BNUMBER:  B-278579.2 
DATE:  July 29, 1998
TITLE: Possehn Consulting, B-278579.2, July 29, 1998
**********************************************************************

Matter of:Possehn Consulting

File:     B-278579.2

Date:July 29, 1998

Dennis Possehn for the protester.
Daniel N. Hylton, Esq., Department of Agriculture, for the agency.
Ralph O. White, Esq., and Christine S. Melody, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1.  Agency decision to narrow the competitive range without 
considering protester's low proposed price was improper where proposal 
received good ratings and was not determined to be technically 
unacceptable.  

2.  Under solicitation for location and installation of permanent 
forest inventory plots, protester's contention that evaluation of its 
proposal was unreasonable is sustained where the record shows that the 
agency's evaluation materials ignored evidence of required experience 
provided by the protester in its best and final offer.

DECISION

Possehn Consulting protests the award of a contract to Steve Holmes 
Forestry by the Forest Service, Department of Agriculture, pursuant to 
request for proposals (RFP) No. R5-06-97-33, issued for the location 
and installation of permanent forest inventory plots in the Lassen, 
Plumas, and Tahoe National Forests, as part of the agency's Forest 
Health Pilot Monitoring Project.  Possehn argues that the agency's 
award decision is based on an unreasonable evaluation of its proposal.

We sustain the protest.

BACKGROUND

This protest is Possehn's second challenge to the Forest Service's 
procurement for permanent forest inventory plots in the above-named 
national forests.  The purpose of these plots is to permit long-term 
monitoring of the health of these forests.  A brief history of the 
procurement is set forth below.

The RFP was issued for these services on August 22, 1997, seeking 
fixed-priced proposals for approximately 300 forest health inventory 
plots, aggregated into nine groups.  The RFP anticipated award to the 
offeror whose proposal offered the best value to the government, based 
on the evaluation of price and technical factors, which were equally 
important.  As modified by amendment 01, section M-1 of the RFP 
identified four technical criteria in descending order of importance:  
(1) offeror's experience establishing permanent forest and/or 
vegetation inventory plots; (2) past performance on similar contracts 
during the previous 3 years; (3) experience of key management 
personnel; and (4) qualifications of offered field personnel.  The RFP 
also anticipated the possibility that the agency might make multiple 
awards.  RFP  sec.  M-2.  

After receiving 13 proposals; evaluating each proposal against the 
four technical criteria using a rating scale of A, B, or C; and 
comparing the proposed price of each offeror with the government's 
cost estimate, the Forest Service rejected the two lowest-priced 
proposals--including the proposal submitted by Possehn--and split the 
award between Holmes and Shasta Land Management, the two offerors with 
the next-lowest-priced proposals.  The Forest Service explained that 
it was rejecting the two lowest-priced proposals because it did not 
believe the work could be performed properly at the offered prices.

Possehn protested the rejection of its proposal because of its low 
price, and also challenged several of the technical evaluation 
conclusions.  Our Office sustained Possehn's protest after concluding 
that any concern about the reasonableness of Possehn's low prices 
could not be considered other than as a responsibility matter.  
Possehn Consulting, B-278579, Jan. 9, 1998, 98-1 CPD  para.  10 at 4.  As a 
result, we recommended that the Forest Service either refer the 
question of Possehn's responsibility to the Small Business 
Administration for a final determination under the certificate of 
competency procedures, or reinstate the proposal to the competition 
and perform a new cost/technical tradeoff among the offerors.  Id. at 
5.

Electing instead to reevaluate proposals, the agency, on January 11, 
1998, excluded from the competitive range four proposals deemed 
unacceptable.  Written discussion questions were provided to the 
remaining offerors, including Possehn and Holmes, and best and final 
offers (BAFO) were received.  The following table shows the results of 
the evaluation of each of the nine proposals remaining in the 
competitive range against the technical criteria, ranked from lowest 
to highest price.

   OFFEROR 
             Exper-
              ience      Past
                       Perform-
                         ance    
                                    Key
                                 Personnel  
                                           Qualifica-
                                              tions    
                                                        Total
                                                        Price

Possehn         B          B         B          B     $ 59,013

Holmes          A          A         A          A     $ 65,043

Offeror A       B          B         B          B     $ 66,300

Offeror B       A          A         A          A      $66,951
                                                       All or
                                                        none

Offeror C      A-          A         A          A      $70,515

Offeror D       B          B         B         B-      $20,430
                                                       Items 1
                                                        and 3

Offeror E       A          A         A         A-     $ 87,464

Offeror F       A          A         A         A-     $ 93,110

Offeror G       A          A         A         A-     $256,940 
As shown above, Possehn's proposal was assigned a rating of "B" under 
each of the four evaluation criteria.  The evaluation narrative 
explained that the proposal was being downgraded--presumably from an A 
to a B--because the company lacked experience in establishing 
permanent inventory plots.  Prior to making a selection decision, the 
Forest Service further narrowed the competitive range by excluding the 
three offerors without experience establishing permanent forest 
inventories.  The excluded offerors were Possehn, and Offerors A and 
D.

By memorandum dated April 15, the contracting officer concluded that 
Holmes's high-rated proposal--which was also the proposal with the 
lowest price of those remaining after the exclusion of those offerors 
without prior experience preparing permanent forest inventory 
plots--offered the best value to the government.  Accordingly, Holmes 
was selected for award of all of the services under the 
solicitation.[1]  This protest followed.

ANALYSIS

Possehn raises numerous contentions in support of three general 
arguments--that the agency was biased against it, and as a result, 
performed an unreasonable evaluation; that the agency failed to 
recognize that only a professional forester registered in the state of 
California would be allowed to perform these services; and that the 
agency performed an unreasonable cost/technical tradeoff.  During the 
course of this protest, the protester was advised, by telephone 
conference call with all parties, that several of its contentions were 
untimely, factually incorrect, or raised issues not for consideration 
by our Office.[2]  However, for the reasons set forth below, our 
review of Possehn's remaining contentions leads us to conclude that 
the competitive range determination here was improper, and certain 
elements of the evaluation were unreasonable.

The determination of whether a proposal is in the competitive range is 
principally a matter within the reasonable exercise of discretion of 
the procuring agency, and in considering an agency's evaluation of 
proposals and subsequent competitive range determination we will not 
evaluate the proposals anew in order to make our own determinations as 
to their acceptability or relative merits.  Dynalantic Corp., 
B-274944.2, Feb. 25, 1997, 97-1 CPD  para.  101 at 4.  This discretion is 
not unfettered, however, as competitive range determinations and 
proposal evaluations must be consistent with law and regulation and 
have a reasonable basis in the record.  S&M Property Management, 
B-243051, June 28, 1991, 91-1 CPD  para.  615 at 3; Howard Finley Corp., 
B-226984, June 30, 1987, 87-2 CPD  para.  4 at 3.

Under Federal Acquisition Regulation (FAR)  sec.  15.609(a) (June 1997), a 
competitive range must be determined on the basis of cost or price and 
other factors that were stated in the solicitation.  Accordingly, the 
Forest Service's narrowing of the competitive range on the basis of 
experience installing permanent inventory plots without any 
consideration of price--and in so doing, excluding Possehn's 
lowest-priced proposal--was improper unless the excluded proposals 
were found to be technically unacceptable.  S&M Property Management, 
supra, at 3-4.  Here, the record contains no finding that the three 
proposals eliminated during the narrowing of the competitive range 
were unacceptable, and in fact, the record shows that all three 
received overall ratings of "B" on a scale from "A" to "C."  Thus, we 
conclude that Possehn's proposal was improperly excluded from the 
competitive range.[3]

The record also supports Possehn's claim that the evaluation of field 
crew qualifications ignored additional information included in the 
BAFO showing such experience for one of Possehn's two crew members.

During discussions, the Forest Service provided materials to Possehn 
indicating that, with respect to the projects identified in response 
to the experience criterion, the agency could not determine whether 
prior projects involved permanent or non-permanent inventory plots.  
Contracting Officer's Letter to Possehn, Jan. 12, 1998, at 2.  In 
response to this criticism, Possehn's BAFO provided greater detail 
throughout its proposal on whether prior projects involved permanent 
or non-permanent inventory plots.  With respect to one of the two 
field personnel identified in Possehn's proposal, the BAFO explained 
that the employee had experience working for the Forest Service 
establishing "permanent vegetation sampling plots."  As shown above, 
the RFP expressly sought experience with either permanent forest or 
permanent vegetation inventory plots, but the evaluation under the 
field crew qualifications criterion does not reflect this information 
from the BAFO, and in fact, incorrectly states:

     Field crew members do not have experience establishing permanent 
     plot inventory systems, therefore, Possehn was rated 'B' for 
     qualifications of field crew.

Source Selection Decision, April 15, 1998, at 4.

While our review of the record shows that the evaluation materials set 
forth in the Source Selection Statement fail to recognize the 
experience of one of Possehn's two crew members, the agency's 
Postaward Debriefing and Denial of Agency Protest, and the Contracting 
Officer's Statement, both acknowledge that one of Possehn's two crew 
members had such experience.[4]  On the other hand, we have no 
contemporaneous evidence that the experience was recognized prior to 
Possehn's pursuit of this protest.  Since we accord greater weight to 
contemporaneous evaluation and source selection materials than to 
explanations prepared in response to protest contentions, we cannot 
justify disregarding the written statement found in the Source 
Selection Decision.  Cygnus Corp., B-275181, Jan. 29, 1997, 97-1 CPD  para.  
63 at 8; DynCorp, B-245289, B-245289.2, Dec. 23, 1991, 91-2 CPD  para.  575 
at 7 n.13.  Accordingly, we conclude that the evaluation unreasonably 
overlooked the experience of one of Possehn's two field crew members.

Possehn's next challenge to the evaluation is that the agency 
unreasonably downgraded the company for its lack of experience 
establishing permanent forest inventory plots under all four 
evaluation criteria, instead of only under the offeror's experience 
criterion.[5]

We conclude that the agency's consideration of permanent inventory 
plot experience under the evaluation criteria covering past 
performance, key personnel experience, and field personnel 
qualifications (which apparently led to Possehn's receiving a rating 
of "B" for those criteria) is consistent with the RFP's evaluation 
scheme.  Given the guidance included in the solicitation under the 
offeror's experience criterion that the agency would rate permanent 
experience higher than non-permanent experience, we view as within the 
reasonable discretion of the agency the decision to assign a slightly 
lower rating to offerors whose past performance, key personnel, and 
field personnel qualifications involve non-permanent rather than 
permanent experience.  In this regard, we note that the Forest Service 
did not determine that offerors lacking permanent forest inventory 
experience were unacceptable--hence our decision sustaining Possehn's 
challenge to its exclusion from the competitive range--but instead 
made distinctions about the relative merit of such experience in a 
manner consistent with the clear import of the stated evaluation 
scheme.  Thus, we deny Possehn's protest of its evaluation in this 
area.
  
Finally, Possehn contends that many of the agency's actions are the 
likely result of bias against Possehn for bringing its earlier 
successful protest.  While Possehn correctly noted certain 
irregularities in the record,[6] without clear evidence of bias, we 
will not attribute prejudicial motives to agency contracting officials 
on the basis of inference or supposition.  Meridian Management Corp., 
Inc.; NAA Servs. Corp., B-254797, B-254797.2, Jan. 21, 1994, 94-1 CPD  para.  
167 at 6.

RECOMMENDATION

We recommend that the agency reevaluate the BAFO submitted by Possehn 
to ensure that the evaluation accurately reflects the experience of 
one of the company's two field crew members, and make an appropriate 
judgment about the value of that experience.  Following the 
reevaluation, we recommend that the agency either properly narrow the 
competitive range, giving appropriate consideration to the role of 
price, or appropriately determine, through a cost/technical tradeoff, 
which of the proposals offers the best value to the government.  At 
the end of the process, if the contracting officer determines that 
Possehn's proposal offers the best value, we recommend that the agency 
terminate the award to Holmes and award to Possehn.

We also recommend that the protester be reimbursed the reasonable 
costs of filing and pursuing its protest, including attorneys fees, if 
any.  4 C.F.R.  sec.  21.8(d)(1).  In accordance with 4 C.F.R.  sec.  
21.8(f)(1), Possehn's certified claim for such costs, detailing the 
time expended and the costs incurred, must be submitted directly to 
the agency within 60 days after receipt of this decision.

The protest is sustained.

Comptroller General 
of the United States

1. In selecting Holmes for award, the contracting officer also decided 
to terminate the partial award initially made to Shasta Land 
Management, whose proposal was not included in the competitive range.

2. For example, Possehn's contention that there is little meaningful 
difference between experience preparing permanent forest inventory 
plots and non-permanent forest inventory plots is untimely with 
respect to the first of the four technical evaluation criteria.  The 
RFP at amendment 01, section M-1, clearly states that experience 
preparing permanent inventory plots will be ranked higher than 
experience with non-permanent inventory plots.  Under our Bid Protest 
Regulations, this allegation of an impropriety in the solicitation had 
to be protested to our Office prior to the time set for receipt of 
initial proposals.  4 C.F.R.  sec.  21.2(a)(1) (1998).  Moreover, several 
of Possehn's complaints that the agency overlooked information 
provided in its BAFO are factually incorrect.  The evaluation 
criticisms Possehn referenced in its protest comments to support 
certain of these arguments (for example, those found in Possehn's 
Comments on the Agency Report, June 5, 1998, at 3) were taken from the 
initial evaluation, not the BAFO evaluation.  The criticisms were, in 
fact, removed from the final evaluation materials.  Similarly, 
Possehn's contention that the agency ignored its experience in the 
Sierra Nevada Mountains was shown to be based on a misunderstanding, 
since the evaluation expressly credits Possehn's Sierra Nevada 
experience.  Finally, Possehn's complaint that the agency failed to 
consider whether offerors were properly licensed by the state of 
California raises an issue not reviewable by our bid protest forum.  
Compliance with state or local requirements is generally a matter 
between the contractor and the issuing authority, and will not be a 
bar to contract award absent a specific requirement in the 
solicitation.  Mark Dunning Indus., Inc., B-258373,
Dec. 7, 1994, 94-2 CPD  para.  226 at 5-6.

3. For the record, we note that the Forest Service argues that even if 
Possehn's proposal were included in the competitive range, and a 
cost/technical tradeoff were performed between the proposals submitted 
by Possehn and Holmes, the agency would have selected the Holmes 
proposal.  Generally, we accord little weight to agency efforts to 
defend, in the face of a bid protest, a prior source selection through 
submission of new analyses, which the agency itself views as merely 
hypothetical, because such reevaluations and redeterminations prepared 
in the heat of the adversarial process may not represent the fair and 
considered judgment of the agency.  Boeing Sikorsky Aircraft Support, 
B-277263.2, B-277263.3, Sept. 29, 1997, 97-2 CPD  para.  91 at 15.  In 
addition, the hypothetical used by the agency is premised upon an 
assumption that Possehn lacks experience establishing permanent forest 
inventory plots.  As shown below, we conclude that the Forest Service 
should revisit this assumption given evidence in the record that one 
of Possehn's crew members has such experience.  

4. For example, the Postaward Debriefing and Denial of Agency Protest, 
April 24, 1998, states at the second unnumbered page, "Of the field 
personnel, Dave Young has one season of experience establishing 
permanent vegetation sampling plots."

5. As noted above, Possehn also argues that there is no material 
difference between preparing non-permanent plots and permanent plots.  
However, given that the solicitation clearly advised that permanent 
plot experience would be rated more highly than non-permanent plot 
experience, this portion of its challenge had to be raised with our 
Office prior to the due date for receipt of proposals, and is untimely 
at this juncture.  4 C.F.R. sec.  21.2(a)(1).

6. For example, Possehn points out that when the agency elected to 
reevaluate proposals after our earlier decision sustaining Possehn's 
first protest, the reevaluation did not mention one of the weaknesses 
noted for Holmes in the initial evaluation.  Since no further 
submissions had been provided that might have permitted the correction 
of the weakness, Possehn argues that the omission of the negative 
evaluation findings is evidence of bias.  While our Office also 
pointed out this irregularity to the agency during the course of a 
conference call to discuss the record, we note that the Forest Service 
did use a different evaluator than it used initially.  In addition, 
the weakness involved was relatively minor and, at best, would have 
been reflected as a weakness under the past performance criterion, as 
opposed to the more heavily-weighted criterion of experience.  In 
short, we do not find that this matter, on its own, is evidence of 
agency bias.