BNUMBER:  B-270012.2
DATE:  March 19, 1996
TITLE:  Ogden Support Services, Inc.

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

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:Ogden Support Services, Inc.

File:     B-270012.2

Date:March 19, 1996

Ronald K. Henry, Esq., and Mark A. Riordan, Esq., Kaye, Scholer, 
Fierman, Hays & Handler, for the protester.
Dennis J. Riley, Esq., and Joseph G. Billings, Esq., Riley & Artabane, 
P.C., for American Systems Corporation, the intervenor.
Diane Florkowski, Esq., Central Intelligence Agency, for the agency.
Charles W. Morrow, Esq., and Guy R. Pietrovito, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Agency's technical evaluation, and source selection based upon that 
evaluation, was not found reasonable because the agency evaluated the 
protester's and awardee's proposals nearly identically under the 
solicitation's past performance evaluation factor without the record 
containing sufficient information and analysis to establish equality.

DECISION

Ogden Support Services, Inc. protests the award of a contract to 
American Systems Corporation (ASC) under request for proposals (RFP) 
No. 95-W001, issued by the  Central Intelligence Agency (CIA), Office 
of Information Technology, for mail and courier support services.  
Ogden challenges the agency's evaluation of technical and cost 
proposals, conduct of discussions, and source selection decision.

We sustain the protest.

The RFP provided for the award of a cost-plus-award-fee, 
level-of-effort (LOE) contract for mail and courier support services 
for a base period of June 1, 1995, to September 30, 1995, with 2 
priced option years and 2 unpriced option years.  The RFP's statement 
of work (SOW) informed offerors that the required total level of 
effort was 22 full-time persons per year and that contractors would 
provide personnel to work a standard 40-hour workweek, consisting of 5 
consecutive duty days and 8-hour shifts.  Offerors were also informed 
that contractor personnel would not normally be required to work 
overtime, weekends, or federal holidays, but that the government 
reserved the right to order additional hours to meet its requirements.  
The RFP also set forth a minimum transition schedule that required the 
contractor to provide six persons, including one task leader, within 
30 calendar days of award, with another six persons (including one 
other task leader) being provided every 6 weeks until the contractor 
had provided 22 persons by September 30.  Offerors were permitted to 
offer a quicker transition, or "ramp-up," schedule.

All 22 personnel were identified by the RFP as key personnel, for 
which offerors were required to provide resumes.  The SOW required 
that all personnel, prior to starting work, have received "top 
secret/industrial security staff approval" clearances.  Personnel were 
also required to have a high school diploma or general equivalency 
degree (GED) certificate.[1]  The SOW also provided that all personnel 
would be trained in the agency's distribution requirements and that 
this training should not exceed four to six weeks.  The transition 
period was provided to allow offerors the opportunity to obtain 
personnel meeting these contract requirements.  

The RFP provided for award to the offeror whose proposal represented 
the best value to the government, cost/price and other factors 
considered.  The following technical evaluation factors and subfactors 
were identified:

        1.  Personnel

          a.  Qualifications
          b.  Availability/Clearances

        2.  Project Management and Control

          a.  Staffing Plan
          b.  Management Plan
          c.  Training, Safety, and Certifications

        3.  Past Performance

The personnel factor was stated to be more important than the project 
management/control factor, and both the personnel and project 
management/control factors were stated to be significantly more 
important than past performance.  The RFP provided that cost would not 
be weighted, but would be evaluated on the basis of "cost realism and 
actual cost."[2]  Offerors were informed that cost realism would be 
evaluated on the basis of the LOE stated in the SOW.  

Detailed proposal preparation instructions were provided for each 
evaluation factor and subfactor.  Regarding the past performance 
factor, offerors were requested to identify "at least three similar 
[g]overnment and industry contracts received in the past three years 
or currently in negotiation [with] performance of work similar to the 
effort described in this RFP."  The RFP also defined "similar 
experience" to be providing support to "similar type mail and courier 
efforts and/or administrative support service type efforts."

The CIA received proposals from Ogden, the incumbent contractor, and 
ASC, by the closing date for receipt of proposals.  ASC proposed 
approximately [DELETED] more man-hours than did Ogden, consisting of 
approximately [DELETED] more for the 4-month base period and 
approximately [DELETED] more for each option year.  The difference in 
the offerors' proposed hours for the option years was because Ogden's 
man-year consists of [DELETED] direct-productive hours, while ASC's 
man-year consists of [DELETED] direct-productive hours.  

Both proposals were determined to be in the competitive range, and 
technical and cost discussions were conducted with each offeror.  
Regarding Ogden's cost proposal, the CIA was concerned with the 
protester's [DELETED] which was much [DELETED] and that Ogden's  
[DELETED] was not consistent with Ogden's approved Cost Accounting 
Standards (CAS) disclosure statement.[3]  Hearing Transcript (Tr.) at 
15, 73-74.  The CIA asked Ogden when it intended to submit its 
proposed disclosure statement amendment or modification to the 
cognizant contracting officer, to explain its [DELETED].  Ogden 
replied by providing the CIA with its proposed CAS disclosure 
statement revisions; Ogden, however, did not indicate when it intended 
to submit its proposed accounting system revisions to the cognizant 
contracting officer.  Ogden also informed the CIA that [DELETED].

The agency's technical management evaluation team (TMET) evaluated 
Ogden's and ASC's technical proposals as follows in the final 
evaluation:

                                   Ogden     ASC

     Personnel(50 pts)             48.68     47.52

     Project Management/Control (40 pts)38.0239.34
        
     Past Performance (10 pts)     10         9.6

     TOTAL                         96.70     96.46

Both firms' proposals were evaluated as containing a number of 
strengths and only two weaknesses.  One of the weaknesses of ASC's 
proposal was that of ASC's seven identified contract references, only 
two "demonstrated favorable performance on mail and courier/similar 
type service contracts."

Ogden's proposed total cost plus fee was slightly less than ASC's.  
The firms' proposed costs were evaluated by the agency's cost 
evaluation team (CET) with the support of the contract audit division 
(CAD).  The CET determined that ASC had proposed more labor hours than 
had Ogden for the base period, as well as for the two priced option 
years, and that, although Ogden had submitted a lower total "price" 
(calculated by the CET as total proposed costs plus award fee), ASC's 
contract price per hour was lower than Ogden's because ASC proposed 
more man-hours.  Specifically, the CET concluded that "ASC's proposal 
. . . represents a marginal cost savings over Ogden's when comparing 
the total dollars to hours ratio."  The CET noted that, while Ogden 
had proposed [DELETED] Ogden's proposed accounting system revision 
were not accepted, Ogden's costs would be higher than proposed.   

The technical and cost evaluations were provided to the source 
evaluation board (SEB).  The SEB found that both offerors' proposals 
were in the "very good range," demonstrated an overall competence, and 
that major strengths significantly outnumbered the identified 
weaknesses.  Regarding the firms' proposed costs, the SEB noted that 
ASC had proposed more hours than had Ogden and that ASC's "proposed 
hourly rate is lower than Ogden's proposed hourly rate."  The SEB also 
expressed concern with Ogden's [DELETED] noting that Ogden had not 
submitted disclosure statement revisions to the cognizant contracting 
officer responsible for negotiating [DELETED].  The SEB concluded that 
"[g]iven the contract shall be a [LOE] contract, ASC's proposal 
provides savings to the [g]overnment based upon the total hours and 
costs proposed."  Consequently, the SEB recommended award to ASC as 
the firm whose proposal offered the best value to the government.

The source selection authority (SSA) concurred with the SEB's 
recommendation of award to ASC.  The SSA found that ASC's and Ogden's 
proposals were technically equal based solely upon the closeness of 
the technical point scores.  In this regard, the record shows that the 
SSA did not review the proposals or evaluation documentation 
underlying the SEB's recommendations.  Indeed, the SSA erroneously 
stated that ASC's proposal was rated higher than Ogden's under the 
past performance factor and that ASC had proposed a more accelerated 
transition schedule.  The SSA concluded that ASC's offer represented 
the best value to the government because ASC had offered approximately 
[DELETED] more man-hours than had Ogden at a lower hourly rate.  
Specifically, the SSA stated:

     "As the [g]overnment is procuring manpower on a LOE basis the 
     average price per hour is a significant issue.  The proposed 
     average price per labor hour is derived by dividing the total 
     proposed price for each contractor by their total proposed labor 
     hours.  ASC's proposed price per labor hour of [DELETED] is lower 
     than Ogden's proposed price of [DELETED] per hour."

Award was made to ASC, and this protest followed.  Performance has 
been stayed pending our decision in this matter.

Ogden challenges the technical evaluation and conclusion that the 
firms' offers were essentially equal.  Specifically, Ogden complains 
that ASC received an "excellent" technical rating (with a score nearly 
identical to Ogden's perfect score) for past performance, even though 
the awardee's proposal does not sufficiently demonstrate mail/courier 
service or similar experience, as required by the RFP, and the TMET 
assessed ASC's lack of three references for mail/courier or similar 
support services contract to be a proposal weakness.

In reviewing a protest challenging an agency's technical evaluation, 
we examine the record to ensure that the agency's evaluation was 
reasonable and consistent with the stated evaluation criteria.  Abt 
Assocs. Inc., B-237060.2, Feb. 26, 1990, 90-1 CPD  para.  223.  Here, there 
is insufficient information and analysis in the record to establish a 
reasonable basis for the past performance score ASC received vis-a-vis 
Ogden's past performance score. 

As noted above, the TMET in its final technical evaluation noted two 
weaknesses in ASC's proposal, one of which concerned ASC's past 
performance.  Specifically, the TMET found a weakness that only two of 
ASC's contract references "demonstrated favorable performance on mail 
and courier/similar type service contracts."  Although the RFP 
requested a demonstration of mail/courier or similar service 
experience on at least three contracts, the TMET gave ASC's proposal a 
nearly perfect score under this evaluation factor.[4]  The CIA points 
out that all five of ASC's contract references who responded to the 
agency's inquiry (out of seven references provided) gave favorable 
recommendations.  It contends that ASC's proposal identified four 
contract references for either mail or courier service or for similar 
administrative type efforts.  However, the agency has not identified 
which of the seven contract references in ASC's proposal led the 
agency to this conclusion.  ASC's contract descriptions, which are 
sketchy because of their classified status, indicate that only two 
contracts included any meaningful mail or courier service as part of 
the overall contract requirements, and none of these contracts were 
exclusively for such services.  It may be that the work performed by 
ASC under the contracts cited in its proposal, either individually or 
cumulatively, constituted sufficient evidence of the firm's past 
performance to warrant ASC's rating.  Without additional information 
and analysis in the record, however, we cannot conclude that this is 
the case.

Ogden's proposal received a perfect past performance score based upon 
its showing of specific experience in performing the contract 
requirements that are the subject of this RFP and its identification 
of two other contracts with substantial mail or courier service 
requirements, and the TMET assessed Ogden's demonstrated experience to 
be a proposal strength.  This evaluated strength in Ogden's  proposal, 
however, translated into only a [DELETED] score advantage under the 
past performance factor because of the high point score given ASC.  
Since the record is insufficient to support the agency's past 
performance evaluation, it is insufficient to support the close scores 
of Ogden's and ASC's proposals under this evaluation factor.  See J.M. 
Cashman, Inc., B-233773, Apr. 14, 1989, 89-1 CPD  para.  380.  Thus, it is 
not clear that the SSA had a reasonable basis to determine that 
Ogden's and ASC's proposals were technically equal overall.

The record shows that the SSA relied upon the SEB's report in 
determining that the firms' proposals were essentially equal; the SEB 
report only details the point scores received by the firms under each 
of the evaluation factors and does not provide the basis for the 
scores.  There is no indication in the record, nor assertion from the 
agency, that the SSA reviewed, or was familiar with, the TMET's 
evaluation findings and assessment of proposal strengths and 
weaknesses.

Indeed, in making the award selection, the SSA misapprehended several 
facts.  For example, the SSA erroneously states in his selection 
decision that ASC's proposal was rated higher than Ogden's under the 
past performance factor.  Also, the SSA erroneously stated both in his 
selection decision and during the hearing that ASC's proposal of more 
man-hours was due to ASC proposing a more accelerated transition 
schedule, which the SSA apparently regarded as a proposal strength, 
Tr. at 86-87, 90; Ogden, as the TMET correctly found, proposed a more 
accelerated transition schedule than did ASC.  Finally, the SSA 
apparently believed that the ASC's offer of more man-hours to perform 
the contract would be beneficial.  However, the LOE called for by the 
RFP does not vary with the offeror for the basic contract work; it is 
the same 22 person LOE for the full years of performance, regardless 
of which company performs the contract.  Thus, ASC's estimates of more 
hours for performance for the full years does not mean that ASC was 
actually offering anything more than Ogden offered for the basic 
contract work.  In this regard, the agency's contracting officer 
testified during the hearing that ASC was not going to do anything 
differently from Ogden under the contract; "it will be the same work."  
Tr. at 60.

Based on this record, it is unclear whether the SSA would have 
considered the difference in the two firms' evaluated past performance 
a meaningful discriminator, such that Ogden's proposal would have been 
considered technically superior, or whether Ogden's and ASC's 
proposals would still have been considered technically equal; we 
sustain the protest on this basis.  If the two proposals are 
reasonably found technically equal, then ASC's lower cost would result 
in that firm's selection.  If Ogden's proposal is reasonably 
determined technically superior to ASC's lower cost proposal, the 
agency would have to perform a cost/technical tradeoff analysis to 
determine which offer represents the best value to the government.

Ogden also argues that the CIA irrationally determined which proposal 
offered the most favorable cost terms by comparing the ratios of the 
offerors' total proposed price (calculated as the sum of the estimated 
costs and award fee) to their proposed total man-hours, and deriving a 
contract price labor rate, which it then used in making the award 
selection.  As indicated, the LOE for the basic contract work 
requiring 22 persons working the same number of hours should have been 
identical; however, the offerors' cost proposals were based upon 
differing man-hour estimates, even for the option years that should 
involve the same number of hours, because of the firms' differing 
man-years.  

The effect of the agency's contract price labor rate calculation was 
to normalize the labor hours among the offerors for the entire 
contract period, such that even though Ogden's proposed total cost is 
lower than ASC's, ASC's cost per hour would be low because of its 
greater number of proposed hours.  The problem with this calculation 
here is that the bulk of difference between the proposed hours was 
during the transition, phase-in period, which contemplated the 
possibility of differing technical approaches and hours, and that, by 
including these hours in calculating the contract price per hour, 
ASC's cost advantage is exaggerated, presuming these phase-in hours 
constituted ASC's technical approach.[5]  Moreover, the award 
selection did not consider the offerors' probable costs, but only 
proposed costs, even though the CIA questioned (we think reasonably) 
Ogden's [DELETED] because it was not persuaded by Ogden's [DELETED] 
the agency's concern with [DELETED] was not mitigated due to Ogden's 
[DELETED]. 

We recommend that the CIA reevaluate the firms' technical proposals, 
and determine and document whether they are technically equal.  If the 
proposals are reasonably found technically equal, there is no basis to 
disturb the award.[6]  If Ogden is found to be technically superior, 
the agency should conduct discussions with the firms if necessary; 
complete a probable cost analysis of the cost proposals; conduct a 
cost/technical tradeoff analysis consistent with this decision; and 
make a new source selection.  If the CIA determines that award should 
more appropriately be made to Ogden, the CIA should terminate ASC's 
contract and make award to Ogden.  We also recommend that the 
protester be reimbursed its costs of filing and pursuing its protest, 
including reasonable attorneys' fees.  Bid Protest Regulations,  sec.  
21.8(d)(1), 60 Fed. Reg. 40,737, 40,743 (Aug. 10, 1995) (to be 
codified at 4 C.F.R.  sec.  21.8).  The protester should submit its 
certified claim for costs to the contracting agency within 90 days of 
receiving this decision.  Bid Protest Regulations,  sec.  21.8(f)(1).

The protest is sustained. 

Comptroller General
of the United States

1. The high school diploma or GED certificate requirement is a new 
contract requirement.  [DELETED]

2. The RFP did not identify the relative weight assigned to the cost 
factor.  Where a solicitation fails to explicitly state the relative 
weight of cost in the evaluation scheme, it must be presumed that cost 
and technical considerations will be accorded equal weight and 
importance in the evaluation.  Meridian Corp., B-246330.3, July 19, 
1993, 93-2 CPD  para.  29.

3. Ogden, as a CAS covered contractor, is required to file a 
disclosure statement, describing its cost accounting practices and 
procedures, with the cognizant administrative contracting officer and 
contract auditor.  See 48 C.F.R. Subpart 9903.202-1 (1994).

4. The agency's source selection plan guidance to evaluators provided 
that an "excellent" score, such as provided to ASC's proposal under 
this factor, should only be given where "[t]here are all strong points 
and no weaknesses or deficiencies identified."

5. As indicated, the SSA erroneously believed that these additional 
hours reflected ASC's more accelerated transition schedule, even 
though Ogden's proposed  schedule is more accelerated.  From our 
review, we cannot ascertain what these additional hours in ASC's 
proposal represent.

6. Ogden also protests a number of other aspects of the agency's 
technical evaluation and the agency's conduct of discussions.  We have 
reviewed these other allegations and find them to be without merit.