BNUMBER:  B-274928
DATE:  January 13, 1997
TITLE:  AAC 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:AAC Associates, Inc.

File:     B-274928

Date:January 13, 1997

Craig S. King, Esq., and Tenley A. Carp, Esq., Arent Fox Kinter 
Plotkin & Kahn, for the protester.
Matthew S. Simchak, Esq., David Vogel, Esq., and Christopher R. 
Yukins, Esq., Wiley, Rein & Fielding, for The MIL Corporation, the 
intervenor.
Terrence J. Tychan, Department of Health & Human Services, for the 
agency.
John L. Formica, Esq., and James A. Spangenberg, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest that the agency unreasonably evaluated proposals, submitted in 
response to a solicitation for technical services in support of a 
local area network and data communications systems, is denied where 
the protester's contentions are unsupported by the evaluation record, 
and the record demonstrates that the agency reasonably evaluated 
proposals.  

DECISION

AAC Associates, Inc., protests the award of a contract to The MIL 
Corp., under request for proposals (RFP) No. NLM 96-107/RMC, issued by 
the National Library of Medicine (NLM), Department of Health and Human 
Services, for technical services in support of a local area network 
(LAN) and data communication systems.  AAC, the incumbent contractor, 
argues that the agency improperly evaluated MIL's technical proposal.

We deny the protest.

The RFP, issued as a total set-aside for small businesses, provided 
for the award of a fixed-price, indefinite delivery, indefinite 
quantity contract, for a base period of 1 year with four 1-year 
options.  The contractor will be required to support the NLM's LAN and 
related data communications systems by providing installation, 
configuration, monitoring, troubleshooting, operation, evaluation, 
test and documentation of communications hardware and software systems 
services.  The contractor will also be required to provide direct 
support to the end users of the LAN and communications systems, and to 
analyze, evaluate, and test new hardware and software products, and 
occasionally develop custom software interfaces.

The RFP stated that award would be made to the offeror submitting the 
proposal representing the best overall value to the government, price 
and other factors considered, and that technical merit was more 
important than price.  The RFP listed the following technical 
evaluation criteria and their relative weights:

        A.  Qualifications and Availability of Proposed Personnel50%
        B.  Understanding the Statement of Work and Method of
           Accomplishing Objectives                    20%
        C.  Management Plan                            20%
        D.  Past Performance                           10%
                                                       
The RFP provided detailed instructions for the preparation of 
proposals and requested that offerors submit separate technical and 
business proposals.  Offerors were informed that they were to provide 
resumes for all proposed personnel, and that their technical proposals 
were to address "their ability to provide technically competent staff 
starting on the effective date of the contract."  The RFP added here 
that "[i]t is required that two-thirds (2/3) of the offeror's staff, 
to include key personnel, be available on-site at NLM on the effective 
date of the contract," and specified that the ability to comply with 
this requirement would be evaluated under the management plan 
evaluation criterion.

The agency received eight proposals by the RFP's closing date.  The 
technical proposals were evaluated by a technical evaluation group 
(TEG), and four proposals, including AAC's and MIL's, were included in 
the competitive range.  Discussions were held, and best and final 
offers (BAFO) received and evaluated as follows:

     Firm           BAFO Score          Total Proposed Price
     AAC                 92                   $10,493,445
     MIL                 89.5                 $  7,799,065
     Offeror #3          84.5                 $  8,446,020
     Offeror #4          81.75                $  7,621,550

The agency determined that MIL's and AAC's proposals were 
"approximately equal" in technical merit, and that because MIL's price 
was "significantly lower" than AAC's, MIL's proposal offered the best 
value to the government.  NLM made award to MIL, and this protest 
followed.

AAC protests that the agency's evaluation of MIL's proposal under the 
qualifications and availability of proposed personnel and the 
management plan evaluation criteria, as well as under the past 
performance criterion, was unreasonable. 

The evaluation of technical proposals is a matter within the 
discretion of the contracting agency because the agency is responsible 
for defining its needs and the best method of accommodating them.  
Marine Animal Prods. Int'l, Inc., B-247150.2, July 13, 1992, 92-2 CPD  para.  
16.  In reviewing an agency's evaluation, we will not reevaluate 
proposals, but instead will examine the agency's evaluation to ensure 
that it was reasonable and consistent with the solicitation's stated 
evaluation criteria.  Decision Sys. Technologies, Inc.; NCI 
Information Sys., Inc., B-257186 et al., Sept. 7, 1994, 94-2 CPD  para.  
167.  An offeror's mere disagreement with the agency does not render 
the evaluation unreasonable.  McDonnell Douglas Corp., B-259694.2; 
B-259694.3, June 16, 1995, 95-2 CPD  para.  51.

In its initial proposal, MIL provided detailed resumes for each of its 
proposed personnel, and a matrix identifying its proposed personnel by 
name, education, various technical certifications, and years of 
relevant experience.  MIL also provided, as required by the RFP, a 
matrix identifying each of these individuals and their proposed 
positions and skills, and the elements of the required work to which 
their respective skills were applicable.  MIL also stated the 
following in its initial proposal:
     
     "Although we are fully prepared to staff the project with our own 
     personnel on day one of the contract, we appreciate that there 
     may be current members of the incumbent contractor's staff who 
     may elect to accept positions offered by MIL.  We will make every 
     effort to retain qualified and experienced incumbent staff by 
     hiring through MIL or our subcontractors.  Of course, all actions 
     in this area will be carefully coordinated with the [agency] 
     before making any offers of employment."

The technical section of MIL's BAFO included updated resumes, 
additional resumes, certain proposal modifications, and MIL's specific 
responses to the agency's discussion questions.  In response to one of 
these questions, MIL stated that it would "provide NLM with the best 
qualified staff," and stated that it would recruit "[k]ey personnel . 
. . from the incumbent's staff only after discussion and agreement 
with [the agency]."  This response further described the procedures by 
which MIL would recruit such staff if appropriate.

The protester points to the aforementioned statements in MIL's initial 
proposal and BAFO concerning the possible recruitment of AAC's 
personnel, and argues that MIL "said everything possible . . . to 
convey to the [g]overnment that notwithstanding its proposed personnel 
the contract would be performed by the incumbent's employees."  The 
protester claims that "[t]he [a]gency accepted MIL's invitation to 
pretend in the evaluation process that MIL's personnel would perform 
the contract notwithstanding that there was no real expectation that 
they would do so," and thus performed an improper evaluation of MIL's 
proposal.  The only evidence provided by the protester in support of 
its assertion here is the notation of one of the four members of the 
TEG, on one of his individual evaluation worksheets, that MIL's 
phase-in plan, among other things, "[i]ncludes an intent to preserve 
NLM's investment in incumbent personnel."[1]

The protester also argues that because of MIL's strategy of hiring 
AAC's personnel, "MIL's BAFO made clear that it had no intention of 
having its personnel on-site on the effective date" of the contract.  
The protester contends that because of this, the agency's evaluation 
of MIL's phase-in plan, including its ability to have two-thirds of 
its staff on-site on the effective date of the contract, was 
unreasonable.  The protester claims that MIL's failure to have any 
staff on-site within the first 3 days of the contract's effective date 
confirms that it did not have the ability to do so. 

Contrary to the protester's assertions, the record demonstrates that 
the agency's evaluation of MIL's proposal under the quality and 
availability of proposed personnel and management plan evaluation 
criteria was reasonably based upon the evaluation of only MIL's 
proposed personnel, not on the assumption that MIL was offering the 
incumbent personnel.  With the exception of the single notation of one 
member of the TEG on an initial evaluation worksheet, the record 
provides no indication whatsoever that the agency, in evaluating MIL's 
proposal, gave any consideration, in either a positive or negative 
manner, to the qualifications or potential for recruitment of AAC's 
personnel.  Rather, the record reflects that the agency reviewed the 
resumes of MIL's proposed personnel in detail, compared the skills 
identified in the resumes and matrices with the RFP requirements, and 
carefully considered what aspects of the personnel's qualifications 
were strengths or weaknesses.[2]  The record further demonstrates that 
the agency carefully considered the ability of MIL to have the 
requisite two-thirds of its proposed personnel on-site on the 
effective date of the contract, including conducting discussions on 
this point to satisfy itself that MIL would comply with this 
requirement, and reasonably found that MIL's proposal met the RFP 
requirements.[3]  

AAC protests that the agency's evaluation of MIL's proposal under the 
past performance evaluation criterion was unreasonable.  The protester 
contends that in reviewing MIL's past performance, the TEG was 
informed of certain problems that customers of MIL had with MIL's 
performance; for example, that MIL's customers reported problems with 
MIL's "[DELETED]" approach and noted that MIL's "low labor prices make 
it difficult to find and retain skilled personnel."  The protester 
asserts that the negative comments made by certain of MIL's customers 
"apparently had little or no effect on the ultimate decision to award 
to MIL," and that "[t]he [a]gency made no effort to seriously evaluate 
MIL's ability to perform in view of its proposed dramatic reductions 
in labor costs." 

The protester's assertions here are, again, simply unsupported by the 
record and represent selected quotes from the evaluators taken out of 
context.  For example, as stated by the protester, one member of the 
TEG noted that "MIL's record of adhering to contract schedules is 
weakened by accounts of poor management on-site and off-site according 
to references," and that "MIL's '[DELETED]' concept is unsuccessful."  
This same evaluator also noted as "strengths" that "[a]ccording to 
references for contracts for similar products/services, MIL's past 
technical performance appears to be quite good," and that "MIL's 
record of business-like concern for the interests of the customer is 
very good."  Overall, taking into account both the positive and 
negative aspects of MIL's past performance, it received an average 
score of only 7.5 out of 10 points under this criterion.  The source 
selection official was specifically apprised of MIL's strengths under 
this criterion and that there were some reported problems with MIL's 
past performance.  Moreover, with regard to MIL's proposed labor 
rates, the record reflects that the contracting officer reviewed the 
payroll records of each offeror, including MIL's, to verify the 
proposed hourly rates and to verify that proposed personnel 
represented each offeror's existing staff, and determined that MIL's 
proposed labor rates, as well as MIL's indirect rates, were reasonable 
and consistent with MIL's current actual labor rates.  Accordingly, we 
cannot find, based upon our review of the record and the arguments 
presented by the protester, that the agency's evaluation of MIL's 
proposal under the past performance evaluation criterion was 
unreasonable.  

AAC argues that the agency acted improperly because "it failed to 
conduct a technical evaluation separate from the evaluation of 
prices," as evidenced by the final report of the TEG, and that the 
TEG's exposure to the offerors' prices "created the incentive and 
opportunity to manipulate the technical scores to facilitate an award 
based upon price."

The protester does not explain why it believes that the final report 
of the TEG substantiates its claim that the TEG was aware of the 
offerors' prices at any time during its consideration of the offerors' 
technical proposals.  The report is comprised of a cover memorandum 
summarizing the evaluation process and the conclusions/recommendations 
of the TEG based upon the offerors' technical scores and proposed 
prices.  It includes, as attachments, a summary of the technical 
scores by evaluation criteria and evaluator, and a summary of the 
strengths and weaknesses of each offerors' proposal.  Although it is 
obvious that the TEG was aware of the offerors' proposed prices when 
making its award recommendation, we do not see, and the protester has 
not pointed out, where the report evidences that the TEG was aware of 
the offerors' proposed prices during its evaluation of technical 
proposals.  As such, the protester's argument here is unsupported by 
the  record.  Moreover, the protester has failed to cite to, and we 
are unaware of, any requirement in law or regulation that technical 
evaluators be unaware of the offerors' proposed prices during the 
evaluation of technical proposals.

The protest is denied.

Comptroller General
of the United States

1. The protester also argued in its initial protest to our Office that 
"MIL proposed personnel that it ha[d] no intention of having perform 
the project," and had thus engaged in an improper "bait & switch" 
tactic.  In its report on AAC's protest, the agency responded in 
detail to this argument, noting that MIL had in fact hired only one 
AAC employee in a non-key position.  Because AAC did not respond to 
the agency's position in its comments on the agency report, we 
consider AAC to have abandoned this aspect of its protest.  D & M 
General Contracting, Inc., B-259995; B-259995.2, May 8, 1995, 95-1 CPD  para.  
235.  

2. Each member of the TEG completed detailed narratives setting forth 
their views of the strengths and weaknesses of each of the offerors' 
initial proposals and BAFOs under each of the evaluation criteria, as 
well as scoring sheets.  

3. The agency points out that, contrary to AAC's assertion, MIL had, 
depending on the day, five or six staff members on-site in the first 3 
days of the contract, and met the two-thirds requirement by having at 
least eight staff members on-site by the 4th day of performance.  
MIL's actual compliance with this requirement is a matter of contract 
administration not reviewable under our bid protest function.  Bid 
Protest Regulations, section 21.5(a), 61 Fed. Reg. 39039, 39403 (1996) 
(to be codified at 4 C.F.R.  sec.  21.5(a)).