BNUMBER:  B-274194; B-274194.2; B-274194.3
DATE:  November 26, 1996
TITLE:  Ryan Associates, 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:Ryan Associates, Inc.

File:     B-274194; B-274194.2; B-274194.3

Date:November 26, 1996

Jessica C. Abrahams, Esq., David F. Dowd, Esq., and Marcia G. Madsen, 
Esq., Miller & Chevalier, for the protester.
David R. Johnson, Esq., Kathleen C. Little, Esq., and Robert J. 
Rothwell, Esq., McDermott, Will & Emery, for System Planning 
Corporation, an intervenor.
Gerald Q. Brown, Esq., Ballistic Missile Defense Organization, for the 
agency.
Paul E. Jordan, Esq., and Paul Lieberman, Esq., Office of the General 
Counsel, GAO, participated in the preparation of the decision.

DIGEST

1.  Technical evaluation of offerors' proposals is unobjectionable 
where the agency followed evaluation criteria stated in solicitation, 
the challenged evaluation findings all have a reasonable basis, and 
there is no evidence of unequal treatment of offerors. 

2.  Agency satisfied obligation to conduct meaningful discussions 
where it reasonably led protester into areas of its proposal requiring 
clarification or correction.  Agency is not required to reopen 
negotiations to discuss matters first identified in an offeror's best 
and final offer.

3.  Protest alleging "bait and switch" of proposed key personnel is 
denied where solicitation does not prohibit substitution of key 
personnel, and the substitution at issue consists of only two of more 
than [deleted] key personnel proposed by the awardee, both of whom 
left the awardee's employ after having performed a significant portion 
of their proposed level of effort.

4.  Under a level-of-effort solicitation which sets the labor hours 
and labor categories, agency's cost realism analysis of proposals and 
determination of most probable cost is reasonable where it includes:  
identification of cost issues by the agency; review of audits by 
Defense Contract Audit Agency; and adjustments to costs based upon 
negotiated overhead rate ceilings.

5.  In best value procurement, where solicitation provides that 
non-cost factors are of greater importance, record supports 
cost/technical tradeoff which focuses on technical distinctions 
between competing proposals and reasonably determines that 
higher technically rated proposal represents best value despite higher 
cost.

DECISION

Ryan Associates, Inc., protests the award of a contract to System 
Planning Corporation (SPC) under request for proposals (RFP) No. 
HQ0006-96-R-0005, issued by the Department of Defense, Ballistic 
Missile Defense Organization (BMDO) as a total small business 
set-aside.  In its protests Ryan challenges various aspects of the 
technical and cost evaluations and the award determination.[1]  

We deny the protest. 

The BMDO's mission to develop a robust ballistic missile defense (BMD) 
includes knowing what countermeasures are currently deployed on 
ballistic missiles and how these countermeasures could be deployed in 
the future.  This solicitation was for independent, expert, scientific 
assessments, and technical evaluations concerning the development of 
BMD countermeasures by potential adversaries of the United States and 
its allies.  These assessments and evaluations were to include 
technical analysis, modeling and simulations, engineering and design 
studies, budgetary and cost analysis, and reporting of results.  The 
successful contractor is expected to participate in countermeasures 
integration program reviews and meetings, as well as information 
exchanges with other BMD elements.[2]  The RFP contemplated award of 
an indefinite delivery/indefinite quantity, level-of-effort contract, 
on a cost-plus-fixed-fee, task order basis, for a base year with two 
1-year options.  Award was to be made to the offeror whose proposal 
was judged, by an integrated assessment of the cost and other listed 
evaluation factors, to be the most advantageous to the government.  

Technical proposals were to be evaluated on the basis of six criteria, 
in descending order of importance:  personnel, understanding and 
approach, past performance, experience, management, and facilities.  
Proposals were scored on a color/adjectival  basis:  
"Blue/Exceptional," "Green/Acceptable," "Yellow/Marginal," and 
"Red/Unacceptable."  Proposals also were evaluated on a risk 
assessment basis: "High," "Moderate," and "Low" based upon the 
potential for disruption of schedule, increase in cost, or degradation 
in performance, along with an assessment of the amount of contractor 
special effort and government monitoring needed.  

Cost was to be evaluated, but not scored, on the basis of whether 
proposed costs were realistic, complete, and reasonable in relation to 
the RFP requirements.  Costs had to be compatible with the technical 
proposal and no advantage was to accrue to offerors submitting 
unrealistically low cost proposals.  Adjustments could be made to 
proposals to obtain a most probable cost (MPC) using the results of 
the cost realism evaluation.  While evaluated probable cost was a 
substantial area of consideration, non-cost factors collectively were 
of greater importance.

Ryan and SPC were the only two offerors to submit proposals by the 
April 15, 1996, closing date.  The source selection evaluation team 
(SSET) evaluated the technical proposals and the oral presentations, 
conducted written discussions, obtained written responses, and 
evaluated the offerors' best and final offers (BAFO), resulting in the 
following final ratings: 

OfferorPersonnelUnderstand/ApproachPast PerformExper'nceManagm'tFacili
                                               ty

SPC    Blu/Low Blu/Low  Blu/LowGrn/Low Grn/Low Grn/Low

Ryan   Grn/Low Grn/Mod  Blu/LowGrn/Mod Grn/Mod Grn/Low
The cost team, headed by the contracting officer reviewed the 
offerors' cost proposals for realism, completeness, and reasonableness 
and conducted written discussions based on the evaluations.  Due to 
questions concerning both offerors' proposed overhead, the agency 
negotiated a ceiling with both offerors.  [deleted] Both cost 
proposals were adjusted upward to reflect the negotiated ceilings, 
resulting in an MPC of $9.175 million for SPC and an MPC of $7.757 
million for Ryan.  

The SSET prepared a briefing for the source selection authority (SSA) 
as well as a detailed cost/technical tradeoff discussion recommending 
award to SPC as offering the best value to the government.  Because 
the tradeoff discussion attempted to quantify the value of SPC's 
proposal, emphasizing matters which were not included in the RFP's 
evaluation criteria, the contracting officer wrote a detailed critique 
of the tradeoff.  In her critique, the contracting officer noted that 
SPC's proposal was technically superior to Ryan's but concluded that 
the SSET's tradeoff discussion had not sufficiently justified the 
conclusion that SPC's proposal was worth the cost premium associated 
with it.  The contracting officer provided both the tradeoff and the 
critique to the SSA, but advised him that there was no joint 
recommendation for award.  Based upon his review of the evaluation 
record and briefing, the SSA concluded that SPC's proposal represented 
the best value to the government.  His decision was based on his 
finding that SPC's proposal was superior to Ryan's in the areas of 
personnel and understanding and approach and in risk ratings for the 
areas of experience and management.  Overall, the SSA determined that 
SPC's technically superior proposal was worth the [deleted] percent 
cost premium.  The agency awarded the contract to SPC.  After 
receiving notice of the award and a debriefing, Ryan filed this 
protest. 

TECHNICAL EVALUATION

Ryan first challenges the technical evaluation of its and SPC's 
proposals.  It is not the function of our Office to evaluate proposals 
de novo.  Rather, we will examine an agency's evaluation to ensure 
that it was reasonable and consistent with the stated evaluation 
criteria and applicable statutes and regulations, since the relative 
merit of competing proposals is primarily a matter of administrative 
discretion.  Information Sys. & Networks Corp., 69 Comp. Gen. 284 
(1990), 90-1 CPD  para.  203; Advanced Technology and Research Corp., 
B-257451.2, Dec. 9, 1994, 94-2 CPD  para.  230.  The protester's mere 
disagreement with the agency's judgment does not establish that an 
evaluation was unreasonable.  Medland Controls, Inc., B-255204; 
B-255204.3, Feb. 17, 1994, 94-1 CPD  para.  260.  Our review of the record 
provides no basis for objecting to the agency's evaluation.

Ryan contends that the technical evaluations of its proposal and SPC's 
were flawed in several of the areas reviewed.[3]  For example, under 
the personnel factor, Ryan argues that the agency improperly cited the 
lack of desired experience as a weakness for one of its personnel, 
while failing to cite the same weakness for one of SPC's personnel.  
The RFP sought personnel with certain specialized experience, defined 
as performance of a technical discipline directly related to that 
required for statement of work (SOW) performance.  The solicitation 
envisioned that both the program manager and principal analyst would 
have 10 years of specialized experience.  One of Ryan's proposed 
principal analysts was listed as having only 8 years of specialized 
experience.  Clarification was sought during discussions and, in 
response, Ryan confirmed that the analyst had only 8 years of 
specialized experience.  Accordingly, the agency properly treated the 
matter as a weakness.  With regard to SPC's proposal, one of the 
evaluators questioned the specialized experience of SPC's proposed 
program manager and clarification was sought in discussions.  Unlike 
Ryan's response, SPC's response provided three pages of information 
that substantiated its program manager's more than 10 years of 
specialized experience.  Thus, the agency properly did not identify 
this matter as a weakness in SPC's proposal.

Similarly, under the understanding and approach factor, Ryan argues 
that the agency improperly downgraded its proposal of work beyond the 
scope of the solicitation, while not downgrading SPC's similar 
proposal of beyond-the-scope work.  Again, the difference in treatment 
is attributable to the fact that what Ryan proposed reasonably 
constituted a weakness, while what SPC proposed did not.  In this 
regard, SPC proposed to perform additional [deleted] comparable to 
activities included in previous BMDO contracts, but which were not 
included in this solicitation's SOW.  The agency treated this neither 
as a strength nor a weakness.  Ryan, on the other hand, proposed to do 
more than the normal interfacing with other government offices.  For 
example, since Ryan and its team members conducted work for other 
ballistic missile defense related offices, the protester proposed to 
use these relationships to have the results of its work under this 
solicitation "seriously considered."  While Ryan believed that use of 
its contacts would be beneficial to the agency, BMDO viewed such 
contacts as presenting the potential for improper influence.  BMDO 
sought clarification during discussions and Ryan reiterated its 
intention to use its contacts as proposed.  Because of the potential 
for lack of impartiality in the technical studies performed under this 
contract, BMDO treated the matter as a weakness in Ryan's 
understanding and approach.  While the protester disagrees with the 
agency's assessment, it has provided nothing to establish that this 
evaluation was unreasonable or objectionable. 

Ryan also challenges BMDO's evaluation of SPC's past performance based 
on the agency's failure to evaluate SPC's performance under its 
incumbent contract, which Ryan argues was SPC's most relevant 
contract.  Ryan alleges that SPC was issued a stop work order due to 
SPC-generated cost overruns on that contract.  Since the evaluators 
apparently considered positive aspects of SPC's performance on that 
contract elsewhere in the evaluation, Ryan argues that they were 
required to consider the allegedly negative cost overrun information 
as well.  In Ryan's view, had BMDO considered this negative 
information, it would not have rated SPC's proposal as "blue" with 
"low" risk under the past performance factor.  BMDO advises, and has 
submitted documents which support its position, that the stop work 
order was issued because of a funding shortfall for which the 
government was responsible, and not due to any SPC-generated cost 
overruns.  Thus, to the extent the evaluators may have considered 
SPC's past performance on that contract, their failure to consider 
non-existent negative information was unobjectionable.  

In a related argument, Ryan contends that the agency improperly 
provided guidance to SPC's team without providing comparable guidance 
to Ryan's team.  In this regard, Ryan notes that the agency 
specifically advised SPC's primary subcontractor, SAIC, that it could 
tailor its submissions on past performance to reflect the 10 most 
relevant of its recent contracts.  The reason for allowing the 
tailoring was that SAIC, a large business, had numerous recent 
contracts, many involving company divisions unrelated to that which 
would perform the contract.  Ryan contends that this was inconsistent 
with the RFP requirement for information on the 10 most recent 
contracts and that it was "severely prejudiced" by this apparent 
waiver of the restriction on past performance contract submissions.  
Ryan, however, has not shown that had the agency dealt with it 
similarly, its primary subcontractor would have done something 
different that would have put Ryan in line for award.  On the 
contrary, the record establishes that even without the agency's 
advice, Ryan's primary subcontractor also submitted its 10 most 
relevant recent contracts.  Further, Ryan and its subcontractors' past 
performance was rated as "blue" with "low" risk, the highest possible 
rating.  Accordingly, we are not persuaded that had Ryan received 
guidance on this matter it would have submitted any different proposal 
or been evaluated in a way that would have increased its chance for 
award.  Thus, it was not prejudiced by the agency's actions.

MEANINGFUL DISCUSSIONS

Agencies are required to conduct meaningful discussions with all 
competitive range offerors.  Stone & Webster Eng'g Corp., B-255286.2, 
Apr. 12, 1994, 94-1 CPD  para.  306.  In order for discussions to be 
meaningful, contracting officials must advise offerors of deficiencies 
in their proposals and afford offerors an opportunity to revise their 
proposals to satisfy the government's requirements.  Id.  This does 
not mean that offerors are entitled to all-encompassing discussions.  
Agencies are only required to lead offerors into areas of their 
proposals that require amplification.  Caldwell Consulting Assocs., 
B-242767; B-242767.2, June 5, 1991, 91-1 CPD  para.  530.  The degree of 
specificity required in conducting discussions is not constant and is 
primarily a matter for the procuring agency to determine.  JCI Envtl. 
Servs., B-250752.3, Apr. 7, 1993, 93-1 CPD  para.  299.

Ryan alleges that the agency improperly failed to advise it of a 
number of issues in discussions.  For the majority of the issues, the 
agency report clearly establishes that the agency in fact discussed 
these issues and the protester's revised proposal addressed them.  For 
example, Ryan originally argued that the agency had not discussed its 
principal analyst's lack of desired experience.  As discussed above, 
the matter was raised during discussions; Ryan's response simply 
failed to satisfy the evaluators.  The fact that the protester's 
responses did not fully satisfy the evaluators does not mean that the 
discussions were inadequate.  Reflectone Training Sys., Inc.; 
Hernandez Eng'g, Inc., B-261224; B-261224.2, Aug. 30, 1995, 95-2 CPD  para.  
95.  In its comments on the agency report, Ryan did not rebut the 
agency's explanation.  Instead, it identified new areas in which its 
proposal was allegedly downgraded without the benefit of discussions.   

For example, Ryan argues that the agency improperly downgraded its 
proposal for a lack of "credibility" and an unresolved organizational 
conflict of interest (OCI) matter without discussing the matters with 
them.  While the consensus ratings of the evaluators listed SPC's 
credibility in the BMDO community as a strength, there is nothing to 
indicate that the agency downgraded Ryan's proposal for, or otherwise 
identified as a weakness, any perceived lack of "credibility."  The 
only place the lack of credibility is discussed is in the SSET's 
tradeoff discussion which the contracting officer effectively rebutted 
and the SSA explains did not materially aid in his own cost/technical 
tradeoff.  Since the issue of credibility did not enter into the 
evaluation or into the award decision, the agency had no 
responsibility to discuss the matter with the protester.  

With regard to the OCI matter, the agency requested additional 
information from the protester in discussions regarding one of its 
subcontractor's work on other contracts with BMDO.  In response, Ryan 
explained that it perceived no OCI problems, but to avoid the 
appearance of a problem, would recuse any affected subcontractor 
personnel.  In reviewing this response, the agency found that such a 
recusal could have affected contract performance.  This continuing 
concern was not the subject of discussions.  However, since it was 
first introduced in Ryan's revised proposal, the agency was not 
required to reopen discussions to obtain Ryan's further input.  See 
Potomac Research, Inc., B-250152.8; B-250152.11, July 22, 1993, 93-2 
CPD  para.  109.  

On this record, we see no basis to conclude that the agency failed to 
afford meaningful discussions to Ryan.

BAIT AND SWITCH

Ryan contends that SPC engaged in a "bait and switch" of proposed 
personnel.[4]  Specifically, Ryan identifies two key personnel who are 
no longer working on the contract and contends that SPC proposed them 
with the intention of replacing them after winning the contract.  
Ryan's contentions are baseless.

Offeror "bait and switch" practices, which result in an offeror's 
proposal being favorably evaluated on the basis of personnel that it 
does not expect to use during contract performance, have an adverse 
effect on the integrity of the competitive procurement system and 
provide a basis for rejection of that offeror's proposal.  Meridian 
Management Corp., Inc.; NAA Servs. Corp., B-254797; B-254797.2, Jan. 
21, 1994, 94-1 CPD  para.  167;  PRC, Inc., B-247036, Apr. 27, 1992, 92-1 
CPD  para.  396.  This does not mean that substitution of employees after 
award is prohibited; such substitution is unobjectionable where the 
offeror acted reasonably and in good faith.  Unisys Corp., B-242897, 
June 18, 1991, 91-1 CPD  para.  577.

Here, there is no evidence that SPC engaged in bait and switch 
practices.  Rather, the record shows that virtually all of the 
personnel, key and non-key, proposed by SPC and its team members are 
available and working on the contract.  The SPC team proposed more 
than [deleted] key personnel and states that it intended to use them 
all in performance of the contract.  SPC acknowledges that two 
personnel are no longer working on the contract, but explains that 
both were long-term SPC employees who left unexpectedly.  One of them 
left to care for his ill parents, while the other left to accept 
another business opportunity.  Both were proposed to work 500 hours on 
the contract and, prior to resigning, each worked a significant 
portion of that time:  124.5 and 255 hours, respectively.  Nothing in 
the RFP prohibits substitution of personnel, and by itself, 
substitution after contract award, of two key personnel out of more 
than [deleted] proposed, provides no basis to conclude that award to 
SPC was improper.  Whether any substituted personnel are qualified to 
fill the vacated positions is a matter of contract administration 
which our Office will not review.  Bid Protest Regulations,  sec.  21.5(a), 
61 Fed. Reg. 39039, 39045 (1996) (to be codified at 4 C.F.R.  sec.  
21.5(a)).

COST REALISM ANALYSIS

Ryan contends that the cost realism evaluation was flawed because the 
agency did not take into account various inconsistencies discovered in 
SPC's cost proposal and used only rudimentary calculations to make 
adjustments.  When a cost-reimbursement contract is to be awarded, a 
cost realism analysis must first be performed by the agency.  See 
Federal Acquisition Regulation  sec.  15.801, 15.805-3.  The purpose of a 
cost realism analysis by an agency under a level-of-effort, cost-type 
contract is to determine the extent to which the offeror's proposed 
labor rates are realistic and reasonable.  ERC Envtl. and Energy 
Servs. Co., Inc., B-241549, Feb. 12, 1991, 91-1 CPD  para.  155.  In this 
regard, an agency is not required to conduct an in-depth cost analysis 
or to verify each and every item in conducting its cost realism 
analysis.  Rather, the evaluation of competing cost proposals requires 
the exercise of informed judgment by the contracting agency involved, 
since it is in the best position to assess "realism" of cost and 
technical approaches and must bear the difficulties or additional 
expenses resulting from a defective cost analysis.  Since the cost 
realism analysis is a judgment function on the part of the contracting 
agency, our review is limited to a determination of whether an 
agency's cost evaluation was reasonably based and not arbitrary.  
General Research Corp., 70 Comp. Gen. 279 (1991), 91-1 CPD  para.  183;  
Science Applications Int'l Corp., B-238136.2, June 1, 1990, 90-1 CPD  para.  
517.  We have reviewed BMDO's cost realism analysis of SPC's proposal 
and find it unobjectionable.

Here, the cost evaluators reviewed SPC's cost proposal for realism, 
completeness, and reasonableness.  The evaluation included a 
comparison of the labor hours and mix proposed in the cost volume of 
the proposal to the labor effort in the technical volume; an 
assessment of the responsiveness of the cost proposal to the RFP's 
requirements; and an assessment of the degree to which proposed cost 
methodology supported the development of the proposed costs and total 
price.  The evaluators found SPC's proposal to be reasonable and 
complete, and with regard to cost realism, that its proposal was 
consistent and compatible with the labor effort in its technical 
volume and that in the RFP.  They also had the Defense Contract Audit 
Agency (DCAA) verify SPC's direct and indirect rates.  In verifying 
SPC's rates, DCAA considered them for reasonableness, unallowable 
costs, and proper allocation bases.  DCAA also compared SPC's proposed 
budget rates with actual rates from previous year's and the year to 
date.  DCAA took no exceptions in its review.  Since SPC proposed 
labor hours as set by the RFP, and used labor rate escalations similar 
to Ryan's and those recommended by DCAA, the evaluators determined 
that it was unnecessary to make adjustments in the out years.  SPC's 
labor mix was determined sufficient to perform the SOW making 
adjustments to the labor mix unnecessary.  Due to questions concerning 
SPC's overhead rates, the agency negotiated a [deleted] percent 
ceiling on labor overhead and adjusted the cost proposal to reflect 
the negotiated ceiling.[5]  Since the level of effort is set by the 
agency and the agency obtained verification of SPC's direct labor 
rates from DCAA, and since the agency both negotiated an indirect rate 
ceiling and adjusted SPC's costs upward based on that ceiling, we have 
no basis to conclude that BMDO's cost realism analysis was 
unreasonable or otherwise flawed.  Further, since SPC's most probable 
cost is approximately [deleted] percent higher than Ryan's, there 
appears little risk that SPC's proposal is unrealistically low. 

Ryan, however, contends that this evaluation was insufficient because 
it failed to take into account four matters which the agency 
identified in its evaluation: proposed escalation rates, subcontractor 
costs, low other direct costs (ODC), and discrepancies in the 
percentage of direct productive labor hours (DPLH) per year.  Ryan 
argues that had the agency made adjustments to SPC's costs to account 
for these matters, SPC's probable cost would have "greatly exceeded" 
the MPC originally calculated.  Contrary to Ryan's allegations, the 
agency raised three of these matters in discussions and SPC 
satisfactorily responded to all three.  For example, the discrepancies 
in DPLH percentages were primarily attributable to the fact that SPC's 
personnel matrix did not list all proposed personnel, while the cost 
proposal did.  Correction of the personnel matrix to account for all 
personnel eliminated the discrepancies.  Similarly, SPC provided 
explanations for missing subcontractor costs and its low ODCs which 
the agency reviewed and accepted as reasonable.  Though Ryan claims 
that these matters should have resulted in significant cost 
adjustments, it makes no attempt to quantify them.  We find that 
Ryan's objections merely constitute its disagreement with the agency's 
determination, which alone does not establish that the evaluation was 
unreasonable. 
With regard to SPC's escalation rate, Ryan notes that DCAA had 
identified a data resource index rate of 3.5 percent for both Ryan and 
SPC; yet, SPC's rate was only [deleted] percent.  The agency explains 
that this slight difference was determined to be too low to warrant 
any adjustment.  In this regard, the agency explains that Ryan's 
escalation rate [deleted].  Since the agency would have had to 
upwardly adjust Ryan's rate as well as SPC's rate and the small 
increases would not have been significantly dissimilar, we find 
unobjectionable the agency's determination to simply accept both 
offerors' proposed escalation rates.  

COST/TECHNICAL TRADEOFF

Finally, Ryan contends that the flawed evaluations make the 
cost/technical tradeoff performed by the SSA unreasonable.  Ryan also 
contends that the SSA failed to properly consider cost and to justify 
award to SPC at a price premium in his selection statement.  We 
disagree. 

In a negotiated procurement, the government is not required to make 
award to the lowest-cost, technically acceptable offeror unless the 
RFP specifies that cost will be the determinative factor for award.  
General Servs. Eng'g, Inc., B-245458, Jan. 9, 1992, 92-1 CPD  para.  44.  
Agency officials have broad discretion in determining the manner and 
extent to which they will make use of technical and cost evaluation 
results.  Cost/technical tradeoffs may be made; 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.  
Id.  While the selection official's judgment must be documented in 
sufficient detail to show it is not arbitrary, KMS Fusion, Inc., 
B-242529, May 8, 1991, 91-1 CPD  para.  447, an SSA's failure to 
specifically discuss the cost/technical trade-off in the selection 
decision document does not affect the validity of the decision if the 
record shows that the agency, in consideration of the relative 
technical merit of the awardee's and the lower-cost protester's 
proposals, reasonably decided that the higher-cost awardee's proposal 
was worth the associated additional cost.  McShade Gov't Contracting 
Servs., B-232977, Feb. 6, 1989, 89-1 CPD  para.  118.

As discussed above, we find nothing objectionable in the agency's 
evaluation of SPC's or Ryan's proposals.  We also find that the SSA's 
cost/technical tradeoff decision to award to SPC as the technically 
superior offeror, at an [deleted] percent higher evaluated cost, was 
rational and is supported by the record. 

The RFP provided that award would be made to the offeror whose 
proposal was determined most advantageous, based upon an integrated 
assessment of cost and non-cost factors.  The non-cost factors, 
personnel, understanding and approach, past performance, experience, 
management, and facilities, were considered more important than cost.  
The RFP permitted award to an offeror with a higher technically rated 
proposals at a higher evaluated cost, but also provided that award 
would not be made at a significantly higher overall cost to achieve 
only slightly superior capability.  

The SSA is the director of Security, Intelligence and Countermeasures 
at BMDO and has more than 30 years of experience in the areas of 
intelligence, science, and technology.  Before making his selection 
decision, he was briefed by the SSET, read all the top-level documents 
comprising the proposal analysis report (PAR), the SSET's 
cost/technical tradeoff, and the contracting officer's critique of the 
tradeoff.  According to the SSA, the tradeoff did not materially aid 
his understanding of the respective proposals and the critique 
reinforced his independently conceived view that he was simply being 
called upon to make the straightforward judgment of whether the 
superior quality of the SPC proposal was worth the associated 
additional cost.  

The SSA's decision was based primarily on the PAR.  The SSA noted the 
difference in technical and risk ratings for both offerors in four of 
the six non-cost factors.  In personnel, the most important of the 
factors, he considered that SPC's "blue/low" ratings were justified, 
while Ryan's "green/low" ratings were "generous."  He based this 
determination on the superior qualifications and experience of the SPC 
team against the more limited qualifications and experience of the 
Ryan team.  In this regard, the PAR reflects seven strengths and no 
weaknesses for SPC and emphasizes its personnel's "exceptional" and 
"extensive" experience.  For Ryan's proposal, the PAR reflects six 
strengths emphasizing its "superior" but more limited experience, and 
contains two weaknesses concerning the deputy program manager's less 
than desired level of experience and Ryan's limited experience in 
certain areas. 

With regard to understanding and approach, the SSA was "disappointed" 
with Ryan's failure to grasp the full scope of the BMDO 
countermeasures program.  Instead of the comprehensive threat risk 
assessment process emphasized in the program, the SSA found that 
Ryan's approach was a much more limited endeavor focusing only on 
characterizing given countermeasures and inserting them into specific 
threat products.  The SSA noted that Ryan persisted in this approach 
even after discussions, but found SPC's proposal exhibited a 
reassuring grasp of both the strategic vision of the countermeasures 
program, as well as the specific steps required to carry it out.  
Thus, he concluded that SPC's "blue/low" ratings versus Ryan's 
"green/moderate" ratings were justified.  Again, the PAR supports 
these findings.  SPC's proposal contained nine strengths and no 
weaknesses, while Ryan's proposal contained only six strengths and 
three weaknesses, including confusion as to the role of the 
senior-level team and lack of full understanding of a risk assessment 
process. 

In the areas of experience and management, both Ryan's and SPC's 
proposal were rated "green."  While SPC's proposal was rated as "low" 
risk, the SSA noted that Ryan's proposal was rated as "moderate" risk.  
In this regard, the PAR reflects five strengths each for the offerors 
under the experience factor, as well as one weakness for Ryan. While 
SPC had performed many contracts larger and/or more complex than the 
SOW, Ryan had not been the prime on contracts of similar size and 
complexity.  Under management, SPC's proposal had three strengths, 
including an [deleted].  Ryan's proposal had two strengths and two 
weaknesses including its planned, beyond the scope work, and the lack 
of clarity in its interface with related contract support areas.

With regard to cost, the SSA considered the [deleted] percent cost 
premium associated with SPC's proposal, and noted that the cost risk 
for both proposals was low and that both offerors had agreed to 
overhead rate ceilings.  Overall, the SSA concluded that SPC's 
proposal was substantially superior to the Ryan proposal and that it 
was worth the added cost to obtain SPC's level of performance.  In his 
view, a primary consideration was the criticality of the 
countermeasures program to the ultimate success of the BMD program, 
thus making the highest quality contractor support most important.

In sum, the record shows that the SSA reviewed the technical 
evaluations and carefully weighed the differences in the two proposals 
to determine whether selection of the higher-rated proposal would 
result in sufficient added value to justify the payment of an 
[deleted] percent cost premium.  In our view, since non-cost factors 
were more important than cost, and SPC's proposal was plainly 
technically superior to Ryan's in four of six non-cost factors, 
including the two most important factors, the record supports the 
SSA's tradeoff determination.  McShade Gov't Contracting Servs., 
supra.  While the [deleted] percent most probable cost difference 
between the proposals is significant, we do not believe that alone is 
reason to question the SSA's determination.  General Servs. Eng'g, 
Inc., supra (award to offeror whose technically superior proposal was 
125 percent higher in cost than lower technically rated proposal was 
proper).

Our conclusion is not changed by the agency's admitted problems with 
the SSET's tradeoff methodology.  While Ryan argues that the SSA's 
tradeoff was tainted by the SSET's tradeoff, the record does not 
support this argument.  The SSET's tradeoff emphasized credibility, 
learning curve, and other discriminators which the contracting officer 
correctly criticized as not representing identified evaluation 
factors.  The SSA was fully briefed on the matter by the contracting 
officer's memorandum and he avers that the SSET's tradeoff did not 
materially aid his understanding of the proposals.  Since an SSA is 
not bound by the evaluation findings of lower-level evaluators, where, 
as here, there is no evidence that an SSA has relied upon improper 
evaluations, we will not impute those evaluations to the SSA.  See 
Aguirre Eng'rs, Inc., B-258931, Feb. 21, 1995, 95-1 CPD  para.  104.[6]  
Accordingly, the record provides no basis to question the SSA's 
cost/technical tradeoff and resulting award determination.

The protest is denied.

Comptroller General 
of the United States

1. The protester submitted numerous arguments in support of these and 
other protest grounds; the agency responded to each argument, 
explaining and justifying its actions.  We have reviewed the entire 
record, considered all of the protester's arguments, and find no basis 
for sustaining the protest.  However, we will discuss only the more 
significant arguments in this decision.

2. This would include interfacing with the Theater High Altitude Area 
Defense, PATRIOT, AEGIS/SM-2, Block IVA, Theater Missile Defense, 
National Missile Defense, BMD Advanced Technology Program project 
offices, various offices internal to BMDO, and the intelligence 
community, to convey the results of research and studies.

3. In another argument, Ryan alleges that the agency improperly used 
undisclosed evaluation criteria:  credibility, learning curve, and 
transition concerns.  For example, with regard to credibility, the 
evaluators observed that SPC's senior level team had great credibility 
in the BMD community and treated this as one of seven strengths under 
the personnel factor and one of nine strengths under the understanding 
and approach factor.  We do not believe that this constituted the 
application of undisclosed evaluation factors.  Rather, it simply 
concerned the qualifications of the proposed senior level team and its 
ability to perform the contract, matters reasonably encompassed by the 
respective evaluation factors.  See Avogadro Energy Sys., B-244106, 
Sept. 9, 1991, 91-2 CPD  para.  229.  Ryan's position regarding the 
significance of this matter stems from its consideration in the SSET's 
cost/technical tradeoff.  However, this document played no significant 
role in the award determination (see cost/technical tradeoff 
discussion below).  In this regard, the SSA's selection decision does 
not mention credibility, learning curve, or transition concerns, and 
we find nothing to indicate that they had any effect on the award 
decision. 

4. Ryan also contends that SPC misled the agency with regard to the 
availability of various personnel.  Specifically, Ryan notes that 
three personnel who were proposed to work on the senior level team 
were also proposed as key personnel but were obligated to work on the 
contract for very limited hours.  Ryan has simply misconstrued SPC's 
proposal.  Each of the personnel was proposed only for the senior 
level team.  The reference to other positions simply complies with the 
RFP's requirement that personnel be categorized according to their 
education and experience.  Thus, these personnel were not proposed to 
perform two jobs on the contract.  Ryan also noted that although SPC's 
program manager was proposed to devote "100 percent" of his time to 
this contract in fact he was spending less time.  This allegation also 
is without merit.  The program manager was proposed to work for a 
specific number of hours per year and SPC intends for him to work the 
hours proposed.  Whether he performs as proposed is a matter of 
contract administration which our Office will not review.  Bid Protest 
Regulations,  sec.  21.5(a), 61 Fed. Reg. 39039, 39045 (1996) (to be 
codified at 4 C.F.R.  sec.  21.5(a)).

5. In fact, the agency made upward adjustments to both proposals.  
However, Ryan contends that the agency should not have adjusted its 
indirect costs upward to reflect the ceiling because its originally 
proposed rate was realistic and reasonable.  The agency explains that 
it negotiated the ceiling on Ryan's indirect cost rate because of 
concerns with Ryan's lack of [deleted] and due to a lack of 
information concerning Ryan's [deleted].  Since the ceiling rate was 
negotiated with Ryan without objection and has a reasonable basis, the 
agency reasonably considered this ceiling in determining Ryan's MPC.  
In any event, even if this adjustment had not been made, the 
difference between Ryan's proposed costs and SPC's MPC would increase 
less than [deleted] percent, an amount unlikely to have affected the 
outcome of the cost/technical tradeoff. 

6. Ryan also argues that the selection decision was tainted by the 
SSA's attempt to quantify the non-cost factor ratings in his draft 
selection statement.  According  to the SSA, after making his 
selection decision, he created a numerical analysis as a check, 
assigning relative weights to the color and risk ratings.  These 
calculations reinforced his decision and he included the analysis in 
his draft decision.   The SSA was advised that it would be 
inappropriate to include this analysis in his selection decision.  
Since the selection decision does not reference this analysis and is 
fully supported by the evaluation record, we are unpersuaded that the 
SSA's use, and subsequent rejection, of a numerical quantification 
makes his selection decision suspect.