BNUMBER:  B-266360
DATE:  February 12, 1996
TITLE:  Southern Research

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Matter of:Southern Research

File:     B-266360

Date:     February 12, 1996

Karen G. Wood for the protester.
Nicholas P. Retson, Esq., and Michael J. O'Farrell, Jr., Esq., 
Department of the Army, for the agency.
Paula A. Williams, Esq., and Michael R. Golden, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1.  Post-award protest challenging the requirements in solicitation 
for additional archeological services or staff as vague, indefinite, 
or unnecessary is untimely. 
 
2.  Protest against award to offeror with a lower-priced, slightly 
lower-rated proposal is denied where agency reasonably determined that 
cost premium involved in awarding to higher-rated, higher-priced 
offeror was not justified.

DECISION

Southern Research protests the award of a contract to Southeastern 
Archeological Services, under request for proposals (RFP) No. 
DABT10-95-R-0055, issued by the Department of the Army, for 
archeological services.  Southern argues that the RFP is defective 
because the performance work statement (PWS) contains a requirement 
for additional services that were "unquantified, vague and 
indefinite"; that during discussions the agency effectively requested 
the protester to add more personnel than what was required by the 
solicitation which caused the protester to increase its overall price; 
and that the selection of Southeastern for award was inconsistent with 
the award criteria.

We deny the protest.

As amended, the RFP contemplated award of a firm, fixed-price contract 
for an archeological survey of approximately 4,406 acres located at 
Fort Benning.  The PWS called for a contractor to provide personnel, 
facilities, equipment, and supplies to perform the required types of 
work, including background research, field survey, laboratory 
analysis, artifact conservation, documentation and reporting.  Among 
other things, the PWS stated at section C.5.4.4 that:

     "Additional services which may be required during the intensive  
     survey include written recommendations for mitigation and 
     alternatives; preparation of time and cost estimates for 
     mitigation measures; completion of National Register of Historic 
     Places forms; and preparation and production of special reports."

The solicitation established 12 labor categories, setting forth 
minimum educational and experience requirements.  The RFP generally 
provided that award would be made to the offeror whose proposal can 
accomplish the necessary work in a manner most advantageous to the 
government.  It expressly stated that technical experience and 
delivery were more important than price. 

On August 16, prior to the time set for receipt of initial proposals, 
Southern submitted a written request to the contracting officer to 
clarify six technical areas in the RFP, including section C.5.4.4.  In 
response, the Army issued amendment 0002 on August 25 which revised 
four of the six technical areas; however, section C.5.4.4 of the 
solicitation was not revised.  In follow-up telephone conversations 
initiated by the protester with the contracting officer and the 
contract specialist, the firm was advised that the two areas not 
addressed by amendment 0002 would remain the same.  

The agency received four offers, including offers from Southern and 
Southeastern, by the September 11 amended closing date.  All four 
offers were included in the competitive range with the proposals 
submitted by Southern and Southeastern receiving the highest technical 
rating possible.  Based on Southern's greater experience as a 
successful contractor for these type services at Fort Benning, its 
proposal was ranked first; Southeastern's proposal was ranked second.  
Oral discussions were held with the four offerors on September 15, and 
best and final offers (BAFO) were submitted on September 19.  After 
BAFOs were evaluated, the technical ratings and rankings for Southern 
and Southeastern remained the same; Southeastern offered a BAFO price 
that was $5,100 less than the price offered by Southern.  The 
contracting officer determined that Southeastern's offer was the most 
advantageous to the government on the basis that Southeastern's price 
advantage outweighed the protester's slight advantage in experience.  
Award was made to Southeastern on September 22.  This protest 
followed.

We dismiss as untimely the argument that Southern submitted a 
higher-priced offer than it otherwise would have because of the 
uncertainty created by the vague and indefinite additional services 
required by section C.5.4.4.  Our Bid Protest Regulations contain 
strict rules requiring timely submission of protests.  Under these 
rules, protests based upon alleged improprieties in a solicitation 
which are apparent prior to the time set for receipt of initial 
proposals must be filed prior to that closing time.  4 C.F.R.  sec.  
21.2(a)(1) (1995).  
Here, Southern clearly knew of the alleged deficiency in the 
solicitation prior to submitting its proposal.  In fact, the protester 
asserts that it "added to our bid to cover clause C.5.4.4," after the 
contracting officer refused to change or otherwise revise section 
C.5.4.4.  If the protester still believed that the solicitation 
contained vague and undefinable requirements for additional services , 
it should have protested on this basis before the September 11 amended 
closing date for receipt of initial proposals.  Southern's failure to 
protest prior to that date precluded the possibility that corrective 
action could be taken, if warranted, before the expenditure of 
significant time and effort and the exposure of prices.  Southern's 
post-award protest in this regard is untimely.  See Capitol Paving of 
D.C., Inc., B-256896, July 5, 1994, 94-2 CPD  para.  10.

Southern also complains that the agency acted improperly by imposing 
unnecessary and unrelated staffing requirements during discussions.  
The protester states that it knew at the time that the agency was 
acting improperly but that it nonetheless elected to simply include 
the cost for the additional personnel in its BAFO prices.  We dismiss 
this issue as untimely also.  We do not think a vendor can learn of 
what it clearly views as improper agency action, and continue to 
compete on that basis without objection, and then complain when it is 
not selected for award.  Southern should have protested this matter 
prior to the closing date for BAFOs.  4 C.F.R.  sec.  21.2(a)(1).
 
Finally, Southern argues that the award decision was flawed since the 
agency did not fully take into account Southern's evaluated 
superiority under the technical factor and cost became the deciding 
factor, contrary to the announced criteria in the RFP.  Source 
selection officials in a negotiated procurement have broad discretion 
in determining the manner and extent to which they will make use of 
the technical and cost evaluation results; cost/technical tradeoffs 
may be made, and the extent to which one may be sacrificed for the 
other is governed by the test of rationality and consistency with the 
established evaluation factors.  Family Realty, B-247772, July 6, 
1992, 92-2 CPD  para.  6.  Even where cost or price is the least important 
evaluation factor, an agency may award to an offeror with a 
lower-cost, lower-scored proposal if it determines that the cost 
premium involved in awarding to a higher-rated, higher-priced offeror 
is not justified.  Id.; Dayton T. Brown, Inc., B-229664, Mar. 30, 
1988, 88-1 CPD  para.  321.

The tradeoff here was reasonable.  As discussed above, the agency 
recognized that Southern's proposal was somewhat more advantageous 
under the technical factor, because of its record of successfully 
providing the required archeological services under its incumbent 
contracts at Fort Benning.  The contracting officer determined, 
however, that since Southeastern had received the highest technical 
rating possible, Southern's advantage in experience did not warrant 
award at Southern's higher price.  Consequently, in light of the 
overall high quality of Southeastern's proposal, we have no basis for 
questioning the agency's conclusion that Southern's advantage under 
the experience factor was not as significant as Southeastern's price 
advantage.  While price was the least important evaluation factor, the 
agency was not precluded (as Southern's argument suggests) from 
ultimately basing the award on the lowest price merely because the 
price factor was least important.  See Dayton T. Brown, Inc., supra.

The protest is denied.

Comptroller General
of the United States