BNUMBER:  B-277674 
DATE:  November 10, 1997
TITLE: The Arora Group, Inc., B-277674, November 10, 1997
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DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective 
Order.  This redacted version has been approved for public release.
Matter of:The Arora Group, Inc.

File:     B-277674

Date:November 10, 1997

Edward J. Tolchin, Esq., Fettmann, Tolchin & Majors, P.C., for the 
protester.
John R. Tolle, Esq., and Monica C. Parchment, Esq., Barton, Mountain & 
Tolle, for Saratoga Medical Center, Inc., an intervenor.
Douglas P. Larsen, Esq., and John R. Osing, Jr., Esq., Department of 
the Navy, 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

Agency unreasonably concluded protester's fixed-price offer lacked 
price realism because of the protester's failure to propose salary 
escalation and therefore its perceived inability to retain employees, 
where protester proposed to use part of general and administrative 
(G&A) budget for employee bonuses; agency's conclusion that G&A budget 
was inadequate to retain employees was premised on agency's 
miscalculation of amount of that budget.  

DECISION

The Arora Group, Inc. protests the award of a fixed-price contract to 
Saratoga Medical Center, Inc. under request for proposals (RFP) No. 
N62645-96-R-0032, issued by the Naval Medical Logistics Command for 
the services of 10 pharmacists for the National Naval Medical Center, 
Bethesda, Maryland.  Arora principally contends that the agency erred 
in its price realism analysis of Arora's proposal and deviated from 
the RFP's source selection criteria.

We sustain the protest.

The RFP, issued on August 22, 1996, as a competitive 8(a) set-aside 
under the Small Business Act, 15 U.S.C.  sec.  637(a) (1994), sought offers 
to provide the services of 10 full-time pharmacists and 5 optional 
pharmacists for a base period with four option periods, for a total 
possible performance term of 5 years.  The RFP provided that award 
would be made to the responsible offeror whose proposal, conforming to 
the specified minimum healthcare worker qualifications, offered the 
government the best combination of past performance and price.  To be 
considered for contract award the offeror had to provide proof that it 
would provide at least 10 individual healthcare workers who satisfied 
the specified minimum healthcare worker qualifications.  The minimum 
healthcare worker qualifications were to be evaluated on a "Go/No-Go" 
basis.  Past performance was to be evaluated on the basis of the 
merits of each offeror's corporate experience.  The RFP provided that 
merit of an offeror's past performance was significantly more 
important than price, but that the closer the merits of the offerors' 
past performances were to one another, the greater the importance of 
price would be in the award decision.  

The RFP advised offerors that price realism would be assessed as 
follows:

     Realism.  An attempt will be made to clarify suspected 
     unrealistic pricing with the offeror during discussions.  
     Unrealistically low cost estimates and/or inconsistencies between 
     the technical and price proposal, which result in a suspected 
     understatement of the costs or misunderstanding of the 
     requirements, will be addressed in the evaluation of the 
     offeror's past performance.

The agency received eight proposals by the September 24, 1996, closing 
date.[1]  Technical evaluations were conducted and concerns were 
identified in both Arora's and Saratoga's proposals.  Both proposals 
were rated "Good" under the past performance evaluation factor. 

The price proposals were evaluated to determine reasonableness and 
realism by comparing the proposed prices to each other, to the Navy's 
market survey, and to the offeror's own market survey information, 
which was required to be submitted with proposals.  The proposed 
escalation rates were compared to the annual 3-percent rate which the 
agency understood had been recommended in Federal Acquisition Circular 
(FAC) 90-23.[2]  

Saratoga proposed an average healthcare worker compensation rate of 
$[deleted] hour for the base period, and annual salary escalation of 
[deleted] percent.  Saratoga's compensation rate was determined to be 
unrealistically low based on a comparison with the government market 
survey, the offeror's own market survey, and the certificates of 
availability provided by the offeror.  The protester proposed an 
average compensation rate of $[deleted] per hour for the base period 
with no escalation for the option years.  Based on its market survey 
and FAC 90-23, the Navy projected that the hourly wage for pharmacists 
in the area would range from $[deleted] to $[deleted] per hour during 
the last of the option periods covered by the RFP.  Nonetheless,  the 
Navy determined that Arora's failure to provide for any salary 
escalation presented a price realism concern because it created a risk 
that the contractor might not be able to retain qualified personnel or 
recruit suitable replacements.  

After completion of the technical evaluations, the source selection 
authority (SSA) determined that the proposals of six of the initial 
offerors, including those of both the protester and Saratoga, should 
be included in the competitive range.  On February 25, discussion 
letters were sent to the competitive range offerors raising a number 
of technical and price concerns.  Among other things, the protester 
was advised that its failure to include any escalation for salaries 
during the option periods posed a realism concern because there was 
uncertainty concerning Arora's ability to retain the required 
healthcare workers without escalation.  

Arora submitted a revised proposal which did not include salary 
escalation for the option years and offered no explanation for its 
failure to do so.  Saratoga's revised total average compensation 
package was increased to $[deleted], which was considered reasonable 
and realistic.

After review of the revised proposals, on May 20, a request for best 
and final offers (BAFO) was sent to all competitive range offerors.  
Arora was once again advised that its lack of salary escalation for 
the option periods still posed a realism concern that required 
correction or explanation, and that the protester's profit was not 
calculated properly.  

Saratoga's BAFO price was $6,032,858.64; Arora's was $[deleted].  Both 
BAFOs were "Go" for the technical proposals, and both had past 
performance ratings of "Good."  The protester declined to include 
salary escalation for the option periods, addressing the 
recruitment/retention realism concerns instead by stating that it had 
negotiated long term employment agreements, coextensive in term with 
the contract, and that its general and administrative costs (G&A) 
included budgets for recruitment if there was turnover.  Arora's BAFO 
went on to state:  "If there is no turnover, the aforementioned budget 
will be applied to employee bonuses in accordance with market 
variation."  Despite Arora's explanation, the agency remained 
unconvinced that the protester would be able to retain qualified 
healthcare workers throughout the contract period without salary 
escalation.

Because of this, the agency concluded that Arora's prices were 
unrealistic, and it made award to Saratoga as representing the best 
value to the government.  This protest followed.  Contract performance 
has been stayed pending resolution of the protest.

Arora argues that the Navy did not evaluate proposals or make an award 
determination as called for in the solicitation because the Navy 
evaluated Saratoga and Arora as equal in past performance yet awarded 
the fixed-price contract to Saratoga, the higher-priced offeror, 
solely on the basis of price realism concerns.  Arora maintains that 
the Navy did not address price realism in its past performance 
evaluation, as required by the RFP, but rather considered the matter 
separately.  Alternatively, Arora asserts that if the agency did 
address price realism in its past performance evaluation, the agency 
failed to adhere to the RFP criteria that "the closer the merits of 
the offerors' past performance are to one another, the greater will be 
the importance of price in making the award determination."  Arora 
also argues that the agency's price realism evaluation was plainly 
erroneous in that the Navy incorrectly based its analysis on the 
mistaken premise that Arora proposed total G&A of $[deleted] per year 
for all 10 employees when Arora's supplemental pricing worksheet 
clearly stated that $[deleted] was the G&A amount for each employee 
per year.

Price realism is not ordinarily considered in the evaluation of 
proposals for the award of a fixed-price contract, because these 
contracts place the risk of loss upon the contractor.  However, an 
agency may provide, as here, for the use of a price realism analysis 
in a solicitation for the award of a fixed-price contract for the 
purpose of measuring an offeror's understanding of the solicitation's 
requirements or to assess the risk inherent in an offeror's proposal.  
PHP Healthcare Corp., B-251933, May 13, 1993, 93-1 CPD  para.  381 at 5.  In 
this regard, the risk of poor performance when a contractor is forced 
to provide services with an undercompensated work force is a 
legitimate concern in the evaluation of proposals.  Trauma Serv. 
Group, B-242902.2, June 17, 1991, 91-1 CPD  para.  573 at 4.  We will review 
the price evaluation conducted to determine whether it was reasonable 
and consistent with the RFP evaluation criteria.  Id.

Here, we find that the agency's determination to reject Arora's 
proposal because its flat compensation rates posed an unacceptable 
price realism risk was neither reasonable nor consistent with the 
evaluation criteria.

In response to the agency's stated concerns about Arora's failure to 
provide for any wage escalation in its price proposal, Arora explained 
in its BAFO that it would be able to retain and recruit qualified 
healthcare workers because it had negotiated long-term employment 
agreements and because its proposed G&A included a budget for 
recruitment if there was turnover, and if there was no turnover the 
recruitment budget would be "applied to employee bonuses in accordance 
with market variation."
  
The Navy declined to accept Arora's explanation of how it would be 
able to retain the healthcare workers throughout the 5-year term of 
the contract without escalation.  Because the completed statements of 
availability submitted with Arora's proposal "only pertain to starting 
salary" and Arora did not submit "proof" of its long-term employment 
agreements, the Navy decided that Arora had not provided "convincing 
evidence that they will be able to retain the health care workers 
throughout the five year term of the contract without escalation."  In 
essence, the evaluators gave no credence to Arora's statement that it 
had negotiated such agreements and determined not to credit the 
arrangement.  As to Arora's statement that it would use G&A to provide 
either for recruitment or for bonuses, the evaluators characterized 
the proposed bonuses as "vague."  More to the point, the evaluators 
were concerned that "[e]ven if all of the G&A pool was applied to 
health care worker bonuses it would only be sufficient to provide 
$[deleted] per year to each health care worker . . . [which] is less 
than the range [deleted] percent] specified in the IGCE [independent 
government cost estimate]."  In short, the Navy viewed what it 
believed to be Arora's total G&A of $[deleted] per year for 10 workers 
to be inadequate to provide bonuses or incentives in any meaningful 
amount.  The Navy concluded that without escalation over the 5-year 
period of performance, there was a risk that Arora would not be able 
to retain the healthcare workers, and staffing vacancies would 
jeopardize patient care by causing unacceptable delays and limiting 
the amount of care available.  The Navy also concluded that the lack 
of salary escalation would have an effect on Arora's ability to 
recruit qualified substitutes, should replacements be needed.

We recognize that the agency has legitimate concerns about recruitment 
and retention problems during contract performance.  Further, the 
protester's explanation of its plans to mitigate these concerns lacks 
the specificity generally required to meet an offeror's obligation to 
submit an adequately written proposal which provides sufficient 
information for the agency to evaluate.  Infotec Dev. Inc, B-258198 et 
al., Dec. 27, 1994, 95-1 CPD  para.  52 at 6.  Nonetheless, here the agency 
failed to adequately evaluate the information which was presented by 
Arora and the agency's determination that the price realism concerns 
presented by Arora's proposal represented a significant risk of poor 
performance because of the omission of salary escalation over the 
5-year contract term lacked a reasonable basis.  In its BAFO, the 
protester provided explanations of two processes that it had 
implemented to address and mitigate possible turnover problems.  The 
first was that it had negotiated long-term employment contracts.  
While the agency might have been more reassured had Arora provided 
copies of these contracts, we do not believe that it was reasonable 
for the agency to essentially ignore the possible impact of this 
approach simply because Arora did not provide copies of these 
agreements.

More importantly, Arora also proposed the use of money which it stated 
it had budgeted into its G&A costs to provide for recruitment of 
replacement employees or bonuses for retention of current ones.  In 
its evaluation, the agency discounted the efficacy of such an approach 
to retaining employees primarily because it believed that Arora had 
proposed to pay nonspecific bonus amounts out of a total of $[deleted] 
per year in G&A for all 10 employees.  The Navy viewed the total 
available G&A as amounting to approximately $[deleted] per year per 
employee, which it assessed to be insufficient to provide meaningful 
incentives (the Navy did not question the use of the G&A budget for 
such incentives).  During the course of the protest, the agency 
conceded that it had misunderstood and misevaluated Arora's proposed 
G&A, and that Arora had, in fact, proposed $[deleted] in G&A per year 
for each employee.[3]  Presumably because that much larger amount 
would appear to be sufficient to include the payment of incentives of 
more than the [deleted] percent per year that the Navy believes 
necessary to retain employees, the Navy effectively abandoned its 
contemporaneous position that Arora's G&A budget was inadequate for 
the bonuses.  Instead, the Navy now argues that it was reasonable for 
the agency to have concern about Arora's ability to retain qualified 
staff because the protester did not make a firm commitment to provide 
specific employee bonuses from its G&A budget.

The Navy's initial evaluation rationale was clearly unreasonable and 
of little value in supporting the agency's conclusion, since it was 
based on an analysis that a sum of money amounting to one-tenth of the 
actual amount proposed was inadequate to provide meaningful bonuses.  
We find unpersuasive the Navy's post-protest reliance on other reasons 
to continue to justify its finding that Arora's prices were 
unrealistic, since the protester proposed an amount of G&A funds that 
should be adequate to address the most consequential concern raised 
contemporaneously by the agency.  Moreover, while we consider the 
entire record, including statements and arguments made in response to 
a protest in determining whether an agency's selection decision is 
supportable, we accord much greater weight to contempora-neous source 
selection materials rather than judgments, such as the reassessment 
made here in response to a protest contention.  Dyncorp, 71 Comp. Gen. 
129, 134 n.12 (1991), 91-2 CPD  para.  575 at 7 n.13; Southwest Marine, 
Inc.; Am. Sys. Eng'g Corp., B-265865.3, B-265865.4, Jan. 23, 1996, 
96-1 CPD  para.  56 at 10.  We afford the agency's post-protest 
justification diminished weight because it was prepared in the heat of 
an adversarial process and may not represent the fair and considered 
judgment of the agency, which is a prerequisite of a rational 
evaluation and source selection process.  Boeing Sikorsky Aircraft 
Support, B-277263.2, B-277263.3, Sept. 29, 1997, 97-2 CPD  para.  91 at 15.  
Accordingly, we conclude that the agency's assessment of the price 
realism of the protester's proposal was unreasonable and not supported 
by the record.[4]

The protester also argues that the agency evaluation was improper 
because it made price realism a separate and determinative evaluation 
factor, when the RFP stated that price realism was to be part of the 
past performance evaluation.  We agree.  The RFP specifically 
provided, under the price evaluation factor, that a price realism 
analysis would be conducted and that any suspected unrealistic pricing 
which result in a suspected understatement of the costs or 
misunderstanding of the requirements would be addressed in the 
evaluation of the offeror's past performance.  While the protester's 
proposal consistently received a rating of "Good" for past 
performance, the protester's failure to provide for salary escalation 
was considered to present a risk of nonperformance that the agency was 
not willing to accept.  Clearly, the Navy did not evaluate price 
realism as provided for by the solicitation, that is, within the 
context of Arora's past performance rating, which the Navy rated as 
"Good."  In this regard, the RFP provided for award to the offeror 
with the best combination of past performance and price.  Arora 
received a "Good" rating on past performance, as did Saratoga, and 
proposed a price that was more than $[deleted] lower than that 
proposed by Saratoga.  Rather than making a tradeoff determination on 
the basis of these evaluations, as called for by the RFP, the agency 
business clearance memorandum states that "Arora was not considered 
for award due to the price realism concerns associated with their 
offer."  In essence, the Navy ignored the stated evaluation criteria.  

Accordingly, we sustain the protest.  We recommend that the Navy 
consider whether the price realism evaluation should be included under 
the past performance criterion and, if not, that the agency revise the 
evaluation criteria accordingly and request another round of BAFOs 
from the competitive range offerors.  If the Navy believes that the 
current evaluation criteria are appropriate, we recommend that the 
Navy reevaluate, under the past performance criterion, the protester's 
price realism in light of the correct G&A figures.  If this 
reevaluation results in the protester's proposal being selected for 
award, we recommend that Saratoga's contract be terminated and award 
be made to the protester. We also recommend that the protester be 
reimbursed its costs of filing and pursuing its protest.  Bid Protest 
Regulations 4 C.F.R.  sec.  21.8(d)(1) (1997).  The protester should submit 
its certified claim for such costs, detailing the time expended and 
costs incurred, directly to the contracting agency within 60 days of 
receiving this decision.  4 C.F.R.  sec.  21.8(f)(1).

The protest is sustained.

Comptroller General 
of the United States   

1. Because only Arora's and Saratoga's proposals are relevant to this 
protest, the other six are not discussed further.

2. FAC 90-23 provides, for information purposes, the annual notice of 
rates of inflation used in conjunction with other factors to determine 
allowable costs for major contractors.  For fiscal year 1997, the 
annual percentage rate was listed as 3 percent.

3. In its evaluation, the agency appears to have simply incorrectly 
used the amount of  G&A which Arora proposed for each employee as the 
total G&A available for all 10 healthcare employees. 

4. We note, in this regard, that Arora's proposed salaries for all 
periods of performance were within the range the agency considered 
realistic, even if no bonuses were paid.  While Arora's salary level 
was static, Arora's average salary was sufficiently high $[deleted] 
that it remained well within the government independent market survey 
amounts even in the final contract year (when the survey amounts 
ranged from $[deleted].  Arora's high proposed salaries are a further 
reason that we find that the agency lacked a reasonable basis to 
conclude that Arora's salary level was not sufficient to ensure its 
ability to recruit and retain skilled healthcare workers.