BNUMBER:  B-279260; B-279260.2 
DATE:  May 26, 1998
TITLE: Conwal, Inc., B-279260; B-279260.2, May 26, 1998
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Matter of:Conwal, Inc.

File:     B-279260; B-279260.2

Date:May 26, 1998

J. Patrick McMahon, Esq., McMahon, David & Brody, for the protester.
Gerald H. Werfel, Esq., Pompan, Murray, Ruffner & Werfel, for 
Analytical Sciences, Inc., an intervenor.
Michael Colvin, Department of Health & Human Services, for the agency.
Linda S. Lebowitz, Esq., and Michael R. Golden, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Even if the protester's allegations with respect to the reasonableness 
of the agency's evaluation of the awardee's cost proposal had merit, 
the protester has failed to show that it was prejudiced by the 
agency's evaluation of the awardee's proposed costs.

DECISION

Conwal, Inc. protests the award of a contract to Analytical Sciences, 
Inc. (ASI) under request for proposals (RFP) No. 200-97-0610(P), 
issued by the Department of Health & Human Services, Public Health 
Service, Centers for Disease Control and Prevention, for the 
development, identification, collection, and dissemination of disease 
prevention communication and information materials through the 
operation of a Prevention Information Network.  Conwal challenges the 
reasonableness of the agency's evaluation of ASI's cost proposal.

We deny the protests.

The RFP contemplated the award of a cost-plus-fixed-fee contract for 
the base period and four 1-year option periods.  The RFP provided that 
the award would be made to the offeror whose integrated proposal 
(technical proposal, business proposal, oral presentation materials, 
past performance information, responses to sample tasks, and best and 
final offer (BAFO)) offered the highest technical merit at the best 
overall value to the government.  The RFP also provided that where 
competing proposals were determined to be substantially equal, past 
performance and/or cost would become controlling factors.

Of the four proposals initially submitted, the proposals of Conwal and 
ASI were included in the competitive range.  Following technical and 
cost discussions and oral presentations, both offerors submitted 
BAFOs.  The agency determined that the proposals of Conwal and ASI 
were technically acceptable.  (Conwal's proposal received a slightly 
higher--by approximately 6.5 percent--technical score.)  Conwal's 
evaluated cost was approximately 6 percent, or $2.2 million, higher 
than ASI's evaluated cost.  The agency determined that because the 
proposals of Conwal and ASI, based on their respective strengths and 
weaknesses, were substantially equal, overall cost would be the 
determining factor for award.  Accordingly, the agency awarded the 
contract to ASI, whose technically equal, low evaluated cost proposal 
was determined to represent the best value to the government.

Conwal complains that ASI improperly fragmented its general and 
administrative (G&A) expense pool by separately creating a 
subcontractor G&A expense pool to which a lower indirect percentage 
rate would be applied.  More specifically, in its BAFO, ASI noted that 
the agency recently finalized a new indirect rate agreement which 
included provisional rates for 1997.  For this procurement, ASI 
proposed a non-subcontractor G&A rate lower than its provisional rate.  
(Starting from ASI's full provisional rate, ASI's non-subcontractor 
G&A rate will have cumulatively been reduced by 1.5 percent by the 
fourth option period.)  In addition, ASI separately proposed a fixed 
subcontractor G&A rate, which was even lower than the firm's 
non-subcontractor G&A rate, for the entire period of contract 
performance.  As requested by the agency during discussions, ASI 
agreed in its BAFO to a specific indirect percentage rate ceiling on 
its non-subcontractor and subcontractor G&A expense pools.[1]  Conwal 
basically contends that the agency unreasonably accepted ASI's 
creation of a separate subcontractor G&A expense pool, to which a 
lower indirect percentage rate would be applied, thus providing ASI 
with an unfair competitive advantage resulting in its ability to 
submit the low evaluated cost proposal.  However, the agency's 
evaluation and source selection documentation included in the record 
shows that even if it is assumed, arguendo, that the agency was 
unreasonable in accepting ASI's separate non-subcontractor and 
subcontractor G&A expense pools, Conwal was not prejudiced.

Our Office will not sustain a protest unless the protester 
demonstrates a reasonable possibility that it was prejudiced by the 
agency's actions, that is, unless the protester demonstrates that, but 
for the agency's actions, it would have had a substantial chance of 
receiving the award.  McDonald-Bradley, B-270126, Feb. 8, 1996, 96-1 
CPD  para.  54 at 3; see Statistica Inc. v. Christopher, 102 F.3d 1577, 1581 
(Fed. Cir. 1996).

Even if we were to agree with Conwal that ASI's creation of a separate 
subcontractor G&A expense pool was improper, the record shows that ASI 
gained no competitive advantage by proposing to account for 
subcontractor G&A expenses separate from non-subcontractor G&A 
expenses.  The record shows that ASI's separate subcontractor G&A 
expense pool is less than 10 percent of the value of ASI's 
non-subcontractor G&A expense pool.  If ASI's two separate G&A expense 
pools are combined, that is, if ASI's subcontractor G&A expenses are 
added to its non-subcontractor G&A expenses, and the agreed-upon 
ceiling rate and applicable fees are applied, ASI's total 
(subcontractor and non-subcontractor) G&A expenses remain 
significantly less than Conwal's total G&A expenses by approximately 
20 percent.  Moreover, just as ASI's lower, declining provisional rate 
was applied to the firm's non-subcontractor G&A expense pool (to which 
Conwal does not object), if, for the sake of argument, ASI's full 
provisional rate were applied to ASI's subcontractor G&A expense pool, 
the effect on ASI's total (subcontractor and non-subcontractor) G&A 
expenses, including the agreed-upon ceiling rate and applicable fees, 
would not be significant, that is, there would be an approximate 
1-percent increase in ASI's combined G&A expense pool with ASI's total 
G&A expenses remaining approximately 20 percent less than Conwal's 
total G&A expenses.  On this record, Conwal has not shown how it was 
prejudiced by the agency's acceptance of ASI's alleged improper 
fragmentation of its G&A expense pool.  In this regard, we find 
unpersuasive Conwal's argument that it was somehow prejudiced because 
the agency denied it an opportunity to also improperly fragment its 
G&A expense pool in order to apply a separate, lower rate for material 
handling.

Conwal also complains that in evaluating the realism of ASI's proposed 
subcontractors' cost proposals, the agency improperly waived its 
previous direction during discussions that the subcontractors provide 
additional documentation to support various cost elements in their 
respective cost proposals.

The record shows that the agency noted with respect to cost issues 
outstanding for each of ASI's five proposed subcontractors that 
"[s]hould ASI be awarded this procurement, consent should be withheld 
on the proposed subcontract between ASI and [named subcontractor] 
until the [agency] receives [additional information regarding 
particular cost issues] and confirms that the proposed [rate(s)] 
[is/are] fair and reasonable."  The agency nevertheless concluded that 
the subcontractors' proposed costs were reasonable for estimating 
purposes and that "[a]ll matters of substance were resolved to the 
mutual agreement of the parties, except for the issues noted regarding 
the proposed subcontracts.  Should this offeror be awarded the 
resultant contract, the subcontract issues should be resolved before 
consent to subcontract is granted."  The record also shows that the 
agency treated Conwal and its only proposed subcontractor in the same 
manner as it treated ASI and its proposed subcontractors.  
Specifically, the agency stated in the record that if Conwal were 
awarded the contract, consent should be withheld on the firm's 
proposed subcontract until issues involving the subcontractor's 
proposed escalation rate and ceiling on indirect rates were resolved.  
On this record, Conwal has failed to show how it was prejudiced where 
the agency accorded the same treatment to Conwal and ASI with respect 
to outstanding subcontract cost issues.[2]  We further point out that 
the agency has advised that outstanding subcontract cost issues have 
been resolved with ASI and the contracting officer has consented to 
each of ASI's proposed subcontractors.

Accordingly, while the proposals of Conwal and ASI were determined to 
be substantially equal, ASI's total evaluated cost was lower than 
Conwal's.  Consistent with the terms of the RFP which provided that 
where competing proposals are determined to be substantially equal, 
past performance and/or cost would become controlling factors, we have 
no basis to question the award to ASI, the offeror submitting the low 
evaluated cost proposal which was determined to represent the best 
value to the government.  See, e.g., Theta Eng'g, Inc., B-271065, 
B-271065.2, June 12, 1996, 96-2 CPD  para.  76 at 9-10.

The protests are denied.[3]

Comptroller General
of the United States

1. During discussions, Conwal and its only proposed subcontractor, the 
incumbent contractor, were asked to agree to an indirect (G&A) 
percentage rate ceiling.  In its BAFO, Conwal conditioned its 
agreement to such a ceiling on the amount of work from the agency 
being at, or approximating, the amount of work upon which Conwal's 
proposal was based.  Conwal concluded that this constituted "a promise 
based upon a condition."  In addition, Conwal's subcontractor did not 
agree to a ceiling.

2. Conwal contends that one of ASI's proposed subcontractors 
understated its proposed costs by $1 million.  Conwal further 
complains that three other ASI proposed subcontractors failed to 
sufficiently document a total of approximately $150,000 in proposed 
costs (which the record shows the agency considered minor). The record 
shows that even if the alleged understated and insufficiently 
documented amounts, along with applicable fees, increased 
subcontractor G&A expenses, and the agreed-upon ceiling rate, are 
added to ASI's total cost-plus-fixed-fee, the basis upon which the 
award was made, ASI's evaluated cost remains at least 1.6 percent, or 
approximately $585,000, less than Conwal's.

3. In its comments on the agency report, Conwal withdrew its arguments 
regarding the agency's evaluation of its technical proposal, including 
past performance.