BNUMBER:  B-272386
DATE:  October 3, 1996
TITLE:  GZA Remediation, 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:GZA Remediation, Inc.

File:     B-272386

Date:October 3, 1996

Alvin S. Nathanson, Esq., Nathanson & Goldberg, for the protester.
Joseph A. Camardo, Jr., Esq., for Abscope Environmental, Inc., an 
intervenor.
Frances S. Higgins, Department of the Army, for the agency.
John Van Schaik, Esq., and Michael R. Golden, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1.  Agency properly considered the past performance of the awardee's 
subcontractor under the relevant evaluation factor where the 
solicitation did not prohibit the use of subcontractors to perform the 
contract or prohibit the consideration of a subcontractor's prior 
contracts in the evaluation of proposals.

2.  Award to higher priced offeror which had higher-rated proposal 
under nonprice  factors is proper where there is a reasonable factual 
basis for the selection decision and that decision is consistent with 
the solicitation's evaluation scheme.

DECISION

GZA Remediation, Inc. protests the award of a contract to Abscope 
Environmental, Inc. under request for proposals (RFP) No. 
DACA41-96-R-0017 issued by the Corps of Engineers for removal of 
underground storage tanks and related work at Griffiss Air Force Base, 
Oneida County, New York. 

We deny the protest.

The solicitation contemplated award of a firm, fixed-price contract 
for work at two sites including the removal of a 25,000-gallon 
underground storage tank and related equipment and pipelines, 
demolition of a building and removal of five underground storage 
tanks, including four 50,000-gallon fuel tanks with residual fuel and 
one 2,000-gallon underground tank.  The work is related to the closure 
of the Air Force base and is to include excavation and sampling of 
soils to determine if there is contamination due to leakage.

The RFP stated that award was to be made to the offeror whose proposal 
offered the best value to the government "in terms of tradeoffs 
between [price] and technical merit as determined by evaluation of 
proposals according to the established evaluation criteria."  The 
solicitation listed five evaluation factors in descending order of 
importance:  (1) Price; (2) Technical expertise; (3) Past Performance; 
(4) Local business preference; and (5) Subcontracting with local and 
small businesses.  The solicitation explained that prices would not be 
scored but in selecting the best overall proposal, the agency would 
consider "the value of each proposal in terms of the quality offered 
for the cost."

Nineteen proposals were submitted.  Based on an initial evaluation by 
a source selection evaluation team (SSET) and based on the prices of 
those proposals, a source selection board (SSB) recommended a 
competitive range of three, including GZA and Abscope.  The 
contracting officer accepted that recommendation.  After discussions 
with the competitive range offerors, and the submission of revised 
proposals, the SSET met to assign consensus scores to each proposal 
under each evaluation factor and subfactor.  A contract specialist 
then calculated weighted scores by multiplying the consensus scores by 
weights assigned by a source selection plan.[1]  The weighted scores 
for GZA and Abscope were as follows:

Factors           GZA               Abscope

Technical expertise320              306

Past performance  180               180

Local business          preference   0200

Subcontracting    100               100

TOTAL SCORES:     600               786
The agency then requested and received best and final offers (BAFO).  
GZA's BAFO was priced at $1,141,002.25, and Abscope's BAFO was priced 
at $1,413,794.95.  The SSB determined that Abscope's proposal offered 
the best value to the government consistent with the evaluation 
factors set forth in the RFP and recommended award to Abscope.  That 
recommendation was approved by the contracting officer, as the source 
selection authority, and the contract was awarded to Abscope.   

GZA first argues that in the past performance evaluation, Abscope was 
unreasonably given credit for the work of a proposed subcontractor.  
According to GZA, the RFP did not permit consideration of 
subcontractors' prior contracts under the past performance factor.

We do not agree.  A proposed subcontractor's prior contracts properly 
may be considered under relevant evaluation factors where the RFP 
allows for the use of subcontractors to perform the contract and does 
not prohibit the consideration of a subcontractor's contracting 
history in the evaluation of proposals.  Seair Transp. Servs., Inc., 
B-252266, June 14, 1993, 93-1 CPD  para.  458.  There is no dispute that the 
RFP permitted the use of subcontractors to perform the contract.  In 
addition, under the past performance evaluation factor, the RFP stated 
"[t]he offeror's rating on this factor will be based on the 
demonstrated level of performance on previous government as well as 
commercial contracts."  The solicitation called for offerors to 
"[p]rovide . . . information for [government and commercial] contracts 
completed within the last five years.  Provide this information on at 
least the last 7 projects comparable to this project, but no more than 
the last 10."  These provisions of the RFP are silent as to whether 
subcontractors' prior contracts would be considered.  In addition, the 
protester refers to no other provision of the RFP that limited the 
prior contracts that would be considered under the past performance 
factor to those of the prime contractor/offeror.

Also under the past performance factor, GZA argues that Abscope's 
proposal did not include the required "7 [government and commercial] 
projects comparable to this project," since according to the 
protester, the proposal did not list past contracts for the removal of 
a 25,000-gallon underground storage tank and four 50,000-gallon tanks.  
GZA's allegation here is two pronged.  First, the protester argues 
that only one of the commercial contracts listed in Abscope's proposal 
was comparable since, while the proposal included comparable contracts 
of Abscope's subcontractor, only one of Abscope's own listed contracts 
involved removal of a tank the size of those to be removed under this 
contract.  Second, GZA argues that none of the listed government 
contracts of either Abscope or its subcontractor involved removal of 
tanks the size of those to be removed under this contract.  According 
to GZA, Abscope's proposal was scored too high.

The evaluation of proposals is primarily a matter within the 
contracting agency's discretion, since it is responsible for defining 
its needs and for deciding on the best methods for accommodating them.  
Abt Assocs. Inc., B-237060.2, Feb. 26, 1990, 90-1 CPD  para.  223.  Thus, we 
question the evaluation only if the record demonstrates that it was 
unreasonable or inconsistent with the RFP's evaluation criteria.  
Microwave Solutions, Inc., B-245963, Feb. 10, 1992, 92-1 CPD  para.  169. 

We conclude that the agency reasonably found that the contracts listed 
in Abscope's proposal were comparable to the contract awarded here.  
As explained above, the solicitation did not prohibit consideration of 
the prior contracts of subcontractors and Abscope's proposal, 
including previous contracts of O'Brien and Gere, Abscope's 
subcontractor, listed experience under commercial contracts removing 
5,000, 20,000, 30,000, and 50,000-gallon tanks.  Concerning the second 
prong of GZA's argument, although GZA argues that the government 
contracts listed in Abscope's proposal did not involve removal of 
tanks as large as the 50,000-gallon tank to be removed under this 
contract, we do not think it was unreasonable for the agency to credit 
the firm with experience with removal of tanks of the appropriate size 
based on the commercial experience listed in the proposal.  In 
addition, the government contracts listed in Abscope's proposal 
included other experience relevant to this contract, such as 
experience with tank cleaning, liquid and solid waste disposal, soil 
sampling and analysis, and excavation and backfilling.  GZA's 
disagreement with the agency does not render the evaluation 
unreasonable.  Litton Sys., Inc., B-237596.3, Aug. 8, 1990, 90-2 CPD  para.  
115.

GZA also argues that Abscope's proposal was improperly given credit 
under the technical expertise factor.  GZA notes that four of the six 
key personnel proposed by Abscope are employees of O'Brien & Gere, 
Abscope's subcontractor, which is not a small or local firm.  
According to GZA, credit for proposed key personnel that are not 
employees of a small, local firm is inconsistent with the local firm 
preference included in the RFP.  GZA also maintains that, if Abscope 
is given credit for the employees of its nonlocal subcontractor, 
Abscope's use of a nonlocal subcontractor should result in reduced 
points under the fourth evaluation factor concerning local business 
preference.

There is no merit to these allegations.  Again, the RFP did not 
prohibit the use of subcontractors or of subcontractors that are not 
local.  In fact, a subcontractor proposed by GZA is not a local firm.  
It also did not require that all personnel proposed for key positions 
be employees of the prime contractor; on the contrary, the RFP 
requested that offerors "[p]rovide a resume for each of the key 
personnel for both the prime and the subcontractors."

As for the fourth evaluation factor, the agency explains that it was 
included in the RFP pursuant to the policy set forth in base closure 
legislation, 10 U.S.C.  sec.  2687 note (1994), and implemented by Defense 
Federal Acquisition Regulation Supplement (DFARS)  sec.  226.7102, which 
states:

     "Businesses located in the vicinity of a military installation 
     that is being closed or realigned under a base closure law, 
     including 10 U.S.C. 2687, and small and small disadvantaged 
     businesses shall be provided maximum practical opportunity to 
     participate in acquisitions that support the closure or 
     realignment, including acquisitions for environmental restoration 
     and mitigation."

The fourth evaluation factor stated that "[t]he offeror's rating on 
this factor will be based on the firm's geographical location," and 
defined local businesses as those located in specified counties on or 
before September 1993.  

Under this factor, the agency assigned the maximum possible points to 
Abscope's proposal and no points to GZA's proposal, since Abscope is 
located in one of the specified counties and GZA is not.  We see 
nothing in the RFP which suggests that a local company should not be 
entitled to the maximum score because of its intended use of a 
non-local subcontractor.  In fact, the extent to which offerors 
proposed to subcontract with small and local firms was encompassed by 
the fifth factor.  Therefore, we find nothing unreasonable with the 
scoring of Abscope's proposal in this area.[2]

GZA also challenges the score assigned to Abscope's proposal under the 
fifth evaluation factor concerning subcontracting with local and small 
businesses.  In assigning scores under this factor, the evaluators 
used scoring sheets which called for assigning the highest available 
points to proposals under which "[m]ore than 50% of subcontracted work 
will be awarded to local or small/small disadvantaged business OR the 
company is a local or small/small disadvantaged business performing 
more than 50% of the work in-house."  GZA argues that Abscope's 
proposal was incorrectly assigned the highest available score on this 
factor since the proposal showed that Abscope itself was to perform 
only 37 percent of the work and other small and local firms were to 
perform only 39 percent of the work.  Thus, according to the 
protester, Abscope did not qualify under the first part of the test 
set forth in the scoring sheets since it did not propose that 50 
percent of the work would be performed by qualifying local, small 
firms and it did not qualify under the second part of the test because 
it did not propose to perform 50 percent of the work itself. 

The evaluation of Abscope's proposal under this factor was reasonable.  
Abscope's proposal shows that 63 percent of the work will be 
subcontracted, and more than half of that, 39 percent, is to be 
performed by subcontractors that are small firms located in counties 
designated by the RFP as local.  Thus, since more than half of the 
subcontracted work was to be subcontracted to small, local firms, 
assigning Abscope the maximum possible points under this factor was 
consistent with the first test set forth in the evaluator scoring 
sheets.[3]

Finally, GZA challenges that agency's "best value" determination.  As 
the protester points out, the RFP called for the contract to be 
awarded based on a tradeoff between price and technical merit and 
listed five evaluation factors in descending order of importance.  GZA 
notes that its proposal was priced 19 percent less than Abscope's 
proposal, and therefore it was superior on the most important factor; 
it was higher rated on the second factor; it was assigned the same 
ratings as Abscope's proposal on the third and fifth factors; and it 
was assigned no points compared to 200 points for Abscope's proposal 
on the fourth factor.  GZA complains that even though its price and 
technical expertise--the two most important factors--were superior to 
Abscope's, it has been deprived of an award  because GZA is not a 
local business in spite of the fact that the RFP stated that this 
factor was only the fourth most important.  According to the 
protester, "[n]ot only is this scenario illogical, but it is 
misleading to a bidder.  Quite frankly, GZA would not have bid this 
project if it had known in advance that its price, technical expertise 
and past performance would be negated by it not being a local 
contractor and/or small business even though the bid documents 
indicate the contrary."

Under a solicitation like the one here, which calls for award on the 
basis of best overall value to the government, there is no requirement 
that award be made on the basis of low price.  Agency source selection 
officials have discretion in determining the manner and extent to 
which they will make use of the technical and price evaluation 
results.  Litton Sys., Inc., supra; Institute of Modern Procedures, 
Inc., B-236964, Jan. 23, 1990, 90-1 CPD  para.  93.  Technical and price 
tradeoffs are permitted but the extent to which one may be sacrificed 
for the other is governed by the test of rationality and consistency 
with the established evaluation factors.  See Grey Advertising, Inc., 
55 Comp. Gen. 1111 (1976), 76-1 CPD  para.  325.  We will accord due weight 
to the judgment of selection officials concerning the significance of 
the difference in technical merit of offers and whether that 
difference is sufficiently significant to outweigh the price 
difference.  See Institute of Modern Procedures, Inc., supra.

The selection decision here was based on an SSET report which listed 
only total prices and total evaluation scores for each offeror.  That 
report recommended award to Abscope and included the following 
explanation for that recommendation:

     "When compared to Abscope, [GZA] offered 76.3% of the technical 
     expertise for 80.7% of the price, while [the other competitive 
     range offeror] offered 87.5% of the technical expertise for 92.4% 
     of the price."

The contracting officer, as the source selection authority, accepted 
the SSET's recommendation and awarded the contract to Abscope based on 
the SSET's report; no separate selection statement was prepared.  
Thus, the selection decision contains no indication that the source 
selection authority was aware that all of the difference in "technical 
expertise" between Abscope and GZA was based on the fact that Abscope 
is a local firm and GZA is not.

Nonetheless, in response to the protest, the contracting officer 
explains:

     "The SSB and the [source selection authority] were concerned that 
     the Government receive the best quality as part of the 'Best 
     Value' formula and they were also concerned that the public 
     policy established by DFAR 226.7102 related to BRAC [Base 
     Realignment and Closure Act] closures should also be fulfilled to 
     the maximum extent practicable.  For this reason they selected 
     Abscope as providing the 'Best Value' to the Government, based on 
     a subjective analysis of the results of the technical scores and 
     price proposal evaluation, and a comparison of measures of value 
     of Abscope's proposal to the other offerors in the Competitive 
     Range."  

We conclude that, consistent with the evaluation scheme set forth in 
the RFP, the contracting officer could rationally decide that 
Abscope's proposal offered the best value to the government.  Although 
Abscope's price was 19 percent higher than GZA's price, Abscope's 
proposal scored 186 points, or approximately 30 percent higher than 
GZA's proposal on the nonprice factors.  While this technical 
advantage was based on the fourth least important factor concerning 
local preference, this was simply a result of the relative equality of 
the two proposals on the other scored factors and was not inconsistent 
with the RFP.  The protester disparages the result here and argues 
that the local preference factor should not have had such an impact.  
Nonetheless, what is determinative is whether we can discern from the 
record a reasonable factual basis for the agency's choice.  See Litton 
Sys., Inc., supra.  Here, given the evaluation factors, the relative 
assessments made of the competing proposals, at the agency's desire to 
give effect to the policy of DFARS  sec.  226.7102, we cannot say that 
there was no reasonable basis for the selection decision.  
Accordingly, we have no legal ground upon which to question the 
agency's exercise of its discretion in choosing the higher-priced 
offeror.

The protest is denied.

Comptroller General 
of the United States 

1. Consistent with the descending order of importance set out in the 
RFP, the evaluation factors were assigned weights of 400 points for 
the technical expertise factor, 300 points for the past performance 
factor, 200 points for the local business preference factor, and 100 
points for the subcontracting factor.

2. GZA also notes that Abscope's proposal stated that there was a 
"teaming arrangement" between Abscope and its subcontractor, and 
argues that, as a result, the subcontractor's status as a nonlocal 
firm should have been considered in the evaluation under the fourth 
evaluation factor.  Although Abscope's proposal referred to a "teaming 
arrangement" with O'Brien & Gere, that reference did not change the 
fact that Abscope was the offeror and the prime contractor and that 
under the RFP only Abscope's location was to be considered under the 
fourth factor.

3. GZA also argues that the agency erroneously calculated a 
"consensus" score for GZA on one of the technical expertise 
subfactors.  GZA notes that under most the subfactors, the consensus 
score apparently was determined by simply assigning the score which 
most of the three evaluators had assigned in their individual 
evaluations.  Nonetheless, GZA notes that for one subfactor, this 
practice was not followed on its proposal; rather, GZA was assigned a 
consensus score of only "1," under a subfactor on which it had 
received individual scores of "5," "5" "1."  In response to this 
contention, the Army maintains that the consensus scores reflected the 
reasoned judgment of all of the evaluators as a result of their 
initial evaluations and the discussions among the evaluators that 
followed.  Agency evaluators may discuss their individual evaluations 
with each other in order to reach a valid consensus since such 
discussions generally operate to correct mistakes or misperceptions 
that may have occurred in the initial evaluation.  See  The Cadmus 
Group, Inc., B-241372.3, Sept. 25, 1991, 91-2 CPD  para.  271.  Thus, a 
consensus score need not be the score the majority of the evaluators 
initially awarded--the score may properly be determined after 
discussions among the evaluators.  We do not find that the Army's 
process for determining consensus scores was flawed.