BNUMBER:  B-280478; B-280478.2 
DATE:  October 7, 1998
TITLE: Emmert International, B-280478; B-280478.2, October 7, 1998
**********************************************************************

DOCUMENT FOR PUBLIC RELEASE
A protected decision was issued on the date below.  This redacted 
version has been approved for public release.
Matter of:Emmert International

File:     B-280478; B-280478.2

Date:October 7, 1998

Terry W. Emmert for the protester.
Joseph J. Jakubik for International Chimney Corporation, an 
intervenor.
Sherry Kinland Kaswell, Esq., and Justin P. Patterson, Esq., 
Department of the Interior, for the agency.
M. Penny Ahearn, Esq., and John M. Melody, Esq., Office of the General 
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Award to higher-priced offeror was unobjectionable where, in 
evaluating relative merits of proposals to relocate lighthouse, agency 
reasonably determined that awardee's proposed "soft move" was 
preferable to protester's proposed "hard move," and tradeoff decision 
in favor of awardee's more expensive proposal was consistent with the 
solicitation.   

DECISION

Emmert International protests the award of a contract to International 
Chimney Corporation (ICC) under request for proposals (RFP) No. 
CAHA-175, issued by the National Park Service (NPS), Department of the 
Interior for relocation of the Cape Hatteras Light Station at Cape 
Hatteras National Seashore, Dare County, North Carolina.  Emmert 
objects to the agency's evaluation of proposals and to the selection 
of ICC's more costly proposal for award.

We deny the protest.

The procurement was conducted under design-build procedures in two 
phases.  In the first phase, six firms submitted qualification 
statements.  Two firms, the protester and the awardee, were determined 
highly qualified and were invited to compete in phase two, at issue 
here, for a base design services contract, including the 
transportation system for the lighthouse and associated structures, 
and a construction services option to be awarded contingent upon 
funding availability.  

The phase two solicitation provided for award on the basis of best 
value with technical factors significantly more important than price, 
considering the total base contract amount plus the option.  It 
further provided for the evaluation of proposals on the basis of the 
following technical factors (and subfactors):

     A.  Design Proposal

          1.  Preparatory Work (Suitability of Work,
            Compatibility with Building Fabric)
          2.  Lift Method (Suitability and Reliability)
          3.  Transportation System (Suitability and 
            Reliability of System)
          4.  Expectations of Incidental Building 
            Damage during Move
          5.  Foundations (Suitability for Loads and 
            Site Conditions; Compatibility with
            Existing Appearance)
          6.  Protection of Historic Building Fabric

     B.  Management Plan

        1.  Design Build Schedule
        2.  Management Philosophy
        3.  Team Organization/Key Personnel
        4.  Quality Control Plan
        5.  Safety Plan
        6.  Public Relations
 
After evaluation, the awardee's and protester's proposals were 
included in the competitive range.  Discussions were held and final 
proposal revisions (FPR) were submitted and evaluated.  ICC's 
highest-priced offer of $9,489,000 received the highest technical 
score of 95.66 (out of 100 available) points.  Emmert's low offer of 
$8,736,000 received 76.33 technical points.  The agency concluded that 
the superiority of ICC's technical proposal justified its higher price 
and represented the best value.  Award was made to ICC on June 19, 
1998 in the amount of $1,454,000 for the base contract, with the 
construction option to be awarded in the amount of $8,035,000, 
contingent upon funding.   

Of relevance in the evaluation was the distinction between the types 
of moves offered for the lighthouse.  The protester offered a "hard 
move," which essentially involves lifting the lighthouse with 
hydraulic jacks, inserting needle beams through the base of the 
lighthouse, and installing a movable rail track system under the 
beams, consisting of rollers or skates in between a runner beam and a 
track beam.  After movement of the lighthouse 2,900 feet to the new 
location, it would be lowered with hydraulic jacks onto a new 
foundation.  In such a hard move, the hydraulic jacks would lift and 
lower the lighthouse, but would not operate during the actual move.  
In contrast, the awardee offered a "soft move," which essentially is a 
hard move with added hydraulic jacks above the rollers or skates which 
operate during the move to keep the load level, thus providing a 
hydraulic "float" which allows for settlement and variations in the 
moving track.  

The technical evaluation panel (TEP) concluded that Emmert's proposed 
hard move "poses a higher risk of damage to a historically significant 
structure, such as the lighthouse," and "a move system with less 
probability of [structural] cracking [i.e., a soft move] provided a 
more suitable method."  Letter from the Contracting Officer to Emmert 
International 1 (June 19, 1998).  In addition, the TEP concluded that 
there were other weaknesses in Emmert's proposal associated with the 
hard move, including "height of the lift, the loading concentration, 
reliability on [deleted], potential for track settlement, and lack of 
contingency plan to maintain the dewatering system during possible 
evacuation of the island."  Id.  Further, the TEP was concerned that 
"Emmert proposed very little in terms of bracing [of the exterior of 
the lighthouse]" and that "[i]n addition, Emmert's FPR failed to 
clearly address how track settlement would be corrected."  Contracting 
Officer's Statement, July 21, 1998, at 2.  In contrast, the TEP 
concluded that ICC's proposed soft move was technically superior 
because it "pose[d] less risk of damage to a historically significant 
structure, such as the lighthouse," and that "ICC's lift method and 
transportation system has proven very successful in relocating 
structures with a footprint resembling the Cape Hatteras Lighthouse."  
Source Selection Determination, June 16, 1998, at 2.  On the basis of 
this evaluated technical superiority, the agency determined that 
payment of ICC's $753,000 price premium was justified.  Id.
 
The protester takes issue with the evaluation, alleges bias on the 
part of the agency, and concludes that the award to ICC at a $753,000 
price premium did not represent the best value.  Based on our review 
of the record, we conclude that the evaluation was proper and that 
there is no indication of improper bias on the part of the 
evaluators.[1]  We discuss the most significant arguments below.  

EVALUATION OF MOVING METHODS

Soil Modification

Soil modification was considered under the first design subfactor, 
preparatory work (Emmert's proposal received 14 and ICC's proposal 
17.3 of 18 available points), and the third design subfactor, 
transportation system (Emmert's proposal received 
11 and ICC's proposal 15.67 of 16 available points).  

The protester argues that the agency failed to consider and understand 
the importance of proper soil modification in the move, which 
negatively affected the evaluation of its proposal.  Specifically, the 
protester maintains that, based on inconsistent soil density and a 
high water table along the moving route, soil improvement was 
imperative, so that if any settling occurred, it would occur evenly 
and result in no damage to the lighthouse.  In this regard, in order 
to eliminate uneven settlement, the protester proposed a plan of soil 
[deleted] to control soil stability.  ICC instead proposed a stone 
base along the moving route, and the protester contends that this will 
result in uneven settlement as the lighthouse is moved, which will not 
be compensated for entirely by the additional hydraulic jacks because 
a "washboard effect will impose severe force on the lighthouse as the 
jacks try to compensate for the uneven settlement."  Protester's 
Comments, 
Sept. 10, 1998, at 4.   

The agency responds that the TEP thoroughly understood the critical 
nature of soil modification and [deleted] in Emmert's approach, based 
on the need to control track settlement, due to the limited one-half 
inch settlement tolerance in the firm's design.  In this regard, of 
concern to the TEP was the difficulty of controlling soil stability in 
Emmert's design, as described in the firm's own proposal.  See 
Contracting Officer's Supplemental Statement, Aug. 24, 1998, at 6-9.  
For example, the agency cites the protester's response to discussion 
question No. 2, "[i]s [deleted] along the move corridor a critical 
element in the design?"  Emmert responded "[a]bsolutely," and then 
went on to alert the TEP that "[i]n an extreme event, resulting in 
full saturation of the subgrade sands, it will be necessary to stop 
work to prevent failure of the track system and seriously jeopardizing 
the structure."  Letter from the Contracting Officer to Emmert 
International 1 (Apr. 24, 1998); Protester's Technical Proposal 
Additions and Adjustments, May 29, 1998, at 1-2.[2]  The agency 
asserts that, based on the TEP's concern with the uncertainty of soil 
stability control in Emmert's design, it reasonably concluded that the 
soil modification methods proposed by Emmert [deleted] were inadequate 
and insufficiently reliable to provide the limited track settlement 
tolerance.

Conversely, the TEP concluded that ICC's soft move--which, instead of 
soil modification and [deleted], depended upon stabilization of the 
subgrade and use of a stone base--could better accommodate the 
inevitable settlement and variation in the track system, and thus was 
preferable.  Contracting Officer's Supplemental Statement, Aug. 31, 
1998, at 7-8.  Regarding the alleged "washboard effect" in ICC's 
design, the TEP determined that ICC's "considerably slower rate of 
movement" for the lighthouse (6 weeks versus Emmert's proposed 8 days) 
and "utilization of certain propriety equipment" (i.e., a second set 
of hydraulic rams or push jacks to move the lighthouse more 
continuously, versus Emmert's proposal for one set of push jacks), 
"will adequately mitigate" this effect.  Id. at 10.     

Our Office will review an agency's evaluation of proposals to 
determine if the evaluation was reasonable and consistent with the 
RFP's stated evaluation criteria.   DDD Co., B-276708, July 16, 1997, 
97-2 CPD  para.  44 at 3.  Disagreement with the evaluation does not render 
it unreasonable.  Id. 

We find no basis to question the evaluation.  Contrary to the 
protester's position, the evaluation record indicates that the 
evaluators thoroughly considered the differing levels of soil 
modification among the competing proposals, balanced their relative 
strengths and weaknesses, and concluded that ICC's soft moving system, 
with less soil modification and nonreliance on [deleted], had "greater 
capacity to compensate for variance of the track as the soils settle 
beneath," and "provide[d] a more reliable and suitable method," and 
thus was technically superior.  TEP Final Selection Recommendation, 
June 18, 1998, at 3.[3]  The protester has failed to rebut any of the 
agency's evaluation conclusions in this area concerning either its own 
or the awardee's design.  Given the absence of evidence contradicting 
the evaluation conclusions, Emmert's complaints constitute no more 
than disagreement with the agency's technical judgment, which is 
insufficient to establish that the evaluation was unreasonable.  See 
Solid Waste Integrated Sys. Corp., B-258544, Jan. 17, 1995, 95-1 CPD  para.  
23 at 6.[4]         

Structural Cracking
      
Structural cracking was covered by the fourth design subfactor, 
expectations of incidental building damage (Emmert's proposal received 
2.33 and ICC's proposal 3.33 of 4 available points).  Emmert argues 
that the agency failed to investigate past building moves, which would 
have indicated the success of hard versus soft moves.  In particular, 
the protester cites a similar successful hard move identified in its 
proposal, the Cudecom Building in Bogata, Columbia, where there was no 
structural damage, as well as two soft moves, where there was 
structural cracking.  Emmert also complains that the evaluators 
misread a letter submitted with its proposal as discrediting hard 
moves based on possible cracking.  Specifically, the letter (written 
by ICC in the capacity of a consultant to a third party), stated that:

     [I]t should be understood by all that during a hard move, the 
     building is subjected to many disruptions, even though they may
     be minor, as it is being loaded and moved.  There is no soft 
flexible 
     connection in between other than the building[']s own 
flexibility.  
     The possibility of cracking exists in all types of moves and 
     probably more so in this type of move versus a soft move.

Letter from ICC to Empire State Development 2 (Feb. 2, 1998) (attached 
to Emmert's Technical Proposal Additions and Adjustments, May 29, 
1998).  Emmert contends that the letter, when read in its entirety, 
does not dismiss the hard move method as a viable approach.    
 
In response to the protester's first point, the agency states that it 
relied on the information contained in the proposals and was neither 
obligated, nor saw any need, to investigate other projects, given the 
unique conditions involved in the move of the lighthouse, i.e. 
historical significance and site conditions of Cape Hatteras.  We see 
nothing unreasonable in this position.  Where conditions are 
particular to a project, it is reasonable for an agency to eschew 
comparison to other projects; the protester has not established that 
the material conditions here are the same as the conditions at the 
sites of the other relocations.  To the extent that other projects 
were deemed at all relevant, the evaluation record indicates that the 
agency favorably considered similar successful structural moves 
presented by ICC (i.e., lighthouses) in making its price/technical 
tradeoff.[5]  As for Emmert's Bogata building move, the TEP considered 
it, but concluded that it was not directly comparable to the instant 
move because the footprint was considerably larger, the moving 
distance was shorter (300 versus 2,900 feet), and the move was not 
accomplished by Emmert itself (rather, a consultant on Emmert's team 
was a consultant to the Bogata project).  Emmert has not rebutted the 
dissimilarities of the Bogata move, as evaluated by the agency, or 
otherwise indicated that it submitted evidence of similar lighthouse 
moves which the agency failed to consider.  We therefore have no basis 
to question the evaluation in this area.

We also find nothing objectionable regarding the agency's reading of 
the letter in Emmert's proposal.  First, even if Emmert is correct 
that the remainder of the letter was supportive of hard moves, based 
on our reading of the letter, the agency reasonably read the cited 
language as critical of the hard move method.  By including the letter 
in its proposal without qualification or explanation, the protester 
took the risk that the agency would find certain portions of it more 
persuasive than others, and that it could have a negative impact on 
the evaluation of its proposal.  Herndon Science and Software, Inc., 
B-245505, Jan. 9, 1992, 92-1 CPD  para.  46 at 4 (it is the offeror's 
responsibility to submit adequately written proposal in order to 
establish that what it proposes will meet the government's needs).  In 
any case, it is clear from the record that the letter was not the 
basis for the agency's evaluation conclusions; rather, as already 
discussed, the agency based its preference for ICC's proposed method 
on consideration of the proposals as a whole.

EVALUATOR QUALIFICATIONS

Emmert argues that the evaluators lacked the necessary expertise, 
particularly regarding soil engineering and large structural 
relocation, to adequately evaluate proposals.[6]  The protester 
concludes that the award must have resulted from bias in favor of ICC.

This argument is without merit.  The selection of individuals to serve 
as proposal evaluators is a matter within the discretion of the 
agency; we will not appraise the qualifications of such individuals 
absent a showing of possible fraud, conflict of interest, or actual 
bias on the part of the evaluators.  Kasco Fuel Maintenance Corp., 
B-274131, Nov. 22, 1996, 96-2 CPD  para.  197 at 4; Solid Waste Integrated 
Sys. Corp., B-258544, Jan. 17, 1995, 95-1 CPD  para.  23 at 6.  Where a 
protester alleges bias, it must provide credible evidence, not mere 
inference or supposition, demonstrating that the agency's bias 
translated into action which unfairly affected the protester's 
competitive position.  American Native Medical Transport, L.L.C., 
B-276873, Aug. 5, 1997, 97-2 CPD  para.  73 at 7; Areawide Servs., Ltd., 
B-265650.2, Dec. 28, 1995, 95-2 CPD  para.  287 at 4.

Emmert's allegation of bias is based on the fact that news of the 
award was released (apparently by publication in a newspaper) several 
days prior to the award date.  However, it is not apparent how the 
unauthorized early release of the awardee's name supposedly translated 
into action which unfairly affected the protester's competitive 
position.[7]  Moreover, since we find no error in the evaluation of 
the proposals, we have no basis to conclude that the evaluation 
unfairly affected the protester's competitive position.  Alcon Envtl., 
Inc., B-275859.2, Apr. 11, 1997, 97-1 CPD  para.  139 at 6 n.6.
              
PRICE/TECHNICAL TRADEOFF

Emmert maintains that ICC's proposal did not represent the best value 
to the government in light of its more than $700,000 price premium.  
In a best value acquisition, as here, an agency has discretion to make 
award to an offeror with a higher technical score and a higher price, 
where it reasonably determines that the price premium is justified 
considering the technical superiority of the awardee's proposal, and 
the result is consistent with the evaluation criteria.  Hellenic 
Technodomiki S.A. B-265930, Jan. 3, 1996, 96-1 CPD  para.  2 at 3.  The 
agency has met this standard.  Given that technical considerations 
were more important than price under the RFP, and the agency's 
specific finding that ICC's proposal's technical advantages outweighed 
Emmert's lower price, there is no basis for objecting to the 
tradeoff.[8]

The protest is denied.

Comptroller General 
of the United States  

1. Because the protester filed the protests pro se, electing not to 
engage counsel, it had access only to a redacted evaluation record, 
which included the evaluation of its own, but not the awardee's, 
proposal.  However, the agency provided unredacted narrative reports 
and contracting officer's statements to the protester in response to 
the protests.  In these circumstances, we review the entire record in 
camera in reaching our decision.  

2. Further, in this regard, the agency cites Emmert's response to 
discussion question no. 5, "[w]hat is your design criteria of the 
[deleted] system along the track route?"  Emmert answered that "the 
system will be capable of field modification if necessary to adapt to 
unanticipated conditions," but failed to describe what modifications 
could be made.  Letter from the Contracting Offcer to Emmert 
International 
2 (Apr. 24, 1998); Protester's Technical Proposal Additions and 
Adjustments, May 29, 1998, at 2.  

3. For example, under the subfactor preparatory work, the TEP 
recognized that "Emmert's proposal requires [deleted], in addition to 
other soil preparation" and "provides more soil investigation 
information than ICC," while "ICC has [deleted] for [the] move route."  
Final Selection Recommendation Memorandum, June 18, 1998, at 2.  
Additionally, the evaluators found that "ICC['s] proposal for soils 
preparation, such as including a stone base course, is an adequate 
approach for the soft move method," and concluded that "[b]y avoiding 
reliance on [deleted], ICC provides a more suitable soils preparation 
proposal."  Id.  Further, under the transportation system subfactor, 
the evaluators recognized that "Emmert states that they will rely upon 
[deleted] of the soils to ensure the half-inch tolerance is not 
exceeded," but concluded that "[i]f for any unforeseen reason the 
settlement exceeds the half-inch tolerance, Emmert does not address 
how this will be accommodated for."  Id. at 2-3.  In contrast, the 
evaluators considered that "ICC's [soft move] system can compensate 
for settlement in excess of 12 inches" and "anticipates 1 to 2 inches 
of settlement occurring as the lighthouse moves," and concluded that 
"ICC's tolerance will be easier to achieve," and that "ICC provides 
greater capacity for unforeseen settlement, thus providing a more 
reliable and suitable approach."  Id.   

4. Emmert challenges the finding of a deficiency in its proposal for 
lack of a contingency plan to maintain the [deleted] system during 
possible evacuation of the island.  However, under our Bid Protest 
Regulations, protests such as this, in order to be timely, must be 
filed with our Office no later than 10 days after the protest basis 
was or should have been known.  4 C.F.R.  sec.  21.2(a)(2) (1998).  Emmert 
first raised this issue in its comments filed on August 10, 1998, more 
than 1 month after receiving the notice of award letter, which listed 
this aspect of the firm's proposal as a weakness.  See Letter from the 
Contracting Officer to Emmert International 1 (June 19, 1998).  The 
argument therefore is untimely and we will not consider it.

5. The phase two RFP here did not specifically provide for the 
evaluation of past projects, although consideration of past 
performance information was specifically provided for in phase one of 
the procurement.  

6. The panel consisted of three voting members--a structural engineer, 
an historic architect, and a civil engineer--all licensed 
professionals with a total of more than 60 years of experience, 
including extensive experience in NPS design and construction.  The 
panel also included two non-voting consultants, both university 
professors, one of whom authored the report "Saving the Cape Hatteras 
Lighthouse from the Sea," and the other of whom is a registered 
professional civil engineer.  

7. The agency states that it has no knowledge of the early release of 
the awardee's name.  It reports that members of the TEP signed 
nondisclosure statements and were cautioned not to reveal the name of 
the awardee until after official notice of award had been made.  
According to the agency, the only official release by the contracting 
office was the 24-hour notice of pending award sent to the 
congressional liaison in Washington, D.C. on June 18, 1998. 

8. Additionally, Emmert complains that contract performance was not 
stayed pending resolution of the protest because, prior to filing its 
protest, our Office failed to inform the firm of the Federal 
Acquisition Regulation (FAR) requirement for filing within 5 days 
after the debriefing in order to obtain such a stay.  See 31 U.S.C.  sec.  
3553(c), (d) (1994); FAR  sec.  33.104(c)(1).  First, we have no record of 
the protester's calling our Office prior to the filing of its 
protest--the first record of a call from the protester is July 7, 
1998, 14 days after the debriefing and 8 days after Emmert filed its 
protest.  Second, because the stay provisions are codified in the 
United States Code and the FAR is published in the Federal Register 
and the Code of Federal Regulations, Emmert was on constructive notice 
of the stay provisions.  Environmental Tech. Assessment Compliance 
Serv., B-258093, Dec. 13, 1994, 94-2 CPD  para.  239 at 3.  Finally, in 
light of our finding that the protest is without merit, the matter of 
the stay is academic.