BNUMBER:  B-270445
DATE:  March 6, 1996
TITLE:  PADCO, Inc.

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Matter of:PADCO, Inc.

File:     B-270445

Date:March 6, 1996

Kenneth A. Martin, Esq., Riley & Artabane, P.C., for the protester. 
Gary M. Winter, Esq., United States Agency for International 
Development, for the agency. 
John A. Carter, Esq., and John G. Brosnan, Esq., Office of the General 
Counsel, GAO, participated in the preparation of the decision.

DIGEST

1.  Agency's acceptance of proposed individual who had less than the 
required level of language proficiency was not prejudicial to the 
protester where the protester's own nominee had a similar deficiency 
and also was found acceptable. 
     
2.  Protest of agency's evaluation of the qualifications of the 
awardee's proposed key employee is denied where the record shows that 
the evaluation was reasonable and was conducted in accordance with the 
solicitation's evaluation criteria.

3.  Unavailability of host country officials to participate in the 
evaluation of proposals as specified in a solicitation for contract 
for assistance in developing host country housing does not invalidate 
evaluation that was reasonable and in accordance with the 
solicitation's evaluation criteria.     

DECISION

PADCO, Inc. protests the award of a contract to Technical Support 
Services, Inc. (TSS) by the United States Agency for International 
Development (USAID) under request for proposals (RFP) No. MOROCCO 
95-P-003.  PADCO challenges the award to TSS because, according to the 
protester, the awardee's proposal did not offer long-term personnel 
who conformed with the RFP requirements and the agency failed to 
follow its announced evaluation scheme.    

We deny the protest.

The USAID office in Morocco issued the RFP on June 9, 1995, to obtain 
the services of a technical support contractor for an "Urban and 
Environmental Support" project that is part of a larger program to aid 
Morocco in alleviating and resolving problems with substandard housing 
and environmental services.  The RFP contemplated a 4-year cost 
reimbursement contract for long- and short-term technical assistance 
and training to assist Moroccan agencies and municipalities.

The contractor's effort was to be headed initially by a "Chief of 
Party" (COP), and by a project planning specialist who would be 
responsible for seconding the COP in all management and technical 
oversight and would be expected to replace the COP in the final year 
of the contract.  The RFP stated that the COP would be responsible for 
managing all contract components and activities and would serve as the 
contractor's technical representative in interactions with both USAID 
and the Government of Morocco.  The COP was also to have primary 
responsibility for ensuring that all USAID project implementation 
regulations and procedures were followed.  The RFP required that the 
COP and the planning specialist have French and English language 
proficiency at least at Foreign Service Institute equivalent S3/R3.  
The RFP suggested that the COP be an expatriate and that the planning 
specialist be a Moroccan national or other resident hire.    

The RFP stated that offerors could suggest alternate personnel 
configurations, so long as they explained their deviations from 
USAID's suggestions, and that the COP did not have to be a leading 
expert in any particular aspect of the field because that expertise 
could be provided through the contractor's short-term personnel.  The 
RFP also stated that it would be acceptable to rearrange tasks, modify 
the number of work-months per person depending on the individuals 
selected, or propose individuals with slightly different 
specializations than those suggested, so long as all essential tasks 
were covered by a combination of long- and short-term personnel 
without resulting in excessive costs.  

The RFP provided that proposals would be evaluated by a committee of 
USAID officers and representatives of the host government, and 
identified the evaluation criteria and their relative weights as 
follows:

     Understanding of Housing and Urban Development in Morocco20 
     points
     Overall Approach to the Project               35 points
     Innovativeness and Viability of General Approach and 
     Methodology15 points
     Quality of Long-Term Personnel                40 points
     Quality of Short-Term Personnel               30 points
     Evidence of Relevant Corporate Experience and Ability25 points
     Cost Containment and Reasonableness of Costs  35 points

With regard to the evaluation of long-term personnel, the RFP stated 
that the points would be allocated between the COP nominee (25 points) 
and the project planner (15 points) and that the evaluation would be 
based primarily upon relevant experience, appropriate technical and 
language skills and relevant academic training. 

Both PADCO and TSS proposed project planners that did not quite 
satisfy the RFP's language proficiency requirement.  After an 
evaluation by USAID personnel, USAID eliminated the third firm's 
proposal from the competitive range.  TSS received an initial 
technical score of 133.5 and a cost score of 26; PADCO's technical 
score was 116 and its cost score was 18.  During discussions both were 
asked about the language capabilities of their project planners and 
each responded in similar fashion--by proposing accelerated language 
training for the original nominee or, alternatively, another candidate 
with greater language proficiency.  In both instances, the evaluators 
preferred the original candidates and considered the accelerated 
language training to be satisfactory.  In the final evaluation the 
overall scores for technical and cost were 159.5 for TSS and 134 for 
PADCO.   The agency awarded the contract to TSS, which had the highest 
technical rating and offered the lowest proposed cost. 

PADCO argues that USAID improperly waived or relaxed the solicitation 
requirement regarding project planner language proficiency by 
accepting TSS' proposal.  PADCO further argues that TSS' COP does not 
satisfy the requirement for knowledge of USAID's project regulations 
and procedures.  Finally, the protester asserts that USAID failed to 
adhere to the RFP's evaluation scheme by excluding representatives of 
the Moroccan government from the technical evaluation committee.[1] 

PROJECT PLANNER

The evaluation record shows that the agency was concerned that the 
language skills of the project planners offered by both firms fell 
short of the RFP requirements. The matter was brought to the attention 
of both firms during discussions.  Each firm responded in a similar 
manner, offering to train the candidates originally proposed or to 
offer alternate candidates possessing the requisite language skills.  
In both instances the agency evaluators chose to accept the original 
candidate because of the candidates' other qualifications.

The protester argues that this waiver/relaxation of the solicitation 
requirements was improper and takes the position that both proposals 
should have been rejected or the solicitation amended.  We do not, 
however, understand how the protester was prejudiced by the agency's 
action.  Both firms offered candidates with the same deficiency and 
both offered essentially the same solution during discussions, which 
the agency accepted in both instances.  There is nothing in the record 
that indicates the deficiencies resulted in inconsistent ratings of 
the proposals.  Prejudice is an essential element of every viable 
protest, McDonnnell Douglas Corp., B-259694.2; 
B-259694.3, June 16, 1995, 95-2 CPD  para.  51, and we will not sustain a 
protest where the record does not establish prejudice.  We thus have 
no basis upon which to object to the agency's action in this regard.

CHIEF OF PARTY 

PADCO argues that USAID acted improperly by accepting the TSS proposal 
despite the fact that the firm's proposed COP did not have the 
qualifications to meet the RFP requirement that the COP be responsible 
for ensuring adherence to all USAID project implementation regulations 
and procedures.  The protester points out that in order to propose its 
fully qualified COP it had to offer a much higher salary than was 
proposed by TSS for TSS' less well-qualified candidate, and PADCO 
therefore was prejudiced in the evaluation. 

The record shows that the evaluators noted that TSS' COP did not have 
much background in USAID regulations and procedures.  They so informed 
TSS during discussions.  The firm responded by admitting that its 
proposed COP was not an expert in USAID procedures but explained that 
he had extensive experience in the civil service and that he would be 
assisted by others on the proposal team who have such experience.  
This was acceptable to the agency. 

In reviewing the propriety of an agency evaluation, it is not our 
function to independently evaluate proposals and substitute our 
judgment for that of the contracting agency.  North Florida Shipyard, 
Inc., B-260003 et al., Apr. 14, 1995, 95-1 CPD  para.  201.  Rather, we will 
review an evaluation only to ensure that it was reasonable and 
consistent with the evaluation criteria in the solicitation.  Id.  
There was no requirement in the RFP that a COP have any particular 
background, just that he be able to assume the primary responsibility 
for ensuring that USAID regulations and procedures were followed.  The 
evaluators concluded that TSS' COP could adequately perform this 
function based upon his general civil service background and on the 
fact that others with the requisite knowledge of USAID regulations and 
procedures would be available to assist him.  We do not find this 
conclusion unreasonable.  

EVALUATION TEAM

PADCO argues that USAID violated the evaluation scheme set forth in 
the solicitation by failing to include representatives of the Moroccan 
government on the proposal evaluation team.  According to the 
protester, those officials have unique insight into the housing 
problems that are the subject of the contract and, by excluding them, 
USAID denied PADCO the competitive advantage inherent in its extensive 
past experience in working with the Moroccan government.

The RFP did specify that the proposals would be evaluated by a 
committee of USAID officers and representatives of the host 
government.  However, according to the agency, it was unable to 
provide such an evaluation group because the host country 
representatives were not available.

Generally, the composition of a technical evaluation board or 
committee is within the discretion of the contracting agency, and we 
will not question the composition of the board or committee unless 
there is evidence of fraud, bad faith, conflict of interest, or actual 
bias.  MGM Land Co.; Tony Western, B-241169; B-241169.2, Jan. 17, 
1991, 91-1 CPD  para.  50.  Further, even the fact that the composition of 
the evaluation committee or board changes during the course of a 
procurement does not automatically indicate anything improper, so long 
as the underlying evaluation is reasonable and consistent with the 
evaluation criteria.  See Space Applications Corp., B-233143.3, Sept. 
21, 1989, 89-2 CPD  para.  255.

It is unfortunate that the host country representatives were not able 
to participate in the evaluation.  Nevertheless, in view of the fact 
that the record does not show that the evaluation that was conducted 
was unreasonable, inconsistent with the stated evaluation criteria, or 
otherwise improper, this matter provides no basis upon which to 
question the selection of TSS. 

The protest is denied.

Comptroller General
of the United States 

1. In its initial protest to our Office, PADCO also contended that 
TSS' COP was a third-country national, not an expatriate; that TSS' 
costs could not be realistic; and that USAID made the award to TSS 
based solely on TSS' lower costs.  USAID addressed these allegations 
in its report on the protest and PADCO did not respond to USAID's 
positions on these issues.  We therefore consider PADCO to have 
abandoned these allegations.  D & M Gen. Contracting, Inc., B-259995; 
B-259995.2, May 8, 1995, 95-1 CPD  para.  235.