BNUMBER:  B-270774.3
DATE:  June 17, 1996
TITLE:  Research for Better Schools, Inc.

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DOCUMENT 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:Research for Better Schools, Inc.

File:     B-270774.3

Date:June 17, 1996

Joel R. Feidelman, Esq., Catherine E. Pollack, Esq., and Nancy R. 
Wagner, Esq., Fried, Frank, Harris, Shriver & Jacobson, for the 
protester.
Marcia G. Madsen, Esq., John A. Burkholder, Esq., Jessica C. Abrahams, 
Esq., Morgan, Lewis & Bockius, for Temple University, an intervenor.
Jeffrey Morhardt, Esq., Department of Education, for the agency.
Scott H. Riback, Esq., and John M. Melody, Esq., Office of the General 
Counsel, GAO, participated in the preparation of the decision.

DIGEST

1.  Protest that awardee's proposal does not comply with applicable 
statute relating to the composition and authority of proposed 
governing board is denied where record shows awardee proposed board 
meeting all statutory requirements.

2.  Allegations relating to awardee's compliance with material 
informational requirements in solicitation are denied where record 
shows that, in fact, awardee provided all necessary information.

3.  Protest that agency source selection official relied on documents 
that failed to accurately embody the opinions of the agency's 
technical evaluators is denied where record shows that documents 
presented to source selection official contained the consensus 
conclusions of the technical evaluators.

4.  Agency properly did not advise protester during discussions that 
aspects of its proposal were not viewed as favorably as same aspects 
of awardee's proposal; such relative weaknesses are not matters for 
discussion, as they do not relate to deficiencies found to protester's 
proposal, but rather to fundamental differences in the offerors' 
proposed solutions.

DECISION
Research for Better Schools, Inc. (RBS) protests the award of a 
contract to Temple University under request for proposals (RFP) No. 
95-040, issued by the Department of Education (DOE) for the operation 
of a mid-Atlantic regional educational laboratory.  RBS contends that 
the agency improperly evaluated proposals, failed to engage in 
adequate discussions and made an irrational award decision.

We deny the protest.
The RFP contemplated the award of a 5-year cost reimbursement contract 
that requires the contractor to perform research and implement 
broad-based, systemic school improvement strategies.[1]  Award was to 
be made to the firm submitting the proposal deemed to offer the best 
overall value to the government, considering price and numerous 
technical factors.  The technical factors (and relative weights based 
on a possible 125 point evaluation scale) were as follows:  quality of 
technical approach (35 points); quality of management plan (25 
points); quality of personnel (20 points); corporate performance and 
capability (20 points); and quality of the offeror's proposed 
specialty area (25 points).  (Within each evaluation area, the points 
were further divided among various subfactors.)

DOE received three initial proposals including RBS' and Temple's (the 
third was excluded from the competitive range and is not relevant 
here).  The agency conducted discussions, solicited technical proposal 
revisions, obtained best and final offers (BAFO) and then evaluated 
the BAFOs.  RBS' BAFO received an average technical score of 94 points 
and Temple's a score of 93.5 points; RBS' evaluated price was 
$21,197,005 and Temple's $21,000,000.  On the basis of these 
evaluation results, the agency made award to Temple, finding that its 
proposal represented the best overall value to the government.  In 
this regard, the agency found that, despite its slightly lower average 
technical point score, Temple's proposal, in fact, was technically 
superior to RBS'.  The agency also concluded that Temple's proposal 
offered the better value from a cost standpoint because its evaluated 
cost was lower than RBS' and because it offered more professional 
hours over the life of the contract.

COMPLIANCE WITH 20 U.S.C.  sec.  6041

RBS maintains that Temple's regional laboratory will not comply with 
the terms of 20 U.S.C.  sec.  6041(h)(6) (1994), which requires each 
laboratory to establish a governing board comprised of representatives 
from various constituent organizations and groups (such as teachers, 
state educational representatives and commissioners, and educational 
researchers).  The statute further requires that the governing board 
be "the sole entity" responsible for guiding and directing the 
regional laboratory, determining the regional agenda, and performing 
various oversight functions.  RBS maintains that Temple's proposed 
laboratory will not be compliant with the statute because the 
laboratory is to be located within the organizational structure of the 
university, and will utilize university facilities and personnel.  RBS 
concludes that the laboratory therefore ultimately will be subject to 
the authority of the Temple University Board of Trustees.  

This contention is without merit.  Temple's proposal takes no 
exception to the governing board requirement.  On the contrary, the 
firm's proposal describes in detail its plan for the establishment of 
the board and the selection of its members, as well as the governance 
and operations of the board on an ongoing basis.  Temple's proposal 
also specifically states that:

     "The Governing Board of Directors . . . will have sole overall 
     responsibility for establishing the programmatic goals of the 
     Laboratory, and for directing and overseeing the work of the 
     [laboratory] in fulfilling the terms and conditions of the award. 
     . . . The Board will also oversee and evaluate the performance of 
     the Laboratory's Executive Director, Executive directorate, and 
     key laboratory staff on an annual basis."

The proposal goes on to describe the responsibilities of the board, 
including evaluation of the laboratory's overall programmatic 
direction and approval, oversight, and direction of the laboratory's 
specific programs and projects.

The essence of RBS' argument is that Temple's laboratory cannot be 
governed "solely" by the board because the resources of the laboratory 
are located within or are owned in part by Temple University.  
However, there is nothing in the statute which precludes an entity 
that is located within, or is a part of, a university from meeting the 
statutory requirement of having an independent board, see The Regional 
Laboratory for Educational Improvement of the Northeast and Islands, 
Inc. B-270774 et al., Apr. 22, 1996, 96-1 CPD  para.  204, and the record 
does not show that there is any legal impediment to an agreement 
between the laboratory and the university that vests the necessary 
authority in the proposed governing board.  Since Temple's proposal 
does not take exception to the requirements of the statute, and in 
fact goes to some length to explain the establishment and functioning 
of its outside board, we have no basis to find its proposed laboratory 
noncompliant with the statute.

FAILURE TO MEET MATERIAL RFP REQUIREMENTS

RBS contends that Temple's proposal failed to meet numerous material 
informational requirements.[2]  We have reviewed all of RBS' 
allegations in this regard and find them to be without merit.  We 
discuss two of RBS' arguments below.

50-Percent Time Commitment

RBS maintains that Temple failed to include information in its 
proposal showing that all of its key employees were committed to work 
on the contract for at least 50 percent of their time, as required by 
the RFP.  In support of its contention, RBS notes that Temple's 
proposal lists some 40 professionals as "key" employees, but fails to 
include information relating to the time commitments of some 26 of 
these individuals.  RBS contends that, without this information, 
Temple's proposal is technically unacceptable, and thus ineligible for 
award.

RBS' allegation is based on an unreasonable reading of Temple's 
proposal.  The RFP required firms to propose key staff who had 
committed at least 50 percent of their time to the contract, but went 
on to describe key staff as ". . .the executive director and all those 
who will direct major laboratory programs or functions, e.g. director 
of planning, etc."  Temple's proposal contains a manloading chart that 
is captioned "time commitments of key personnel," but this chart lists 
not only those individuals who will be responsible for directing major 
laboratory programs or functions, but also all of Temple's other 
professional and support personnel, including, for example, clerical 
staff that are not specifically identified.  The chart does contain a 
separate section entitled "laboratory management unit" and under this 
subheading are listed the individuals who will be responsible for 
directing the laboratory's major programs and functions.  The 
laboratory management unit includes four individuals who are clearly 
identified as the personnel responsible for managing the laboratory's 
operations--the executive director, two associate directors, and one 
assistant director responsible for administration and management 
services functions.  The chart goes on to specify the time commitments 
of these individuals;[3] each employee is committed to work on the 
contract in excess of 50 percent of his or her time.  While Temple's 
chart does suggest that all individuals listed are key employees, it 
is clear from the solicitation's definition of key employee that only 
those individuals involved in the direction or management of the 
laboratory are to be considered key.  Since Temple's offer clearly 
shows that its managing employees are in fact committed to work at 
least 50 percent of their time in performing the contract, Temple's 
offer meets the 50-percent requirement.

Cap on Subcontractors' Overhead Rates

RBS contends that the agency unreasonably concluded that Temple's 
subcontractors' overhead rates were capped at [deleted] on the basis 
that Temple proposed to cap its own rate at [deleted], since the 
proposal did not include separate documentation showing that the 
subcontractors had agreed to the cap.  According to RBS, the agency 
should have performed a cost realism evaluation and adjusted Temple's 
evaluated cost upward to account for the difference between Temple's 
subcontractors' ordinary overhead rates and the [deleted] rate that 
the agency used for establishing Temple's evaluated cost.

This argument is without merit.  The agency, in requesting Temple's 
BAFO, specifically asked it to clarify whether its subcontractors' 
overhead rates would be capped at [deleted] for the contract's period 
of performance.  In response Temple stated "[y]es, the overhead rate 
for all subcontractors will be CAPPED at [deleted] throughout the five 
years of the contract.  All subcontractors have agreed to the 
[deleted] cap."  Based on this language, the agency reasonably 
concluded that both Temple's and its subcontractors' overhead rates 
would be capped at [deleted].

TECHNICAL EVALUATION PROCESS AND RESULTS

RBS argues that the source selection was based on misleading 
information--various memoranda prepared by an individual designated as 
the agency's technical evaluation facilitator--that allegedly does not 
accurately embody the evaluation results found in the individual 
evaluation worksheets.[4]  More specifically, RBS disagrees with the 
emphasis given to the respective strengths and weaknesses of the two 
proposals, as initially identified by the individual evaluators.  For 
example, RBS maintains that the facilitator's memoranda fail to 
adequately convey the deficiencies found with Temple's proposed 
management strategy.  (Some of the evaluators downgraded Temple's 
proposal for what they perceived as a weak management strategy 
associated with its technical approach.)[5]

There is nothing in the record to suggest that the facilitator's 
memoranda inaccurately report the consensus views of the evaluators.  
The focus of those memoranda is the debate among the evaluators 
regarding the comparative benefits of the proposals--two evaluators 
originally preferred the RBS offer while two preferred Temple's--and, 
ultimately, the basis for the entire group's view that the Temple 
proposal offered the greatest technical merit.  While recognizing that 
Temple's proposal contained some weaknesses (and RBS' proposal some 
strengths), the evaluators concluded that Temple's basic technical 
approach of forming a  coalition of educational institutions and 
individual researchers was preferable to RBS' essentially 
"self-contained" laboratory approach.  The shift in emphasis between 
the views expressed by the individual evaluators and those found in 
the facilitator's memoranda reflects no more than the process of 
forming a consensus opinion from competing views; as the process of 
achieving consensus necessarily involves compromise, there is nothing 
inherently improper in there being less than complete correlation 
between each individual evaluation worksheet and the consensus 
materials.  See  MVM, Inc.; Burns Int'l Sec. Servs., 73 Comp. Gen. 124 
(1994), 94-1 CPD  para.  279; DUAL, Inc., B-252593.3, Aug. 31, 1993, 93-2 
CPD  para.  190.   Since there is nothing in the record to suggest that the 
facilitator's memoranda inaccurately embody the consensus reached by 
the evaluators, we find no basis to object to the source selection 
official's basing the award decision on those memoranda.

RBS also maintains that the facilitator's memoranda improperly 
recommended award to Temple based on factors outside the RFP or, 
alternatively, accorded too much weight to one of the subfactors.  The 
evaluators ultimately preferred Temple's proposal because it reflected 
"vision" in its method and strategy for conducting research and 
development activities.  The evaluators commented favorably on 
Temple's proposal to [deleted].  (In contrast, the evaluators found 
that RBS' proposal lacked "vision" because, as the incumbent, RBS had 
proposed to build on its existing programs and had offered essentially 
a "self-contained" laboratory rather than one involving partnering 
arrangements with other institutions throughout the region.)  RBS 
maintains that "vision" was not one of the stated evaluation criteria 
and thus should not have been the basis for preferring Temple's 
proposal.  Alternatively, RBS asserts, to the extent "vision" is 
encompassed by the quality of technical approach factor, the 
facilitator improperly relied on Temple's advantage under the first of 
the three stated subfactors, which was worth only 15 points, rather 
than on RBS' advantage under the other two subfactors, which were 
worth 20 points combined.

We have no basis to object to the agency's reliance on "vision" in 
discriminating between the proposed approaches.  While the protester 
is correct that the RFP did not specify "vision" as a discrete 
evaluation criterion, we think this consideration is reasonably 
encompassed in the first subfactor under the quality of technical 
approach criterion.  That subfactor required the agency to consider:

     "The extent to which the proposed work as a whole constitutes a 
     coherent, sustained program of development and applied research 
     in the field using a well-conceptualized and theoretically sound 
     framework."

While the evaluators apparently used the term "vision" for descriptive 
purposes, it is clear from a reading of the evaluation materials that 
they were referring to Temple's proposed program of applied research 
and development as it would be implemented throughout the region.  The 
panel members agreed that Temple offered "approaches . . . for 
research and development [that were] novel, challenging, and replete 
with fruitful strategies grounded in basic research."  The evaluators 
also agreed that Temple offered to implement (or 'scale up') numerous 
well documented and validated programs throughout the region and 
"[deleted]."  Agencies properly may consider unstated evaluation 
elements that are reasonably related to or encompassed by the stated 
criteria.  ORI Servs. Corp., B-261225, July 28, 1995, 95-2 CPD  para.  55.

In addition, the fact that the other two subfactors under the quality 
of technical approach criterion together were weighted more heavily 
than the first subfactor is immaterial.  There is no requirement that 
the key award discriminator between offers be the most heavily 
weighted factors.  Corvac, Inc., B-254222, Dec. 2, 1993, 93-2 CPD  para.  
294.  

DISCUSSIONS

RBS maintains that the agency failed to conduct meaningful discussions 
with it.  In this respect, RBS focuses on the criticisms made by the 
agency evaluators in connection with its proposal, including its lack 
of "vision," its status quo approach which built upon its earlier 
work, its failure to propose partnering arrangements with outside 
institutions which made its approach relatively insular and 
conservative, and its failure to optimally address the needs of the 
region, especially in urban areas.  RBS maintains that if the agency 
had discussed these matters, it would have changed its proposed 
approach and emphasis.

The noted concerns in no way reflected a finding of deficiencies in 
the RBS proposals.  Rather, the criticisms noted were identified 
primarily in connection with the evaluators' comparative assessment of 
the two proposals for purposes of choosing between the firms' 
respective technical approaches.  Thus, for example, the observation 
that RBS' proposal lacked "vision" did not reflect a finding that RBS' 
proposal was somehow deficient or unacceptable; it merely represented 
a finding that Temple's proposal showed greater promise for contract 
performance.  Agencies are not required to--and in fact ordinarily 
should not--discuss elements of a competitor's technical approach that 
render it comparatively superior; such matters are not properly for 
discussion.  Bioqual, Inc., B-259732.2; B-259732.3, May 15, 1995, 95-1 
CPD  para.  243. 

SOURCE SELECTION

RBS challenges the award decision on grounds that the agency 
incorrectly found that Temple's proposal was lower in cost, that it 
had offered approximately 62,000 more professional hours than RBS 
offered, and that there was no basis for finding Temple's proposal 
technically superior in light of RBS' slightly higher technical point 
score.

In making source selections, agencies enjoy broad discretion to make 
cost/technical tradeoffs, and such judgments are subject only to the 
test of rationality and consistency with the solicitation's stated 
evaluation and award criteria.  Information Sys. Networks, Inc., 
B-254384.3, Jan. 21, 1994, 94-1 CPD  para.  27.   Evaluation point scores 
are no more than guidelines for intelligent decision making; they do 
not automatically mandate the selection of a particular proposal.  
Porter/Novelli, B-258831, Feb. 21, 1995, 95-1 CPD  para.  101.  The 
question, ultimately, is whether the record supports the agency's 
conclusions regarding the relative merits of the proposals.  

RBS' argument regarding the agency's conclusion that Temple's proposal 
was lower in cost is based on RBS' position that Temple's 
subcontractors did not agree to cap their overhead rates at [deleted].  
As discussed above, however, we find that Temple's proposal did 
effectively cap its subcontractors' overhead rates.  There is thus no 
basis for questioning the agency's reliance on Temple's lower 
evaluated cost in its source selection.

With respect to the conclusion that Temple's proposal was technically 
superior, the record shows that the evaluators assigned virtually 
equal scores to the two proposals, with only one-half point separating 
the two.  The record further reflects that, during the conference 
discussion between the evaluators, they reached consensus that 
Temple's proposal was technically superior notwithstanding its 
slightly lower point score.  As discussed, the evaluators preferred 
the Temple proposal primarily because of the potential for substantial 
improvement in student achievement for the region; this conclusion was 
based primarily on Temple's coalition approach, and its proposed 
research and development initiatives that, in the evaluators' opinion, 
represented a positive departure from the status quo nature of RBS' 
proposal.  The evaluators also concluded that, with close agency 
monitoring, the central deficiency in Temple's proposal--its weak 
management strategy--could be overcome; they therefore concluded that 
the Temple proposal was superior to RBS'.  Since numeric point scores 
are merely guides to intelligent decision making, they do not 
necessarily establish that a particular firm is technically superior 
or mandate selection of a particular proposal for award.  Contract 
Servs., Inc., B-251761.4, July 20, 1993, 93-2 CPD  para.  40.  RBS has not 
shown that the evaluators' central conclusions regarding the relative 
strengths and weaknesses of the proposals are not supported by the 
record.  In addition, as discussed above, the evaluators' conclusions 
were consistent with the solicitation's evaluation criteria   Thus, 
there is no basis for questioning the agency's conclusion that 
Temple's offer was slightly superior from a technical standpoint.  

Finally, we need not decide the validity of RBS' contention that, had 
the agency properly calculated professional hours, it would have found 
that Temple did not offer more hours.  Even if RBS were correct, this 
would eliminate only one of Temple's evaluation advantages.  Given our 
findings above--that Temple's offer was 
properly found technically superior and lower in cost--there is no 
basis to conclude that the agency's source selection decision would 
have been different without the professional hours advantage.

The protest is denied.  

Comptroller General
of the United States

1. This contract is one of 10 awarded to run regional laboratories 
throughout the United States.  DOE issued a single RFP for all 10 
contracts, but essentially conducted separate acquisitions for each 
region.  This decision concerns only the agency's acquisition in the 
mid-Atlantic region.

2. RBS contends that Temple's proposal failed to offer key personnel 
meeting the RFP requirement that such employees commit at least 50 
percent of their time to contract performance; did not identify the 
other time commitments of its key personnel; did not include letters 
of commitment from all of its key employees; did not include 
information necessary for a proper past performance evaluation; and 
did not include evidence of its subcontractors' legal commitment to 
cap their overhead cost rates at [deleted].

3. Not all of the key employees' time is designated as committed to 
laboratory management; their time is divided between management 
functions and research and development activities.

4. The record shows that, consistent with its source selection plan, 
the agency provided copies of the initial proposals to the members of 
the technical evaluation team; the evaluators read the proposals and 
prepared detailed individual evaluation worksheets for each of the 
evaluation criteria.  After reviewing the initial proposals, the 
evaluators forwarded questions to the agency's technical evaluation 
facilitator, who in turn prepared discussion questions for each 
offeror.  The technical evaluators then were provided with the 
offerors' responses to the discussion questions; after reviewing these 
materials, the evaluators prepared revised individual evaluation 
sheets that were forwarded to the technical evaluation facilitator.  
The facilitator then convened a telephone conference among the 
evaluators for the purpose of their arriving at a consensus rating for 
each proposal, and also to provide the evaluators an opportunity to 
comparatively discuss the relative merits of the two offers.  The 
results of this conference call are embodied in the memoranda relied 
on by the source selection official.

5. RBS takes issue with numerous specific conclusions in the 
facilitator's memoranda.  For the reasons discussed, we find that 
these conclusions are not inconsistent with the views of the 
evaluators overall.