BNUMBER:  B-270530; B-270530.2
DATE:  March 13, 1996
TITLE:  Mary Jo McDonough

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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:Mary Jo McDonough

File:     B-270530; B-270530.2

Date:March 13, 1996

Patricia H. Wittie, Esq., Sedky, Wittie & Letsche, for the protester.
Anna Chytla, Esq., U.S. Agency for International Development, for the 
agency.
Andrew T. Pogany, Esq., and Michael R. Golden, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

In a procurement for personal services contract, the contracting 
agency's technical evaluation and scoring of competing applicants' 
resumes and qualifications has not been shown to be unreasonable where 
its scoring in two technical areas was reasonable and the remaining 
arguments and assumptions of the protester, ranked third of three 
applicants, would not displace the second-ranked applicant as eligible 
for award ahead of the protester.

DECISION

Mary Jo McDonough, the incumbent, protests the award of a personal 
services contract (PSC) to [deleted] under an unnumbered job 
announcement issued by the U.S. Agency for International Development 
(AID) for a program and communications specialist in Jakarta, 
Indonesia.[1]  The protester principally argues that the agency 
violated its own hiring freeze, which, properly enforced, would have 
mandated a sole-source extension of the protester's contract; that the 
agency failed to follow the "solicitation's" evaluation criteria; that 
the agency applied undisclosed requirements and evaluation criteria in 
selecting [deleted]; and that the agency otherwise misevaluated the 
qualifications of the PSC applicants.

We deny the protest.

STATUTORY AND REGULATORY BACKGROUND

Section 636(a)(3) of the Foreign Assistance Act of 1961, as amended, 
22 U.S.C.  sec.  2396(a)(3) (1994), authorizes AID to contract with 
individuals for personal services abroad.  This statutory authority is 
generally implemented by provisions found in the AIDAR, 48 C.F.R.  sec.  
Ch. 7, App. D.  Section 5(c) of the AIDAR, App. D states:

     "[PSCs] are exempt from the requirements for full and open 
     competition with two limitations that must be observed by 
     Contracting Officers:

        (i) offers are to be requested from as many potential offerors 
        as is practicable under the circumstances. . . ." 
 
While the applicable statutory and regulatory provisions envision the 
use of procurement contracts for the services in question,[2] and 
although 22 U.S.C.  sec.  2396(c)(3) provides that individuals awarded 
personal services contracts "shall not be regarded as employees of the 
United States Government for the purpose of any law administered by 
the [Office of Personnel Management]," the regulations recognize that 
PSCs create essentially an employer-employee relationship, placing the 
individual under direct supervision of government employees.  App. D, 
section 1(b)(1).  The AIDAR, App. D, section 6 also states that 
"[n]egotiating a [PSC] is significantly different from negotiating a 
nonpersonal services contract because it establishes an 
employer-employee relationship; therefore, the selection procedures 
are more akin to the personal selection procedures."  

In this regard, the agency's Project Officer prepares a written 
statement of duties and a statement of minimum qualifications for the 
position.  This statement is incorporated into a procurement request, 
which is designated as a Project Implementation Order/Technical 
Services (PIO/T).  Additionally, the PIO/T contains, among other 
things, the foreign location of the job, the length of the contract, 
and the basic education, training, experience, and skills required for 
the position.  The contracting officer prepares a solicitation, which 
contains generally SF171s and SF171As, a detailed statement of duties 
or a completed position description for the position, and a copy of 
the prescribed contract cover page, schedule, and general provisions.  
The job announcement is then issued by the contracting officer, and 
resumes are received.  Award of the PSC is strictly based on technical 
qualifications, not price.  AIDAR, App. D, section 5(c)(3).  The 
project officer is responsible for reviewing and evaluating the 
applications and, if deemed appropriate, may interview the applicants 
before submitting his selection of the successful candidate to the 
contracting officer. AIDAR, App. D, section 6(a).  The contracting 
officer subsequently negotiates a fair and reasonable salary with the 
successful applicant, as previously selected by the project officer, 
based on the applicant's salary history.  AIDAR, App. D, section 6(b).  
These procedures were generally followed here.

FACTUAL BACKGROUND

Ms. McDonough is the spouse of an employee of the United States 
Embassy in Jakarta.  Her incumbent contract expired September 30, 
1995.  Previously, on July 3, 1995, AID imposed a freeze on personnel 
hiring in Washington, D.C. and abroad (the freeze included civil 
servants and PSCs).  Under the terms of the freeze, Mission Directors 
(such as the one in Jakarta) were authorized to permit exceptions to 
the freeze.  Extensions of contracts like Ms. McDonough's PSC were 
permitted under the freezes; however, new PSCs could only be awarded 
if the Mission Director authorized an exception to the freeze.

On August 1, the agency's Program and Project Support (PPS) Office 
requested an exception to the freeze to recompete this position 
because this

     "position will differ significantly from the previous scope 
     [inasmuch] as half the contractor's effort will focus on a new 
     activity:  the design, conduct, and assessment of the Mission's 
     first annual 'Customer Survey' [which will require] strong skills 
     in survey design, interpretation and data manipulation [which 
     were not previously required]."

The Mission Director authorized PPS to proceed with the competition.  
At that time, Ms. McDonough was so advised.

On August 2, the agency published a notice of employment opportunity 
which described the following duties:

     "(1) prepare public information on Mission activities and 
     coordinate with various offices of the United States Government 
     as well as the offices of the Indonesian Government;

     (2) design, conduct, and analyze the first annual USAID/Indonesia 
     customer survey; and

     (3) manage and coordinate Mission-wide performance-based 
     monitoring systems with tracks, benchmarks and progress 
     indicators of the program's strategic objectives and related 
     results packages."[3]

Additionally, the notice described the minimum qualifications for the 
position, including:  (1) skills and knowledge (documented ability to 
edit and write summaries of technical reports in fluent English, 
command of Wordperfect and LOTUS 123 spreadsheet software); (2) prior 
work experience (three or more years of professional work experience 
in positions requiring extensive writing, data collection, and 
analysis for the consumption of technical and managerial personnel and 
the public); and (3) academic training (an undergraduate degree in a 
relevant field).[4]

Five applications were received.  On September 12, the Dependent 
Employment Committee (DEC) interviewed all candidates.  DEC is an 
informal committee consisting of AID and Department of State employees 
and has no contracting or hiring authority.  DEC found that all 
candidates met minimum requirements, but ranked, without scoring, the 
top three applicants as Ms. McDonough, [deleted], and [deleted], 
respectively.[5]  Subsequently in September, the agency created a 
technical evaluation committee (TEC) composed of three individuals who 
reviewed the applications, interviewed the applicants and then 
evaluated them on a numerical scoring basis.[6] 

The initial evaluation encompassed skills and knowledge ([deleted] 
points out of a possible [deleted] points), prior work experience 
([deleted] points), academic training ([deleted]), and language 
abilities ([deleted] points).  The TEC ranked the applicants as 
follows:  (1) [deleted] ([deleted] points); (2) Ms. McDonough 
([deleted] points); and  (3) [deleted] ([deleted] points).  During a 
second, revised evaluation shortly thereafter, the TEC, at the request 
of the contracting officer, added and evaluated another criterion, 
availability for a 12-month contract, which was worth an additional 
[deleted] points.  The latter criterion was not evaluated as a go/no 
go factor, but as one of the several relative and comparative 
evaluation factors to be weighed and scored.  The final rankings for 
the second evaluation were as follows:  (1) [deleted] ([deleted] 
points out of a possible [deleted] points); (2) [deleted] ([deleted] 
points); and (3) Ms. McDonough ([deleted] points).  The agency awarded 
the PSC to [deleted] on September 30, 1995.  This protest to our 
Office followed an agency-level protest filed with AID by Ms. 
McDonough.

HIRING FREEZE

The protester argues that the agency violated the personnel freeze and 
wrote a justification for an exception "that does not withstand even 
cursory analysis."  For example, the protester argues that the hiring 
freeze was based on a budget crisis that the agency described as "so 
much more severe than we expected [that] even those exceptions 
[previously granted] must cease."  Also, the protester contends that 
the agency completely failed to adequately document the request for 
exception to reflect the "severe negative impact" on the agency that 
would result if the exception were not granted.  The protester also 
states that competing this contract "costs more than renewing an 
existing one," especially since the successful contractor's salary 
here was ultimately negotiated at a salary rate [deleted] higher than 
the protester's incumbent salary.[7]

The basic thrust of the protester's arguments is that her contract 
should have been extended on a sole-source basis.  However, we will 
not generally question an agency's decision to procure services 
competitively rather than to obtain them on a sole-source basis since 
the objective of our bid protest function is to ensure competition for 
government contracts.  See generally Sentinel Elecs., Inc., B-212770, 
Dec. 20, 1983, 84-1 CPD  para.  5.  We also think that a general agency 
hiring freeze (applicable, as here, to agency civil servants and PSCs) 
and any exceptions to such a hiring freeze are matters of executive 
policy within the agency's discretion and do not constitute a 
procurement issue cognizable under our bid protest function.  See 
American Airlines, Inc., B-258271, Dec. 29, 1994, 95-1 CPD  para.  5.

EVALUATION OF RESUMES

As stated above, the protester was third ranked in the final selection 
results.  In her protest submissions, the protester challenges the 
agency's evaluation of the qualifications of both the top-ranked 
candidate, [deleted], and the second-ranked candidate, [deleted].  The 
protester has submitted to our Office specific adjustments to the 
TEC's scoring (lowering [deleted] and [deleted] numerical technical 
scores and raising the protester's numerical technical scores in 
specific areas) that she believes would correct the agency's allegedly 
improper and erroneous scoring.  In this regard, the record shows that 
the agency, along with the protester, considered and treated the 
technical scoring results as dispositive for the selection decision.  
Neither the protester nor the agency argues that the rankings based on 
the technical scoring should not control the selection decision.[8]  
Consequently, we need only resolve the reasonableness of the agency's 
scoring in two specific evaluation areas to determine that the 
protester is not in line for award regardless of all her other 
arguments.

First, the protester contends that scoring for experience should have 
placed her ahead of any candidate.  She notes that the DEC, which 
ranked her first, stated:

     "Ms. McDonough was top-ranked [because] she already is performing 
     several job elements successfully and has the necessary 
     background in survey design, data collection and analysis to take 
     on the customer survey recently added as the top priority for 
     this position over the next six months."

Based solely on her examination of the resumes (written submissions) 
of the other candidates and the scoring sheets obtained when she 
received the agency report on her first protest, the protester claimed 
that "[deleted] has very little experience with data survey and 
manipulation, and [deleted] has less."  In fact, the record shows that 
the TEC rated Ms. McDonough the highest in this evaluation area 
([deleted] out of [deleted] points); [deleted] received [deleted] 
points; and [deleted] received ([deleted] points).  Further, contrary 
to the protester's assumptions, the TEC's evaluation was not limited 
to the written submission of candidates.  The TEC interviewed in depth 
each candidate concerning, among other things, the candidates' 
writing, analytical, and data collection skills.  The agency states as 
follows with respect to these interviews:

     "Ms. McDonough did have certain strengths, such as prior survey 
     and [AID] experience.  But the other candidates also had 
     exceptional professional experience which was comparable to Ms. 
     McDonough's.   . . . [deleted] explained during [deleted] 
     interview that [deleted] was performing an extensive national 
     survey [deleted].  [Deleted] also confirmed to the Committee 
     during [deleted] interview that over the past [deleted] requiring 
     the assessment of customers' viewpoints. . . . This experience 
     included survey work for [AID] overseas."

Because of her alleged superiority in prior work experience, the 
protester requests that we adjust the TEC's scoring and award her an 
additional [deleted] technical evaluation points, [deleted] from one 
evaluator and [deleted] from another.  In this regard, the protester 
contends that she could have furnished the TEC with numerous other 
customer surveys, in addition to the information she provided to the 
TEC, but was told by the TEC not to do so.  We think the agency's 
scoring was reasonable.  Despite the protester's admitted strengths in 
conducting surveys (prior experience), the protester has offered 
nothing to rebut the findings by the TEC, based on the interviews 
which the protester did not attend, that the other candidates had 
similar and comparable experience.  Since the protester received the 
highest score in this area, and since the agency has shown that the 
other candidates also had comparable experience, we see no reason to 
disturb the agency's scoring and findings, which rated the other 
applicants below the protester in this area but at a comparable level 
nonetheless.[9]

Second, the protester argues that in the evaluation area of academic 
training [deleted] score from one evaluator of [deleted] points out of 
[deleted] points should be reduced to 14 points because the protester 
claims that the agency used undisclosed criteria in evaluating the 
candidates by giving credit for academic degrees that were not 
directly relevant to the PSC position.[10]  [Deleted] resume showed 
the following academic training:

     [Deleted]

     [Deleted]

     [Deleted]

In comparison, Ms. McDonough's resume showed the following academic 
training:

     "B.A. English Literature, Vassar College
     M.B.A. Management Science, University of Rhode Island
     Hindi, 24 weeks, Foreign Service Institute
     South Asian Studies, 4 weeks, Foreign Service Institute
     Bahasa Indonesia, 24 weeks, Foreign Service Institute
     Southeast Asian Studies, Foreign Service Institute"

The agency, in its evaluation scoring sheets, evaluated, in addition 
to "relevant" graduate and undergraduate degrees, each candidate's 
"undergraduate degree in nonrelevant field," and gave [deleted] 
[deleted] points for [deleted].  The protester disputes this because 
the agency itself, on the scoring sheets, categorized the [deleted] as 
a "nonrelevant field."  We think that, whatever terminology is 
employed, the agency's evaluation here of a candidate's [deleted] was 
rational and relevant to the evaluation for a position requiring 
extensive written English.  In this regard, the protester states that 
if she had been on notice from the solicitation that [deleted] would 
be evaluated, she would have advised the TEC that she possessed a 
minor in mathematics.  However, we find that a reasonable candidate 
applying for a competitive position requiring, among other things, 
extensive data and survey work would, on her own initiative, list all 
educational qualifications she possesses, including especially any 
mathematical academic training.  The protester's failure to do so, in 
our view, was solely her responsibility.

The protester also complains that one evaluator valued the [deleted] 
degree of [deleted] as more valuable than the [deleted] of Ms. 
McDonough from the University of Rhode Island.  The short answer is 
that since different people and experts can reasonably agree or 
disagree as to the eminence or value of different university degrees, 
we will not disturb the scoring or the award on this basis in the 
absence of a showing that it was unreasonable.

Finally, the protester insists that there should never have been any 
evaluation of  12-month availability or language ability as evaluation 
criteria because they were not listed in the job announcement.  For 
purposes of this decision, we accept the protester's arguments.  
However, given our finding as to the reasonableness of the agency's 
scoring on prior experience and academic training, and given no other 
challenge by the protester to [deleted] scoring and ranking, the 
record shows that even if we eliminate, as requested by the protester, 
the 12-month availability and language ability as criteria for 
selection, the protester would still not be in line for award.  
Rather, under the protester's arguments and assumptions, the record 
shows that [deleted] would be in line for award.  We therefore see no 
useful purpose to be served by considering the protester's additional 
arguments concerning the agency's evaluation or [deleted] selection.  
See Dimensions Travel Co., B-224214, Jan. 13, 1987, 87-1 CPD  para.  52.

The protest is denied.

Comptroller General
of the United States

1. The PSC is a contract that creates an employer-employee 
relationship between the agency and the contractor.  See Federal 
Acquisition Regulation (FAR)  sec.  37.101.  Under an AID PSC for services 
abroad, the agency pays a portion of the contractor's health and life 
insurance, pays lodging and living allowances under specified 
circumstances, provides health rooms, and grants sick and annual 
leave, which is accrued on the same basis as government employees.  
The contractor is also eligible to receive benefits from injury, 
disability or death under the Federal Employees' Compensation Act 
administered by the Department of Labor.  See AID Acquisition 
Regulation (AIDAR), 48 C.F.R. Ch. 7, App. D (1994).  The position 
solicited here was limited to dependents of United States government 
employees.

2. Our Office thus has jurisdiction over this protest as it concerns a 
contract for the procurement of services.  See 31 U.S.C.  sec.  3551(1) 
(1994); FAR  sec.  37.104.

3. The employment notice also contained other duties that could be 
assigned to the successful applicant, including program backstop for 
the Office of Human and Institutional Resource Development, and to 
assist the Women in Development and Evaluation Officer.  This list of 
duties was not intended to be exhaustive.

4. Although the agency's PIO/T contained the length of the contract 
(12 months--starting approximately September 30, 1995), the employment 
notice itself did not specify the period of the PSC.  The agency 
states that Ms. McDonough knew at this time that AID contemplated 
awarding a contract for the full 12-month period.  Ms. McDonough was 
scheduled to definitely leave Jakarta in June 1996 (approximately 3 
months before the new PSC would expire) and states that she was not 
aware or made aware by the agency that her shorter job availability 
would be a detriment in any way to her securing the position.

5. The DEC noted that Ms. McDonough's "scheduled departure from post 
in less than 12 months is a disadvantage for long-term continuity, but 
she has the advantage of knowledge already acquired of PPS 
specifically and USAID [which should put her in the] best position to 
be able to carry out the survey project by the stipulated deadline of 
April 1."  [Deleted]

6. We will limit our discussion to the evaluation of the three top 
applicants.

7. The protester also argues that the agency did not have funds to pay 
the successful applicant's salary based on the fact that [deleted] 
contract, as awarded, shows only $46,388 obligated, while the total 
contract price was [deleted].  The contracting officer states that he 
obligated only fiscal year 1995 budget funds since the contract was 
signed in that year and the remainder would be funded by 1996 fiscal 
year funds.  The agency also states that this type of incremental 
funding is common.  Although the protester argues that there is no 
1996 fiscal year budget in effect, the agency has been operating under 
a continuing resolution for 1996 fiscal year which provides funding 
for that year.

8. The TEC did prepare short narrative support for the scores it 
awarded to each candidate.  The agency, however, relies only on the 
reasonableness of the scoring, as reflected in the evaluation record, 
to support its selection decision.

9. There was also a LOTUS test given during the interviews, but the 
record does not show that the results of this test (with only a 
[deleted]-point difference between the candidates) had any 
determinative effect on the overall selection decision.

10. According to the protester, "[b]oth [deleted] and [deleted] were 
given improper credit for [deleted] by [deleted]. . . .  Accordingly 
the scores for these two individuals must be reduced by the amount of 
the improper credit (in this case, [deleted] points each)."