would increase in importance as the proposals become more 
technically equal.  

Six proposals were submitted by the February 23 closing time, and the 
technical evaluation panel (TEP) evaluated the technical proposals and 
established a competitive range which included three offerors, 
including those of NVT and DCT.  Both the TEP and the cost advisory 
activity evaluated the price proposals.  Discussions were conducted in 
writing, and best and final  offers (BAFOs) were submitted and 
evaluated. 

DCT's proposal received a technical score of 66 points, and its 
evaluated price was $14,612,552.90.  NVT's proposal received a 
technical score of 65.2 points, and its evaluated price was 
$13,571,381.96.  (The third offeror submitted two proposals which were 
higher-rated technically, but both were ultimately deemed not to 
warrant the associated price premium, and thus are not relevant here.)  
After the proposals of NVT and DCT were determined to be essentially 
technically equal, award was made to NVT based on its lower cost.

DCT challenges the evaluation of NVT's proposal on the ground that, 
although NVT failed to include in its proposal the resumes of 
craftspersons, as allegedly required by the RFP, the TEP failed to 
downgrade NVT's proposal for this omission.

The evaluation of technical proposals is primarily within the 
discretion of the contracting agency; we will review an evaluation 
only to ensure that it is reasonable and consistent with the 
evaluation scheme.  See Electrolux SARL, B-248742,  
Sept. 21, 1992, 92-2 CPD 192; CORVAC, Inc., B-244766, Nov. 13, 1991, 
91-2 CPD  
 454.
  
The evaluation of NVT's individual qualifications was both reasonable 
and consistent with the terms of the RFP.  Contrary to DCT's 
understanding, the RFP simply did not require that offerors submit 
resumes of individual crafts personnel.  Under the RFP, offerors were 
to include in their management proposals resumes of only the key 
personnel, defined in the RFP as the "project manager, quality control 
officer, and personnel responsible for the major functional areas."  
NVT's proposal included resumes for the six key managerial personnel 
who would lead the phase-in period.  NVT's proposal also included 
resumes for eight additional key personnel, such as the project 
manager, quality control officer, mechanical shop lead and pipe shop 
lead.  Since NVT furnished the resumes specifically called for, and 
DCT's objection is based on the premise that NVT's proposal should 
have been downgraded for failure to provide information which was not 
required by the RFP, we have no basis to find the agency's evaluation 
unreasonable.[2]  (Further, we note that both offerors offered to do 
the bulk of their staffing by recruiting the  incumbent contractor's 
personnel; the agency reasonably gave them substantially comparable 
scores for these similar approaches.)

DCT also complains that NVT materially misrepresented an individual's 
availability for the position of project manager for NVT.  DCT argues 
that  Mr. Mayberry, who was employed by the incumbent contractor as a 
project manager, did not give permission for NVT to propose him for 
the position of project manager, and that he withdrew from that 
position after the contract was awarded to NVT.   

An offeror's misrepresentation concerning personnel that materially 
influences an agency's consideration of its proposal generally 
provides a basis for proposal rejection or termination of a contract 
award based upon that proposal.  Intermetrics, Inc., B-259254.2, Apr. 
3, 1995, 95-1 CPD  215.

There has been no showing that NVT misrepresented the availability of              
Mr. Mayberry for the project manager position.  First, there is no 
dispute that NVT contacted Mr. Mayberry before it proposed his name, 
and was given permission to submit his resume with its proposal; the 
parties only disagree as to whether        Mr. Mayberry specifically 
authorized NVT to propose him for the position of project manager.  
DCT's position is based on a September 1, 1995, affidavit in which Mr. 
Mayberry states that he specifically told NVT in January or February 
1995 that "I would not be project manager for NVT . . . if they 
received the award . . . ."   The validity of this statement, and Mr. 
Mayberry's credibility on this issue, is cast into doubt, however, by 
an earlier, July 21, 1995, affidavit in which Mr. Mayberry states that 
NVT contacted him while he was the project manager for the incumbent, 
and that he advised NVT that he "would have no objection to NVT's 
using my name in its proposal."  This affidavit states further that, 
prior to stepping down from the project manager position after 
contract award, "I did not at any time  . . . advise NVT that I would 
be unable to serve as Project Manager.  

As there is no explanation as to these conflicting accounts, and they 
appear to us irreconcilable, we must turn to the other evidence in the 
record to resolve the issue.  The record includes an affidavit by the 
NVT employee, Mr. Oney, who spoke with Mr. Mayberry.  Mr. Oney states  
that when he contacted Mr. Mayberry on February 14, 1995, to obtain 
his consent to be listed as NVT's project manager,  Mr. Mayberry 
"fully consented to having his name listed as NVT's proposed Project 
Manager," and that "he fully consented to performing the duties of 
Project Manager in the event of award of a contract to NVT."  As Mr. 
Oney apparently was the only other party to the conversation with Mr. 
Mayberry, his version of the conversation is corroborated by one of 
Mr. Mayberry's affidavits, and there is no other information bringing 
into question Mr. Oney's credibility, we think his statement provides 
a basis to find that NVT reasonably believed that Mr. Mayberry had 
agreed to be proposed as NVT's project manager for the contract in 
issue.  Thus, there is no basis to conclude that NVT's proposal 
representations concerning its proposed project manager were false or 
misleading.

The protest is denied.

 Comptroller General
of the United States
 
1. Section 8(a) of the Small Business Act authorizes the Small 
Business Administration (SBA) to enter into contracts with government 
agencies and to provide for the performance through subcontracts 
designed to assist "developing" small business concerns which are 
owned and controlled by disadvantaged individuals.  See 13 C.F.R. Part 
124 (1995); New Life Group, Inc., B-247080.2, 
May 22, 1992, 92-1 CPD  463.  

2. To the extent that the protester argues that the RFP should have 
required submission of resumes by individual crafts personnel, this 
allegation is untimely.  Arguments based upon alleged improprieties in 
a solicitation which are apparent prior to the closing time for 
receipt of initial proposals must be filed prior to the closing time.  
4 C.F.R.  21.2(a)(1) (1995).