BNUMBER:  B-265698.2
DATE:  February 7, 1996
TITLE:  DuVALL Services Company

**********************************************************************

REDACTED DECISION
A protected decision was issued on the date below and was subject to a 
GAO Protective Order.  This version has been redacted or approved by 
the parties involved for public release..
Matter of:DuVALL Services Company

File:     B-265698.2

Date:February 7, 1996

Richard L. Moorhouse, Esq., and Craig A. Holman, Esq., Holland & 
Knight, for the protester.
Mike Colvin, Department of Health & Human Services, for the agency.
Andrew T. Pogany, Esq., and Michael R. Golden, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Contracting agency's determination to exclude protester's low-rated 
proposal from a revised competitive range was reasonable where 
protester, which proposed a higher price than the proposed awardee at 
the time of its exclusion, only offered staffing amounting to 
approximately [deleted] of the staffing offered by the proposed 
awardee even after contracting agency sent the protester a discussion 
item questioning the adequacy of its staffing.

DECISION

DuVALL Services Company (DSC) protests the exclusion of its proposal 
from the competitive range under request for proposals (RFP) No. 
263-95-P(BB)-0109, issued by the National Institutes of Health, for 
maintenance and repair services for government-owned Dupont/Sorvall 
scientific instruments.

We deny the protest.

The requirement was for on-site full service maintenance, including 
preventive maintenance, inspection, and emergency repair of the 
scientific instruments located at Bethesda, Maryland, and Research 
Triangle Park, North Carolina.[1]  The RFP was issued on February 24, 
1995, and contemplated the award of a fixed-price requirements 
contract for one year with four 1-year options at the Bethesda site.  
The RFP required emergency repairs to be completed within 48 hours.  
Technical proposals were required to be evaluated based on the 
following criteria:  (1) qualification of service personnel (30 of 100 
possible points);[2] (2) the organization's qualifications (25 
points); emergency response (25 points); and availability of spare 
parts (20 points).  The RFP stated that evaluation of technical 
proposals would be of "paramount consideration" in the award decision 
and that price would become significant only in the event that two or 
more offerors were rated approximately equal technically.

Four proposals, including the proposals of DSC and E.I. Dupont de 
Nemours Co., Inc., were received by the May 2, 1995, closing date.  On 
May 25, initial proposals were evaluated by the agency's technical 
evaluation panel (TEP), which submitted a report on May 30 setting 
forth the strengths and weaknesses of each proposal.  The TEP rated 
Dupont acceptable; DSC and another firm were rated marginally 
acceptable, and the remaining offeror was rated unacceptable.  On June 
9, the agency established a competitive range of three offers 
consisting of the acceptable and marginally acceptable offers.  The 
protester's proposal was higher priced than Dupont's proposal 
[deleted].[3]  In making her competitive range determination, the 
contracting officer stated as follows concerning DSC's initial 
technical proposal:

     "[Deleted] technicians resumes were provided with [deleted] 
     specific evidence of training with Dupont/Sorvall equipment.  
     [This offeror] appears to have missed or ignored the size and 
     scope of the instruments to be maintained.  [The firm] propose[s] 
     to have [deleted] available . . . [and appears] to be contesting 
     the intent and content of the RFP. . . .  There is no tangible 
     plan or evidence cited that a        48 hour repair time will be 
     met if multiple failures occur in parallel with [deleted] 
     technicians available."[4]

As a result, the contracting officer sent the protester the following 
discussion question:

     "Do you believe that [deleted] is enough to perform the 
     requirements as stated in the RFP?"

The agency received revised technical responses from the offerors to 
the discussion questions on June 16.  Revised prices were not 
solicited or received.

In its revised technical proposal, the protester stated

     "[y]es, we do believe that [deleted] is enough to perform the 
     requirements. . . .  By this we mean that [deleted] would be 
     assigned . . . to handle emergency service calls and preventive 
     maintenance visits and [deleted] will be assigned to assist with 
     emergency service and preventive maintenance as required."

The protester further stated that [deleted] would be required only to 
support both sites solicited by the RFP but that it was "bidding" on 
only the Bethesda location.  The protester then proceeded to explain 
that the average number of emergency repair requests previously at the 
Bethesda location was three per day; that the average repair time was 
1.5 hours per call; and that the average preventive maintenance visit 
took 1 hour to complete.  The protester concluded
 
     "From this [data] we can deduce that it will take 22.5 man hours 
     per week for emergency service.  This leaves 17.5 man hours per 
     week for preventive maintenance.  Based on a 48 week work year 
     one man could also perform 840 preventive maintenance visits per 
     year."[5]

The TEP reconvened on July 12 to evaluate the revised technical 
submissions.  Dupont received a technical score of [deleted]; the 
protester received a score of [deleted].  On July 26, the contracting 
officer made a revised competitive range determination in which she 
excluded the protester's proposal from the competition.  This revised 
competitive range determination resulted in only Dupont remaining in 
the competition for the Bethesda location.  

The contracting officer eliminated the protester's proposal from the 
revised competitive range because she did not believe that [deleted] 
constituted adequate staffing, and because she believed that the 
protester's explanation and analysis of the requirements were "flawed 
as [the protester's submission] considers only average values over 
periods of time rather than the possibility for multiple failure 
events in succession requiring a greater level of service efforts over 
an acute period of time."  She also again found that the protester had 
not submitted any "tangible plan or evidence" that it could meet the 
48-hour repair time requirement.  This protest followed.

In a negotiated procurement, the purpose of a competitive range 
determination is to select those offerors with which the contracting 
agency will hold written or oral discussions.  Everpure, Inc., 
B-226395.2; B-226395.3, Sept. 20, 1988, 88-2 CPD  para.  264.  The 
competitive range is to be determined on the basis of cost or price 
and other factors that were stated in the solicitation and should 
include only proposals that have a reasonable chance of being selected 
for award. Id.   Even a proposal that is technically acceptable as 
submitted need not be included in the competitive range when, relative 
to other acceptable offers, it is determined to have no reasonable 
chance of being selected for award.  Wordpro, Inc., B-242100.2, Apr. 
24, 1991, 91-1 CPD  para.  404; see Hummer Assocs., B-236702, Jan. 4, 1990, 
90-1 CPD  para.  12.  This "relative" approach to determining the 
competitive range, that is, comparing one offeror's proposal to those 
of other offerors, may be used even where it results in a competitive 
range of one.  Everpure, Inc., supra; Systems Integrated, B-225055,    
Feb. 4, 1987, 87-1 CPD  para.  114.

The evaluation of proposals and the determination of whether a 
proposal is in the competitive range are principally matters within 
the contracting agency's discretion, since agencies are responsible 
for defining their needs and for deciding the best method of meeting 
them.  Advanced Sys. Technology, Inc.; Engineering and Professional 
Servs., Inc., B-241530; B-241530.2, Feb. 12, 1991, 91-1 CPD  para.  153.  
Hence, it is not the function of our Office to evaluate proposals de 
novo, and while we closely scrutinize an agency decision which 
results, as in this case, in a competitive range of one, we will not 
disturb that determination absent a clear showing that it was 
unreasonable or in violation of procurement laws or regulations.  
Institute for Int'l Research, B-232103.2, Mar. 15, 1989, 89-1 CPD  para.  
273.  If the agency's evaluation of proposals is reasonable, and not 
violative of law or regulation, there is nothing improper in the 
agency's making more than one competitive range determination and 
dropping a firm from further consideration.  Labat-Anderson Inc., 
B-246071.4, Oct. 9, 1992, 92-2 CPD  para.  244. 

We think the agency here properly excluded the protester's revised 
proposal from the competitive range because it did not have a 
reasonable chance for award.  First, upon being questioned by the 
agency about the adequacy of its staffing, DSC merely offered an 
analysis of certain historical data to demonstrate the need for 
[deleted] that consisted entirely of "average" usage and experience 
over long periods of time rather than the possibility of multiple 
failures in succession requiring acute levels of service.[6]  We find 
reasonable the agency's determination that this analysis of work load 
by the protester, based solely on "averages" over a long period of 
time, was meaningless for ascertaining a firm's capabilities for 
responding to surge requirements.  Second, even if we find that the 
protester's proposal was not unacceptable on its face, the protester's 
continued insistence in its revised proposal to provide the agency 
with only one primary service technician with [deleted] (at a higher 
price than Dupont's) represented, as the agency reasonably found, a 
level of effort greatly inferior to Dupont's approach.  In our view, 
the agency therefore reasonably concluded that the protester's 
inferior technical approach, along with its higher price, resulted in 
the firm not having a reasonable chance for award.

The protest is denied.

Comptroller General
of the United States

1. Under the terms of the RFP, offerors could submit proposal for one 
or both sites.  [Deleted].

2. This evaluation criterion (qualification of service personnel) 
required "evidence" of the "necessary qualified skill[s]" of service 
technicians, including the submission of "three (3) to four (4) names 
of individuals actually to be assigned to service the instruments 
[specified] together with a resume of their experience and educational 
backgrounds." 

3. The protester proposed a price of [deleted]; Dupont proposed a 
price of [deleted].

4. In contrast, Dupont proposed [deleted] technicians and also 
provided in its proposal a very specific methodology for [deleted].

5. In its comments on the agency report, the protester argues that the 
agency's discussion question was inadequate and misleading.  However, 
simply from our reading of the protester's technical response to the 
discussion question, we find that the protester was reasonably advised 
of this area of concern (lack of adequate staffing) by the agency.  As 
the protester concedes, "discussions need not be all-encompassing and 
should not become a 'spoon feeding' exercise."  See Acumen 
Eng'g/Analysis, Inc., B-260102, May 11, 1995, 95-1 CPD  para.  240.

6. The protester argues that it submitted the resume [deleted].  The 
TEP had concerns regarding this individual [deleted].  In any event, 
the fact remains that the protester's substantive technical approach 
consisted of  [deleted], while Dupont firmly proposed [deleted].