BNUMBER:  B-281706             
DATE:  March 24, 1999
TITLE: LB&B Associates, Inc., B-281706, March 24, 1999
**********************************************************************

DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective 
Order.  This redacted version has been approved for public release.

Matter of:LB&B Associates, Inc.

File:B-281706            
        
Date:March 24, 1999

Benjamin N. Thompson, Esq., Grady L. Shields, Esq., and Jennifer E. 
McDougal, Esq., Wyrick Robbins Yates & Ponton, for the protester. 
Joel S. Rubinstein, Esq., and Andrew N. Cook, Esq., Bell, Boyd & 
Lloyd, for Four Seasons Environmental, Inc., an intervenor. 
Marion T. Cordova, Esq., Department of Agriculture, for the agency. 
Jennifer D. Westfall-McGrail, Esq., and Christine S. Melody, Esq., 
Office of the General Counsel, GAO, participated in the preparation of 
the decision.

DIGEST

1.  Protester's argument that it should have received higher past 
performance score than awardee under solicitation calling for work in 
a "hot" laboratory, i.e., a laboratory in which live viruses are 
present, since it has experience working in a "hot" laboratory, 
whereas awardee does not, is denied, where record demonstrates that 
awardee does in fact have experience working in a "hot" laboratory. 

2.  Discussions were meaningful where they led the protester into the 
area of its proposal that required revision.

DECISION

LB&B Associates, Inc. protests the award of a contract to Four Seasons 
Environmental, Inc. (FSE) under request for proposals (RFP) No. 
3-3K06-98, issued by the Department of Agriculture, Agricultural 
Research Service (ARS), for operations and maintenance support 
services for ARS's South Atlantic Area facilities.  The protester 
contends that the agency misevaluated its proposal and misled it 
during discussions.

We deny the protest.

BACKGROUND  

The RFP sought offers for the performance of operations, maintenance, 
and support services at ARS research facilities located in the Athens, 
Georgia area, including the Russell Research Center (where research 
focusing on ensuring and improving the safety and quality of food and 
feed is conducted); the Southeast Poultry Research Laboratory (where 
research on emerging and exotic infectious poultry diseases and 
food-borne pathogens is conducted); and the J. Phil Campbell, Sr., 
Natural Resource Center (where research focusing on the southern 
Piedmont agricultural ecosystem is conducted).  Services to be 
provided include buildings and grounds maintenance;  repair and 
maintenance of heating, ventilation, air conditioning, refrigeration, 
and electrical systems; and housekeeping.  

The solicitation contemplated award of a fixed-price contract for the 
routine tasks, with additional work to be performed under a 
time-and-materials, indefinite-delivery, indefinite-quantity line 
item.  Award was to be made to the offeror whose proposal represented 
the best value to the government, with technical merit of greater 
importance than price in the determination.  RFP  sec.  M.3.  In the event 
that offerors were considered essentially equal in terms of technical 
competence, the government reserved the right to award to the offeror 
with the lowest realistic price.  Id.

Section M.2 of the RFP identified the following evaluation factors 
(and subfactors), along with their respective point values:

Evaluation Criteria                     Value

1.  Past Performance                    60

     a.  Demonstrated Success in Laboratory25
     b.  Customer Satisfaction          20
     c.  Proposed Management            15

2.  Innovativeness                      20

     a.  Staffing                       8
     b.  Performance                    7
     c.  Cost avoidance/Cost reduction  5

3.  Personnel/Management                10

     a.  Corporate and Management Control4
     b.  Utilization of Automated System3
     c.  Employee Training              2
     d.  Subcontracting                 1

4.  Technical Understanding             10

     a.  Biocontainment Knowledge       5
     b.  Performance Based Knowledge    3
     c.  Quality Control                2

Offerors were instructed to address the first evaluation factor, past 
performance, in a written business proposal and the other three in an 
oral presentation to the source evaluation board (SEB).  RFP  sec.  L.6.

Eleven offerors submitted business and price proposals by the July 23, 
1998 closing date; 10 offerors made oral presentations during the week 
of August 31 to September 4.[1]  At the conclusion of the oral 
presentations, the evaluators assigned technical scores; LB&B and FSE 
tied for the highest score of 86 of 100 available points.  Contracting 
Officer's Statement at 2.  Both received 53 (of a possible 60) points 
under the past performance criterion and 9 (of a possible 10) points 
under the technical understanding factor; under the innovativeness 
factor, LB&B received a score 1 point higher than FSE's (16 vs. 15, of 
a possible 20), whereas under the Personnel/Management factor, FSE 
received a score 1 point higher than LB&B's (9 vs. 8, of a possible 
10).  Technical Evaluation Consensus Scoring Sheets, LB&B and FSE.  
LB&B's  and FSE's proposals were included in the competitive range, 
along with those of  the next three highest scoring offerors.[2]  
Contracting Officer's Statement at 2.  Discussion questions were 
forwarded to each of the competitive range offerors on October 13, 
with revised proposals due by October 27.  After reviewing the revised 
proposals and determining that neither LB&B's nor FSE's technical 
scores should be changed, the SEB determined that FSE's offer, which 
was technically equivalent to, but lower in price than, LB&B's, 
represented the best value to the government.[3]  Id. at 6.  
Accordingly, the SEB recommended award to that firm.  The contracting 
officer approved the SEB's recommendation and awarded FSE a contract 
on November 24.

ANALYSIS

Past Performance

LB&B takes issue with the evaluation of its and FSE's proposals under 
the past performance factor.  The protester contends that it should 
have received a higher score than FSE under this factor because it has 
more relevant experience than FSE.  Protest at 5-6.  In this regard, 
the protester notes that the Southeast Poultry Research Laboratory is 
an Agricultural Biological Level P-3[4] facility and the contractor 
must perform work in the facility while it is "hot," i.e., while live 
viruses are present.  LB&B contends that it has performed a highly 
similar operation and maintenance support services contract at another 
Level P-3 facility, the Plum Island, New York Animal Disease Control 
Center, which requires entry into the facility while it is "hot."  The 
protester concedes that FSE performs an operations and maintenance 
contract at a facility with an even higher hazard rating, i.e., the 
Centers for Disease Control (CDC) Virology Biosafety Level 4 Research 
and Development Laboratory in Atlanta, but argues that FSE's 
experience under this contract is less relevant than its own 
experience at Plum Island because FSE is not required to enter the 
laboratory while it is "hot."  (According to the protester, FSE enters 
the hazardous facility only after it has been cleaned and the hazards 
removed.)  The protester maintains that because it has experience 
working in a "hot" laboratory, whereas FSE does not, it should have 
received a higher past performance score than FSE.

First, we note that although LB&B and FSE received identical overall 
scores under the past performance factor, they did not receive 
identical scores under the various subfactors comprising the factor.  
Under the subfactor under which the relevance of an offeror's prior 
experience was considered, i.e., Demonstrated Success in Laboratory, 
LB&B did in fact receive a higher score than FSE (23 vs. 22).[5]  
Technical Evaluation Consensus Scoring Sheets.  The contracting 
officer explains that although both offerors demonstrated highly 
acceptable experience in performing similar contracts, LB&B received a 
score 1 point higher than FSE because it had experience at a research 
laboratory operated by the Department of Agriculture, whereas FSE did 
not.  Contracting Officer's Supplemental Statement at 3.

With regard to the protester's allegation that its experience at the 
Plum Island Animal Disease Control Center is more relevant than FSE's 
experience at the CDC Virology laboratory because FSE employees are 
not required to enter the CDC laboratory while it is "hot," the agency 
denies that such is the case.  The contracting officer explains that 
the CDC Virology laboratory is divided into Biosafety Level 3 and 
Biosafety Level 4 sections, and notes that FSE employees have been 
entering the Biosafety Level 3 section weekly since 1988.[6]  
Contracting Officer's Response to GAO Questions, Mar. 12, 1999.  The 
contracting officer's position is supported by an affidavit from Dr. 
Henry Matthews, the safety manager for the National Center for 
Infectious Diseases, who has oversight responsibility for the health 
and safety programs at the CDC Virology laboratory.  Dr. Matthews 
affirms that "FSE personnel regularly enter the Level 3 laboratories 
while they are in use with special pathogens or 'hot,' including any 
containment rooms in those laboratories;" in addition, "FSE is . . . 
required to enter the Level 3 in use or 'hot' Animal Holding Suite, 
which requires FSE to wear gowns, scrub suits, masks, shoe covers and 
abide by other requirements."  Affidavit of Dr. Henry Mathews, Mar. 
19, 1999, at 1, 2.  Thus, the protester's allegation that FSE does not 
have experience working in a "hot" laboratory is without foundation.

To the extent that the protester is arguing that its proposal deserved 
a score higher than 23 under the Demonstrated Success in Laboratory 
subfactor, it is not the role of our Office to make independent 
determinations regarding the merit of technical proposals.  Orion 
Research, Inc., B-253786, Oct. 21, 1993, 93-2 CPD  para.  242 at 3.  The 
evaluation of proposals is within the discretion of the procuring 
agency since it is responsible for defining its needs and the best 
method of accommodating them, and must bear the burden arising from a 
defective evaluation.  Id.  Our function is to examine the agency 
evaluation to ensure that it was reasonable and consistent with the 
stated evaluation factors.  General Offshore Corp., B-251969.5, 
B-251969.6, Apr. 8, 1994, 94-1 CPD  para.  248 at 3.   

Here, the agency explains that the protester received an excellent, 
but not perfect, score under the Demonstrated Success in Laboratory 
subfactor because the evaluators viewed its performance as excellent, 
but not perfect.  We have no basis upon which to question the 
evaluators' judgment in this regard.  Moreover, we note that the 
scoring of LB&B's proposal appears to have been consistent with the 
scoring of FSE's, which also failed to receive a perfect score under 
the Demonstrated Success in Laboratory subfactor despite FSE's 
outstanding performance on the CDC Virology laboratory contract.

The protester further argues that the evaluators did not have a 
reasonable basis for assigning its proposal a lower score than FSE's 
under the Customer Satisfaction subfactor.  Protester's Supplemental 
Comments, Feb. 4, 1999, at 8.  In this regard, FSE received a Customer 
Satisfaction score of 19 of 20 available points, while LB&B received a 
score of 16.  

We have reviewed the record and find that it does provide a reasonable 
basis for assigning LB&B's proposal a lower score than FSE's under the 
Customer Satisfaction subfactor.  According to the competitive range 
determination, LB&B received one customer satisfaction rating of 
outstanding and three of acceptable; in contrast, all four of the FSE 
references contacted rated its performance as outstanding.  
Competitive Range and Prenegotiation Position, Oct. 7, 1998, at 29, 
34-35.  We see nothing unreasonable in the agency's having assigned an 
offeror with four ratings of outstanding a higher score than an 
offeror with one rating of outstanding and three of acceptable.

LB&B also objects to the fact that its score under the Customer 
Satisfaction subfactor, 16 points, was lower than the average of the 
individual evaluators' ratings.  Protester's Supplemental Comments, 
Feb. 4, 1999, at 8.  In this regard, the six individual evaluators 
assigned scores of 18, 18, 17, 16, 16, and 15, which yields an average 
score of 16.7, or 17.  The agency explains that after scoring the 
proposals individually, the evaluators met as a group, discussed the 
merits and weaknesses of each offeror, and collectively agreed on a 
single numerical consensus score.  We have previously considered and 
affirmed the propriety of this method of consensus scoring.  Ogden 
Support Servs., Inc., B-270354.2, Oct. 29, 1996, 97-1 CPD  para.  135 at 6 
n.5; The Cadmus Group, Inc., B-241372.3, Sept. 25, 1991, 91-2 CPD  para.  
271 at 7-8.

Misleading Discussions

LB&B argues that the agency misled it during discussions by failing to 
inform it that the work management system that it had proposed was 
unacceptable.  Protest at 
6-8.

The RFP required the contractor to provide an automated work 
management system accessible to the government on the ARS Local Area 
Network (LAN).  RFP  sec.  2.1, 2.1.3.  Amendment 3 clarified that 15 
government personnel would need to be able to read and enter data in 
the system via the LAN.  The solicitation noted that various items of 
government-owned computer hardware and software would be furnished for 
use by the contractor, including "Elke Main tracker version RELO 
3M001," the software used by the incumbent contractor for work 
management.  RFP  sec.  2.1.3.

In its oral presentation, LB&B proposed [deleted].  The evaluators 
awarded the proposal only 1 (of a possible 3) points under the 
relevant subfactor (Utilization of Automated System), noting that 
[deleted], was unacceptable since it did not meet the requirement for 
ARS LAN access.  The evaluators were concerned that if [deleted] were 
used, the government would not be able to interface with the work 
order system.  Competitive Range and Prenegotiation Position, Oct. 7, 
1998, at 32.

During discussions, the contracting officer asked LB&B to explain how 
[deleted] would meet "the requirement" and how the government would 
interface with the work order system.[7]  LB&B responded by explaining 
that [deleted].  The evaluators did not change LB&B's score after 
reviewing its response to this (and other) discussion questions.

The protester asserts that it learned for the first time at its 
debriefing that the evaluators considered its proposed use of 
[deleted] a "significant weakness" in its proposal.  LB&B contends 
that the agency misled it by failing to inform it that [deleted] was 
mandatory or that [deleted] was discouraged.  Protest at 6-7.

The Federal Acquisition Regulation (FAR) requires that contracting 
officers discuss with each offeror being considered for award 
"significant weaknesses, deficiencies, and other aspects of its 
proposal . . . that could, in the opinion of the contracting officer, 
be altered or explained to enhance materially the proposal's potential 
for award."  FAR  sec.  15.306(d)(3).  The statutory and regulatory 
requirement for discussions with all competitive range offerors (41 
U.S.C.  sec.  253b(d)(1)(A) (1994); FAR  sec.  15.306(d)(1)) means that such 
discussions must be meaningful, equitable, and not misleading.  Du and 
Assocs., Inc., B-280283.3, Dec. 22, 1998, 98-2 CPD  para.  156 at 7; I.T.S. 
Corp., B-280431, Sept. 29, 1998, 98-2 CPD  para.  89 at 6.  For discussions 
to be meaningful, they must lead offerors into the areas of their 
proposals requiring amplification or revision; the agency is not 
required to "spoon-feed" an offeror as to each and every item that 
could be revised so as to improve its proposal, however.  Du and 
Assocs., Inc., supra, at 7-8; Applied Cos., B-279811, July 24, 1998, 
98-2 CPD  para.  52 at 8.

Here, even to the extent that the agency's first discussion question 
regarding the protester's proposed work management system  (i.e., 
"Please discuss how [deleted] will meet the requirement") was somewhat 
general and did not focus on the agency's particular area of concern 
(i.e., that [deleted] was not accessible on the ARS LAN), its second 
question (i.e., "How will the Government interface with the Work Order 
System?") was very specific and clearly placed the protester on notice 
that it had not adequately addressed the issue of government access to 
its work management system. We think that this should have led a 
reasonably diligent offeror to examine the capabilities of the 
software that it was proposing to determine if it did in fact satisfy 
the agency's requirements regarding accessibility.  The protester 
chose not to perform such an examination, however; instead, it 
proposed to wait until after award to examine the capabilities of 
[deleted].  Thus, it was the protester's failure to follow up on the 
agency's question, and not the agency's failure to ask an appropriate 
question, that resulted in the protester's failing to realize that, in 
the agency's view, the software that it had proposed would not meet 
the solicitation's requirements.

The protester also argues that the agency failed to conduct meaningful 
discussions with it by failing to bring to its attention, and allow it 
to address, concerns of the evaluators regarding the working 
relationship between two of its key proposed employees.  LB&B alleges 
that after submission of its best and final offer, the agency 
contacted [deleted] inquiring about the working relationship between 
two of its employees.  Protest at 7.

The record reflects that the agency contacted each offeror's best 
reference after receipt of revised proposals to reconfirm its view of 
the offeror's performance; in LB&B's case, that reference was 
[deleted].  There is no evidence in the record that the working 
relationship between LB&B's employees was discussed during that call, 
however, nor is there any evidence that LB&B's proposal was downgraded 
based upon such concern.  LB&B's proposal received an excellent score 
(14 of 15) under the relevant subfactor, Proposed Management, and the 
two proposed employees [deleted] were both rated as highly acceptable.  
Thus, we find nothing in the record to substantiate the protester's 
allegation.

Innovativeness

LB&B alleges that the agency improperly downgraded its proposal under 
the Innovativeness factor based on its proposed use of [deleted].  The 
protester notes, in this regard, that the evaluators referred to its 
proposed use of [deleted] as a "weakness" under the Innovativeness 
factor.  Memorandum from the Chairperson, SEB, to the Contract File 7 
(Sept. 14, 1998).  Since it was the only weakness that the evaluators 
identified under the Innovativeness factor, and since the proposal 
received a score of 4 less than perfect under the factor (i.e., 16 of 
20), its proposal would have received a technical score up to 4 points 
higher had its proposed use of [deleted] not been considered, LB&B 
contends.

The agency responds that the protester, in arguing that its proposal 
was downgraded under the Innovativeness factor, misunderstands how 
proposals were scored.  Offerors gained points for each innovation 
they proposed; they did not lose points because an aspect of their 
proposal was not innovative.[8]  Supplemental Agency Report, Feb. 2, 
1999, at 8-10.  Thus, LB&B gained points for the innovations that it 
proposed, which included increased management support and use of a 
predictive maintenance program; since its proposed use of [deleted] 
was not considered innovative, it neither gained nor lost points for 
it.  The protester's allegation that its proposal was downgraded under 
the Innovativeness factor based on its proposed use of [deleted] is 
thus without basis.  

Price/Technical Tradeoff

The protester argues that the agency deviated from the evaluation 
scheme set forth in the solicitation by placing greater emphasis on 
price than on technical merit.  Specifically, LB&B maintains that the 
agency selected FSE's proposal over its own technically superior one 
due to its marginally lower price.

As discussed above, LB&B's proposal was not determined to be 
technically superior to FSE's; the two proposals were determined to be 
technically equal.  The solicitation explicitly provided for award to 
the offeror with the lowest realistic price in the event that offerors 
in the competitive range were considered essentially equal in terms of 
technical competence.  Accordingly, the agency did not deviate from 
the terms of the RFP in selecting FSE for award.

The protest is denied.

Comptroller General
of the United States

1. One offeror withdrew its proposal prior to making an oral 
presentation.

2. These other three offers received technical scores of 82, 80, and 
67.

3. FSE's price was $12,183,907; LB&B's was [deleted].

4. Level P-3 indicates the level of biological hazard present; the 
higher the number, the greater the hazard.

5. LB&B also received a higher score than FSE under the Proposed 
Management subfactor (14 vs. 12).  FSE received a score 3 points 
higher than LB&B's (i.e., 19 vs. 16) under the Customer Satisfaction 
subfactor, however, leaving the two offerors with identical overall 
scores of 53 under the Past Performance factor.

6. FSE employees also enter the Level 4 section semiannually, but only 
after it has been decontaminated.

7. The specific questions posed were:  "Please discuss how [deleted] 
will meet the requirement" and "How will the Government interface with 
the Work Order System?"  Letter from the Contracting Officer to the 
Protester, enclosure, Issues for Discussion (Oct. 13, 1998)

8. The agency explains that the reason that it referred to the 
protester's proposed use of [deleted]--which it did not consider 
innovative--in evaluating LB&B under the Innovativeness factor was 
that the protester had brought up its proposed use of [deleted] during 
that portion of its oral presentation.