BNUMBER:  B-277555 
DATE:  September 12, 1997
TITLE: Jack Faucett Associates, B-277555, September 12, 1997
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Matter of:Jack Faucett Associates

File:     B-277555

Date:     September 12, 1997

Jack G. Faucett for the protester.
Beverly Maria Russell, Esq., Department of Transportation, for the 
agency.
Henry J. Gorczycki, Esq., and James A. Spangenberg, Esq., Office of 
the General Counsel, GAO, participated in the preparation of the 
decision.

DIGEST

Where solicitation states a best value evaluation plan and that the 
agency will award from one to three contracts, the agency's decision 
to award two contracts to the two undisputed superior offerors is 
unobjectionable.

DECISION

Jack Faucett Associates protests the failure of the Department of 
Transportation, Federal Highway Administration (FHWA), to make an 
award to it under request for proposals (RFP) No. DTFH61-97-R-00010, 
for technical and program support services to assist FHWA in 
developing and evaluating transportation policy issues.  

We deny the protest.

The RFP, issued on February 5, 1997, contemplated award of:

     one or more (but most likely not more than three) indefinite 
     delivery/indefinite quantity (IDIQ) contracts from this 
     solicitation.  Work will be performed under these contracts 
     through the placement of Task Orders that may be either: firm 
     fixed price (FFP), cost plus fixed fee (CPFF) or cost plus award 
     fee (CPAF).

     The use of multiple award contracts will allow FHWA to take 
     continuous advantage [during the placement of task orders] of the 
     competitive forces of the commercial market place which will 
     result in lower prices, better quality, and improved contractor 
     performance in satisfying FHWA requirements.

     This requirement is not a small business set-aside.

The RFP also stated a best value evaluation plan with the following 
three evaluation factors listed in descending order of importance:  
technical, cost, and business factors (i.e., past performance and 
subcontracting plan for using disadvantaged and women-owned small 
business enterprises and minority institutions).  The RFP's statement 
of work listed 9 task areas and 79 sub-tasks.  The RFP also stated the 
competition procedure for placement of task orders among the firms 
that receive contract awards under the RFP.  

Four offerors, including Faucett, Battelle Memorial Institute, and 
KPMG Peat Marwick, submitted proposals in response to the RFP.  FHWA 
evaluated proposals, conducted discussions, and requested best and 
final offers (BAFO).  The BAFO evaluations of Battelle's, KPMG's, and 
Faucett's BAFOs were:[1]

Offeror             Technical Rating
                    (0-100 points)      Price/Cost[2]

Battelle            87.3                $16,612,216

KPMG                80.8                  18,491,569

Faucett             64.3                  16,844,913
Under past performance, Battelle and KPMG received "excellent" ratings 
and Faucett received a "good" rating.  Under subcontracting, Battelle 
proposed significantly greater participation by disadvantaged and 
women-owned small business enterprises and minority institutions than 
did the other offerors; KPMG proposed slightly greater participation 
than did Faucett.  The Evaluation Panel discussed the relative merits 
and concerns for each BAFO, and recommended awards to Battelle and 
KPMG, the two highest-rated offerors.

The source selection official (SSO) reviewed the evaluation results[3] 
and determined that Battelle and KPMG offered significant quantitative 
and qualitative advantages over Faucett.  Moreover, she determined 
that Faucett's proposed team:

     [did] not have any capabilities that are not available on the 
     [Battelle] or KPMG teams, nor do they provide a similar magnitude 
     of depth and breadth of coverage.

The SSO determined that Faucett's cost advantage over KPMG did not 
offset KPMG's significantly greater technical advantage over Faucett.  
She determined that the BAFOs of Battelle and KPMG represented the 
best value to the government and that two contract awards to these 
firms would provide sufficient on-going competition for placing task 
orders.  On July 3, FHWA awarded contracts to Battelle and KPMG.  
After Faucett requested and received a debriefing, it filed this 
protest.

Faucett does not protest the awards to Battelle or KPMG.  Rather, 
Faucett alleges that the agency should have awarded a third contract 
to Faucett because it was a small business and its BAFO was the 
third-ranked acceptable proposal under the RFP which contemplated 
multiple awards.

It is well settled that there is no right to a government contract, 
Perkins v. Lukens Steel Co., 310 U.S. 113, 127 (1940); Pegasus Alarm 
Assocs., Inc., B-225597.2, May 12, 1987, 87-1 CPD  para.  499 at 3, although 
of course, firms do have the right to have their bids or offers 
considered fairly.  Krygoski Constr. Co., 63 Comp. Gen. 367, 371 
(1984), 84-1 CPD  para.  523 at 6.  In reviewing protests against allegedly 
improper evaluations and source selection decisions, our Office 
examines the record to determine whether the agency's judgment was 
reasonable and in accord with the RFP's stated evaluation factors.  
Brisk Waterproofing Co., Inc., B-276247, May 27, 1997, 97-1 CPD  para.  195 
at 3.  A protester's mere disagreement with an agency's evaluation and 
source selection decision does not render the results unreasonable.  
Id.

In response to the protest, FHWA states that the teams proposed by 
Battelle and KPMG offered considerable depth and breadth of experience 
covering all of the task areas.  Although acceptable, Faucett's 
proposal was clearly inferior to these two proposals and there was 
some concern that Faucett's resources could be overly burdened if it 
had to address all of the contract requirements.  In addition to the 
administrative burden of overseeing a third contract, FHWA determined 
that the agency would receive no technical advantage from a third 
contract, and that adequate competition on task orders would be 
maintained with two competitors.  Since the RFP stated that the agency 
would award anywhere from one to three contracts and that the 
technical area was the most important evaluation factor, we believe 
that the agency's decision to award two contracts to the two offerors 
submitting the clearly technically superior proposals was reasonable 
and consistent with the stated evaluation plan.  

Although the protester makes numerous statements disagreeing with the 
agency's decision, its allegations are untimely, lack merit, or are 
unsupported by facts.  
For example, Faucett alleges that the RFP and/or awards did not 
provide adequate opportunity for small businesses.  However, the RFP 
specifically stated that the solicitation was not a small business 
set-aside.  Thus, to the extent Faucett protests after award the RFP's 
failure to restrict at least one contract award for small businesses, 
it is an untimely protest of alleged solicitation improprieties 
apparent on the face of the RFP which should have been protested prior 
to the date for submission of proposals.  4 C.F.R.  sec.  21.2(a)(1) 
(1997).  To the extent Faucett alleges that either Battelle's or 
KPMG's proposals do not provide adequate subcontracting opportunities 
for small disadvantaged or women-owned small businesses or minority 
institutions, the record shows that the allegation lacks merit because 
either awardee's proposal offers greater participation from such 
subcontracting organizations than that proposed by Faucett.  

Moreover, while Faucett generally alleges that its proposal must 
represent a better value on certain tasks than either of the two 
awardees' proposals, and thus that Faucett should have been awarded a 
contract for at least some of the task areas, the protester has not 
identified a single task area for which it should have been found 
superior to the other offerors.  In any case, the RFP did not 
contemplate making awards encompassing less than the totality of the 
tasks.  We have examined all of Faucett's objections to the failure of 
the agency to make a third award and find nothing more than mere 
disagreement with the agency's determination, which is insufficient to 
disturb the agency's source selection decision.  

The protest is denied.

Comptroller General
of the United States

1. The fourth offeror submitted the highest cost, lowest-rated BAFO, 
and was thus not in contention for an award.

2. The figures shown are proposed costs based on staffing estimates 
                                        assuming two awards.  The RFP 
                                        also provided staffing 
                                        estimates and requested 
                                        proposed costs assuming one 
                                        and three awards.

3. Although Faucett alleges that the agency informed it that the 
Evaluation Panel made no award recommendations, the BAFO evaluation 
report prepared by that panel and submitted to the SSO shows that the 
panel did make award recommendations to the SSO.