BNUMBER:  B-271385.4; B-271385.5; B-271385.6; B-271385.7; B-271385.8
DATE:  September 23, 1996
TITLE:  Am-Pro Protective Agency, Inc.; MVM, 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:Am-Pro Protective Agency, Inc.; MVM, Inc.

File:     B-271385.4; B-271385.5; B-271385.6; B-271385.7; B-271385.8

Date:September 23, 1996

John E. McCarthy, Jr., Esq., James J. Regan, Esq., and Paul Shnitzer, 
Esq.,
Crowell & Moring, for Am-Pro Protective Agency, Inc.; Barbara S. 
Kinosky, Esq., Bean, Kinney & Korman, and James S. Phillips, Esq., for 
MVM, Inc., the protesters.
Neil H. O'Donnell, Esq., and Patricia A. Meagher, Esq., Rogers, 
Joseph, O'Donnell & Quinn, for Inter-Con Security Systems, Inc., an 
intervenor.
Kathleen D. Martin, Esq., Department of State, for the agency.
Katherine I. Riback, Esq., and Paul Lieberman, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1.  Allegation that agency improperly evaluated the awardee's proposal 
is denied where evaluation documentation shows that the ratings 
assigned to the proposal were reasonable and reflected the 
solicitation's stated evaluation criteria.  

2.  Protest that awardee's proposal was unbalanced is denied where 
there is no doubt that the awardee's proposal will result in the 
lowest ultimate cost to the government because the solicitation's 
estimates reasonably reflect the government's anticipated 
requirements.  

3.  "Cost realism" ordinarily is not considered in the evaluation 
regarding the award of a fixed-price contract, since the contract 
places upon the contractor the risk and responsibility for loss.  
Moreover, the fact that an offer may not include any profit or may be 
an attempted buy-in (below cost) does not, in itself, render an 
otherwise responsible firm ineligible for award.

4.  Protest that the agency failed to adequately analyze the awardee's 
low price in making the award selection is denied where (1) the 
agency's price analysis was reasonably based on comparing the 
awardee's price with the other prices that it received in response to 
the solicitation and performing a crosswalk analysis to ensure that 
the awardee's proposed methodology for meeting certain technical 
requirements was supported by the awardee's proposed prices, and (2) 
the awardee's price remains low under any adjustment scenario. 

DECISION

Am-Pro Protective Agency, Inc. and MVM, Inc. protest the Department of 
State's (DOS) award of a contract to Inter-Con Security Systems, Inc. 
to provide uniformed armed and unarmed guard services at various State 
Department facilities under request for proposals (RFP) No. 
S-OPRAQ-94-R-0434.

We deny the protest.

The RFP sought proposals to provide qualified professional security 
and managerial personnel to perform uniformed guard services, such as 
access control, security for special events, and security inspections, 
at various State Department facilities.  The RFP contemplated the 
award of an indefinite delivery, indefinite quantity labor hours 
contract with firm, fixed hourly rates for a base year, with 4 option 
years.  The solicitation advised offerors of the various specified 
management and security officer positions and the labor hour estimates 
for each facility.  Offerors were required to provide a base hourly 
rate and a loaded hourly rate for each year for each of the various 
positions specified in the RFP.  The RFP provided that this contract 
was subject to the Service Contract Act (SCA), 41 U.S.C.  sec.  351-358 
(1994), which requires the contractor to pay its covered employees 
minimum wages and fringe benefits, as determined by the Department of 
Labor.  Amendment 
No. 10 stated that:

     "The only CLIN labor category in this solicitation covered by the          
     Service Contract Act is the position of Uniformed Security                   
     Technician (Unarmed), CLIN 12.  This position is covered by the          
     Department of Labor (DOL) category of 'Guard II', and is subject 
     to the minimum wage determination attached thereto."

The RFP designated technical factors and their relative weights, and 
stated that award would be made on a best value basis with technical 
factors more important than price.  

The agency received 10 proposals.  Following evaluation of initial 
proposals, the technical evaluation panel (TEP) established a 
competitive range of six proposals, including those of MVM, Am-Pro, 
and Inter-Con.  The agency conducted written discussions with each 
competitive range offeror and requested revised proposals.  The agency 
evaluated the revised proposals, conducted further discussions with 
each competitive range offeror, and received a second round of revised 
proposals.  After eliminating another three proposals from the 
competitive range,[1] the agency requested that the three remaining 
offerors, MVM, Am-Pro, and Inter-Con, submit best and final offers 
(BAFO).  The BAFOs were evaluated as follows:

Offeror              Technical Score (500 points maximum)
                                          Price

MVM                   [DELETED]           $[DELETED]

Inter-Con             [DELETED]           $[DELETED]

Am-Pro                [DELETED]           $[DELETED]
The TEP concluded that there were no significant technical differences 
between the three proposals.  Since the three proposals were 
essentially technically equal, the source selection advisory council 
(SSAC) recommended that the contract be awarded to Inter-Con because 
it had submitted the lowest-priced offer.  The contracting officer 
concurred and awarded the contract to Inter-Con.  These protests 
followed.    

TECHNICAL EVALUATION OF INTER-CON'S PROPOSAL 

Am-Pro and MVM raise numerous arguments to the effect that the 
technical evaluation of Inter-Con's proposal was improper.  The 
evaluation of technical proposals is primarily the responsibility of 
the contracting agency.  Our Office will not make an independent 
determination of the merits of technical proposals; rather, we will 
examine the record to ensure that the agency's evaluation was 
reasonable and consistent with the stated evaluation criteria.  Litton 
Sys., Inc., B-237596.3, Aug. 8, 1990, 90-2 CPD  para.  115.  Here, as set 
forth below, we find the agency's technical evaluation 
unobjectionable.  

Protective Security Personnel

This evaluation factor assessed the offeror's ability to provide 
personnel as specified.  Inter-Con's proposal received the maximum 
[DELETED] points available under this factor.  Inter-Con proposed to 
retain a significant number of the incumbent's staff, and to pay its 
armed and unarmed guards the same base wage rate [DELETED] for the 
base year.  Am-Pro, the incumbent contractor, argues that the agency 
improperly failed to assess the technical risk inherent in Inter-Con's 
low wages for armed guards.  Am-Pro contends that Inter-Con will have 
difficulty retaining armed guards because these guards will receive 
the same base wage as unarmed guards and less than they were receiving 
from Am-Pro.[2]  

[DELETED]  The SSAC determined that Am-Pro's proposed rate for armed 
guard positions at most locations was [DELETED] higher than that of 
Inter-Con and recognized that this might have some impact on 
Inter-Con's ability to attract employees from the incumbent's labor 
force.  However, the SSAC concluded that the competitive market for 
jobs of this nature and Inter-Con's clear commitment to staffing with 
qualified employees was sufficient to offset this possible impact.  In 
short, the rate difference was not considered significant enough by 
the SSAC or the source selection authority (SSA) to result in a 
performance risk for Inter-Con.  Rather, the SSA and the SSAC 
concluded that Inter-Con would be able to attract appropriate 
staffing, and that in a full and open competitive environment market 
forces produced more competitive prices than experienced under 
Am-Pro's existing contract, which had been awarded on a sole-source 
basis.  We find nothing unreasonable in that view.

Corporate Experience

Under this evaluation factor, offerors were to list similar contracts 
that they have performed in the past 3 years.  Am-Pro, which received 
the maximum possible score [DELETED], contends that this contract is 
unique and that the agency improperly also awarded Inter-Con the 
maximum score under this evaluation factor even though Inter-Con 
lacked the unique experience that Am-Pro alone possessed as the 
incumbent contractor.  

The TEP noted that Inter-Con currently provides security for the DOS' 
diplomatic communities in Mexico, Jamaica, Thailand, Barbados, the 
Dominican Republic, Colombia, Liberia, and the Turkish Consulate in 
California.  These contracts require more than 1,500 people and amount 
to approximately 3 million man-hours per year.  In all, Inter-Con has 
provided approximately 15 million man-hours of security services to 
DOS facilities throughout the world.  The TEP also noted that 
Inter-Con has successfully managed several contracts of the size of 
this contract (approximately 350 personnel) or significantly larger.  
For example, Inter-Con is currently providing security services for 
all Kaiser Permanente Foundation facilities, which includes an 850 
person guard force.  In light of this experience, we see no basis to 
object to the agency's awarding Inter-Con's proposal the maximum score 
under this evaluation factor, which pertains to similar, and not to 
identical, contract experience.  The fact that a protester disagrees 
with the contracting agency's judgment does not establish that the 
evaluation was unreasonable.  Ionsep Corp., Inc., B-255122, Feb. 10, 
1994, 94-1 CPD  para.  97.       

PRICE EVALUATION

MVM and Am-Pro raise various arguments concerning Inter-Con's price.  
MVM argues that Inter-Con's proposal is unbalanced, while Am-Pro 
argues that, in view of what Am-Pro considers faulty solicitation 
estimates, Inter-Con's prices present "unacceptable cost risks" to the 
agency.  The protesters also argue that the agency performed a faulty 
analysis of Inter-Con's price and, as a result, improperly determined 
that the awardee's price was reasonable. 

Unbalanced Pricing

The concept of unbalanced pricing may apply in negotiated procurements 
where, as here, price constitutes the primary basis for the source 
selection.  Stocker & Yale, Inc., B-249466.2, Jan. 29, 1993, 93-1 CPD  para.  
88.  Unbalanced pricing has two aspects.  First, the offer must be 
evaluated to determine whether each item carries its share of the cost 
of the work specified for that item as well as overhead and profit.  
If the offer is based on nominal prices for some of the work and 
enhanced prices for other work, it is mathematically unbalanced.  The 
second part of the test is to ascertain whether a mathematically 
unbalanced offer is materially unbalanced by determining whether there 
is a reasonable doubt that award on the basis of that offer will 
result in the lowest overall cost to the government.  Id.  With 
respect to a  requirements contract, determination of the materiality 
of unbalancing usually turns on the accuracy of the solicitation's 
estimate of the agency's anticipated needs, since the mathematically 
unbalanced offer will only become less advantageous than it appears if 
the government ultimately requires a greater quantity of the 
overpriced items and/or a lesser quantity of the underpriced items.  
Duramed Homecare, 71 Comp. Gen. 193 (1992), 92-1 CPD  para.  126.  

Here, Inter-Con's proposal differentially allocates indirect costs to 
various positions with the result that its loaded rates are 
substantially higher in some cases and lower in others than those of 
its competitors.  While Inter-Con explains that these cost allocations 
are accurate and reflect a pricing strategy based on a realistic 
assessment of indirect cost allocation, the firm does not explain the 
basis for the differential allocation.  On this record, however, it is 
not clear that these price differences are sufficiently large and 
unrelated to cost share to be considered nominal and enhanced, and 
thus to be mathematically unbalanced.[3]  

In any case, we see no basis to object to the accuracy of the 
solicitation's estimates.
The agency reported and confirmed that its estimates for the labor 
hours were based on the current year requirements of the incumbent 
(Am-Pro) at the time that the RFP was issued.  Notwithstanding MVM's 
contrary assertion, the agency reasonably fashioned the solicitation's 
estimates on the current contract performance data, and its best 
assessment of likely future changes to these requirements.  MVM simply 
has not provided any credible basis to call into question the 
reliability or validity of the agency's estimates.[4]  Thus, even if 
Inter-Con's low proposal were mathematically unbalanced, the 
solicitation's estimates reasonably accurately represent the agency's 
anticipated needs, and the proposal is not materially unbalanced as 
there would be no reasonable basis for viewing the proposal as 
representing other than the lowest cost to the government.  Earth 
Eng'g and Sciences, Inc., B-248219, July 30, 1992, 92-2 CPD  para.  72.  

Price Analysis

Am-Pro and MVM both contend that the agency should have rejected 
Inter-Con's proposal because its price was below cost.  In this 
regard, Am-Pro argues that Inter-Con's low price shows that Inter-Con 
does not understand the solicitation requirements and that the firm's 
proposal should have been rejected because the  firm's income from the 
contract will be insufficient to cover the cost of providing the 
required level of service.  Am-Pro and MVM both style their 
allegations in the form of a protest that the agency did not 
adequately evaluate the "cost realism" of Inter-Con's price.  

 "Cost realism" ordinarily is not considered in the evaluation 
regarding the award of a fixed-price contract, since the contract 
places upon the contractor the risk and responsibility for loss.  See 
Culver Health Corp., B-242902, June 10, 1991, 91-1 CPD  para.  556.[5]  (An 
agency does, however, review price reasonableness prior to the award 
of a fixed-price contract, focusing primarily on whether the offered 
prices are higher than warranted based on the offeror's costs, and 
using the evaluation in negotiating reasonable prices.  See Ebonex, 
Inc., B-213023, May 2, 1984, 84-1 CPD 
 para.  495.)   Moreover, the fact that an offer may not include any profit 
or may be an attempted buy-in (below cost) does not, in itself, render 
an otherwise responsible firm ineligible for award.  Ebonex, Inc., 
supra; Norden Sys., Inc., B-227106.9,
Aug. 11, 1988, 88-2 CPD  para.  131.  

Specifically regarding the relationship of Inter-Con's price to the 
solicitation's requirements, the RFP required each offeror to provide 
a total loaded price for each line item and a breakout of each 
discrete cost element in a cost derivation table.  The cost evaluation 
team performed a price analysis of Inter-Con's proposal by comparing 
Inter-Con's price proposal to the other price proposals received in 
response to the solicitation, and by performing a technical/price 
crosswalk analysis, which entailed comparing information provided in 
Inter-Con's technical proposal to the cost information found in its 
price proposal.  The agency performed the crosswalk analysis to ensure 
that Inter-Con's proposed methodology for meeting certain technical 
requirements was supported by its proposed price.  

Although Am-Pro and MVM question the quality of the price analysis, 
the protesters' allegations establish, at best, the agency's 
recognition that while Inter-Con may have submitted a below-cost 
offer, this low price did not reflect a defective technical approach 
or lack of understanding on Inter-Con's part.  Indeed, the agency 
concluded that Inter-Con's low price resulted from its particular 
pricing strategy, which included lower support costs, lower general 
and administrative costs, and lower profit.  From our review, we have 
determined that there is no reason to question the agency's price 
analysis methods.  

Moreover, we note that regardless of the precision of the agency's 
assessment of Inter-Con's price,[6] neither protester argues that an 
accurate assessment would result in a price higher than its own offer.  
This is because even if Inter-Con's proposed prices were upwardly 
adjusted as argued, Inter-Con still proposed a significantly lower 
profit margin and to absorb gear-up/gear-down costs--that proposal, 
under any adjustment scenario, would result in Inter-Con's fixed price 
remaining significantly lower than Am-Pro's or MVM's.  Since all three 
offers were evaluated as technically equal, and the award decision 
turned, as a result, on price, the plain fact is that none of the 
price analyses to which the protesters object could have had any 
material impact on the ultimate award determination here.  

MVM next argues that award to Inter-Con was improper because the 
agency knew that Inter-Con intended to violate the contract cost 
principles and procedures of FAR Part 31 and the cost accounting 
standards (CAS) as set forth at 48 C.F.R. Chapter 99 (1995).  
Specifically, MVM argues that during discussions Inter-Con informed 
the agency that it would treat the costs of staff training, training 
facilities and support facilities as indirect costs.  MVM argues that 
under the FAR Part 31 cost principles, a direct cost, such as staff 
training, cannot be treated as an indirect cost.  MVM also alleges 
that Inter-Con is a CAS-covered contractor and that Inter-Con's 
proposed accounting treatment of these costs also violates CAS.  

The CAS requirements and contract accounting principles establish 
rules for the consistent accumulation and reporting of cost data, and 
do not require that a contractor base its fixed prices upon any 
particular allocation of costs.  MVM, Inc.; Burns Int'l Sec. Servs., 
73 Comp. Gen. 124 (1994), 94-1 CPD  para.  279.  Further, to the extent that 
MVM suggests that Inter-Con may attempt to recoup direct costs of this 
contract indirectly from the government under other contracts, this 
concerns a matter of contract administration that our Office does not 
review under our bid protest function.  4 C.F.R.  sec.  21.5(a).  

AWARD DECISION

Finally, Am-Pro contends that the contracting officer improperly 
awarded the contract to Inter-Con on the basis of Inter-Con's low 
price.  Am-Pro asserts that the contracting officer improperly 
converted the RFP's evaluation scheme from one in which technical 
merit was considered more important than price to one based upon award 
to the offeror that submitted the lowest-priced, technically 
acceptable offer. 

This allegation is simply without merit.  Where, as here, selection 
officials reasonably regard proposals as being essentially technically 
equal, price may properly become the determining factor in making 
award even if the solicitation accords price less importance than 
technical factors.  Burco Sys. Dev., Inc., 
B-256267.2, Dec. 5, 1994, 94-2 CPD  para.  220.  On this record, we have no 
basis to find the award determination unreasonable or inconsistent 
with the evaluation criteria set forth in the RFP.  

The protest is denied.

Comptroller General
of the United States 

1. Two of these offerors filed protests in our Office concerning the 
elimination of their proposals from the competitive range.  One 
protest was withdrawn, and one was denied (Akal Sec., Inc., B-271385; 
B-271385.3, July 10, 1996, 96-2 CPD  para.  77).

2. Am-Pro also alleged in a supplemental protest that Inter-Con's 
proposed assistant manager lacked the supervisory experience necessary 
for the position.  Am-Pro subsequently withdrew this issue.

3.[DELETED] 

4. Am-Pro, based on its own experience as the incumbent contractor, 
knew or should have known of defects it alleges were in the 
government's estimate, which form the basis for Am-Pro's argument that 
Inter-Con's proposal presented "unacceptable cost risks" to the 
government, before submitting a proposal.  Accordingly, we consider 
this argument to be untimely under our Bid Protest Regulations, which 
require that a protest based upon alleged improprieties apparent on 
the face of a solicitation be filed prior to the time set for receipt 
of initial proposals.  4 C.F.R.  sec.  21.2(a)(1) (1996); see Allstate Van 
& Storage, Inc., B-247463, May 22, 1992, 92-1 CPD  para.  465.  

5. An agency nonetheless may provide in a solicitation for a realism 
analysis of fixed  price proposals essentially to avoid the risk of 
poor performance by a contractor "forced" to provide services at 
little or no profit or with an undercompensated workforce.  See Culver 
Health Corp., supra.

6. The protests challenge the assessment's accuracy principally with 
respect to gear up/gear down (the time spent by guards getting into 
and out of uniform, drawing and returning weapons, and going to and 
returning from assignments); Inter-Con's wage rates; and the 
escalation of labor rates.