BNUMBER:  B-265950.2
DATE:  February 8, 1996
TITLE:  Juarez & Associates, Inc.

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DECISION FOR PUBLIC RELEASE
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:Juarez & Associates, Inc.

File:     B-265950.2

Date:February 8, 1996

Richard J. Webber, Esq., Tenley A. Carp, Esq., and Alison Michaeli, 
Esq., Arent Fox Kintner Plotkin & Kahn, for the protester.
David P. Metzger, Esq., and Craig A. Holman, Esq., Holland & Knight, 
for COCA, Inc.  intervenors.
Terrence J. Tychan and Mike Colvin, Department of Health & Human 
Services, for the agency.
Susan K. McAuliffe, Esq., and Michael R. Golden, Esq., Office of the 
General 
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Contracting officer reasonably determined that the proposals of the 
protester and awardee were essentially technically equal, such that 
award should be made on the basis of the lower-cost proposal in 
accordance with solicitation's stated evaluation scheme.

DECISION

Juarez and Associates, Inc. protests the award of a contract to CODA, 
Inc. under request for proposals (RFP) No. NCI-CO-50507-50, issued by 
the Department of Health and Human Services for technical support for 
cancer communications research and program evaluation within the 
Office of Cancer Communications, National Cancer Institute.  Juarez 
challenges the contracting officer's determination that the 
protester's and CODA's proposals were essentially technically equal 
and the agency's evaluation of the offerors' cost proposals.

We deny the protest.

The RFP, issued as a total small business set-aside, sought technical 
and business (cost) proposals for a cost-plus-fixed-fee contract.  The 
RFP required 49,000 direct labor hours to perform the tasks delineated 
in the solicitation's statement of work, including specified 
evaluation tasks.  Section M of the RFP set out the following 
technical evaluation factors for award:  technical approach (worth 45 
percent of the available 1,000 technical evaluation points); 
capability and resources of the firm (worth 30 percent); and 
competence and availability of personnel (worth 25 percent).  The RFP 
provided that the technical evaluation factors were to be more 
important than cost, but that if two or more offerors' proposals were 
approximately equal in technical ability, cost might become a 
significant factor in determining award.  

Five proposals were received in response to the RFP; only the 
proposals submitted by Juarez and CODA were included in the 
competitive range.  Discussions were held with the two offerors and 
best and final offers (BAFO) submitted.  Juarez proposed 44,000 
professional and 5,000 nonprofessional labor hours for the required 
49,000 labor hours, as compared to CODA's proposal of 39,000 
professional and 10,000 nonprofessional hours.  Juarez's proposal also 
included additional labor hours to conduct certain evaluation tasks 
included in the RFP's statement of work, which were included in 
Juarez's cost proposal as outside services under other direct costs.

The Juarez BAFO [DELETED] received a technical score of 848 out of the 
1,000 points available; CODA's BAFO (at $3.16 million) received a 
technical score of 841 points.  CODA's proposal received the highest 
score (7 points higher than Juarez's proposal) for technical approach, 
the RFP's most important technical evaluation factor.  Both offerors' 
proposals received the same score under the capability factor.  
Juarez's proposal received a higher technical point score (14 points) 
than the CODA proposal for personnel, the least important factor.

Under the technical approach factor, the evaluators found that 
Juarez's proposal provided a strong technical approach, but that it 
offered only a limited focus in response to discussion questions about 
special populations and provided "textbook" descriptions of proposed 
outcome evaluation programs without any innovation or relevant 
samples; a concern was noted regarding the low level of effort to be 
provided by certain experts.  CODA's proposal was rated high under the 
technical approach factor for its proposed outcome evaluation schema 
and full-coverage evaluation program, as well as its strong 
understanding and experience in working with diverse populations; 
proposal weaknesses were cited for failing to give more comprehensive 
descriptions of certain specific experience (although good quality 
samples of work related to agency programs were submitted) and of low 
literacy issues.

Under the personnel factor, the Juarez proposal was credited for 
providing lists of task assignments and management of work loads, but 
the evaluators cited as a weakness the project director's limited 
availability for the first 6 months of the contract.  Under the 
personnel factor, the evaluators found CODA's proposal's skills 
matrix, which correlated tasks with staff expertise, to be a strength, 
but the proposal was downgraded for failing to demonstrate the 
relevant evaluation experience of the proposed project director[1] and 
fully explain the role of consultants.  Although CODA proposed the 
49,000 labor hours required by the RFP, a concern was noted regarding 
the sufficiency of staff time proposed.

The agency's source evaluation group (SEG) recommended award to Juarez 
based on "the superior Project Director proposed, and on the level of 
professional staff proposed to be devoted to the project."  The 
contracting officer, who was present at the SEG deliberations, 
reviewed the technical evaluation record and conducted a "best buy" 
analysis, finding that on the basis of the large cost difference and 
slight technical score difference between the proposals award should 
be made to the lower-cost offeror, CODA, since the two proposals were 
essentially equal in technical merit.  The contracting officer's 
determination was approved and award was made to CODA on July 31, 
1995.  After Juarez's agency-level protest was denied, this protest 
was filed.

Juarez principally contends that the contracting officer unreasonably 
failed to accept the SEG recommendation for award to Juarez and 
improperly concluded, on the basis of technical point scores, that the 
two proposals were essentially technically equal.  In particular, the 
protester contends that its proposal should have been chosen for 
award, despite its higher cost, because it proposed to use additional 
labor hours beyond those required by the RFP to perform the statement 
of work's evaluation tasks (including the costs for the additional 
labor in its other direct costs) and proposed more professional (and 
less nonprofessional) labor hours than did the awardee.  Juarez states 
that since the RFP gave greater weight to technical evaluation factors 
than cost and its proposal was rated higher technically by the SEG, 
the award is improper. 

Source selection officials in negotiated procurements have broad 
discretion in determining the manner and extent to which they will 
make use of the technical and cost evaluation results.  In exercising 
that discretion, they are subject only to the tests of rationality and 
consistency with the established evaluation factors.  See Mevatec 
Corp., B-260419, May 26, 1995, 95-2 CPD  para.  33.  A source selection 
official's deviation from the recommendation of a technical evaluation 
panel provides no basis to upset an award unless the source selection 
official's award decision itself lacks a reasonable basis.  See Gary 
Bailey Eng'g Consultants, B-233438, Mar. 10, 1989, 89-1 CPD  para.  263.

Juarez contends that the contracting officer limited his determination 
that the proposals were essentially technically equal to a review of 
the point scores alone.  Point scores can be used as an informational 
guide in source selection decision-making, and there was only a 
.7-percent difference in the total technical scores between the 
proposals, which reasonably suggests that proposals could properly be 
viewed as technically equal, notwithstanding the SEG's recommendation.  
The record shows that the contracting officer reviewed the full 
technical evaluation record (including the strengths, weaknesses, and 
concerns cited for each of the two proposals), as well as the 
resulting technical point scores and the cost evaluation results.   
The contracting officer's award determination statement concluding 
that the proposals, on balance, were essentially technically equal, 
cites the slight point differential and provides a reasoned analysis 
pointing out that while the Juarez proposal was rated higher in the 
least important technical evaluation factor, personnel, CODA's 
proposal was rated higher under the most important technical 
evaluation factor, technical approach.  

In making the award selection, the contracting officer was aware that 
the SEG downgraded the CODA proposal for concerns regarding the 
project director's perceived lack of evaluation experience and 
proposed staff time, but the record evidences that these problems were 
only relative weaknesses in CODA's otherwise strong proposal, as 
indicated by its relatively high overall rating.  We note that Juarez, 
in its protest submissions, pinpoints each of the concerns raised by 
the SEG about CODA's proposal; however, the protester fails to rebut 
or even acknowledge any of the concerns or weaknesses cited in its own 
proposal (such as Juarez's failure to adequately respond to the RFP's 
outcome evaluation and special population requirements), which 
resulted in a downgrading of its own proposal to a level essentially 
equal to CODA's proposal.

Juarez contends that the agency failed to recognize the difference in, 
or give technical credit for, the offerors' labor hour approaches 
(i.e., Juarez proposed, at a higher rate, more professional hours and 
less nonprofessional hours than did CODA and also proposed additional 
hours to perform certain tasks).  The record shows, however, that the 
agency recognized the difference in the proposals' 
professional/nonprofessional labor hour approaches and regarded it to 
be a strength in Juarez's proposal.  The agency was not required to 
give the difference any greater weight than that since the RFP did not 
require a specific allocation of professional and nonprofessional 
staff within that total amount of hours and did not state that 
additional credit would be given for the proposal of a higher 
percentage of  professional labor hours. 

In sum, the contracting officer reasonably determined that the 
proposals were essentially equal and that the slightly higher 
technical rating (.7 percent) of the Juarez proposal did not justify 
award at the substantial [DELETED] cost premium.  The record also 
shows that the decision was made in accordance with the RFP's 
evaluation scheme, which specifically provided that if offers were 
approximately equal in technical merit, cost could become a 
significant factor for award.  See Ogilvy, Adams & Rinehart, 
B-246172.2, Apr. 1, 1992, 92-1 CPD  para.  332.

The protester also challenges the agency's cost evaluation of the 
proposals.  Juarez contends that the agency failed to conduct a proper 
cost realism analysis of the awardee's proposal because the 
independent audits of CODA's proposal did not take into consideration 
the fact that the CODA proposal failed to provide specific costs for 
certain sample focus group studies that were to be considered in 
preparing the cost proposals as part of the RFP's stated budget 
assumptions.  Juarez contends that the omitted focus group costs 
amount to approximately $230,000.  The agency responds that the RFP 
did not require the offerors' cost proposals to specifically state the 
proposed costs for each stated budget assumption.  The agency also 
reports that even if the $230,000 omission suggested by the protester 
(although neither the agency nor the awardee concedes the accuracy of 
that amount) is added to CODA's proposed costs, the resulting cost 
differential between the proposals would still be so substantial 
(representing at least a [DELETED] cost savings) that the award 
decision would remain unchanged.[2]  Given that the proposals were 
reasonably found technically equal, we agree with the agency that the 
protester was not prejudiced, even assuming that these costs should 
have been included in CODA's cost proposal.  See Barfield Assocs., 
Inc., B-238992,  Mar. 29, 1990, 90-1 CPD  para.  342; Alascom, Inc.--Recon., 
B-227074.2 et al., Sept. 16, 1987, 87-2 CPD  para.  257.

The protest is denied.

Comptroller General
of the United States

1. The record shows that after award, due to the unexpected 
unavailability of CODA's proposed project director, another individual 
(who Juarez acknowledges as having more experience) was substituted 
and is concurrently performing as project director under the contract.

2. The protester points out that the agency's report, stating that the 
award would still be made to CODA even if the protester's cost realism 
challenge had merit, is signed by the contracting officer and not the 
individual (i.e., the contracting officer's supervisor) who signed the 
source selection determination.  The agency, however, has advised our 
Office that both individuals have the authority to bind the government 
on this contract action and that the contracting officer's statement 
represents the agency's position.