BNUMBER:  B-274807; B-274807.2
DATE:  January 3, 1997
TITLE:  California Environmental Engineering

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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:California Environmental Engineering

File:     B-274807; B-274807.2

Date:January 3, 1997

Evan L. Ginsburg, Esq., Ginsburg & Hlywa, for the protester.
Karen L. Carroll, Esq., Environmental Protection Agency, for the 
agency.
Guy R. Pietrovito, Esq., and James A. Spangenberg, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1.  Protest challenging the agency's evaluation of the protester's and 
awardee's past performance is denied, where the record establishes the 
reasonableness of the agency's evaluation and the protester merely 
disagrees with the agency's evaluation determination.

2.  The protester's supplemental protest is dismissed, where the 
protester failed to timely file its comments on the agency's report 
within the time established under the accelerated schedule provisions 
of the General Accounting Office Bid Protest Regulations.

DECISION

California Environmental Engineering (CEE) protests the exclusion of 
its proposal from the competitive range and the award of a contract to 
EG&G-Automotive Research, Inc. under request for proposals (RFP) No. 
D600007M1, issued by the Environmental Protection Agency (EPA) for 
automotive emissions testing.

We deny the initial protest and dismiss the supplemental protest.

The RFP provided for the award of a level-of-effort, 
cost-plus-fixed-fee (CPFF) contract for the operation of the 
federally-owned Virginia Testing Laboratory in Alexandria, Virginia, 
for a base with 2 option years.  The contractor will be required to 
procure privately-owned vehicles, which would be tested in accordance 
with stated federal test procedures and to analyze emissions test 
failures.  Offerors were also informed that in performing the contract 
they should "provide approximately 108 to 180 vehicles in order to 
perform approximately 360 tests within each contract period."  
Detailed guidelines for obtaining privately-owned vehicles for testing 
were provided by the RFP.  The stated level-of-effort was 16,544 
direct labor hours for each contract year; as amended, the RFP 
identified the estimated level-of-effort for the labor categories to 
be used in contract performance.  
The RFP provided for award on a best value basis and stated that 
technical quality was more important than cost or price.  The 
following technical evaluation factors and associated point scores 
were identified:

Past Performance                  25

Adequacy of Personnel Qualifications  20

Technical Approach                15

Corporate Experience              10

Proposed Management Plan          10

Mentor Protege Program Plan       10

Quality Assurance Program Plan     5

Quality Assurance Project Plan     5

     TOTAL AVAILABLE POINTS     100
The RFP also stated that the agency would evaluate whether offerors 
were "small business concerns which are also labor surplus area 
concerns and other small business concerns," but that these factors, 
which would not be point scored, were of less importance to both 
technical quality and cost/price.[1]

Proposals were received from 3 offerors, including CEE and EG&G (the 
incumbent contractor), and evaluated as follows:
        
                                SCORE                 CPFF

EG&G                                92            $2,895,949

Offeror A                           44            $2,190,565

CEE                                 40             $3,197,537

EPA determined that only EG&G's proposal was acceptable.  
Specifically, EG&G's proposal received superior scores under all 
evaluation factors, reflecting, among other things, EG&G's excellent 
past performance and experience as the incumbent contractor, technical 
approach to performing the contract, and personnel.  While CEE's past 
performance was assessed as above average, receiving 20 of the 25 
available points for this factor, its proposal was considered 
unacceptable under all but one of the remaining evaluation factors.  
The contracting officer determined that because CEE's proposal could 
not be made acceptable without major proposal revisions, such that CEE 
did not have a reasonable chance of receiving award, CEE's proposal 
was not in the competitive range.

CEE's initial protest that its proposal was erroneously eliminated 
from the competitive range is based on its contention that EPA 
misevaluated the relative past performance of EG&G and CEE.  
Specifically, CEE argues that EG&G had performance problems under the 
prior Virginia Testing Laboratory contract, which should have resulted 
in a lower technical evaluation under the past performance.  In 
contrast, CEE argues that because of its performance of vehicle 
emissions testing for the State of California, it should have received 
a higher technical score under this factor.

In determining whether a particular evaluation conclusion is rational, 
we examine the record to determine whether the judgment was reasonable 
and in accord with the evaluation criteria listed in the solicitation.  
Abt Assocs., Inc., B-237060.2, Feb. 26, 1990, 90-1 CPD  para.  223.  A 
protester's mere disagreement with the agency's evaluation 
determination does not demonstrate that the evaluation was 
unreasonable.  Brunswick Defense, B-255764, Mar. 30, 1994, 94-1 CPD  para.  
225.  Here, the record provides no basis to question EPA's evaluation 
of EG&G's or CEE's proposals under the past performance factor.  

EPA found that EG&G had over 18 years of past performance performing 
emission testing and restorative maintenance and in managing 
laboratory contracts; specifically, EG&G had specific experience 
managing the Virginia Testing Laboratory, as well as the National 
Vehicle Fuels and Emissions Laboratory.  EG&G was found to generally 
meet performance goals within or below costs on its contract and, in 
particular, to have satisfactorily performed the current Virginia 
Testing Laboratory contract within cost.  On this basis, EG&G's past 
performance received 25 of the available 25 points under the past 
performance factor.

While CEE complains that EG&G's past performance of the current 
contract should not have been evaluated as satisfactory, based upon 
the protester's definition of satisfactory performance, the record 
supports EPA's evaluation conclusions.  For example, while CEE argues 
that EG&G did not consistently "capture the high-ranked, prioritized 
vehicles" for testing, EPA explains that this is generally not within 
the control of the contractor because, among other things, the 
contractor must select automobiles from a randomized list of vehicles 
provided by each state's  motor vehicle administration.  Thus, CEE has 
provided no basis to conclude that EG&G's past performance was 
overrated.[2]

The record also supports EPA's evaluation of CEE's past performance.  
EPA found that CEE had experience performing exhaust emissions testing 
and restorative maintenance and managing laboratory contracts, and on 
this basis CEE's proposal was assessed as very good under the past 
performance factor, receiving 20 of the available 25 points.  CEE's 
past performance was somewhat downgraded because its past performance 
primarily involved procuring fleet or specialized vehicles rather than 
vehicles from the general public, as required under this RFP.  CEE's 
argument that it should have received a higher technical score than 
EG&G for this factor is nothing more than a mere disagreement with the 
agency's technical judgment that does not demonstrate that the 
evaluation was unreasonable.[3]  Moreover, the record establishes 
that, even if CEE's proposal received a perfect past performance 
score, its proposal would still have been found unacceptable and 
excluded from the competitive range, given CEE's unacceptable ratings 
under most of the remaining evaluation factors.[4]  

After receipt of the agency report filed in response to the initial 
protest, which provided the details as to why CEE's proposal was 
eliminated from the competitive range, CEE protested a number of other 
aspects of EPA's evaluation of CEE's and EG&G's proposals.  In order 
to decide these new protest allegations within the time established 
for our decision on the initial protest, we invoked the accelerated 
schedule provisions of our Bid Protest Regulations, sections 21.9, 
21.10, 61 Fed. Reg. 39039, 39046 (1996) (to be codified at 4 C.F.R.  sec.  
21.9, 21.10).  As the protester was informed, pursuant to this 
accelerated schedule, CEE's comments on the agency's report on its 
supplemental protest were required to be filed within 5 calendar days 
of receipt of the accelerated report.  CEE received EPA's supplemental 
report on December 6, 1996, which meant that its comments were 
required to be filed by 5:30 p.m. eastern time on December 11.  
Section 21.0(g), 61 Fed. Reg. at 39043 (to be codified at 4 C.F.R.  sec.  
21.0(g)).  CEE untimely filed its comments on the supplemental agency 
report by facsimile transmission at 6:10 p.m., December 11.

Our Bid Protest Regulations contain strict rules requiring the timely 
submission of protests, comments, and requests for reconsideration.  
These filing deadlines are prescribed under the authority of the 
Competition in Contracting Act of 1984, as amended by the Federal 
Acquisition Streamlining Act of 1994; their purpose is to enable us to 
comply with the statutory mandate that we resolve protests 
expeditiously without unduly delaying or disrupting the procurement 
process.  See 31 U.S.C.  sec.  3554(a) (1994); Green Management 
Corp.--Recon., B-233598.2, Feb. 27, 1989, 89-1 CPD  para.  208.  To avoid 
delay in the resolution of protests, our Regulations provide that a 
protester's failure to file comments within the time required, or to 
request an extension of time for submitting comments, will result in 
the dismissal of the protest.  Sections 21.3(i), 21.10(d)(2), 61 Fed. 
Reg. at 39044, 39046 (to be codified at 4 C.F.R.  sec.  21.3(i), 
21.10(d)(2)).

We dismiss CEE's supplemental protest because the protester failed to 
file its comments within the time required.  Although CEE requests 
that we consider its admittedly untimely filed comments under the good 
cause exception of section 21.2(c), 61 Fed. Reg. at 39043 (to be 
codified at 4 C.F.R.  sec.  21.2(c)), as indicated by the express language 
of our Regulations, this exception is only considered in connection 
with the late-filing of protests and is not applicable to untimely 
filed comments.  Marconi Elecs., Inc.--Recon., 64 Comp. Gen. 331 
(1985), 85-1 CPD  para.  289.

The initial protest is denied and the supplemental protest is 
dismissed.

Comptroller General
of the United States

1. While the protester initially argued that its small business status 
was not accounted for in the evaluation, the record demonstrates that 
this factor was considered, but CEE's numerous other proposal 
deficiencies caused its proposal to be eliminated from the competitive 
range.

2. CEE also challenged EPA's evaluation of EG&G's proposal under the 
adequacy of personnel qualifications factor, contending that EG&G was 
proposing its incumbent personnel who were allegedly misperforming the 
current Virginia Testing Laboratory contract.  Given our denial of 
CEE's challenge to EPA's evaluation of EG&G past performance of this 
contract, this provides no basis to question EPA's evaluation of the 
adequacy of EG&G's proposed personnel.

3. CEE's allegation that its slightly lower past performance 
evaluation factor score was attributable to EPA's bias against CEE or 
for EG&G is unsupported by the record.  Where a protester alleges bias 
on the part of government officials, the protester must provide 
credible evidence clearly demonstrating a bias against the protester 
or for the awardee, and that the agency's bias translated into action 
that unfairly affected the protester's competitive position.  Advanced 
Sciences, Inc., B-259569.3, July 3, 1995, 95-2 CPD  para.  52.  The fact 
that some evaluators were responsible for overseeing EG&G's 
performance of the Virginia Testing Laboratory contract provides no 
basis for questioning these evaluators' conclusions.

4. CEE also complains that its proposed cost should have been 
evaluated as lower than EG&G's if the agency had considered CEE's cost 
per vehicle.  This contention is based on CEE's assertion that it 
promised to provide at least 180 vehicles each year under the 
designated level-of-effort, while EG&G allegedly would only provide 
108 vehicles under this level-of-effort.  This argument is meritless.  
The RFP did not provide that offerors' estimated costs would be 
compared by determining a cost per vehicle provided for testing.  
Rather, offerors were apprised that their proposed costs would be 
evaluated in reference to the RFP's estimated level-of-effort for each 
labor category, which is precisely the method by which EPA evaluated 
EG&G's and CEE's proposed costs.  Moreover, EG&G's proposal did not 
limit its performance to providing only 108 vehicles per year for 
testing, as CEE's supposes, but promised to satisfy the RFP 
requirements, which provide for between 108 and 180 vehicles.  Thus, 
there is no basis for the cost per vehicle comparison argued by CEE.  
See The Research Foundation of State University of New York , 
B-274269, Dec. 2, 1996, 96-2 CPD  para.  207.  In any case, CEE's proposal 
was eliminated from the competitive range because it was rated 
unacceptable under the majority of the technical factors, not because 
of its higher-evaluated cost.