BNUMBER:  B-270774; B-270774.2; B-270774.4; B-270774.5
DATE:  April 22, 1996
TITLE:  The Regional Laboratory for Educational Improvement of the
Northeast and Islands, Inc.

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Matter of:The Regional Laboratory for Educational Improvement of the               
          Northeast and Islands, Inc.

File:     B-270774; B-270774.2; B-270774.4; B-270774.5

Date:April 22, 1996

Harry Sethna and Glen Harvey for the protester.
Marcia G. Madsen, Esq., Jessica C. Abrahams, Esq., and Stacey L. 
Bierstock, Esq., Morgan, Lewis & Bockius, for Brown University, an 
intervenor.
Jeffrey C. 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 the proposal shows that the awardee 
proposed a governing board that complies with all statutory 
requirements.

2.  Protest that awardee engaged in "bait and switch" tactic is denied 
where record shows that key employee in question had submitted a 
letter of intent which the awardee included in its proposal; awardee's 
post-award substitution of the key employee because of the 
individual's unavailability is not objectionable where record shows 
that individual was proposed in good faith, but became unavailable for 
employment after contract award.

3.  Protest challenging the evaluation of the awardee's proposal on 
various grounds is denied where the record shows that the agency's 
evaluation was reasonable and consistent with the evaluation scheme 
outlined in the solicitation and applicable statutes and regulations.

4.  Agency's cost/technical tradeoff is unobjectionable where record, 
when read as a whole, shows that selection was based on fact that 
awardee's proposal was found technically superior, offered greater 
level of effort, and was only slightly higher in price.

DECISION

The Regional Laboratory for Educational Improvement of the Northeast 
and Islands, Inc. (RLE) protests the award of a contract to Brown 
University under request for proposals No. 95-040, issued by the 
Department of Education (DOE) for services relating to the operation 
and support of 10 regional educational laboratories.  RLE's protest 
relates to a contract for operation and support of the regional 
educational laboratory for the northeast region of the United States 
which includes Puerto Rico and the Virgin Islands.  RLE primarily 
argues that the award was improper because Brown's proposal was 
technically inferior to RLE's and more expensive; RLE also contends 
that there were various improprieties in the agency's actions during 
the acquisition.

We deny the protest.

The RFP contemplated the award of a 5-year cost-plus-fixed-fee 
contract to the firm submitting the proposal representing the best 
overall value to the government considering five technical factors and 
price.  The five factors (and weights, based on 125 possible points) 
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 criterion, the points were further divided among numerous 
subfactors.)

Two proposals--Brown's and RLE's--were received, and found to be 
within the competitive range.  Following discussions and site visits 
at each firm's facility, the agency requested best and final offers 
(BAFO).  Brown's BAFO received an evaluation score of 108.2 points, 
and RLE's received 109.2 points.  Brown's proposed cost was 
$24,329,252, and RLE's was $24,050,000.  Notwithstanding RLE's 
slightly higher technical score, the agency ultimately rated Brown's 
proposal technically superior to RLE's, and determined that this 
superiority offset Brown's slightly higher price.  DOE therefore made 
award to Brown.

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

Under 20 U.S.C.  sec.  6041(h)(6) (1994), each regional laboratory must 
establish a governing board comprised of representatives from various 
specified constituent organizations and groups (such as teachers, 
state educational representatives and commissioners, and educational 
researchers).  By the terms of the statute, the governing board is 
required to be the sole entity responsible for guiding and directing 
the regional laboratory, determining the regional agenda, and 
performing various other oversight functions.  The RFP required 
compliance with the statute and called for a governing board to be in 
place within 2 months of the award date.  The protester maintains that 
the regional laboratory at Brown will ultimately be subject to the 
authority of the Board of Regents of Brown University and that, since 
that entity does not meet the requirements relating to the composition 
of the regional board specified in 20 U.S.C.  sec.  6041, Brown's proposal 
is noncompliant with both the terms of the RFP and the statute, and 
should have been rejected.

This argument is without merit.  Brown's proposal nowhere takes 
exception to the governing board requirements and, in fact, describes 
Brown's efforts to establish a governing board that complies with the 
statutory requirements within the 2-month time frame.  Brown's 
described board is compliant both structurally and compositionally; 
the board members were discussed as follows:

        "The members of our Regional Governing Board have been named 
        and have accepted their membership role.  The [appropriate 
        state educational] Commissioners are designated as permanent 
        Board members . . . .  Board members represent state and local 
        school boards, school administrators, parents, higher 
        education, public and nonpublic elementary/secondary 
        education, government, community and business." 

Brown's proposal goes on to specify detailed procedures for the 
operation and governance of the board as well as procedures for such 
things as filling vacancies, establishing operating committees, and 
interacting with the regional laboratory and numerous constituent 
advisory organizations.  In addition, the proposal details at length 
the responsibilities and authority of the board in terms of guidance 
and oversight of the regional laboratory.  Finally, Brown specifically 
advised the agency during discussions that "[t]he Governing Board is 
responsible for LAB governance and other duties prescribed by statute 
and the contract, including the setting of policy and responding to 
high priority educational needs specific to the region."  There was no 
indication in the proposal that Brown intended that the Board of 
Regents for Brown University would have any control over the regional 
laboratory or the governing board.  We conclude that there was no 
basis for rejecting Brown's proposal as noncompliant with the 
governing board requirements.

EVALUATION OF BROWN'S PROPOSAL

RLE raises numerous arguments with respect to the evaluation of 
Brown's cost and technical proposals.  We find no merit to any of 
RLE's contentions; we discuss several below.

Bait and Switch

RLE maintains that Brown engaged in a prohibited "bait and switch" 
tactic with respect to one of its key employees, specifically, that 
Brown's  proposal represented that a particular individual would serve 
as its executive director but that, after award, she declined to serve 
in this capacity.  RLE maintains that this was improper and resulted 
in a misevaluation of Brown's proposal under the Quality of Personnel 
evaluation factor.

"Bait and switch" tactics, whereby an offeror's proposal is favorably 
evaluated on the basis of personnel it does not expect to use during 
performance, have an adverse effect on the integrity of the 
competitive procurement system and may provide a basis for the 
rejection of that offeror's proposal.  Meridian Mgmt. Corp, Inc.; NAA 
Services Corp., B-254797; B-254797.2, Jan. 21, 1994, 94-1 CPD  para.  167.   
This does not mean, however, that substitution of employees after 
award is entirely prohibited; such substitution is unobjectionable 
where the offeror acted reasonably and in good faith in including the 
individual in its proposal.  Id.

The record shows that Brown proposed the individual in question in 
good faith, and had no basis until approximately 2 weeks after the 
award to suspect that the individual in question would be unavailable 
during performance.  Brown's proposal included a resume and letter of 
committment furnished by the individual, and she explains in an 
affidavit that she was in fact committed to work for Brown during the 
proposal submision process, so much so that she traveled at her own 
expense  to the site visit scheduled by the agency.  She states that 
she was committed to Brown at the time she learned of the award 
decision on December 11, and that only subsequently did she decide to 
decline the job with Brown and advise Brown of her decision.  This 
explanation is reasonable on its face, and since RLE has furnished no 
countervailing evidence, we conclude that Brown proposed the 
individual in good faith.  The substitution thus does not warrant 
upsetting the award.

Contract Type

RLE argues that the agency improperly awarded Brown a cost sharing, no 
fee type contract, rather than a cost-plus-fixed-fee type contract, as 
contemplated under the RFP.  

The record shows that each offeror had a preapproved indirect rate for 
use in cost reimbursement contracting.  In order to increase the 
competitiveness of its proposal, Brown offered to place a limit on its 
indirect rate that was substantially below its preapproved rate; in 
essence, therefore, Brown offered to bear the remainder of its 
indirect costs during performance.  The agency decided that this 
arrangement was better described in terms of cost sharing, and it thus 
included the appropriate clauses in the award document.  Since nothing 
prohibited Brown or any other offer from proposing an indirect rate 
cap; the cost proposals were evaluated in accordance with the RFP; and 
the precise structure of Brown's contract had no other adverse effect 
on RLE's competitive standing, this argument is without merit.

Evaluation of Brown's Proposal Under the Specialty Area Evaluation 
Criterion

RLE takes issue with the evaluation of Brown's proposal under the 
Specialty Area factor, under which offerors were to choose one of nine 
areas to highlight in their proposals.  Under the larger scheme 
envisioned by the RFP (the award of a total of 10 regional contracts), 
a single specialty area will be awarded to each regional laboratory, 
with at least two regional laboratories performing work under the same 
specialty area.  RLE maintains that Brown's proposal of the "language 
and cultural diversity" area should have been downgraded because three 
regional laboratories will be performing in this same area.  

Where a protester challenges the evaluation of proposals, our Office 
does not independently evaluate proposals or substitute our judgment 
for that of the agency; our review is limited to considering whether 
the evaluation was reasonable and consistent with the RFP's stated 
evaluation criteria, and applicable statutes and regulations.  Polar 
Power, Inc., B-257373, Sept. 2, 1994, 94-2 CPD  para.  92.  

RLE's argument is without merit.  Nothing under the Specialty Area 
evaluation factor provided for consideration of the duplicative nature 
of a chosen area; the factor provided only for consideration of the 
"potential of the proposed work to advance knowledge and practical 
applications within the specialty area," and the "extent to which the 
specialty area is incorporated into and managed with the whole 
statement of work framework."  In fact, the RFP contemplated multiple 
awards in a given specialty area, specifically stating that ". . . the 
government reserves the right to support more than one Laboratory to 
do work in a given specialty area."  Thus, the mere fact that Brown 
proposed a specialty area that may be duplicative of work being 
performed in another region was not a basis for downgrading a proposal 
under this factor. 

COST/TECHNICAL TRADEOFF

RLE maintains that the source selection decision was irrational 
because award was made to a technically inferior, higher-priced 
offeror; Brown's proposal received a technical rating of 108.2 points 
versus RLE's 109.2, and Brown's cost was $279,252 higher than RLE's.

The record shows that the technical evaluation team specifically 
determined that Brown's proposal was technically superior to RLE's, 
notwithstanding its lower point score.  The evaluation panel met after 
performing its final scoring of the proposals to arrive at a consensus 
regarding the relative merits of the proposals and to make a 
recommendation to the source selection official.  The written record 
of this meeting states that "[t]he overall consensus of the panel was 
that the Brown proposal was technically superior."  This conclusion 
was based on what the evaluators identified as numerous strengths of 
the Brown offer, including Brown's proposed emphasis on the 
involvement of state and local education agencies, its understanding 
of the full array of educational reform initiatives in the region and 
its reputation as a nationally recognized research facility with 
considerable expertise in the area of education reform.  The 
evaluators also preferred the Brown proposal because it offered a 
substantially higher level of effort (291,147 hours over the life of 
the contract) than RLE's (235,587 hours).

The source selection authority (SSA) adopted these conclusions, as 
reflected in the SSA decision document, which states that "[a]lthough 
the review panel was not unanimous on which firm presented the better 
technical proposal, the majority of the technical review panel 
concluded that the proposal offered by Brown University is technically 
superior."  (The record shows that there were five technical 
evaluators, only one of whom assigned a higher score to RLE's 
proposal.  The one panelist assigning a higher score to RLE was 
"philosophically opposed to [Brown's] constructivist approach.")  The 
SSA's decision document goes on to state that the comments of the one 
dissenting evaluator appeared to be weighted against Brown without 
adequate regard to the overall ability and approach of Brown to do the 
work, and that ". . . the ratings of the other four panelists are more 
reliable and present a more balanced analysis of the two 
proposals."[1]

RLE has not shown that the agency's conclusions regarding the 
technical advantages of Brown's proposal are unreasonable, and in 
light of those advantages the agency properly could conclude that 
Brown's proposal was worth its relatively small additional cost 
(particularly given the greater number of hours it proposed).  The 
fact that RLE's proposal was scored slightly higher than Brown's did 
not preclude this tradeoff decision.  S&S Garment Mfg. Co., B-252807, 
Aug. 2, 1993, 93-2 CPD  para.  65.

MISCELLANEOUS ISSUES

RLE raises numerous additional arguments which are either without 
merit, lack evidentiary support, or concern matters our Office will 
not review.  For example, RLE contends that one or more of the 
agency's evaluators acted to improperly influence the other evaluators 
when the panel was reviewing the proposals.  RLE states in this regard 
that "it is our understanding that one or more of the members of the 
technical evaluation team claimed of being able to convince at least 
one other evaluator to change his/her rating . . . ."  Even if RLE is 
correct that the alleged attempt by certain evaluators to persuade 
others was improper (in fact, there often is interaction among the 
evaluators as they attempt to reach a consensus), RLE has submitted no 
evidence in support of its allegation--it has not even identified 
which of the five evaluators allegedly acted improperly.  Rather, 
RLE's contentions are based entirely on speculation.  

Several of RLE's additional arguments relate to Brown's 
responsibility; RLE argues, for example, that Brown is "unfit" to be 
the regional laboratory because it has been investigated by the 
National Institute of Mental Health.  Our Office will not review an 
affirmative determination of a prospective contractor's responsibility 
absent a showing of possible bad faith on the part of agency 
officials, or a failure to apply definitive responsibility criteria.  
McDonnell Douglas Corp., B-259694.2; B-259694.3, June 16, 1995, 95-2 
CPD  para.  51; Tutor-Saliba Corp., Perini Corp., Buckley & Co., Inc., and 
O&G Industries, Inc., A Joint Venture, B-255756.2, Apr. 20, 1994, 94-1 
CPD  para.  268.  RLE does not allege that either of these exceptions 
applies here.

Finally, several of RLE's additional arguments simply fail to state a 
valid basis for protest.  In this regard, protesters are required to 
provide a detailed factual and legal statement, supported by 
explanation or evidence, that establishes the likelihood that the 
protester will prevail in its claim of improper action; failure to do 
so will result in dismissal of the protest ground.  Bid Protest 
Regulations, section 21.1(c)(4), 60 Fed. Reg. 40,737 (Aug. 10, 1995) 
(to be codified at 4 C.F.R.  sec.  21.1(c)(4)); Oracle Corp., B-260963, May 
4, 1995, 95-1 CPD  para.  231.  For example, citing statements made in 
Brown's comments submitted in response to the agency's report, RLE 
contends that Brown has "unclean hands" because it allegedly obtained 
procurement sensitive information relating to the site visit at RLE's 
facility.  However, those comments were prepared by Brown's counsel, 
who were admitted to a protective order during the protest, and thus 
had access to the entire record including proprietary or source 
selection sensitive information relating to RLE.  There is no evidence 
or reason to believe that Brown's counsel made this information 
available to Brown in violation of the express terms of the protective 
order.

The protest is denied.  

Comptroller General
of the United States

1. RLE argues that the duplicative specialty area issue, discussed 
above, also militated against the tradeoff in favor of Brown's 
proposal.  Given our conclusion, however, that the agency reasonably 
did not downgrade Brown's proposal in this area, there is no basis for 
finding that consideration of this area would have led the agency to 
reach a different tradeoff result.