BNUMBER:  B-274996; B-274996.2
DATE:  January 16, 1997
TITLE:  LTR Training Systems, 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:LTR Training Systems, Inc.

File:     B-274996; B-274996.2

Date:January 16, 1997

Katheryn Bradley, Esq., Partnow Sharrock & Tindall, for the protester.
Jeff M. Sajdak, Esq., United States Customs Service, Department of the 
Treasury, for the agency.
Linda C. Glass, Esq., and Paul I. Lieberman, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest that agency improperly determined that technical proposals 
were equal where protester's proposal was allegedly clearly superior 
is denied where record establishes that the agency reasonably 
evaluated the respective technical proposals and that this evaluation 
supports the source selection authority's determination that the 
proposals were substantially equal technically.  As a result, the 
agency properly made the award on the basis of the lower proposed 
price.

DECISION

LTR Training Systems, Inc.  protests the award of a contract to 
Emergency Response Institute (ERI) under request for proposals (RFP) 
No. CS-I-96-010, issued by the United States Customs Service, 
Department of the Treasury, for an aviation survival training course.  
LTR, the incumbent contractor, alleges that the agency's evaluation of 
proposals was unreasonable and inconsistent with the RFP criteria and 
that the agency improperly made price the most important evaluation 
factor for award, contrary to the RFP evaluation scheme.

We deny the protest.

The solicitation contemplated the award of a fixed-price, indefinite 
delivery, indefinite quantity contract for the development of an 
aviation survival training course and an aviation survival refresher 
course.  The RFP stated that technical merit would be more important 
than price in the award decision, but noted that price would become 
the deciding factor if proposals were found to be substantially equal.  
The RFP further provided that among acceptable proposals with a 
significant difference in technical merit, the importance or weight 
given price would be substantially less than the importance or weight 
given to technical factors in the award selection.  The RFP also 
provided that the contracting officer would determine whether 
technical proposals were substantially equal or whether any 
differences in the technical assessments were significant for purposes 
of evaluating the overall merit of proposals.

The technical evaluation factors, listed in descending order of 
importance, were technical approach, personnel resources, and 
contractor past performance.  Within the technical approach category, 
section M identified five criteria of equal importance:  (1) aviation 
survival training course; (2) proposed course materials; (3) practical 
exercise; (4) course completion standards; and (5) required equipment.  
Within the personnel resources criterion, three subcriteria of equal 
importance were listed:  (1) instructor qualifications; (2) instructor 
certifications; and (3) staffing plan.  Within the contractor past 
performance category, three criteria were identified:  (1) quality of 
product or service; (2) overall customer satisfaction; and (3) quality 
certifications and awards.  Quality of product or service was 
significantly more important than the other two factors which were of 
equal importance.  

Six firms submitted initial proposals by the March 28, 1996, closing 
date.  The source selection evaluation team (SSET) consisted of four 
evaluators, each of whom evaluated the proposals and assigned them a 
numerical rating.  The four ratings were then averaged and the 
proposals categorized as unacceptable (U),  susceptible to being made 
acceptable (S), or acceptable (A).  The initial evaluation results 
were as follows:

            Offeror         Score  Rating

            LTR              95.3      A

            ERI              69.0      S

            Offeror #3       54.5      U

            Offeror #4       51        U

            Offeror #5       48.5      U

            Offeror #6       43        U
The SSET found LTR's proposal to be acceptable as submitted, except 
for an issue concerning the number of instructors to be provided 
during the refresher training.  ERI's proposal was determined to be 
susceptible to being made acceptable, but the evaluation panel 
concluded that ERI needed to address issues concerning its equipment, 
instructors, and past performance.  After considering proposed prices, 
the contracting officer found that all six proposals were either 
acceptable or capable of being made acceptable and included all 
proposals in the competitive range. 

Discussions were held with all offerors, and best and final offers 
(BAFO) were requested.  A new evaluation panel reviewed the BAFOs.  
The new panel was advised of certain concerns the contract 
administrator had with the conclusions of the first evaluation panel, 
which she felt resulted from the failure of the panel to familiarize 
itself with the statement of work (SOW).  The contract administrator 
cited the following examples of discrepancies in the evaluation of 
initial proposals:

     1.  Two contractors proposed two instructors for the refresher 
     course when the SOW required three, but the contractors were not 
     penalized in this area;

     2.  One contractor, although not submitting certifications for 
     three of its instructors and providing no evidence these 
     instructors taught two out of the last five years as required by 
     the RFP, received high marks in the area; and

     3.  Only one instructor was required per class by the RFP as an 
     advanced first aid instructor or an Emergency Medical Technician 
     (EMT), but several evaluators said one instructor for a large 
     class was not enough.

After a technical review of the BAFOs by the new panel, four proposals 
were excluded from the competitive range.  LTR's BAFO, with technical 
score of 87.34, and ERI's BAFO, with a technical score of 78.34, were 
found to be acceptable, but because of unresolved issues with both, 
the contracting officer decided to reopen discussions.  After the 
second round of discussions was conducted, LTR and ERI were again 
requested to submit BAFOs.  The contracting officer determined that 
the second BAFOs clarified the unresolved issues for both offerors and 
concluded that ERI's and LTR's proposals were substantially equal.  As 
a result, the contracting officer awarded the contract to ERI whose 
proposed price was $339,912 less than LTR's.  

LTR essentially argues that the agency failed to adequately address 
the difference in technical merit between the two proposals and failed 
to provide a rational reason for awarding the contract to a 
technically inferior offeror.[1]

In a negotiated procurement, contracting officials have broad 
discretion in determining the manner and extent to which they will 
make use of technical and price evaluation results.  TRW, Inc., 68 
Comp. Gen. 511 (1989), 89-1 CPD  para.  584.  In reviewing an agency's 
source selection decision, we will examine the evaluation supporting 
that decision to ensure that the evaluation was reasonable and 
consistent with the stated evaluation criteria.  Contel Fed. Sys., 71 
Comp. Gen. 11 (1991), 91-2 CPD  para.  325.  The source selection official, 
however, is not bound by the recommendation of lower-level evaluators, 
Verify, Inc., 71 Comp. Gen. 158 (1992), 92-1 CPD  para.  107; accordingly, 
in determining whether the award decision was reasonable and 
consistent with the solicitation evaluation criteria, we review the 
decision, not of lower-level evaluators, but of the source selection 
authority.  Id.  Consequently, the appropriate question is simply 
whether the contracting officer, who was the source selection 
authority, had a reasonable basis to conclude that the two proposals 
were substantially equal technically.  We conclude that he did.

In a supplemental agency report, the contracting officer furnished a 
declaration in which he elaborated upon the reasons for his source 
selection decision.[2]  Specifically, the contracting officer stated 
that he reviewed both SSET reports and the responses received from 
both offerors during discussions and conducted his own independent 
review, which led him to conclude that despite the SSET scoring, the 
two proposals were essentially equal.  

While the protester complains that the contracting officer failed to 
consider its clearly demonstrated technical superiority and 
erroneously concluded that LTR and ERI were technically equal, the 
record shows that the contracting officer reasonably determined that 
both offerors, in their second BAFO, equally demonstrated the ability 
to successfully fulfill the solicitation requirements.  For example, 
the RFP required the successful offeror to have personnel with 
requisite medical certifications.  Offerors could meet this 
requirement by providing a currently certified advanced first aid 
instructor or EMT with current certification.  The contracting officer 
concluded that ERI's plan to make three certified EMTs current within 
3 months after contract award was acceptable and reasonably met this 
requirement.  LTR's proposed plan to provide Red Cross training to all 
its instructors was also determined to be responsive to the RFP 
medical requirement.  The record shows that each offeror proposed to 
take substantially comparable additional measures in order to qualify 
its available proposed staff to adequately meet the medical 
requirement, and that neither offeror's plan in this regard was 
superior.

The contracting officer also determined that ERI and LTR both deserved 
the maximum points under past performance.  The contracting officer 
concluded ERI had a demonstrated record of conforming to contract 
requirements, goothat d standards of workmanship, and experience in 
teaching survival or related courses [deleted].  The contracting 
officer also concluded that LTR had demonstrated a history of 
performing a very high quality of services on the same or similar 
contracts and demonstrated compliance with the contracts, accuracy of 
administrative functions and technical excellence.  The record shows 
that both proposals contained extensive documentation demonstrating a 
history of high quality performance under similar contracts.  While 
the protester contends that the ERI contracts were not of the 
magnitude or complexity of the current solicitation, the requirement 
was to demonstrate experience in meeting contract requirements and in 
teaching survival courses.  ERI clearly documented that it had 
performed several similar contracts and had received outstanding 
recommendations for its performance, which the contracting officer 
could reasonably view as warranting a maximum score.

Similarly, with respect to the second element of contractor past 
performance, overall customer satisfaction, the contracting officer 
again concluded that both LTR and ERI deserved the maximum points for 
this evaluation factor.  Our review shows that both offerors' records 
of overall customer satisfaction were well-documented with letters and 
memorandums which demonstrated the overall customer satisfaction on 
the same or similar contracts, and that there was no basis to assess 
one offeror as demonstrably different from the other in this regard.

Under the Quality Certifications and Awards evaluation factor, 
offerors were to be evaluated on the demonstrated receipt of any 
widely recognized quality of service awards or certificates of 
achievement on similar survival training projects.  Both ERI and LTR 
were highly regarded in this area; however, the contracting officer 
concluded that ERI provided more relevant information demonstrating 
that it had been recognized for its effort in aviation safety and 
survival education by two national organizations [deleted].  ERI also 
received wide acclaim for its book, "Survival Sense for Pilots and 
Passengers."  While the protester disagrees and maintains that it 
should have been rated superior in this area, the record simply does 
not support the protester's position.  In fact, as explained above, 
ERI provided more relevant information in this area.  LTR now argues 
that it could have provided similar information if it had known what 
the agency required.  However, the RFP clearly described the 
information needed, and having failed to provide all of the allegedly 
available information in its proposal, LTR is not now entitled to 
augment this information for consideration after the conclusion of the 
evaluation. 

The protester, in contesting the contracting officer's determination 
that the two proposals were technically equal, focuses on the 
differences in the scoring of the two evaluation panels; however, as 
explained above, the contracting officer did not rely upon the points 
of either panel, but independently assessed the technical merit of 
each proposal in detail.  This independent assessment provided a 
reasonable basis, consistent with the RFP evaluation criteria, to find 
that LTR's and ERI's proposals were substantially equal technically.  
That being so, award was properly made on the basis of lower price, 
notwithstanding that the evaluation criteria assigned price less 
importance than technical considerations.  Prospect Assocs. Ltd., 
B-249047, Oct. 20, 1992, 92-2 CPD  para.  258.

The protest is denied.

Comptroller General 
of the United States
      
1. In its comments to the agency report filed with our Office on 
December 3, 1996, the protester raised two additional issues:  that 
the agency evaluated LTR's proposal based on improper criteria, and 
that the scoring of LTR's proposal by the two technical evaluation 
teams was inconsistent.  We dismiss these protest allegations, which 
were first raised in the protester's comments on the agency's report, 
as untimely since they were filed more than 10 calendar days after LTR 
should have known their basis.  Bid Protest Regulations, section 
21.2(a)(2), 61 Fed. Reg. 39039, 39043 (1996) (to be codified at 4 
C.F.R.  sec.  21.2(a)(2)).  The protester learned of these bases for 
protest, at the latest, when it received the agency report on November 
15.  While the protester was granted an extension of time for filing 
its comments, this did not toll the time for timeliness purposes with 
respect to raising additional issues.

2. LTR objects to our consideration of this declaration because it is 
not contemporaneous with the selection decision.  However, while we 
generally give more weight to contemporaneous records than to those 
prepared after the fact, we consider all documents of record, 
including explanations for evaluations and selection decisions 
furnished in response to a protest.  Benchmark Sec., Inc.,
B-274655.2, Feb. 4, 1993, 93-1 CPD  para.  133.