BNUMBER:  B-276093 
DATE:  May 12, 1997
TITLE: Matter of:Wastren, Inc. 

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Matter of:Wastren, Inc.

File:     B-276093

Date:May 12, 1997

Brad R. Wright, Esq., Wright Law Offices, for the protester.
Nicole Porter, Esq., and Gena Cadieux, Esq., Department of Energy, for 
the agency.
Tania L. Calhoun, Esq., and Christine S. Melody, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest that contracting agency improperly failed to evaluate 
proposals reasonably and in accordance with the solicitation's stated 
evaluation criteria is denied where the record does not support the 
allegations; a protester's mere disagreement with the agency's 
conclusions does not render the evaluation unreasonable.

DECISION

Wastren, Inc. protests the award of a contract to East Tennessee 
Mechanical Contractors (ETMC) under request for proposals (RFP) No. 
DE-RP05-96OR22416, issued by the Department of Energy (DOE) for the 
provision of facility and equipment maintenance and water plant 
operations to DOE's Oak Ridge Operations Office in Oak Ridge, 
Tennessee.  Wastren argues that DOE improperly evaluated proposals.

We deny the protest.

DOE's Oak Ridge Operations Office requires a contractor to operate and 
maintain a 28 million gallons per day (MGD) municipal water treatment 
plant (the Oak Ridge water plant) and its related facilities; operate 
and maintain vehicle and heavy equipment maintenance and repair 
facilities; maintain various paved roads and grounds; and provide 
miscellaneous facility maintenance services and other support 
activities.  The solicitation, issued as a small business set-aside on 
April 12, 1996, anticipated the award of a cost-plus-award fee 
contract to run for a 3-year base period, with an additional 2-year 
option period.    

Award would be made, without discussions, to the firm whose offer 
represented the best value to the government, considering technical 
and business management factors and cost.  To determine which proposal 
represented the best value to the government, DOE would weigh the 
apparent advantages of individual technical and business management 
proposals against their evaluated probable cost to determine whether 
higher-rated proposals were worth the evaluated probable cost 
differential, if any.  If two or more proposals were considered to be 
technically equal, cost would become the determining factor.

The RFP listed three technical and business management 
factors--personnel, planning, and organization; corporate experience; 
and past performance.  At issue here, the first subfactor under the 
personnel, planning, and organization factor was entitled "Experience, 
Qualifications, Commitment and Availability of Proposed Key Personnel 
for Assignment to the Work."[1]  Under this subfactor, DOE would 
evaluate offerors' proposed key personnel for work experience, 
education, and professional development directly related to the 
statement of work (SOW).

Cost proposals would be evaluated for reasonableness and realism to 
derive an evaluated probable cost for each proposal.  The RFP required 
offerors to submit a standard form (SF) 1411 summarizing the costs for 
the phase-in period, base period, and option period, and to submit 
various schedules for different cost categories.  Among other things, 
offerors were to submit a schedule of "other direct costs," utilizing 
figures provided in the RFP for capital equipment purchases and 
material costs. 

Amendment No. 003, issued May 31, informed offerors that DOE intended 
to transfer the Oak Ridge water plant to the City of Oak Ridge by the 
end of the 3-year base term.  As a result, the original option period 
of 2 years was changed to two 1-year options.  Offerors were informed 
that the options to the contract "will only be exercised if DOE is 
unable to accomplish the transfer to the City of Oak Ridge."  The 
amendment included revised proposal preparation instructions which 
again required offerors to submit an SF 1411 summarizing the proposed 
costs for, among other things, both option years. 

DOE received 11 proposals by the July 11 closing date.  The members of 
the source evaluation committee reviewed and rated each technical and 
business management proposal, and the cost committee evaluated the 
cost proposals to arrive at evaluated probable costs for each.  The 
evaluation committee subsequently met as a group to review all of the 
independent evaluations of the technical and business management 
proposals, discuss the proposals' strengths and weaknesses, and arrive 
at consensus scores.[2]  The evaluation committee analyzed the cost 
information and recommendations made by the cost committee and arrived 
at its final evaluation results.  ETMC, the incumbent contractor, was 
one of two firms whose proposals received the highest technical 
score--810 points out of a possible 1,000 points--and ETMC's evaluated 
probable cost was $43,783,241.  Wastren's proposal received the fourth 
highest technical score, 620 points, and its evaluated probable cost 
was $44,163,308.

The evaluation committee considered the two highest-rated proposals to 
be technically equal and, with cost now the determining factor, 
concluded that ETMC's proposal represented the best value to the 
government.  The source selection official reviewed the committee's 
report and other materials and concurred.  ETMC was selected for award 
on December 19.  After its debriefing, Wastren filed this protest 
challenging the agency's evaluation of proposals.[3]

In reviewing protests against allegedly improper evaluations, it is 
not our role to reevaluate proposals.  Rather, our Office examines the 
record to determine whether the agency's judgment was reasonable and 
in accord with the RFP's stated evaluation criteria.  ESCO, Inc., 66 
Comp. Gen. 404, 410 (1987), 87-1 CPD  para.  450 at 7.  A protester's mere 
disagreement with the agency's conclusions does not render the 
evaluation unreasonable.  Id.  Based on our review of the record here, 
we see no basis for concluding that the evaluation was unreasonable.    

Wastren alleges that DOE improperly evaluated its proposal under the 
key personnel subfactor with respect to its proposed administration 
manager and proposed water plant manager.  

DOE assigned a weakness to Wastren's proposal because, while the firm 
stated that its proposed administration manager would be responsible 
for payroll, there was no indication that he had any experience in 
this area.  Wastren does not dispute the absence of this specific 
information from the proposal but contends that DOE should have 
realized that this individual's experience in accounting included 
experience in payroll.  We do not agree.  Nothing in the proposal 
suggests that these two areas are interchangeable; on the contrary, 
both the proposal and this individual's resume list accounting and 
payroll separately.  Under the circumstances, we have no basis to 
question the agency's evaluation.  The offeror has the burden of 
submitting an adequately written proposal, and an offeror's mere 
disagreement with the agency's judgment concerning the adequacy of the 
proposal is not sufficient to establish that the agency acted 
unreasonably.  SC&A, Inc.,
B-270160.2, Apr. 10, 1996, 96-1 CPD  para.  197 at 5.

DOE assigned another weakness to Wastren's proposal because the firm's 
proposed water plant manager's experience was with operating and 
maintaining an 8.5 MGD water treatment plant, as compared to the 28 
MGD water treatment plant to be operated and maintained here.  Wastren 
argues that its proposal indicates that this individual has extensive 
experience at other, larger water treatment plants, as well as 
extensive operations management and facility startup experience as a 
program manager.  Wastren's point is not in dispute, as the agency 
assigned Wastren's proposal a strength for this very 
experience--involvement in the startup of an 86 MGD facility, the 
decommission of a 40 MGD facility, and the optimization and 
standardization of activities at two other 30 and 40 MGD facilities, 
as well as general experience in project management.  However, while 
this experience was considered valuable, it was not viewed as 
interchangeable with the experience of operating and maintaining a 28 
MGD water treatment plant.  Absent any reasoned objection to this 
conclusion by the protester, we have no basis to question the agency's 
evaluation.  Id. at 6. 

Wastren further contends that DOE improperly failed to contact the 
references listed in its proposed key personnel's resumes to obtain 
additional information concerning their qualifications. 

The solicitation did not require DOE to contact any references in 
connection with evaluating proposed key personnel, and the contracting 
officer states that no such references were contacted.  Again, the 
burden of ensuring that the agency is aware of the relevant 
qualifications of an offeror's proposed key personnel is on the 
protester, not the agency.  SC&A, Inc., supra.  In its comments, 
Wastren argues that ETMC's proposed key personnel were given an unfair 
advantage in this regard because their abilities were known by the 
agency.  There is no evidence that this is the case.  The sole 
challenge to the evaluation of ETMC's proposal is that the firm's 
proposed project manager has little or no demonstrated experience in 
the areas specific to the SOW.  The record shows that ETMC's proposal 
was downgraded for this very failing.  Even assuming that the 
evaluators were familiar with ETMC's proposed key personnel by virtue 
of the firm's incumbency, it is not unusual for an offeror to enjoy an 
advantage in competing for a government contract by reason of its 
incumbency, and there is no requirement for the procuring agency to 
equalize that advantage where, as here, the advantage is not the 
result of preferential treatment or other unfair action by the 
procurement agency.  Complere Inc., B-257946, Nov. 23, 1994, 94-2 CPD  para.  
207 at 5.

We now turn to Wastren's allegations concerning the evaluation of its 
cost proposal.  At issue here, DOE adjusted Wastren's cost proposal 
upward to add the costs of operating and maintaining the water 
treatment plant because Wastren's cost proposal failed to include such 
costs, and to add material and capital equipment costs to put the 
proposal in conformance with the figures required for use by the 
RFP.[4]  

Wastren complains that DOE improperly adjusted its cost proposal to 
include the costs of operating and maintaining the water treatment 
plant in the option years.  The protester contends that amendment No. 
003 "implied" that inclusion of such costs would not be necessary.

Wastren is incorrect.  The language in the cover letter accompanying 
amendment No. 003 merely stated that the options would not be 
exercised if DOE were successful in turning the water plant over to 
the city; it did not instruct offerors not to provide cost information 
for operating and maintaining the water treatment plant during the 
option years.  On the contrary, that very amendment included revised 
instructions to supply an SF 1411 to include the costs of performing 
under both option years.  Further, amendment No. 0004, issued June 18, 
included a series of preproposal questions and answers regarding this 
procurement.  In response to one question, DOE stated that it intended 
to negotiate with the city of Oak Ridge for the transfer of the water 
plant, but that these negotiations were still only in the preliminary 
stages and the agency must continue with its planned procurement.  To 
be reasonable, an interpretation of solicitation language must be 
consistent with the solicitation when read as a whole and in a 
reasonable manner.  Lithos Restoration, Ltd., 71 Comp. Gen. 367, 370 
(1992), 92-1 CPD  para.  379 at 4.  Wastren's interpretation is not 
reasonable, and its allegation is without merit.

Wastren finally objects that DOE improperly upwardly adjusted its 
material and capital equipment costs.  Wastren contends that it 
revised the figures that the RFP listed for use in making such 
calculations to account for the phase-in period.  However, the RFP 
explicitly required offerors to calculate their costs using these 
figures, and made no provision for the phase-in or any other period.  
Hence, Wastren's decision to rely upon its own judgment to structure 
material and capital equipment costs was at its peril.  A contracting 
agency cannot be expected to protect an offeror from the consequences 
of its refusal to comply with an RFP's unambiguous instructions.  
Valentec Sys., Inc., B-270880; B-270880.2, May 16, 1996, 96-1 CPD  para.  
231 at 4-5.

The protest is denied.

Comptroller General
of the United States

1. Wastren's protest raised extremely broad allegations concerning the 
evaluation of proposals.  The sole specific support for these 
allegations concerned DOE's evaluation of certain individuals under 
this key personnel subfactor; we address these specific allegations 
below.  In its March 7, 1997 comments, Wastren, for the first time, 
raised a number of new allegations concerning DOE's evaluation of 
other individuals under this subfactor, as well as new allegations 
concerning DOE's evaluation of proposals under other evaluation 
factors and/or subfactors.  Under our Regulations, protests based on 
other than solicitation improprieties must be filed within 10 days of 
when the protester knew or should have known their bases.  4 C.F.R.  sec.  
21.2(a)(2) (1997).  At the latest, Wastren was provided the 
information that should have put it on notice of these bases of 
protest--DOE's documentation supporting its evaluation--on February 
21.  These new arguments, filed 14 days later, are untimely and will 
not be considered.  Ralph G. Moore & Assocs., B-270686, B-270686.2, 
Feb. 28, 1996, 96-1 CPD  para.  118 at 2-3 n.2.
    
2. Wastren's view notwithstanding, agency evaluators may discuss their 
individual evaluations with each other in order to reach a valid 
consensus score since such discussions generally operate to correct 
mistakes or misperceptions that may have occurred in the initial 
evaluation.  See The Cadmus Group, Inc., B-241372.3, Sept. 25, 1991, 
91-2 CPD  para.  271 at 7-8.  A consensus score need not be the score the 
majority of the evaluators initially awarded; a score may properly be 
determined after discussions among the evaluators.  The overriding 
concern in these matters is whether the final scores assigned 
accurately reflect the relative merits of the proposals.  See 
Household Data Servs., Inc., B-259238.2, Apr. 26, 1995, 95-1 CPD  para.  281 
at 4 n.2.

3. By separate decision provided to the parties on February 18, 1997, 
this Office summarily dismissed several of Wastren's allegations prior 
to the receipt of an agency report.  To the extent that Wastren's 
"exceptions" to these rulings, first raised in its March 7 comments 17 
days later, constitute a request for reconsideration, such a request 
is untimely.  4 C.F.R.  sec.  21.14(b) (1997) (request for reconsideration 
of a bid protest decision shall be filed not later than 10 days after 
the basis for reconsideration is known or should have been known).

4. DOE made several other adjustments to Wastren's cost proposal, each 
of which was detailed in the cost evaluation documents provided to 
Wastren on February 21.  In its March 7 comments, Wastren complains 
about these adjustments as though it were unaware of their nature.  To 
the extent that this complaint constitutes a protest basis, it is 
untimely filed more than 10 days after the protester was first on 
notice of this issue.  Ralph G. Moore & Assocs., supra.