BNUMBER:  B-272983.2
DATE:  December 5, 1996
TITLE:  Executive Court Reporters, Inc.

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

Matter of:Executive Court Reporters, Inc.

File:     B-272981; B-272982; B-272983; B-272981.2; B-272982.2; 
          B-272983.2

Date:December 5, 1996

Lawrence J. Sklute, Esq., for the protester.
Roy Goldberg, Esq., Galland, Kharasch, Morse & Garfinkle, for Ann 
Riley & Associates, Ltd., and On the Record Reporting, Inc., 
intervenors.
Stanley Shaw, Esq., U.S. Tax Court, for the agency.
Christina Sklarew, Esq., and Michael R. Golden, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1.  Federal Acquisition Regulation  sec.  15.608(a)(2)(iii) (FAC 90-31) 
does not require procuring agency to neutralize an experienced 
offeror's performance record simply because the firm's experience is 
not as directly relevant as another firm's experience.

2.  Where protester advocates a cost evaluation method that is not 
required by the solicitation and which would not reflect the agency's 
anticipated requirement, protester has provided no legal basis to 
object to the evaluation; further, where a recalculation of scores 
using the evaluation method the protester is advocating results in no 
change to the protester's competitive position, protester has shown no 
competitive prejudice.

3.  Where award is to be made on the basis of best value to the 
government, and solicitation provides that technical merit will be 
considered "significantly more important than cost," protester has no 
basis to object to agency weighting cost as 9 percent of the total 
score where protester's competitive position would not place it in 
line for award even if cost and technical factors were weighted 
equally. 

DECISION

Executive Court Reporters protests the award of contracts for court 
reporting services by the United States Tax Court under requests for 
proposals (RFP)
Nos. 96-2048NE, 96-2049SE, and 96-2050NC.  Executive alleges that the 
evaluation of competing proposals was improperly performed for each of 
these procurements and that the resulting award decisions were flawed.  
We deny the protest.

On May 1, 1996, the Tax Court issued 116 solicitations for court 
reporting contracts for various geographical regions, including ones 
for the Northeast, North Central, and Southeast regions, which are at 
issue here.  The RFPs generally include identical provisions and 
requirements.  Each solicitation required electronic court reporting 
and verbatim transcript services.

The RFPs listed three technical evaluation criteria, as follows, and 
provided that combined, these were to be significantly more important 
than cost in the award decision:

     (a) Business Experience:  Quantity and quality of experience 
     providing reporting and transcribing services to federal courts, 
     state courts, administrative agencies and private sector clients.  
     The company must demonstrate the financial stability to perform 
     all required tasks as set forth in this RFP.

     (b) Past Performance:  The company's background and references.  
     The quality of managing, staffing, and performing similar 
     reporting contracts with courts, administrative agencies, and 
     private sector clients.

     (c) Technical Capability:  Experience, qualifications and 
     training of managers, reporters, transcribers and other personnel 
     who would be assigned to this contract.  The management plan for 
     this contract.  Equipment inventory for this contract.  
     Demonstrate understanding of USTC requirements as set forth in 
     this RFP.

The RFP advised that although the overall cost proposed would be 
considered less important than the combined technical evaluation 
criteria, cost could become the deciding factor if all proposals were 
ranked technically equal or nearly so.  The RFP also stated that the 
Tax Court intended to award the contract without holding discussions. 

The Tax Court received between seven and nine proposals in response to 
each of the three RFPs at issue here.  Each proposal was reviewed and 
point-scored by members of an evaluation committee after which the 
committee prepared an evaluation report for each region.  At the same 
time, a senior contracts specialist prepared a cost evaluation for 
each offer.  The contracting officer reviewed these evaluation 
materials and added the committee's average technical point score for 
each proposal to that proposal's cost score.  The contracting officer 
then ranked the offers and made his award determination based on the 
rankings.  The ranking for the three regions was as follows:

Southeast Region

Offeror         Ave. Tech. Score    Cost Score  Total Score

On the Record             98              6.3          104.3

(Offeror 2)               93              7.8          100.8

(Offeror 3)               85             10.0            95.0

Executive                 85               7.2           92.2
North Central Region

Ann Riley                 98               6.2         104.2

(Offeror 2)               93               7.8         100.8

(Offeror 3)               85             10.0            95.0       

Executive                 85               7.9           92.9
Northeast Region

Ann Riley                98               6.2          104.2 

(Offeror 2)              93               7.8          100.8

(Offeror 3)              92               6.7            98.7

(Offeror 4)              85             10.0             95.0

(Offeror 5)              90               4.7            94.7

Executive                83               8.3            91.3
 A Tax Court Reporting Advisory Committee reviewed the evaluation 
committee's conclusions for each of the regions and concurred with the 
award decisions of the contracting officer.  Accordingly, Ann Riley 
received the awards for the Northeast and North Central regions while 
On the Record received the award for the Southeast region.  

Following notice of the awards, Executive filed a protest in Our 
office based on general allegations of evaluation and source selection 
improprieties.  The protester then requested and was granted a 
debriefing, after which it filed an amended protest.[1]  Because of 
the timely filing of Executive's initial protest, performance has been 
suspended under the awarded contracts, pending resolution of these 
protests.  
Executive's amended protest challenges the three award decisions on 
identical grounds.  The protester alleges that the technical 
evaluations were improper because the agency downgraded Executive's 
proposal based on its lack of experience with Federal or state courts 
under both the experience and past performance evaluation factors.  
The protester believes that the evaluation violated the Federal 
Acquisition Regulation (FAR), which requires that firms lacking a 
relevant past performance history be given a neutral evaluation for 
past performance.[2]  Executive later protested that the agency had 
deviated from the weights that were to be assigned to various factors 
and subfactors in the technical evaluation, and that the selection of 
the awardee as representing the best value to the government was 
improper because it was based on an improper evaluation of costs.

Executive argues that the agency was required to evaluate past 
performance in a manner consistent with the applicable provisions of 
the FAR.  FAR  sec.  15.608(a) (2)(ii) (FAC 90-31) provides that: 

     "Where past performance is to be evaluated, the solicitation 
     shall afford offerors the opportunity to identify Federal, state 
     and local government, and private contracts performed by the 
     offerors that were similar in nature to the contract being 
     evaluated, so that the Government may verify the offerors' past 
     performance on these contracts . . . .   The source and type of 
     past performance information to be included in the evaluation is 
     within the broad discretion of agency acquisition officials and 
     should be tailored to the circumstances of each acquisition."

FAR  sec.  15.608(a)(2)(iii), which Executive cites, provides that "[f]irms 
lacking relevant past performance history shall receive a neutral 
evaluation for past performance."  

Executive argues that the agency equated "experience" with "past 
performance" and, by citing the protester's lack of experience in 
federal and state courts as a weakness in its technical evaluation, 
failed to neutralize Executive's lack of relevant past performance 
history as required by the FAR.

We disagree.  The evaluation record shows that experience and past 
performance were, in fact, separately considered and separately 
scored, consistent with the evaluation terms of the RFP.  In this 
regard, under "business experience," the evaluation score sheet lists 
"quantity and quality of prior experience" and "contractor's financial 
stability," and describes the standards under which point scores would 
be assigned.  For example, to earn the maximum points available for 
the experience subfactor, the offeror should have "had Federal Courts 
and Agencies along with private sector reporting contracts which have 
been fulfilled to clients' satisfaction"; for the next highest 
available score, the offeror should have "had only Federal Agencies 
and private sector reporting contracts which have been fulfilled to 
clients' satisfaction."  Under Past Performance, on the other hand, 
the score sheet lists "Contractor's references" and "Quality of 
managers, staffing and performance of similar contracts."   Thus, 
while the factors of "past performance" and "experience" are 
necessarily related, the evaluation record shows that differing 
criteria were considered when each of these factors was scored.

Pursuant to this scoring scheme, Executive's proposal received fewer 
than the maximum number of points available under "business 
experience," reflecting the fact that although the firm has extensive 
experience providing court reporting services before administrative 
agencies, its experience does not include contracts for reporting in 
federal courts.  Under "past performance," Executive also received 
slightly fewer points than the highest available score, based on the 
quality of the firm's references (which included a "mixed satisfied 
and very satisfied" reference) and the level of successful performance 
that was demonstrated under its other contracts (which took into 
consideration the level of similarity in the type of contract that 
Executive had performed).  While the protester argues at length that 
contemporary evaluation sheets show a number of points were deducted 
from Executive's score based on its lack of experience in federal 
courts and concludes that this resulted in an improperly low score for 
past performance, the "experience" evaluation to which the protester 
refers is separate from the "past performance" evaluation.  In short, 
the record does not support Executive's allegation.

Moreover, while Executive argues that it should not have lost 
evaluation points since "a fundamental purpose of FAR  sec.  
15.608(a)(2)(iii) is to allow firms that lack past performance history 
to fairly compete," Executive is not a first-time offeror or a new 
firm lacking relevant past performance history.  In its proposal, 
Executive lists more than 15 years of experience in the electronic 
court reporting business.  The  relevant experience and references 
included in Executive's proposal earned it respectable scores under 
both the experience and the past performance evaluation factors.   
Since Executive had relevant past performance history, the FAR 
provision cited by Executive simply did not apply.

Executive also alleges that the agency deviated from the RFP's 
evaluation scheme "that required equal treatment of the factors and 
subfactors."  The RFP listed the three evaluation criteria--business 
experience, past performance, and technical capability--and stated 
that they were not listed in any order of importance.  The protester 
asserts that the three factors should therefore have been given equal 
weight in the evaluation.  Since the three technical evaluation 
criteria combined were scored on a 100-point scale, Executive reasons 
that each criterion should have been worth 33-1/3 points.  Since the 
agency allotted 35 points to each of the first two criteria and 30 
points to the last one, Executive contends that "the entire evaluation 
scheme was flawed."  

While it is true that offerors should assume, in the absence of 
contrary information in the solicitation, that stated evaluation 
factors are of substantially equal importance, see North-East Imaging, 
Inc., B-256281, June 1, 1994, 94-1 CPD  para.  332, it is also true that 
competitive prejudice is an essential element of a viable protest.  
Lithos Restoration Ltd., 71 Comp. Gen. 367 (1992), 92-1 CPD  para.  379.  
Where no prejudice is shown or is otherwise evident, our Office will 
not disturb an award, even if some technical deficiency in the award 
process arguably may have occurred.  Merrick Eng'g, Inc., B-238706.3, 
Aug. 16, 1990, 90-2 CPD  para.  130.  In order to show prejudice, Executive 
would have to show that the slightly unequal weighting of the three 
factors in the evaluation had a material effect on Executive's 
proposals' score and resulting competitive position.  However, the 
impact of this deviation on the scores at issue was de minimus.  A 
comparison of the evaluation scores as they were calculated by the 
agency and as they would be calculated if equal weight were given to 
the three criteria demonstrates that Executive's competitive position 
would not have changed and, thus, we find no harm resulting in 
competitive prejudice in this instance.[3]

Executive also alleges that the agency failed to weight the 
"subfactors" equally, and that this distorted the scores.  However, 
there were no subfactors listed in the evaluation scheme that was 
established in the RFP.  The RFP listed the technical evaluation 
criteria, followed by a few sentences generally describing what each 
criterion included.  The "subfactors" to which Executive now refers 
first appeared on the evaluation score sheets as guidelines for 
awarding points for the three technical evaluation criteria.  In our 
view, these served much as an agency's source selection plan would, 
and are part of the internal process of the evaluation; these  
internal agency guidelines do not give outside parties any rights.  
Quality Sys., Inc., B-235344; B-235344.2, Aug. 31, 1989, 89-2 CPD  para.  
197.  Rather, the agency is required to follow the evaluation scheme 
set forth in the RFP for the information of potential offerors, and to 
conduct its evaluation in a manner that will reach a rational result.  
Id.  Here, it is clear from the record that Executive's proposal was 
reasonably evaluated pursuant to the evaluation factors set forth in 
the RFP.  While Executive argues that it assumed that the factors and 
subfactors would be treated equally and prepared its proposal 
accordingly, in fact, none of the offerors had any knowledge of the 
"subfactors" and therefore, no expectation that they would be weighted 
in any particular way.

Similarly, Executive alleges that the agency deviated from the RFP's 
evaluation scheme for evaluating costs.  The protester contends that 
the RFP required that the agency treat the transcripts' cost per page 
for standard, expedited, and daily transcripts on an equal basis, yet 
the agency estimated its requirements as 
95 percent standard delivery, 4 percent expedited delivery, and 1 
percent daily delivery transcripts when it evaluated proposed prices.  
We find no requirement in the RFP for the evaluation method Executive 
cites.  In section M, the RFP establishes the evaluation factors that 
will be considered for award.  It lists the technical evaluation 
criteria, as discussed above, and cost.  For cost, it states only that 
"[a]lthough the overall cost proposed is less important than the 
combined technical evaluation criteria, it could be the deciding 
factor if all proposals are ranked technically equal or nearly so."  
There is simply no provision describing how the offered prices for the 
various types of transcripts will be evaluated.[4]  The RFP disclosed 
the number of transcript pages that had been ordered in the previous 2 
years, as well as the current contract year per-page rates for each of 
the delivery types, but did not include any historical information 
regarding the amounts of pages that were ordered for each of the 
different delivery categories.  Executive submitted its unit prices 
for the three types of delivery and did not question the RFP's lack of 
information regarding estimated quantities, either before the closing 
date for receipt of proposals or in its protest.  Rather, Executive 
bases its objections on the method of evaluation that the agency used, 
notwithstanding that the RFP did not provide for the method of 
evaluation that the protester now advocates.  Executive has not argued 
(much less shown) that the 95/4/1 allotment does not accurately 
reflect the agency's anticipated requirements.  Moreover, Executive 
has not provided any calculations in support of its arguments or 
otherwise demonstrated that its competitive position would have 
changed meaningfully under the evaluation method it is suggesting.  
Thus, even if we accepted Executive's contentions regarding the method 
of cost evaluation here, we could not conclude that it would then be 
in line for award.

Executive also argues that the agency's best value determination was 
improper because proposed costs were not given sufficient weight in 
relation to technical merit.  The protester points out that the RFP 
established that the technical evaluation criteria would be considered 
"significantly more important than cost," and argues that instead, 
technical merit was treated as "overwhelmingly more important" than 
cost.  Executive contends that cost scores improperly accounted for 
only 9 percent of the overall point score.[5]  Even assuming, 
arguendo, that a legal distinction could be made between the terms 
"significantly" and "overwhelmingly," we point out that, again, 
Executive fails to discuss with any particularity how this alleged 
impropriety prejudiced its competitive position.  While Executive has 
provided some calculations in its final submission through which it 
purports to demonstrate that weighting costs at 27 percent and 
technical merit at 73 percent of the total score would place its total 
score within 1 percent of the awardee's score for the Northeast 
region, Executive's argument completely ignores the fact that such 
recalculation would place its score 20 points below the offeror whose 
proposal was in second place under the original evaluation.  Overall, 
such recalculation would worsen Executive's competitive position, 
placing it in fifth place based on total scores.  Given the relative 
proximity of the price scores and the disparity of the technical 
scores (which scoring we have found to be consistent with the RFP's 
terms, as discussed above), Executive's overall score would still not 
place it in line for award even if cost and technical factors were 
each weighted at 50 percent--a formula which clearly falls short of 
weighting the technical factor "significantly more important than 
cost,"[6] as the RFP required.  Furthermore, as the agency report 
points out, cost would have become more significant and could even 
have been determinative if competing proposals had been rated 
technically equal, or nearly so, under the RFP's terms.  

Executive argues that the evaluation was unequal and lists three 
instances in which the protester believes its own proposal was held to 
a higher standard than was the awardee's proposal.  We have reviewed 
the proposals and the evaluation record for each of the three areas at 
issue, and find no merit to these allegations .  For example, 
Executive complains that the agency should have downgraded the 
awardees' proposals for allegedly failing to describe the training 
methods they would use for continuing employees since the requirement 
was "strictly applied" to Executive's proposals.  However, we find 
that, contrary to Executive's arguments, the awardees' proposals 
described the methods each would use to keep employees current with 
new technology, including the use of workshops, manuals, frequent 
feedback, pairing up with senior staff, and daily meetings.  
Executive's own proposal, on the other hand, simply asserts that its 
employees "are already highly trained," and that it "do[es] not 
foresee any problems with training."  While it appears to us that 
Executive, in fact, submitted the weaker proposal in this area, it was 
scored slightly higher or equal with the awardee's proposals for this 
factor.   While not discussed here, we reach the same conclusion 
following our review of the other two instances in which Executive 
alleges unequal evaluation treatment.

The protest is denied.

Comptroller General 
of the United States 

1. This protest is not subject to the revised timeliness rules of our 
Bid Protest Regulations published in the Federal Register on July 26, 
1996 and applicable to protests filed on or after August 8, 1996, 61 
Fed. Reg. 39039, 39047 (to be codified at 4 C.F.R. Part 21) because it 
was filed on August 2.  Therefore, our current requirement that a 
protester not file its protest in this circumstance until after the 
debriefing does not apply.   

2. Executive's amended protest also included allegations involving the 
evaluation of its compliance with an equipment requirement, a training 
method requirement, and the agency's "best value" determination; 
however, these three protest grounds were expressly withdrawn in 
Executive's comments on the agency report.

3. Although Executive has not provided any figures to support its 
allegation that the impact of the deviation had a significant effect, 
we have recalculated the scores.  We recalculated average scores for 
the three technical criteria by averaging the individual scores on the 
evaluators' scoresheets and then weighted these scores equally by 
multiplying the 35-point scale scores by 35/33.33 and the 30-point 
scale scores by 30/33.33.  These calculations did not alter 
Executive's competitive position.

4. Although indefinite quantity contracts should reveal the estimated 
quantities that will be needed, in order to permit offerors to prepare 
their offers intelligently and to avoid unbalanced pricing, see Price 
Bros. Co., B-228524, Feb. 22, 1988, 88-1 CPD  para.  180, the agency's 
failure to reveal its estimated quantities or the relative weight that 
each of the different prices would have in the cost evaluation was 
never protested.  Executive must have known, when it completed its 
proposal, that the RFP did not include estimated quantities of the 
various types of transcripts, but it did not protest this apparent 
impropriety in the solicitation.  Any such objection at this point 
would be untimely.  4 C.F.R.  sec.  21.2(a)(1); Engelhard Corp., B-237824, 
Mar. 23, 1990, 90-1 CPD  para.  324.

5. While we have, as the protester asserts, questioned in certain 
circumstances whether an evaluation formula allotting only a small 
portion of the total evaluation score to price is consistent with the 
requirement under the Competition in Contracting Act that price be one 
of the significant factors in the evaluation of proposals, see, e.g., 
Video Ventures, Inc., B-240016, Oct. 19, 1990, 90-2 CPD  para.  317, we have 
not found such formula improper per se.  Here, we need not decide the 
minimum weight that should have been given to cost, since the 
evaluation formula resulted in no competitive prejudice to the 
protester, as discussed in the decision.

6. Although the Tax Court states in a supplemental filing that its 
calculations show that in one region that it uses as an example, "the 
protester would prevail only if the Court were to change the value 
assigned to cost relative to technical factors so that more than 40 
percent of the total score is attributable to cost," our calculations 
show that, in fact, the protester would not prevail even if cost were 
valued at 50 percent of the total score.  Increasing the cost score 
for each offeror by a factor of 10 (to convert the 10-point cost score 
to a 100-point score) and adding it to the technical score (which is 
already on a 100-point scale), Executive's position in the Northeast 
region would only change from fourth position to third.