BNUMBER:  B-280113 
DATE:  August 11, 1998
TITLE: RONCO Consulting Corporation, B-280113, August 11, 1998
**********************************************************************

Matter of:RONCO Consulting Corporation

File:     B-280113

Date:August 11, 1998

Stephen J. Edelmann for the protester.
Robert A. Mangrum, Esq., and Jason I. Hewitt, Esq., Winston & Strawn, 
for Chemonics International, Inc., an intervenor.
Deborah James, Esq., U.S. Agency for International Development, for 
the agency.
Jacqueline Maeder, Esq., and Paul Lieberman, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Where the two highest-scored technical proposals, which received 
scores within 5 percentage points of each other, were reasonably 
determined to be essentially equal technically, award to the offeror 
which submitted the lower cost, lower scored proposal is 
unobjectionable notwithstanding the solicitation's emphasis on 
technical merit over cost.  

DECISION

RONCO Consulting Corporation protests the award of a contract to 
Chemonics International, Inc. under request for proposals (RFP) No. 
624-97-005, issued by the U.S. Agency for International Development 
(USAID) for technical services to assist the USAID/Mali Mission in 
increasing production, processing and trade in key economic 
sub-sectors.[1]  RONCO alleges that the contracting officer improperly 
determined that the proposals of RONCO and Chemonics were technically 
equivalent and made award to Chemonics primarily on the basis of its 
low cost.  RONCO also contends that the agency was biased in making 
its award determination.    

We deny the protest.

The RFP, issued on June 24, 1997, contemplated the award of a 
cost-plus-award-fee performance-based contract for short- and 
long-term technical assistance support to and provision of 
non-academic in-country and third-country workshops, conferences, 
training, and observation tours; management of sub-contracts; 
administration of necessary commodity procurement and/or logistics; 
and all necessary administrative, financial and logistic support 
necessary to achievement of performance measures in the contract for a 
4.5-year period.  

Section M of the RFP provided that the government would evaluate 
proposals by assigning numerical ratings to each proposal under the 
following four factors worth a total of 1,000 points:  (1) program 
strategy (300 points); (2) management plan (300 points); (3) work plan 
and performance plan (250 points); and (4) resources, experience and 
capability (150 points).  The RFP stated that cost would not be 
point-scored, but would be an important factor in the evaluation.  In 
particular, the RFP advised that "[t]echnical competence is 
significantly more important than cost, however, estimated cost is an 
important factor and its importance as an evaluation factor will 
increase as the degree of equality of technical competence between 
proposals increases."  RFP  sec.  M.3.  Award was to be made to the 
responsible offeror whose proposal was most advantageous to the 
government in accordance with the evaluation criteria set forth in the 
RFP.  RFP  sec.  M.4(b).

Five offerors, including RONCO and Chemonics, submitted proposals by 
the August 29 closing date.  A four-member technical evaluation 
committee (TEC) rated the initial proposals by assigning numerical 
scores under each evaluation factor in accordance with section M of 
the RFP.  Narrative discussions of each offeror's strengths and 
weaknesses in each of the four evaluation factors were prepared.  
RONCO's initial technical proposal received 3,420 points and was 
ranked first of the five proposals.[2]  Chemonics initial technical 
proposal received 3,150 points and was ranked second.  

Three proposals, including RONCO's and Chemonics's, were included in 
the competitive range.  USAID conducted written discussions and 
conference calls with each of these three offerors.  Responses to 
discussions were due by November 25.  The responses were reviewed by 
the agency evaluators and the TEC submitted a 33-page memorandum which 
reviewed in detail the technical proposals for the three offerors in 
the competitive range and provided explanatory details concerning the 
strengths and weaknesses of the competing proposals.  Based on the 
evaluation memorandum and conversations with the TEC, the contracting 
officer made a determination that the three competitive range offerors 
were each technically competent to perform the required work.

By letter dated March 6, USAID requested final offers by March 20.  
Because offerors had previously been given the opportunity to revise 
their technical proposals and because all offerors were determined 
technically competent to perform the contract, the March 6 letters 
focused on the offerors' cost proposals.  The competitive range 
offerors submitted final proposals which were reviewed by the TEC.  
The technical scores and final prices for the competitive range 
offerors were as follows:

    Offeror             Technical Score Price

    RONCO               3,555           $15,502,323

    Chemonics           3,385           $15,003,501

    Offeror A           3,355           $15,359,110
In response to an inquiry from the contracting officer, the TEC stated 
that it did not have a preference among the offerors; all three were 
capable of performing the contract.  Although there was no explicit 
determination that the three proposals were technically equal, the 
record refers to "technical parity" and indicates that cost became the 
determining factor in the source selection.  Memorandum of Negotiation 
at 6, 11.  After conducting a cost analysis, as a result of which 
Chemonics's and RONCO's proposed costs were both found to be 
reasonable, complete, credible and realistic, the contracting officer 
determined that, based on its lowest cost, Chemonics's proposal 
offered the best value to the government.  USAID notified offerors of 
the award to Chemonics, and after a May 13 debriefing, RONCO protested 
to our Office.

RONCO argues that, given the solicitation's emphasis on technical 
considerations over cost and in light of its proposal's higher 
technical score, the selection of Chemonics's lower-rated proposal was 
improper.  The protester maintains that the "RFP ground rules were not 
followed" and that "price became the sole determining factor for the 
award."  Protest at 1.  RONCO does not challenge the technical 
evaluation, simply asserting that technical competence was 
significantly more important than cost, thus cost was to "play a minor 
and insignificant secondary role in awarding a contract."  Id.  RONCO 
points to its higher technical score and the 5 percent differential in 
technical scores between the two proposals.  RONCO contends that the 
contracting officer used an incorrect .02 percent differential when 
comparing the technical merit of proposals because the agency report 
repeatedly uses the .02-percent figure.[3]  The agency now concedes 
that the .02 percent is erroneous.  The protester asserts that the 
incorrect differential "resulted in a clear misinterpretation as to 
the closeness of those scores."  Comments at 2.  RONCO argues that its 
5-percent point advantage over Chemonics "does not portray virtual 
equality of the technical scores" and that the agency's decision "is 
the direct opposite of what the RFP states."  Id. at 1-2.  RONCO also 
alleges that the award decision was biased because the protester was 
purportedly told during the debriefing that there was "substantial 
pressure" on the contracting officer not to award follow-on contracts 
to incumbent contractors.

Contrary to the protester's assertions, a finding of technical 
equality need not be based on strict equality in terms of point 
scores.  The Gerard Co., B-260495, June 22, 1995, 95-1 CPD  para.  290 at 2; 
WB Inc., B-250954, Feb. 23, 1993, 93-1 CPD  para.  173 at 3.  The 
significance of a given point spread depends upon all the facts and 
circumstances surrounding a given procurement; the point scores 
themselves are not controlling, reflecting as they do the disparate 
subjective judgments of evaluators, but are useful as guides to 
intelligent decision-making.  Earle Palmer Brown Cos., Inc., B-243544, 
B-243544.2, Aug. 7, 1991, 91-2 CPD  para.  134 at 10.  Proposals have 
properly been viewed as essentially equal from a technical standpoint 
notwithstanding scoring differentials between proposals of more than 
15 percent.  Lockheed Corp., B-199741.2, July 31, 1981, 81-2 CPD  para.  71 
at 6-9; see also Ogilvy, Adams & Rinehart, B-246172.2, Apr. 1, 1992, 
92-1 CPD  para.  332 at 5-6 (a difference of 6 percent found approximately 
equal).

The record here supports a determination that the proposals were 
essentially equal technically.  Contrary to the protester's 
contentions, there is no basis to conclude that the 170-point 
difference in overall technical scores assigned the two proposals, by 
itself, represents a finding by the TEC of RONCO's technical 
superiority.  Individual members of the TEC awarded RONCO's best and 
final offer (BAFO) scores ranging from 840 to 930 and awarded 
Chemonics's BAFO scores ranging from 770 to 960.[4]  The evaluation 
narratives show that both proposals, despite their distinct approaches 
to meeting the RFP requirements, were viewed as presenting many 
strengths and clear and thorough explanations for the majority of 
issues.  The TEC also found that RONCO did not fully address three 
issues, and that Chemonics did not fully address four issues raised in 
discussions.  For example, the TEC felt that RONCO's response to a 
question concerning its information and communications system was 
unfocused and presented "a list of virtually everything possible that 
can be done without presenting a methodical strategy for establishing 
a market information system . . . ."  Competitive Range Evaluation 
Results Memorandum at 9.   The TEC also found that while RONCO's BAFO 
identified important policy areas, it did not "prioritize the policies 
or provide a strategy for affecting policy changes. . . ."  Id. at 11.  
As for Chemonics's BAFO, the TEC remained unconvinced that Chemonics's 
approach for acquiring local short-term technical assistance was 
reasonable, id. at 13-14, and concluded that the BAFO did not 
adequately identify opportunities that could be immediately exploited 
given what is currently known about Mali's agribusiness sector.  Id. 
at 20.  Finally, the contracting officer's record specifically notes 
that the evaluators concluded that all three offerors in the 
competitive range were qualified and capable of performing the work 
and that the evaluators did not have a preference among offerors.  
Memorandum of Negotiation at 4.  As provided by the RFP, and contrary 
to the protester's position that cost was of minor, secondary 
importance, the importance of an offeror's price/cost component was to 
"increase as the degree of equality of technical competence between 
proposals increases."  RFP  sec.  M.3.   Thus, the solicitation expressly 
recognized that cost could become the determining factor between two 
proposals that were determined to be equal technically.  Here, based 
on the closeness of the technical point scores and the evaluation 
narrative which reasonably supports a finding of technical equality, 
award based on cost was proper and consistent with the RFP selection 
criteria.  

As to RONCO's belief that the contracting officer's mathematical error 
"totally changed the technical outcome/cost outcome balance," Comments 
at 2, because the contracting officer used the incorrect .02 percent 
differential in making his award determination, the record does not 
show that the contracting officer relied on the incorrect .02 percent 
differential in the selection decision.  Indeed, no percentage 
differential between the proposals was given in the agency's 
contemporaneous evaluation documents; rather, the agency's analysis 
provides, as noted above, the strengths and weaknesses in each of the 
competitive range proposals, the total point scores for each proposal 
and the cost evaluation results.  Further, the contracting officer has 
acknowledged this mathematical error and stated that the 5 percent 
differential in technical scores "does not change my conclusion that 
there was no significant difference among the technical proposals in 
the competitive range . . . ."  Declaration of Contracting Officer at 
1.  On this record, we conclude that the award determination is 
unobjectionable.  

The protester also alleges agency bias against the protester, stating 
that the contracting officer told the protester at its debriefing that 
there was "substantial pressure" on him not to award a follow-on 
contract to the incumbent.  Protest at 3.

Government officials are presumed to act in good faith; we will not 
attribute unfair or prejudicial motives to procurement officials on 
the basis of inference or supposition.  Triton Marine Const. Corp., 
B-250856, Feb. 23, 1993, 93-1 CPD  para.  171 at 6.  In addition to 
producing credible evidence showing bias, the protester must 
demonstrate that the agency bias translated into action that unfairly 
affected the protester's competitive position.  Id.  RONCO has 
furnished no credible evidence to support its allegation, and the 
contracting officer denies having made the alleged statement.  Because 
the record supports the reasonableness of USAID's award determination, 
it provides no basis upon which to question the motives of the 
evaluators or the contracting officer.

Finally, the protester complains that, after award, Chemonics 
substituted a new chief of party for the individual originally 
proposed for this position and asserts that  because this is a key 
position, the agency should reopen the competition.  Protester's July 
17 Submission at 1.

Substitution of key personnel after contract award generally is not 
objectionable unless the offeror intentionally misrepresented the 
availability of personnel or was aware of the unavailability of 
personnel during the procurement process.  Unisys Corp., B-242897, 
June 18, 1991, 91-1 CPD  para.  577 at 3-4.  For example, where the offeror 
provides firm letters of commitment and the names are submitted in 
good faith with the consent of the respective individuals (that is, 
the offeror is not proposing personnel it has no intention of 
providing), the fact that the offeror, after award, provides 
substitute personnel does not make the award improper.  Id.     

RONCO explicitly states that it is not alleging that Chemonics engaged 
in a "bait-and-switch" endeavor here.  Protester's July 17 Submission 
at 1.  The record shows that the name of Chemonics's proposed chief of 
party was submitted in good faith and that the awardee had no idea 
that this individual would fail to follow through on his commitment.  
Specifically, Chemonics's proposal contains a signed letter of 
commitment from the proposed chief of party.  The proposed chief of 
party visited Chemonics's home office and was interviewed by members 
of the awardee's management.  The proposed individual also 
participated in proposal preparation.  A copy of a May 19, 1998 e-mail 
message indicated that the proposed chief of party intended to attend 
home office orientation on June 1.  However, 2 days later, on May 21, 
the proposed individual notified Chemonics that he would not serve as 
chief of party under this contract and, on the following day, 
Chemonics notified USAID that its proposed chief of party had 
withdrawn.  The agency has advised our Office that it has approved 
Chemonics's proposed replacement.  Nothing in the RFP prohibits 
substitution of personnel, and by itself, substitution after contract 
award provides no basis to conclude that the award was improper or 
that the agency should reopen the competition where, as here, there is 
nothing in the record to suggest that Chemonics acted in bad faith in 
proposing its chief of party or misrepresented its proposed personnel.  
Whether any substituted personnel are qualified to fill the vacated 
position is a matter of contract administration which our Office will 
not review.  4 C.F.R.  sec.  21.5(a) (1998).

The protest is denied.

Comptroller General
of the United States
 
1. The contractor  is to provide technical services to the Sustainable 
Economic Growth (SEG) core team in meeting defined performance 
increases in production/processing/trade in cereals, livestock, and 
alternative commodities.  

2. Scores assigned by each of the four TEC members were added to 
arrive at a total score, out of a possible total score of 4,000. 

3. RONCO's notes from its debriefing indicate that the agency stated 
there that the difference in technical scores was 0.2 percent.

4. The four scores for RONCO's proposal were 840, 860, 925 and 930, 
resulting in an average score of 888.75; the four scores for 
Chemonics's proposal were 770, 800, 855 and 960, resulting in an 
average score of 846.25.