BNUMBER:  B-270102; B-270102.2
DATE:  February 8, 1996
TITLE:  Contrack International, Inc.

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

Matter of:Contrack International, Inc.

File:     B-270102; B-270102.2

Date:     February 8, 1996

Edward J. Tolchin, Esq., Fettmann & Tolchin, for the protester.
John Kennedy for Gulf Housing & Construction, an intervenor.
Bruce H. S. Anderson, Esq., and Ronald W. Breen, Department of the 
Army, for the agency.
Mary G. Curcio, Esq., and John M. Melody, Esq., Office of the General 
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Procuring agency's decision to award contract to lower-priced, lower 
technically rated offeror was reasonable, where the solicitation made 
price the most important evaluation factor and the technical 
differences between the protester's and awardee's proposal were 
reasonably found not significant and the price difference was 
considered significant in the circumstances.

DECISION

Contrack International, Inc. protests the award of a fixed-price 
contract to Gulf Housing & Construction Co., W.L.L., under request for 
proposals (RFP) No. DACA78-95-R-0021, issued by the Army Corps of 
Engineers for the construction of warehouse and storage facilities in 
Qatar.  Contrack asserts that the award was based on an unreasonable 
price/technical tradeoff.

We deny the protest.

BACKGROUND

The solicitation provided that proposals would be evaluated against 
the following criteria, listed in descending order of importance:  
price; experience; past performance; and management and execution 
plan.  Experience and past performance were to be point-scored and 
management/execution plan was to be evaluated on a pass/fail basis.  
Prices were to be evaluated for reasonableness.  The solicitation 
further provided:

     "Award will be made to the offeror whose proposal contains the 
     combination of those criteria offering the best overall value to 
     the Government.  This will be determined by comparing differences 
     in the value of the technical and management features with 
     differences in cost to the Government.

     "In making this comparison, the Government is more concerned with 
     making an award at the lowest overall cost to the Government than 
     with obtaining superior technical or management features.  
     However, the Government will not make an award based on a 
     proposal with significantly inferior technical or management 
     features to achieve a small savings in cost to the Government.  

     "When making tradeoff decisions during proposal evaluation, 
     offerors should remember that the Government prefers to obtain 
     better offeror experience, past performance and better management 
     execution plan quality rather than to obtain relatively small 
     price savings."

Eight offers were received.  Based on the evaluation of initial 
proposals (the technical proposals were evaluated by a technical 
evaluation team (TET) and the price proposals were evaluated by a 
cost/pricing team (CPT)), four offers, including the protester's and 
the awardee's, were included in the competitive range.  Both proposals 
were rated acceptable for the management/execution plan.  The 
protester's proposal received 52 out of 60 points for experience and 
56 out of 60 points for past performance, for a total technical score 
of 108 points.  Gulf's proposal received 44 points for experience and 
28 points for past performance, for a total technical score of 72.  

After discussions were held and best and final offers were submitted, 
Gulf had the lowest priced proposal ($4,201,503), and Contrack the 
second lowest-priced proposal ($4,394,400).  The CPT found that Gulf's 
proposed price was reasonable and recommended award to Gulf if it met 
all other solicitation requirements.  The contracting specialist 
performed a pre-award survey of Gulf, during which she contacted 
several former customers of Gulf.  Based on the information she 
received, she also recommended award to Gulf.

The contracting officer reviewed the award recommendation and the 
evaluation results, and questioned whether an award to Gulf was in 
accordance with the solicitation criteria.  Specifically, he was 
concerned that Gulf's low past performance score indicated significant 
inferiority (compared to Contrack) in this area and that Gulf's price 
appeared to only offer a relatively small price savings.  The 
contracting officer asked the TET to explain the difference in the 
past performance scores of Gulf and Contrack.  In response, the TET 
stated that those scores were based completely on information that was 
included in the proposals.  Gulf's proposal included relatively little 
past performance information, while Contrack's included a number of 
congratulatory letters from former customers; Contrack's higher score 
was based on these laudatory letters.  The contracting officer noted 
that the solicitation permitted the evaluators to consider information 
which the agency obtained on its own in evaluating past performance.  
He also noted that the pre-award survey indicated that Gulf's past 
performance was excellent.  He therefore raised Gulf's past 
performance score by 20 points, to 48, and determined that the 
difference in past performance scores--56 for Contrack versus 48 for 
Gulf--was not significant.  He also determined that while the 
4.38-percent price difference between the offers appeared small, the 
difference in fact was significant in the circumstances because the 
agency had no contingency funds available for change orders.  Based on 
his conclusions that the difference in the technical scores was not 
significant, and that the difference in price was, the contracting 
officer selected Gulf for award.

DISCUSSION

Contrack argues that the award to Gulf was improper because it was 
based on an unreasonable price/technical tradeoff.  Specifically, 
Contrack argues that the contracting officer erroneously determined 
that the difference in the scores under the experience (44 for Gulf 
versus 52 for Contrack) and past performance factors (48 for Gulf 
versus 56 for Contrack) was not significant, and that the price 
difference ($192,897) was significant.

Experience Factor

Contrack argues that its proposal received a higher score under the 
experience factor because it has experience constructing warehouse and 
storage facilities for the Corps--work under the RFP here valued at 
more than $4 million--and Gulf does not.  Contrack concludes that it 
was unreasonable for the agency to find that the scoring difference 
did not indicate that Gulf's experience was significantly inferior to 
Contrack's.

In evaluating Contrack's proposal, the agency recognized that Contrack 
had more than adequate experience performing the same kind of work 
called for under the solicitation.  However, the solicitation did not 
require offerors to demonstrate experience performing identical work.  
Rather, it provided that the government would evaluate ". . . the 
relative depth and breadth of experience in the technical execution of 
work experiences similar to that included in this solicitation."   In 
evaluating Gulf's experience, the agency found that Gulf had adequate 
experience performing similar projects.  Specifically, the evaluators 
stated that, based on the projects Gulf had undertaken, which were 
primarily construction of office and commercial buildings, Gulf had 
adequate experience, its key personnel had substantial experience, and 
Gulf had experience with the Corps on a project in which it 
participated as a joint venture partner.  In addition, one of the 
evaluators, while recognizing that Gulf had no experience constructing 
warehouse and storage facilities, determined that the projects Gulf 
had completed were technically equivalent to, or more complex, than 
the construction called for by the current solicitation.  The 
evaluators also recognized that Gulf had experience in Qatar.  Since 
the solicitation did not require experience performing work identical 
to that required under the solicitation, and the evaluators 
specifically found that Gulf had adequate experience performing 
similar work, the contracting officer reasonably determined that the 
scoring difference based on Contrak's experience performing identical 
projects did not indicate that Gulf's experience was significantly 
inferior to Contrack's.  

Past Performance

Contrack questions why Gulf's proposal received a score only 16 
percent lower than Contrak's, given that Contrak provided many more 
examples of past performance on similar projects.  

With respect to past performance the solicitation stated that: 

     "The Government . . . will compare, rank and score competing 
     offerors on the basis of the relative favorableness of their past 
     performance.  By past performance the Government means an 
     offeror's reputation for satisfying its customers by delivering 
     quality work in a timely manner at a reasonable cost.  Past 
     performance also includes an offeror's reputation for integrity, 
     reasonable and cooperative conduct, and commitment to customer 
     satisfaction.  All other points of comparison being equal, the 
     Government will place greater weight on performance of work more 
     closely related to that which is the same as or similar to the 
     work included in this solicitation."  

During the pre-award survey, the contracting specialist spoke with the 
project director for a school and sports hall that Gulf constructed in 
Qatar.  The project officer stated that Gulf was responsible for the 
construction, including all mechanical and electrical services and 
external work, was one of the best contractors in Doha, and was 
professional at all times and performed with no cost or time overruns.  
In addition, she stated that Gulf had one of the best labor pools in 
Qatar and that she had also worked on a large project in the oil 
fields on which Gulf performed extremely well as a subcontractor.

The contracting specialist also contacted the architect on a 
residential villa project built by Gulf.  The specialist's report 
states

     ". . . [The architect] stated that he has been involved in 
     business off and on with Gulf Housing over the past 15 years and 
     it has always been a pleasurable experience.  This project was 
     for the construction of fourteen (14) residential units including 
     all mechanical, electrical and external works.  Stated they are 
     well organized and performed well.  There was an increase in cost 
     and time on the project but that was due to changes requested by 
     the owner. . . .  [He] also worked on a project with Gulf ten 
     (10) years ago in which they constructed two large office 
     buildings and performed well on those also."

A third contact, from Qatar General Petroleum Corporation, informed 
the contracting specialist that Gulf had performed similar work for 
them on more than one occasion, that all work was completed in 
accordance with the corporation's standards, and that Gulf was a good 
civil contractor.  

This information in the pre-award survey, all provided by customers 
for whom Gulf had performed more than one project, gave the 
contracting officer a reasonable basis to find that Gulf performed 
well, satisfied its customers, completed its work in a cost effective 
and timely way, and had integrity.  While Contrack provided more 
information regarding past performance on similar projects, there is 
no basis to conclude that Contrack's proposal should have received a 
score more than 16 percent higher than Gulf's for past performance.[1] 

Contrack argues that the use of information from the pre-award survey 
to raise Gulf's past performance score constituted discussions and 
required the Corps to open discussions with all competitive range 
offerors.  We disagree.  Discussions are written or oral 
communications between the government and an offeror which concern 
information necessary to determine the acceptability of a proposal or 
which provide an offeror with the opportunity to modify its proposal.  
Federal Acquisition Regulation (FAR)  sec.  15.601.  Here, the 
communication was not between Gulf and the Corps; it was between the 
Corps and the contacts Gulf listed in its initial proposal for prior 
contracts it performed.  (The solicitation permitted the agency to 
base the past performance evaluation on information other than that 
provided in the proposal.)  Such communications do not constitute 
discussions.  See Professional Safety Consultants Co., Inc.--Recon., 
B-247331.2, Sept. 28, 1992, 92-2 CPD  para.  209; Action Serv. Corp., 
B-246413; B-246413.2, Mar. 9, 1992, 92-1 CPD  para.  267.

Price Difference

Finally, Contrack challenges the contracting officer's conclusion that 
the $192,897 cost difference was significant.  Noting that this 
conclusion was based on the lack of contingency funds for contract 
changes, Contrack maintains that the contracting officer improperly 
did not consider that such funds would be unnecessary if award were 
made to Contrack, due to its greater experience and superior past 
performance. 

As discussed above, the contracting officer reasonably determined that 
Contrack's experience and past performance were not significantly 
superior to Gulf's; it follows, we think, that the contracting officer 
was not compelled to determine that the likelihood of changes would be 
less likely if award were made to Contrack.  In any case, the need for 
changes could arise independent of the contractor's capabilities, due 
to changes in agency preferences or unforeseen events, so some amount 
of contingency funds could be necessary no matter to which offeror the 
award were made.

The protest is denied.

Comptroller General
of the United States

1. Contrack also maintains that the contracting officer unreasonably 
determined that the 50-percent difference in the total technical 
scores--72 for Gulf's proposal, compared to 108 for Contrak's--was not 
significant.  This argument is based on Gulf's score before it 
adjusted upward to 92 points by the contracting officer.  As discussed 
above, the remaining 16-point difference in the experience and past 
performance areas reasonably was determined not to be significant.