BNUMBER:  B-270686; B-270686.2
DATE:  February 28, 1996
TITLE:  Ralph G. Moore & Associates

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

Matter of:Ralph G. Moore & Associates

File:     B-270686; B-270686.2

Date:     February 28, 1996

Janice Davis, Esq., and Philip H.M. Beauregard, Esq., McKenna & Cuneo, 
for the protester.
David R. Smith, Esq., for Information Support SVRS, an intervenor. 
James P. Fuerstenberg, Esq., and Gena E. Cadieux, Esq., Department of 
Energy, for the agency.
Tania L. Calhoun, Esq., and Christine S. Melody, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1.  Protest that awardee engaged in "bait and switch" tactics with 
regard to one of its proposed key personnel is denied where the record 
does not support this allegation.

2.  Agency reasonably evaluated the past performance of the awardee--a 
recently formed joint venture--in accordance with the solicitation's 
requirements where the agency considered the recent experience of one 
of the joint venture partners.

3.  Agency did not conduct unequal discussions where it did not advise 
the protester that its costs were considered too high because the 
costs were not unreasonable, and where it conducted appropriate cost 
discussions with the low cost awardee.

DECISION

Ralph G. Moore & Associates (RGMA) protests the award of a contract to 
Information Support SVRS (ISS) under request for proposals (RFP) No. 
DE-RP02-95CH10619, issued by the Department of Energy (DOE) for 
federal information processing support services for its Chicago 
Operations Office.  RGMA challenges various aspects of DOE's 
evaluation of the awardee's technical proposal and its conduct of 
discussions.  

We deny the protests.

The solicitation was issued April 21, 1995, as a set-aside for small 
disadvantaged businesses under the Small Business Administration's 
section 8(a) program.  DOE anticipated awarding a cost reimbursement, 
level-of-effort contract to be performed over 1 base year, with up to 
4 option years.  Award would be made to the offeror whose offer was 
most advantageous to the government, cost and other factors 
considered.  This determination would be based upon an evaluation of 
the offerors' technical, business management, and cost proposals.  

The technical proposals, which were significantly more important than 
the business management and cost proposals, would be point-scored 
under three evaluation factors:  key personnel, past performance, and 
management plan.  The business management proposals, not at issue 
here, would be adjectivally rated.  The cost proposals would be 
evaluated for reasonableness and realism, and to establish the 
probable cost to the government.  

Four proposals were submitted by the June 5 closing date, including 
RGMA's and ISS'.  RGMA is the incumbent contractor providing these 
services, and ISS is a newly-formed joint venture consisting of 
Columbia Services Group, Inc. and Eztech Manufacturing, Inc.  After 
all offerors submitted revised proposals in response to a material 
amendment, the agency evaluated proposals and established a 
competitive range of three proposals, including RGMA's and ISS'.  
Discussions were conducted, and revised cost proposals were submitted 
by all offerors by October 18.  Each firm submitted its best and final 
offer (BAFO) and a signed draft contract by November 6.    

ISS' technical proposal received 986 points and RGMA's proposal 952 
points; both firms received outstanding ratings for their business 
management proposals.  ISS' probable cost for the total contract 
period was $8,634,848, and RGMA's probable cost was $9,962,355.[1]  
The source selection official concluded that both firms' proposals 
were essentially technically equal, and that the significant 
difference between their probable costs made ISS' proposal the best 
value to the government.  Offerors were notified of this decision by 
letter dated November 27, and these protests followed.[2]

RGMA first argues that ISS engaged in improper "bait and switch" 
tactics with regard to its proposed senior programmer/analyst.  The 
protester proffers the fact that an ISS employment advertisement for 
this position was running on the Internet after award of the contract 
as evidence that the firm did not intend to actually utilize the 
individual it proposed.

Offeror "bait and switch" practices, whereby an offeror's proposal is 
favorably evaluated on the basis of personnel that it does not expect 
to use during contract performance, have an adverse effect on the 
integrity of the competitive procurement system and provide a basis 
for rejection of that offeror's proposal.  Free State Reporting, Inc., 
B-259650, Apr. 14, 1995, 95-1 CPD  para.  199.  The record here does not 
support RGMA's allegation that ISS has engaged in such practices.

After ISS was informed, during discussions, of deficiencies with 
respect to its then-proposed senior programmer/analyst, the firm ran 
recruiting advertisements for this position in the Chicago Tribune on 
October 8 and 15.  According to the business opportunity manager for 
one of ISS' constituent firms, this arrangement included a provision 
for posting this same advertisement on the Internet Bulletin Board.  
The firm recruited the individual it proposed in its November 6 BAFO 
through internal recruiting sources, and included his letter of intent 
to take the position.  We do not view the advertisement's continued 
presence on the Internet Bulletin Board as evidence that ISS did not 
intend to utilize the individual it proposed.  See Combat Sys. Dev. 
Assocs. Joint Venture, B-259920.6, Nov. 28, 1995, 95-2 CPD  para.  244.

RGMA next argues that DOE failed to evaluate ISS' past performance in 
accordance with the RFP's requirements.  RGMA asserts that the RFP 
required the agency to evaluate only the past performance of "the 
offeror"--ISS--and that DOE instead considered the past performance of 
the joint venture's constituent firms.  DOE's position is that the RFP 
contemplates the evaluation of the past performance of both the joint 
venture itself and its constituent firms.

Where, as here, there is a dispute between the protester and the 
agency as to the meaning of a particular solicitation provision 
regarding the evaluation scheme, our Office will resolve the matter by 
reading the solicitation as a whole and in a manner that gives effect 
to all of its provisions.  Ace Van and Storage Co., B-238281, May 1, 
1990, 90-1 CPD  para.  440; Ebasco Constructors, Inc., B-231967, Nov. 16, 
1988, 88-2 CPD  para.  480.  Applying this standard, we find that RGMA's 
interpretation is unreasonable.

With respect to past performance, section M of the RFP states that 
"the offeror will be evaluated as to recent experience (within the 
last three years), overall quality of performance and depth of 
experience on contracts directly relevant to the statement of work. . 
. .  All examples of recent relevant work experience will be evaluated 
as described above."  RGMA relies upon this provision to support its 
position that only the experience of "the offeror"--the joint venture 
ISS--can be considered here.  However, section L.35 of the RFP, the 
proposal preparation instructions, states, "[i]f you are submitting a 
proposal as a joint venture, it is important that you give full, 
complete and responsive information on each of the participating 
firms, as well as the proposed joint venture organization itself. . . 
."

Since RGMA's interpretation of the RFP wholly ignores section L.35, 
which contemplates the consideration of information concerning both a 
joint venture offeror and each of its participating firms, its 
interpretation is unreasonable.  It is apparent that when these two 
provisions are read together, the RFP permits consideration of the 
past performance of both the joint venture itself and its constituent 
firms.  Dynamic Isolation Sys., Inc., B-247047, Apr. 28, 1992, 92-1 
CPD  para.  399; see MR&S/AME, An MSC Joint Venture, B-250313.2, Mar. 19, 
1993, 93-1 CPD  para.  245.  

The rating plan for this acquisition instructs the evaluators to 
consider the relevant work experience of both the joint venture and of 
each entity prior to forming the joint venture where the joint venture 
has been operating for less than 3 years, consistent with the RFP.  
RGMA argues that DOE failed to evaluate ISS' past performance in 
accordance with the rating plan by only according weight to the 
relevant experience of Columbia Services Group, Inc. and not that of 
Eztech Manufacturing, Inc.  

Allegations of deviations from an agency's rating plan do not 
constitute a basis for questioning the validity of an award selection.  
Rather, such plans are internal agency instructions and, as such, do 
not give outside parties any rights.  See National Steel & 
Shipbuilding Co., B-250305.2, Mar. 23, 1993, 93-1 CPD  para.  260; Robert E. 
Derecktor of Rhode Island, Inc.; Boston Shipyard Corp., B-211922; 
B-211922.2, Feb. 2, 1984, 84-1 CPD  para.  140.  In any event, the 
evaluation was consistent with both the RFP and the rating plan.  As 
noted above, the RFP required the agency to evaluate the recent 
experience--of both the joint venture and its constituent firms--on 
contracts "directly relevant to the statement of work."  As RGMA 
recognizes, the evaluators scored ISS' proposal under this factor on 
the strength of Columbia Services Group's past performance, as it 
found that Eztech Manufacturing, Inc. had little or no recent 
experience directly relevant to the statement of work.  However, 
contrary to RGMA's belief, nothing in the RFP required the agency to 
downgrade a joint venture offeror under this factor solely because one 
constituent firm had no relevant past experience; rather, the agency 
was required to consider all relevant experience and make an 
appropriate assessment.  That the agency considered Columbia Services 
Group's recent experience to be sufficient to merit the exemplary 
ratings ISS' proposal received is unobjectionable, considering that 
RGMA does not otherwise challenge the evaluation.

RGMA finally contends that DOE's conduct of discussions in this 
procurement was improper because the agency failed to inform the 
protester that its proposed costs were unreasonably high, but informed 
ISS that its proposed costs were unreasonably low.

While agencies are required to tailor discussions to each particular 
offeror, they may not conduct misleading or prejudicially unequal 
discussions.  South Capitol Landing, Inc., B-256046.2, June 20, 1994, 
94-2 CPD  para.  3.  The content and extent of discussions are within the 
discretion of the contracting officer, since the number and type of 
deficiencies, if any, will vary among proposals.  Consequently, the 
agency should individualize the evaluated deficiencies of each offeror 
in its conduct of discussions.  See Dept. of the Navy--Recon., 72 
Comp. Gen. 221 (1993), 93-1 CPD  para.  422.  Our review of the record shows 
that DOE's conduct of discussions here was proper. 

DOE conducted a cost realism analysis of RGMA's proposed costs and 
determined that they were reasonable--a determination that RGMA does 
not contest.  That various RGMA employees state that DOE 
representatives informed it, after award, that its proposed costs were 
unreasonably high is flatly disputed by those representatives, whose 
accounts are supported by the contemporaneous documentation.  An 
agency has no responsibility to inform an offeror during discussions 
that its proposed costs are too high unless the government has reason 
to think that the costs are unreasonable.  Textron Marine Sys., 
B-255580.3, Aug. 2, 1994, 94-2 CPD  para.  63; E.J. Richardson Assocs., 
Inc., B-250951, Mar. 1, 1993, 93-1 CPD  para.  185.  Since the agency here 
did not think RGMA's costs were unreasonable, it was not required to 
inform the firm that its proposed costs were too high.  To the extent 
that RGMA is arguing that the agency should have informed it during 
discussions that its proposed costs were too high relative to those 
proposed by ISS, such advice during discussions is prohibited.  
Federal Acquisition Regulation (FAR)  sec.  15.610(e)(2)(ii); Applied 
Remote Technology, Inc., B-250475, Jan. 22, 1993, 93-1 CPD  para.  58. 

RGMA complains that ISS' discussion questions signaled ISS that its 
proposed costs were unreasonably low.  However, an agency is permitted 
to inform an offeror during discussions that its cost or price is 
considered to be unrealistic.  FAR  sec.  15.610(e)(2)(ii). Our review 
indicates that the discussions conducted with ISS reflected the 
deficiencies present in its proposal and were entirely appropriate.  

For example, in its initial proposal, ISS stated both that it would 
pay its non-key personnel in accordance with a Department of Labor 
wage determination, and that it would hire the incumbent non-key 
personnel and pay them their current salaries.  Because there were 
differences between the wage determination rates and the current 
salaries being paid these personnel, DOE could not calculate a 
probable cost for ISS' proposal.  During discussions, ISS was advised 
that the wage determination rates represented average pay rates, and 
might or might not accurately reflect the incumbent contractor's 
current rates--these might be higher than the wage determination 
rates.  DOE asked the firm to either confirm its intent to hire the 
incumbent personnel and review and support its estimated labor costs, 
or to abandon that intent and provide detailed and supported salary 
information.  These discussions were entirely appropriate.

In its revised cost proposal, ISS maintained its stated intent to hire 
the incumbent personnel at their current rates, and reestimated its 
labor costs using various commercial compensation surveys.  DOE 
concluded that the rates were reasonable, but because they were still 
below those currently paid the incumbent personnel, the contracting 
officer decided to set a ceiling on ISS' direct labor rates for its 
non-key personnel to avoid the risk of cost overruns or buying-in.[3]  
A clause containing this ceiling was included in ISS' contract 
document sent to ISS in its BAFO request.  No such ceiling was 
included in RGMA's contract document because none was deemed 
necessary--the incumbent firm had demonstrated a stable rate history 
and proposed actual labor rates, and DOE had no reason to believe that 
its proposed rates would increase in excess of its annual escalation 
factor.  While RGMA suggests that the ceiling clause in ISS' draft 
contract improperly signaled the firm to lower its prices (which ISS 
did), we think DOE's proferring of this clause during discussions, if 
anything, suggests that there was concern about the lowness of the 
proposed costs.  In this regard, a cost ceiling establishes a maximum 
cost for a given cost category to protect the government's interests 
in a cost-reimbursement environment by, for example, preventing an 
offeror from submitting a below-cost offer in the hopes of increasing 
the contract amount after award.  See FAR  sec.  3.501-1(a); Halifax 
Technical Servs., Inc., B-246236.6 et al., Jan. 24, 1994, 94-1 CPD  para.  
30.  

The protests are denied.

Comptroller General
of the United States

1. The third proposal in the competitive range is not at issue here.

2. RGMA raised several issues in its protests which were fully 
addressed by the agency in its report, and unrebutted by the protester 
in its comments.  We deem these issues to be abandoned and will not 
consider them.  Litton Sys., Inc., Data Sys. Div., B-262099, Oct. 11, 
1995, 95-2 CPD  para.  215.  In addition, in its comments, RGMA argued for 
the first time that DOE improperly failed to conduct a cost realism 
analysis of ISS' proposal, citing numerous alleged inadequacies.  
Under our Bid Protest Regulations, protests based on other than 
solicitation improprieties must be filed within 14 days of when the 
protester knew or should have known their bases.  Section 21.2(a)(2), 
60 Fed. Reg. 40,737, 40,740 (Aug. 10, 1995) (to be codified at 4 
C.F.R.  sec.  21.2(a)(2)).  RGMA was provided at least some of the 
information that should have put it on notice of this basis of 
protest--the agency's final cost proposal analysis of both 
offerors--on December 28.  This new argument, filed 39 days later, is 
untimely and will not be considered.  Id.            

3. As a general rule, the maxim that the government bears the risk of 
cost overruns in the administration of a cost reimbursement contract 
is reversed when a contractor agrees to a cap or a ceiling on its 
reimbursement for a particular category or type of work.  Vitro Corp., 
B-247734.3, Sept. 24, 1992, 92-2 CPD  para.  202.  "Buying-in" means 
submitting an offer below anticipated costs, expecting to, among other 
things, increase the contract amount after award.  FAR  sec.  3.501-1(a).