BNUMBER:  B-281074.2 
DATE:  January 11, 1999
TITLE: National Toxicology Laboratories, Inc., B-281074.2, January
11, 1999
**********************************************************************

Matter of:National Toxicology Laboratories, Inc.

File:B-281074.2
        
Date:January 11, 1999

Jerome S. Gabig, Jr., Esq., and Craig W. Dubishar, Esq., Venable, 
Baetjer, Howard & Civiletti, for the protester.
Robyn Dyson Towles, Department of Justice, for the agency. 
Aldo A. Benejam, Esq., and Christine S. Melody, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1.  Contentions that agency unreasonably evaluated protester's 
technical proposal and improperly concluded that the awardee's 
higher-rated, higher-cost proposal offered the best value to the 
government, are denied where the record shows that the evaluation was 
reasonable and in accordance with the stated evaluation criteria, and 
the agency reasonably determined that the technical superiority of the 
awardee's proposal warranted the cost premium.

2.  Contention that agency's method for allocating points for cost 
placed undue emphasis on technical merit and allegedly resulted in a 
misleading evaluation is denied where the scoring scheme used by the 
agency accurately reflects the relative weights of the technical and 
cost factors announced in the solicitation and there is no evidence 
that the agency's approach resulted in a distorted or misleading 
evaluation.

DECISION

National Toxicology Laboratories, Inc. (NTL) protests the award of a 
contract to PharmChem Laboratories, Inc. under request for proposals 
(RFP) No. OJP-97-R-010, issued by the Office of Justice Programs of 
the Department of Justice (DOJ) for technical assistance and inmate 
drug urinalysis.  NTL primarily argues that the agency improperly 
evaluated its proposal.

We deny the protest.

The RFP, issued on April 14, 1998, contemplated the award of an 
indefinite-quantity/indefinite-delivery contract for a base period 
with up to three 1-year option periods.  RFP  sec.  H-1, L.4, L.6.  The 
RFP contemplated issuing task orders under the proposed contract on a 
fixed-price basis, time and materials basis, or a combination thereof.  
RFP  sec.  H-1.  The RFP required offerors to submit proposals in three 
separate volumes (technical/management in volume I, cost proposal in 
volume II, and representations and certifications in volume III) and 
contained detailed instructions on the type of information to be 
provided in each volume.  RFP  sec.  L.10, L.11, L.13.  Section C-100.4 of 
the RFP described in detail the specific work areas, divided into 
seven distinct tasks, for which the successful offeror would be 
responsible under the contemplated contract.

Section M of the RFP listed the following technical evaluation factors 
(weight of each factor shown in parentheses):  organization/management 
(20 percent); technical approach (20 percent); staff qualifications 
(20 percent); and past performance (25 percent).  Cost was worth 15 
percent.  The RFP stated that the technical areas would be considered 
more significant than cost in the award decision.  RFP  sec.  M-4.  Award 
was to be made on the basis of the proposal determined to be the best 
value to the government.  RFP  sec.  M-4.

Three firms, including the protester and the awardee, responded to the 
RFP by the time set on May 29 for receipt of proposals.  A source 
evaluation board (SEB) evaluated initial proposals by assigning 
numerical scores under each technical evaluation factor and 
calculating a total score for each proposal.  The agency conducted 
discussions with all three firms and requested best and final offers 
(BAFO) from all three.  The SEB rescored technical proposals based on 
BAFOs, and the contracting office provided cost scores,[1] with the 
following results:

              Offeror Tech. ScoreCost Score  Cost

             PharmChem   78.00     14.55  $8,091,229

             NTL         65.30     15.00   7,850,280

             Offeror A   73.30     13.00   9,061,894 

Post-Negotiation Memorandum, Aug. 28, 1998.  

Based on these results, the SEB recommended that PharmChem be awarded 
the contract.  The contracting officer agreed with the SEB's 
recommendation and, on August 28, awarded PharmChem the contract.  
This protest followed a telephonic debriefing by the agency.[2]

Protester's Contentions

NTL primarily argues that DOJ misevaluated its proposal in several 
respects.  Specifically, NTL argues that DOJ failed to give it credit 
for specific strengths in its proposal and improperly concluded that 
there were certain weaknesses in its proposal.  The protester asserts 
that as a result of these alleged errors, the agency's cost/technical 
tradeoff decision was flawed.

Discussion

Our Office will not engage in an independent evaluation of proposals 
nor make an independent determination of their relative merits.  
Litton Sys., Inc., B-239123, Aug. 7, 1990, 90-2 CPD  para.  114 at 9.  
Rather, we review the agency's evaluation only to ensure that it was 
reasonable and consistent with the terms of the solicitation.  Sensis 
Corp., B-265790.2, Jan. 17, 1996, 96-1 CPD  para.  77 at 6.  A protester's 
mere disagreement with the agency's conclusions does not render the 
evaluation unreasonable.  ESCO, Inc., B-225565, Apr. 29, 1987, 87-1 
CPD  para.  450 at 7.  Based on our review of the record, including the 
SEB's narrative in support of its evaluation, we conclude that the 
numerical ratings assigned NTL's proposal are reasonably supported.  
Below we discuss some of the more significant issues in support of our 
conclusion.

Organization/Management

As noted above, the first technical evaluation factor was 
organization/management.  The RFP specifically instructed offerors to 
present an organization and management plan that would ensure both 
quality and accuracy of the services provided and the efficient 
operation of the contract.  RFP  sec.  L.10.  Offerors were instructed to 
demonstrate that they have the ability and resources to manage a 
contract of the contemplated complexity, and to adhere to established 
deadlines for completing the required tasks.  Id.  In addition, 
offerors were required to provide control procedures to ensure 
internal quality control in areas specified in the RFP, including 
testing procedures, storage of specimens, office and billing 
procedures, ability to meet deadlines, reporting test results, and 
reporting formats for data, to name a few.  The 
organization/management factor was divided into two areas, operations 
and quality control, each worth a maximum of 10 points.

Contrary to the protester's argument, the record shows that the SEB 
identified several strengths in NTL's proposal in this area, assigning 
a composite score of 14 out of a maximum of 20 points under this 
factor.  For instance, the SEB found that NTL's proposal demonstrated 
an ability to manage a contract of the contemplated complexity and to 
adhere to established deadlines for task completion.  The SEB also 
found that NTL's proposal demonstrated an adequate management 
commitment to quality and accuracy in conducting laboratory testing 
and to providing technical assistance, and that NTL's control plan 
demonstrated sufficient internal control procedures in place at all 
points in contract operations.  Contrary to the protester's 
assertions, the SEB specifically noted NTL's quality control program 
as a strength in NTL's proposal.  In addition, the SEB found that NTL 
responded to its concerns regarding spoilage and degradation.  The 
record thus shows that the SEB recognized the strengths NTL points out 
were included in its proposal under this factor and considered them in 
its assessment.

However, the SEB identified several deficiencies, primarily due to 
lack of detailed information in NTL's proposal.  For example, the SEB 
specifically noted that with respect to one of the tasks described in 
the RFP--task 5.D, related to reconciling billing--NTL simply copied 
the task as it appeared in the RFP, inserting "NTL" in place of "the 
Contractor," without explaining how NTL would perform the required 
task.[3]  Based on the SEB's finding, the agency requested that the 
protester provide further details regarding its billing procedures, 
specifically asking how NTL would implement the requirement.  While 
NTL provided additional information in response to DOJ's questions 
regarding billing, NTL's brief responses did not allay the SEB's 
concerns, and the proposal was downgraded accordingly, which we do not 
view as unreasonable.

Technical Approach

Under the second evaluation factor, technical approach, offerors were 
instructed to clearly address tasks 1-5 contained in section C of the 
RFP.  Proposals were to be evaluated on the content and clarity of the 
responses to the identified tasks, and on the soundness, feasibility, 
effectiveness and completeness of approaches selected in terms of 
staffing patterns, work loads and resources needed to accomplish each 
task.  RFP  sec.  M-3.2.

The protester's proposal earned a composite score of 13 out of a 
maximum of 20 points under this factor.  Contrary to the protester's 
assertions, the record shows that the evaluators considered the firm's 
experience with foreign laboratories and its transition plan as 
strengths in NTL's proposal and credited the proposal accordingly.  
The SEB found, however, that NTL had failed to provide sufficient 
detail in response to task No. 2 (specimen handling procedures) on how 
the firm would assist the agency in measuring sites' performance with 
respect to the submission of urine specimens.  The SEB concluded that 
NTL's proposal was not tailored to the RFP's requirements.  As with 
other aspects of the proposal, the SEB found that NTL had merely 
restated the tasks described in the RFP and simply promised to fulfill 
them, without adequately discussing its resources or strategies, or 
explaining steps involved in solving problems.

Our review of the record confirms the evaluators' unanimous conclusion 
that in responding to the RFP in the organization/management and 
technical approach areas, NTL's proposal essentially parrots the 
language of the tasks described in the RFP, does not explain how NTL 
proposed to accomplish the RFP's requirements, and lacked sufficient 
detail to allow the agency to determine NTL's understanding of the 
requirements.  This was not an acceptable approach, especially in 
light of the RFP's specific instructions that proposals be 
"sufficiently detailed to enable the Government to evaluate the 
proposal by each factor and subfactor . . . ."  RFP  sec.  L.9.  Moreover, 
the RFP warned that general statements would be considered inadequate, 
and that proposals should be "sufficiently complete to demonstrate the 
manner in which the offeror will comply with and fulfill the 
solicitation requirements."  Id.  In view of the RFP's specific 
instructions which required offerors to provide clear, detailed 
proposals, and based upon our review of the record, including NTL's 
proposal and the evaluation documents, we have no basis to question 
the SEB's downgrading of NTL's proposal in these areas.[4]  See 
Schleicher Community Corrections Ctr., Inc., B-270499.3, et al., Apr. 
18, 1996, 96-1 CPD  para.  192 at 4.

NTL also challenges the agency's method for allocating points for 
cost, arguing that it resulted in distorted scores and placed an undue 
emphasis on technical merit.  As noted above, cost scores were 
calculated by assigning the maximum number of available points (15) to 
the offer with the lowest proposed cost; since NTL's proposed cost of 
$7,850,280 was low, it received all 15 points.  Proportionately lower 
scores then were assigned to higher-cost proposals, with PharmChem 
receiving 14.55 points based on its proposed price of $8,091,229, the 
second lowest received.  NTL argues that this scoring method distorted 
the cost difference between the proposals by giving PharmChem a score 
only 0.45 points lower than NTL's, despite the fact that NTL's price 
was approximately $425,000 lower than PharmChem's.

As a preliminary matter, there is nothing inherently unreasonable 
about scoring the cost factor based upon relative difference in cost 
proposals, so long as the use of such an approach does not produce a 
distorted or irrational result.  See, e.g., First Ann Arbor Corp., 
B-194519, Mar. 4, 1980, 80-1 CPD  para.  170 at 3; Design Concepts, Inc., 
B-186125, Oct. 27, 1976, 76-2 CPD  para.  365 at 2.  The use of normalized 
point ratings for cost--i.e., a point-scoring system under which the 
lowest-cost proposal is assigned the maximum number of points, with 
higher-cost proposals assigned points based on their closeness to the 
low offer--is a relatively common and acceptable approach.  See, e.g., 
Robertson Leasing Corp., B-279756, B-279756.2, July 17, 1998, 98-2 CPD  para.  
46 at 2, 6; CDA Inv. Techs., Inc., B-272093, B-272093.2, Sept. 12, 
1996, 97-1 CPD  para.  102 at 3; American Overseas Book Co., Inc., B-266297, 
Feb. 9, 1996, 96-1 CPD  para.  60 at 2; Research Assocs. of Syracuse, Inc., 
B-259470, Mar. 28, 1995, 95-1 CPD  para.  169 at 3.

Contrary to NTL's arguments, the scoring scheme used by the agency 
here accurately reflects the relative weights of the technical and 
cost factors--85 and 15 percent, respectively--as set forth in the 
RFP.  Further, there is no indication that the cost scoring 
methodology in any way distorted the evaluation results.  On the 
contrary, the record shows that the SEB and the contracting officer 
thoroughly considered the specific strengths and weaknesses in the 
offerors' technical proposals, and reviewed their proposed costs in 
detail as well.  In sum, while it is possible that a particular 
scoring methodology could distort an agency's evaluation of proposals, 
there is no indication that that occurred here.  Rather, since 
PharmChem's proposed price was approximately 3 percent higher than 
NTL's, it was not unreasonable for the agency to assign it 
approximately 3 percent fewer points (.03 x 15 points = 0.45 points) 
than the 15 points NTL received (15 - 0.45 = 14.55).

NTL also argues that the cost/technical tradeoff decision was flawed.  
In deciding between competing proposals, cost/technical tradeoffs may 
be made, the propriety of which turns not on the difference in 
technical scores or ratings, per se, but on whether the source 
selection official's judgment concerning the significance of that 
difference was reasonable and adequately justified in light of the RFP 
evaluation scheme.  DynCorp, B-245289.3, July 30, 1992, 93-1 CPD  para.  69 
at 8.  Award may be made to a higher-rated, higher-cost offeror where 
the decision is consistent with the evaluation criteria and the agency 
reasonably determines that the technical superiority of the 
higher-priced offer outweighs the cost difference.  Sabreliner Corp., 
B-242023, B-242023.2, Mar. 25, 1991, 91-1 CPD  para.  326 at 11.  As 
explained further below, the award decision here is reasonably 
supported by the record.  See Southwest Marine, Inc.; American Sys. 
Eng'g Corp. B-265865.3, B-265865.4, Jan. 23, 1996, 96-1 CPD  para.  56 at 
19.

The SEB documented its recommendation for award in a statement 
detailing its findings with respect to each proposal.  After examining 
the strengths and weaknesses of the protester's and the awardee's 
proposals, the SEB concluded that the proposals differed in the 
technical areas, the proposed indirect costs applied to labor rates, 
and the unit prices proposed for various tests.  In its final 
recommendation, the SEB concluded that PharmChem had submitted an 
excellent response to the RFP and had responded fully to the agency's 
discussion questions.  The SEB found that PharmChem demonstrated a 
comprehensive understanding of the contemplated project, and that the 
firm, with its excellent technical approach, could clearly handle work 
of this size and complexity.  On the other hand, the SEB concluded 
that, overall, NTL's proposal was a poor response to the RFP and that 
NTL did not fully respond to the agency's discussion questions.  The 
SEB also found that, as contrasted with PharmChem's proposal, NTL had 
demonstrated limited understanding of the project, concluding that 
NTL's overall approach was poor.  As discussed above, the record 
reasonably supports the SEB's conclusion and the ratings assigned 
NTL's proposal.  Under these circumstances, the SEB's conclusion that 
PharmChem's proposal was most advantageous to the government is 
unobjectionable.  See Reflectone Training Sys., Inc.; Hernandez Eng'g, 
Inc., B-261224, B-261224.2, Aug. 30, 1995, 95-2 CPD  para.  95 at 11-12.

In a supplemental protest, NTL also argues that since at least two of 
the firms that responded to the RFP were small businesses, the 
contracting officer improperly failed to investigate whether the RFP 
should have been issued as a small business set-aside.  NTL's argument 
is a challenge to the unrestricted nature of the procurement, which 
was clear on the face of the RFP.  Under our Bid Protest Regulations, 
4 C.F.R.  sec.  21.2(a)(1), a protest alleging an impropriety in a 
solicitation that is apparent prior to the time set for receipt of 
initial proposals must be filed before that time.  Because NTL did not 
protest that the RFP should have been set aside for small businesses 
until after award, this protest issue is untimely.  Dunn Eng'g 
Assocs., B-266273, Feb. 9, 1996, 96-1 CPD  para.  59 at 2 n.1.

NTL maintains, however, that this argument is timely because it first 
learned that another small business had responded to the RFP as a 
result of its receipt of the agency's report on NTL's initial protest.  
However, the fact that other small businesses capable of performing 
the required services could have been interested in responding to the 
RFP was public information that was readily available to NTL well 
before the RFP's May 29, 1998 closing date.  In this connection, NTL 
itself provided to our Office a copy of a Federal Register notice 
published September 2, 1994, by the Department of Health and Human 
Services, listing the names, addresses and telephone numbers of 
approximately 80 laboratories, including NTL and the other small 
business firm that responded to the RFP here, which met minimum 
standards to engage in urine drug testing for federal agencies.  See 
59 Fed. Reg. 45,681-82 (1994).[5]  Thus, the information which forms 
the basis for its argument--that at least one other small business 
capable of performing the work might have been interested in 
responding to the RFP--was either publicly available or could have 
been discovered if it had been diligently pursued prior to the closing 
date for receipt of proposals.  Accordingly, this argument is 
untimely.  See XMCO, Inc., B-228357, Jan. 26, 1988, 88-1 CPD  para.  75 at 
3.

The protest is denied.

Comptroller General
of the United States

1. Cost scores were calculated by assigning the maximum number of 
possible points (15) to the offer with the lowest total proposed cost, 
and proportionately lower scores to higher-cost proposals.

2. DOJ argues that the protest should be dismissed because NTL is not 
an interested party under our Bid Protest Regulations, 4 C.F.R.  sec.  
21.0(a) (1998).  DOJ asserts that,  since NTL's technical proposal was 
ranked third, even if its protest were sustained NTL would not be next 
in line for award because there is a higher-rated intervening offeror.  
The agency's argument overlooks the substance of NTL's challenge--that 
the agency improperly evaluated its proposal.  Specifically, NTL 
argues that had the agency conducted a proper evaluation, its proposal 
would have received a higher technical rating and that with its lower 
price, it would have been selected as the best value to the 
government.  Thus, if we found that NTL's arguments had merit and 
sustained its protest, it is possible that upon reevaluation, NTL's 
proposal would be in line for award.  We therefore consider NTL an 
interested party to maintain the protest.  See Pan Am World Servs., 
Inc., et al., B-231840 et al., Nov. 7, 1988, 88-2 CPD  para.  446 at 6.

3. Task 5.D states: 

            The Contractor shall reconcile billings with number of 
            tests performed for each of the sites by each age/gender 
            grouping.  The Contractor shall specify which tests were 
            performed for any special analysis requested by [the 
            National Institute of Justice] and specify any other costs 
            incurred by tasks other than the routine quarterly 
            urinalysis for all [Arrestee Drug Abuse Monitoring] sites.

RFP at C-16.

4. NTL also challenges the evaluation of its proposal under the staff 
qualifications technical factor.  Although, in its consensus report, 
the SEB identified no deficiencies with respect to the two key 
personnel required by the RFP, the SEB assigned NTL's proposal an 
average score of 17.3 rather than 20 points, the maximum number of 
points available under the staff qualifications factor.  Assuming that 
NTL's proposal should have earned 20 points in this area, raising its 
final technical score to 68 points, this revision would not affect its 
relative ranking as the lowest-rated proposal.  NTL was therefore not 
prejudiced by this alleged error.  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 action, 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.3rd 1577, 1581 (Fed. Cir. 
1996).

5. NTL also provided our Office with a copy of another Federal 
Register notice dated September 8, 1998, which transmits an updated 
list of certified laboratories.  See   63 Fed. Reg. 47,514 (1998).