BNUMBER:  B-280993 
DATE:  December 17, 1998
TITLE: Ervin & Associates, Inc., B-280993, December 17, 1998
**********************************************************************

Matter of:Ervin & Associates, Inc.

File:     B-280993

Date:December 17, 1998

John J. Ervin for the protester.
Bruce M. Kasson, Esq., Department of Housing & Urban Development, for 
the agency.
Katherine I. Riback, Esq., and Paul Lieberman, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Agency's determination that protester's initial proposal was 
technically unacceptable and outside the competitive range was 
reasonable where the proposal would require major revisions in order 
to become acceptable.   

DECISION

Ervin & Associates, Inc. protests the exclusion of its proposal from 
the competitive range under request for proposals (RFP) No. 
R-OPC-21123, issued by the Department for Housing and Urban 
Development (HUD) for property inspection services.[1]   

We deny the protest.  

BACKGROUND

Before the property inspection program contemplated under this 
solicitation was  operational, HUD contracted with two firms under the 
General Services Administration Federal Supply Schedule (FSS) for 
management, organizational, and business improvement services (MOBIS) 
contracts which required the contractors to perform property 
inspections and to pilot test a newly developed software and protocol.  
The MOBIS contractors were also to provide feedback and analysis to 
HUD regarding the new software and protocol before the property 
inspection program contemplated under this contract was fully 
operational.  The inspectors for the MOBIS contractors and 
subcontractors were required to attend a training course in order to 
become certified to use the hardware and software to support 
collection of the testing information.  The certification that these 
inspectors received as a result of this training expires upon the 
completion of the MOBIS contracts.       

The solicitation in question was issued on June 4, 1998, to manage the 
performance of property inspections in three discrete geographical 
areas.  The RFP requires that the contractors perform property 
inspections using HUD-certified inspectors, with  hand-held computers, 
also known as data collection devices (DCDs), provided by the 
contractor, and using HUD's recently developed property inspection 
software.  All data collected during inspections is required to be 
electronically transmitted from the inspector's DCD to the agency via 
the Internet, where the data will be evaluated and used to generate a 
score for the physical condition of the property.  

Award was to be based on a best value analysis using the following 
evaluation factors:  prior experience (20), past performance (20), 
management capability 
(30), and training and quality control (30), for a maximum possible 
score of 
100 points.  Technical merit was more important than cost in the award 
decision.  The RFP contemplated the issuance of one or more 
requirements contracts with 
fixed-price line items.  

By the July 23 closing time the agency received a total of 35 
proposals from 
20 different offerors for three geographic areas (9 proposals for Area 
1,               12 proposals for Area 2, and 14 proposals for Area 
3).  The protester submitted a proposal for consideration under each 
of the three areas.  

The technical evaluation panel (TEP) evaluated proposals under the RFP 
evaluation scheme and established a competitive range for each area.  
Five technically acceptable proposals were included in the competitive 
range for Area 1, four acceptable proposals and two proposals that 
were capable of being made acceptable were included in the competitive 
range for Area 2, and four acceptable proposals were included in the 
competitive range for Area 3.  The technical scores received by the 
proposals that were included in the competitive ranges were all 
between 70 and 88.5 points.  The TEP determined that 13 offerors, 
including the protester, submitted proposals that contained serious 
deficiencies warranting evaluation as technically unacceptable, and 
these proposals were excluded from the competitive range.  Ervin's 
proposal received a total technical score of 41 points for Area 1, 42 
points for Area 2, and 43 points for Area 3, and its proposal, for 
each area, was found technically unacceptable.  The TEP concluded that 
Ervin's proposal "materially failed to address the requirements of 
this solicitation and contained material weaknesses which increase the 
risk of unsuccessful contract performance."  TEP Initial Evaluation 
Report at 24.  The agency conducted discussions with the competitive 
range offerors, requested best and final offers (BAFO), and 
reevaluated the proposals based on the BAFOs.  The agency determined 
that Building Inspection Services submitted the proposal for Area 1 
most advantageous to the government, and that MTB Investments, Inc. 
submitted proposals for Areas 2 and 3 that were most advantageous to 
the government, and on August 18, awarded contracts to those firms.  
This protest to our Office followed Ervin's debriefing by the agency.  

Ervin challenges the awards on numerous grounds, all of which we have 
carefully considered and find without merit.  We will address Ervin's 
principal allegations below.  

DISCUSSION

Evaluation Of Ervin's Proposal 

Ervin objects that its proposal should not have been eliminated from 
the competitive range because its proposal "clearly reflect[ed] its 
ability to perform physical inspections."  Ervin's Comments at 6.  The 
protester also contends that "HUD is (and has been) thoroughly aware 
of Ervin's capabilities to perform such inspections, and to manage and 
perform large data collection and submission contracts."  Id.  

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 reviewing an agency's evaluation of 
proposals and subsequent competitive range determination we will not 
evaluate the proposals anew in order to make our own determination as 
their acceptability or relative merits; rather, we will examine the 
record to determine whether the documented evaluation was fair and 
reasonable and consistent with the evaluation criteria.  Spectrum 
Sciences & Software, B-280700, Nov. 9, 1998, 98-2 CPD  para.  __ at 4.  A 
protester's mere disagreement with an agency's evaluation does not, 
without more, establish that the evaluation was unreasonable.  Beneco 
Enters., Inc., B-278591, Feb. 17, 1998, 98-1 CPD  para.  91 at 3.

Solicitations issued after January 1, 1998, such as this one, are 
governed by the Federal Acquisition Regulation (FAR) as amended by the 
Federal Acquisition Circular (FAC) No. 97-02, which includes the Part 
15 rewrite.  The current language concerning the composition of the 
competitive range states that "[b]ased on the ratings of each proposal 
against all evaluation criteria, the contracting officer shall 
establish a competitive range comprised of all of the most highly 
rated proposals, unless the range is further reduced for purposes of 
efficiency . . . ."  FAR  sec.  15.306(c)(1) (FAC 97-02).  We do not read 
the revised language to require agencies to retain in the competitive 
range a proposal that the agency reasonably concludes has no realistic 
prospect of award.  SDS Petroleum Prods., Inc., B-280430, Sept. 1, 
1998, 98-2 CPD  para.  59 at 5.  Because the record here establishes that 
the agency reasonably concluded  that the protester's initial proposal 
was technically unacceptable and would require major revision or 
rewrite to be made acceptable, the agency properly determined not to 
include Ervin's proposal in any of the competitive ranges.  See 
Spectrum Sciences & Software, supra, at 5.  

The record shows that the TEP identified numerous informational 
deficiencies and significant weaknesses in Ervin's technical proposal, 
leading the evaluators to conclude that Ervin had failed to 
demonstrate awareness and understanding of the complexities of the 
contemplated contracts.  As a result, the protester's proposal was 
severely downgraded under all evaluation factors, resulting, as noted 
above, in total scores of 41 points out of 100 for Area 1, 42 points 
for Area 2, and 43 points for Area 3.  

For example, under the prior experience factor, Ervin's proposal 
received scores ranging from 8 to 12 points out of a possible 20.  The 
TEP downgraded Ervin's proposal for failing to provide an 
organizational chart.  While Ervin concedes that it did not include an 
organizational chart with its proposal, it argues that the requisite 
information was included in various other sections of its proposal.  
In this regard, the protester disregarded the RFP's instructions to 
respond to each factor separately and not rely on information in one 
factor to be part of the response for another factor.  

Ervin's proposal received scores ranging from 10 to 13 points out of a 
possible 20, under the past performance evaluation factor.  Ervin's 
inclusion in its proposal of only scant information on the successful 
performance of similar work of its one proposed subcontractor was 
considered a significant weakness under this evaluation factor.  The 
protester asserts in its comments that its proposed subcontractor is 
"the largest single property inspector in the country."  Ervin's 
Comments at 11.  The protester seems to argue that the evaluators 
should have been aware of its proposed subcontractor's performance of 
similar work.  However, an offeror must demonstrate affirmatively the 
merits of its proposal, and it runs the risk of rejection if it fails 
to do so.  Vista Videocassette Servs., Inc., B-230699, July 15, 1988, 
88-2 CPD  para.  55 at 5.  Here, the agency properly evaluated Ervin's 
proposed subcontractor's past performance on the basis of the material 
contained in Ervin's proposal.  Our review of the record confirms that 
the agency reasonably concluded that Ervin's proposal failed to 
demonstrate that its proposed subcontractor had successfully performed 
similar work.   

Under the management capability factor, Ervin's proposal received 
scores ranging from 8 to 12 points out of a possible 30.  The 
management capability factor evaluates, among other things, the 
offeror's ability to execute the mechanics of the contract, this means 
proposing the appropriate hardware that will interact with the 
HUD-provided software and software updates.  RFP at 50.  The TEP 
concluded that while "the offeror has a general understanding of the 
services required," the Ervin proposal failed to acknowledge the 
computer operations as described in the RFP.  TEP Initial Evaluation 
Report at 23.  For example, Ervin's proposal failed to specify the 
computer hardware and software that it would use to electronically 
transmit, via the Internet, the inspection results to HUD.  In this 
regard Ervin's proposal states that "[w]e have already begun research 
into the best possible hardware to be utilized for this engagement."  
Ervin's Technical Proposal, Section 3 at 6.  While Ervin asserts that 
its proposal "acknowledged" the operation of the HUD system, as 
defined by the IFB, Ervin does not contend that its proposal contained 
specifics such as what computer hardware it would use.  Ervin's 
Comments at 13.  The technical evaluation of a proposal is based on 
information submitted in it and an offeror runs the risk of having its 
proposal rejected if the proposal submitted is inadequately written.  
Defense Sys. Concepts, B-242755.2, July 1, 1991, 91-2 CPD  para.  2 at 7.  
This principle is particularly applicable where, as here, the 
offeror's recognition and discussions of specific information served 
as an indicator of whether it understood the work to be performed.  

Ervin's proposal also included, under the management capability 
factor, the development of a database, which was not required, "to 
track the name, address, and other salient features of the projects to 
be inspected."  Ervin's Technical Proposal Section 3 at 6.  Ervin 
argues that this database, which would operate as an internal control 
mechanism, was not properly scored by the TEP.  The RFP simply did not 
require a database that would track information relating to each 
inspection and would operate as an internal control mechanism; rather, 
the solicitation requested that the offeror provide specifics relating 
to the computer hardware that it will provide to interact with the 
HUD-provided software and software updates.  In our view, the agency 
acted reasonably in not giving Ervin's proposal extra credit for the 
submission of an additional database that was not requested.

Ervin's proposal received scores ranging from 6 to 9 points under the 
training and quality control factor.  The TEP found two significant 
weaknesses in Ervin's proposal under this evaluation factor.  First, 
the TEP determined that Ervin's proposal did not propose a plan for 
dealing with conflicts of interest that may arise during the course of 
this contract.  Ervin's proposal states that there are no potential 
conflicts of interest and that it will require inspectors to sign a 
statement that they have none.  Ervin's Technical Proposal, Section 4 
at 4.  The TEP determined that Ervin's general statement of compliance 
regarding conflicts of interest exhibited a basic misunderstanding of 
the issue.  Particularly as noted by one evaluator, "when they are 
stating that they will be drawing from 650 or so inspectors from 
around the country--one would presume that in order to have sufficient 
expertise to perform this work they have other jobs and relationships 
than only this contract."  Evaluation of Ervin's Proposal for Area 3 
at 18.  Ervin did not address the TEP's criticism of its proposal 
concerning its lack of a plan for dealing with conflicts of interest 
that may arise, and we have no basis to question the TEP's evaluation 
of Ervin's proposal in this regard.  

The second evaluated significant weakness in Ervin's proposal under 
the training and quality control factor was that its quality control 
plan was determined to be "basic and generic."  TEP Initial Evaluation 
Report at 63.  The TEP noted that Ervin's proposal stated that 
inspectors were to be monitored "periodically" with no explanation of 
"whether this means every few months or twice a day, as opposed to a 
plan outlining some statistical percentage."  TEP Initial Evaluation 
Report at 63.  Ervin argues that it was not possible for it to state 
how frequently it will monitor its inspectors, because, "[i]f 
inspectors know when and how their work will be reviewed, unscrupulous 
inspectors would be able to manipulate their work to accommodate the 
Quality Control Plan, instead of constantly providing the highest 
quality work product on a continuing basis."  Ervin's Comments at 
17-18.  However, responses that are essentially blanket offers of 
compliance are not adequate substitutes for the detailed and complete 
technical information necessary to establish that what the offeror 
proposes will meet the agency's needs.  M.C. Dean Elec. Contracting, 
Inc., B-246193, Feb. 24, 1992, 92-1 CPD  para.  219 at 4.  We agree with the 
TEP that it is possible to state how frequently inspectors will be 
monitored without alerting them to what specific inspections will be 
monitored.  In our view, the agency reasonably downgraded Ervin's 
proposal for its failure to give some indication regarding how 
frequently inspectors will be monitored.  

The record makes clear that the TEP reasonably downgraded Ervin's 
proposal, in substantial measure for failing to provide required 
information showing that Ervin understood the requirements and the 
complexities of the contemplated contracts.  These assessments 
accurately reflect the content of Ervin's proposal, notwithstanding 
the protester's disagreement with them.  Accordingly, we have no basis 
to question the TEP's conclusion, based on these findings, that 
Ervin's proposal was technically unacceptable, and the proposal 
properly was eliminated from the competitive range for the three 
geographical areas.

Other Issues

The protester argues that the awardees enjoyed a competitive advantage 
as a result of their experience as subcontractors under the MOBIS 
contracts.  Specifically, the protester notes that personnel from 
these firms attended an inspector training session during the pendency 
of this procurement to become certified to use the hardware and 
software to support collection of the testing information.[2]  
Notwithstanding Ervin's contention that these offerors had an unfair 
competitive advantage because they gained their relevant knowledge and 
experience through their incumbency, it is not unusual for a 
contractor to enjoy an advantage in competing for a government 
contract by reason of such experience, and such an advantage, so long 
as it is not the result of preferential treatment or other unfair 
action by the government, need not be discounted or equalized.  STS 
Strategic Techs. & Sciences, Inc., B-257980, B-257980.2, Nov. 17, 
1994, 94-2 CPD  para.  194 at 6.  In particular, an agency is not required 
to structure a solicitation so as to neutralize natural advantages 
gained by incumbency, such as having qualified personnel and 
possessing a clear understanding of the areas the agency intends to 
evaluate.  LaQue Ctr. for Corrosion Tech., Inc., B-245296, Dec. 23, 
1991, 91-2 CPD  para.  577 at 6-7.  Here, the record provides no basis to 
question the propriety of the FSS contracts, thus Ervin's assertion 
that Building Inspection Services, Inc. and MTB Investments, Inc. 
enjoyed a resulting unfair competitive advantage is without merit.  

Finally, the protester argues that the TEP is biased against Ervin.  
Specifically, Ervin contends that the TEP members "know Ervin's 
capabilities well," and "purposefully underscore[d]" its proposal.  
Ervin's Comments at 1.  Offerors are expected to demonstrate their 
capabilities in their proposals rather than simply relying on what 
they believe is known about them by contracting officials; those who 
do not furnish detailed, comprehensive proposals do so at their own 
risk.  Agriculture Tech. Partners, B-272978, B-272978.2, Dec. 5, 1996, 
96-2 CPD  para.  226 at 5.  Since we find no error in the evaluation of 
Ervin's proposal, we have no basis to conclude that the TEP was biased 
and acted with specific intent to injure Ervin.  Hill's Capitol Sec., 
Inc., B-250983, Mar. 2, 1993, 93-1 CPD  para.  190 at 3-4. 
    
The protest is denied.

Comptroller General
of the United States

1. The purpose of this contract is to inspect properties with HUD-held 
mortgages, properties for which HUD acts as the section 8 contract 
administrator, and properties owned by public housing agencies.  

2. Personnel from Building Inspection Services and MTB attended the 
MOBIS inspector training because those firms were subcontractors to 
the MOBIS contractors.