TITLE:  ELS Inc., B-283236; B-283236.2, October 25, 1999
BNUMBER:  B-283236; B-283236.2
DATE:  October 25, 1999
**********************************************************************
ELS Inc., B-283236; B-283236.2, October 25, 1999

Decision

Matter of: ELS Inc.

File: B-283236; B-283236.2

Date: October 25, 1999

Joseph G. Billings, Esq., for the protester.

William A. Weisberg, Esq., Leigh T. Hansson, Esq., and Jeff S. Robinette,
Esq.,
Reed Smith Shaw & McClay, for ADI Technology Corporation, an intervenor.

Annett H. Madison, Esq., Naval Sea Systems Command, for the agency.

Guy R. Pietrovito, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1. In a procurement for a cost-type, level-of-effort support services
contract, the agency conducted a reasonable cost realism analysis where,
among other things, it assessed the consistency of awardee's proposed labor
hour and labor mix with that identified in the solicitation, verified the
awardee's proposed direct labor and indirect cost rates with the Defense
Contract Audit Agency, and found that awardee demonstrated a more than
satisfactory technical approach and understanding of the contract
requirements.

2. Agency reasonably evaluated awardee's proposed professional compensation
plan pursuant to Federal Acquisition Regulation sect. 52.222-46, where the
agency determined from a review of the awardee's proposed direct labor rates
and the awardee's offer of current, long-time employed personnel that
awardee could provide a quality workforce throughout the contract term.

3. General Accounting Office will question the composition of, and changes
to, an evaluation panel only if there is evidence of bad faith, bias, or
conflict of interest.

DECISION

ELS Inc. protests the award of a contract to ADI Technology Corporation
under request for proposals (RFP) No. N00024-98-R-2907, issued by the Naval
Sea Systems Command for services in support of the SEAWOLF Attack Submarine
Acquisition Program. ELS complains that the agency improperly evaluated
ADI's proposed costs and that ELS's proposal should have been selected for
award.

We deny the protest.

The RFP, issued as a small business set-aside, provided for the award of a
cost-plus-fixed-fee (CPFF), level-of-effort contract for program management,
engineering, logistics, and computer system support for the SEAWOLF program
office (PMS-350) for a base year with 4 option years. RFP at 2, 3, 9, 35. A
broad statement of work was provided to describe the kinds of services that
the contractor could be requested to perform. RFP at 9-19.

The RFP provided an annual level-of-effort estimate for each year of the
contract (155,000 productive labor hours for the base year and 685,000 labor
hours for the entire contract period), and informed offerors that any
deviation from the labor-hour estimates without substantiation may result in
rejection of the proposal. RFP at 105. In addition, the RFP identified and
defined labor mix categories (various levels of senior, junior, and support
staff), and stated the government's anticipated mix of labor categories
(e.g., senior staff level 1 would comprise 1.4 percent of the mix). For each
of these labor categories, the RFP stated an estimated minimum, unburdened
hourly rate for the base year based upon a 40-hour work week. Offerors were
informed that, "while not a firm requirement, [these rates represent] the
minimum unburdened hourly rate (direct labor), the Navy estimates is
required to hire and retain personnel at the skill levels defined under the
Labor Mix Definitions." RFP at 107. The RFP also informed offerors that they
may offer "uncompensated effort" (also known as uncompensated overtime) in
their proposed level of effort. [1] RFP at 82.

The RFP provided for award, without discussions, on the basis of a
cost/technical tradeoff, and identified the following evaluation factors and
subfactors:

 Technical Category

 Experience Factor

          a. Personnel qualifications

          b. Corporate experience

          c. Past performance

 Technical Approach Factor

          a. Understanding and approach

          b. Specific technical capability

          c. Unique ideas and capabilities

 Management Approach Factor

          a. Organization

          b. Interface

          c. Contract management

          d. Cost management

          e. Workforce loading plan

          f. Start-up plan

 Facilities and Resources Factor

 Cost Category

 Projected Cost to the Government Factor

RFP at 116-17. The experience and technical approach factors were stated to
be of equal importance and to be more important than the management approach
factor, which was stated to be significantly more important than the
facilities and resources factor. RFP at 117. Offerors were informed of the
relative importance of the technical and cost categories as follows:

The Government will compare the projected cost of the offeror with the
lowest projected cost which is technically acceptable to the projected cost
of any higher scored technically acceptable offerors. The Government is
willing to pay a premium equal to 35% of the lowest evaluated cost plus
fixed fee of a technically acceptable proposal to move from a minimally
technical acceptable proposal (score of 70) to the highest achievable
technical proposal (score of 100) using the Straight Line Methodology [as
set forth in attachment M-1 to the RFP].

RFP at 119-20.

The RFP stated that the agency would evaluate offerors' cost proposals for
"realism and completeness of the cost proposal, the traceability of the cost
to the offeror's technical proposal and the proposed allocation of [labor
hours] and labor mix." RFP at 102. In addition, the RFP stated that the
agency would consider pertinent cost information, including the Defense
Contract Audit Agency's (DCAA) recommended rates for direct labor, overhead,
and general and administrative costs, to determine an offeror's probable
cost of performance. Id. Offerors were also informed that the agency would
evaluated proposed costs for compliance with Federal Acquisition Regulation
(FAR) sect. 52.222-46, Evaluation of Compensation for Professional Employees,
which provides in part that the agency will evaluate proposed compensation
plans to ensure that they reflect "a sound management approach and
understanding of the contract requirements"; [assess] "the offeror's ability
to provide uninterrupted high-quality work"; and consider proposed
compensation "in terms of its impact upon recruiting and retention, its
realism, and its consistency with a total plan for compensation." RFP at
118-19.

Proposals were received from six offerors, including ELS (the incumbent
contractor) and ADI. Technical proposals were evaluated by the technical
evaluation review panel (TERP), which prepared a detailed evaluation report.
Agency Report, Tab 6, TERP Report. The TERP members individually evaluated
and scored each proposal. Then, the TERP chairperson compiled a draft
consensus report from the individual evaluators' documentation. The draft
report was reviewed by each evaluator and discussed by the TERP as a group
until the TERP reached its consensus judgment that was documented in the
final TERP report, which provided adjectival scores and detailed narrative
for each evaluation factor and subfactor. Id. at 6.

The TERP found that overall ADI's proposal was "good borderline."
Specifically, the TERP noted that ADI's proposal exceeded the RFP
requirements, and had proposed approaches, plans, and techniques that "when
implemented should result in effective and efficient performance." The TERP
also found that ADI's proposal had a few weaknesses, but that the weaknesses
were more than offset by proposal strengths. Id. at 10.

ELS's proposal was assessed as being "good solid" overall. Like ADI's
proposal, ELS's proposal was found to exceed the RFP requirements, to
reflect approaches, plans, and techniques that when implemented were
expected to result in effective and efficient performance, and to exhibit a
few weaknesses that were more than offset by proposal strengths. Id. at 47.

Cost proposals were evaluated for accuracy, reasonableness, and realism by
the cost analysis panel (CAP) to determine what the proposed effort likely
would cost the government. Agency Report, Tab 8, CAP Report, at 2. The CAP
reviewed each offeror's proposal to evaluate the proposed labor mix (in
comparison to that estimated in the RFP), the mix of prime and subcontractor
labor hours, and reasonableness of proposed rates, escalation and other
direct costs. In addition, the CAP requested advisory audit reports from
cognizant DCAA offices concerning offerors', and their subcontractors',
direct labor rates, indirect rates, uncompensated overtime, other direct
costs, and subcontractor costs. Id. at 3-7.

With respect to ADI's cost proposal, the Navy found that ADI proposed the
labor hours estimated by the RFP, but offered in its labor mix a slightly
larger number of labor hours in the senior labor categories than estimated
in the RFP. Id. at 3-4. The agency also found that ADI proposed [DELETED]
hours of uncompensated overtime, which represented [DELETED] percent of the
total labor hours proposed by ADI. Id., encl. 1, at 2-3. The Navy also
considered DCAA's advisory audit report, which found that some of ADI's
direct labor rates were understated and accepted ADI's proposal of
uncompensated overtime. Agency Report, Tab 12, DCAA Audit Report, at 4-5.
DCAA also questioned ADI's proposed on-site overhead rate (for an office in
Crystal City, Virginia) but accepted ADI's overhead rate for its off-site
facility (its offices in Springfield, Virginia) and accepted ADI's other
proposed indirect cost rates. Id. at 6-9. As a result of DCAA's
recommendations, the CAP adjusted ADI's proposed costs of $22,503,256 upward
to $23,674,680. [2] Agency Report, Tab 8, CAP Report, encl. 1, at 1.

The CAP also evaluated ELS's cost proposal and considered DCAA's audit
recommendations concerning that firm's cost proposal. ELS's proposed cost of
$30,569,450 was not adjusted by the agency. Agency Report, Tab 8, CAP
Report, encl. 4, at 1.

The TERP's and CAP's evaluation reports were presented to the contract award
review panel (CARP), which was also briefed as to each report. Agency
Report, Tab 9, CARP Report, at 4-5. The CARP accepted both the TERP's and
CAP's evaluation findings. To assess the relative merits of the firms'
proposals, the CARP first applied a pre-determined weighting factor to the
offerors' technical evaluation scores and then applied the straight line
methodology announced in the RFP to calculate the "best value" cost for ADI
and ELS: [3]

         Weighted         Evaluated CPFF    Best Value Cost
         Technical

         Score

 ADI     82               $23,674,680       $20,360,225

 ELS     86               $30,569,450       $26,152,939

The CARP concluded that ADI's proposal reflected the best value to the
government. Agency Report, Tab 9, CARP Report, at 5-6. Award was made
without discussions to ADI, and this protest followed.

ELS complains that the agency did not properly assess the cost realism of
ADI's proposal. Specifically, ELS argues that the Navy did no more than
obtain a rate check of ADI's proposal from DCAA, [4] that the agency did not
consider technical risk associated with ADI's proposal in its cost
evaluation, that the Navy failed to consider "other historical data" in
ADI's proposal that demonstrated that ADI had experienced cost growth on
other contracts in its cost evaluation, that the Navy did not compare ADI's
low proposed costs with the government's higher estimate of the work, and
that the Navy did not evaluate ADI's professional compensation in accordance
with FAR sect. 52.222-46. ELS also complains that the Navy improperly failed to
negotiate ceiling rates for ADI's overhead, given that DCAA had recommended
that the agency negotiate caps of ADI's indirect rates.

When agencies evaluate proposals for the award of cost reimbursement
contracts, an offeror's proposed estimated costs are generally not
dispositive because regardless of the costs proposed, the government is
bound to pay the contractor its actual and allowable costs. Advanced
Sciences, Inc., B-259569.3, July 3, 1995, 95-2 CPD para. 52 at 11. Consequently,
a cost realism analysis must be performed by the agency to determine the
extent to which an offeror's proposed costs represent what the contract
should cost, assuming reasonable economy and efficiency. FAR
sect.sect. 15.305(a)(1), 15.404-1(d); CACI, Inc.--Fed., B-216516, Nov. 19, 1984,
84-2 CPD para. 542 at 5. Because the contracting agency is in the best position
to make this cost realism determination, our review of an agency's exercise
of judgment in this area is limited to determining whether the agency's cost
evaluation was reasonably based and not arbitrary. General Research Corp.,
B-241569, Feb. 19, 1991, 91-1 CPD para. 183 at 5, recon. denied, American
Management Sys., Inc.; Department of the Army--Recon., B-241569.2,
B-241569.3, May 21, 1991, 91-1 CPD para. 492.

We find, contrary to the protester's arguments, that the agency did not
simply obtain a "rate check" from DCAA in assessing the realism of ADI's
cost proposal. Rather, the record shows that the agency performed a detailed
cost realism analysis of the offerors' proposals. [5]

Each offeror's understanding of the technical requirements was assessed by
the agency's TERP. ADI's proposal, which was rated "good high" under the
understanding and approach subfactor, was found to reflect a technical
approach that "more than" adequately addressed, and demonstrated
understanding of, the RFP requirements. Agency Report, Tab 6, TERP Report,
at 15. The CAP ensured that each offeror's, including ADI's, proposed labor
mix was consistent in both the technical and cost proposals. Agency Report,
Tab 8, CAP Report, at 3. In addition, the CAP evaluated offerors' proposed
labor hours and mix against the RFP estimates to assess the reasonableness
of offerors' proposed staffing; here, ADI, like ELS, proposed the number of
labor hours estimated by the RFP and was found to have an acceptable labor
category mix. Id. at 3-4. The CAP evaluated offerors' proposals (including
ADI's and ELS's) of uncompensated overtime. Id. at 5-7, encl. 1, at 2-3;
encl. 4, at 1-2. The CAP also compared ADI's average direct labor rates for
each of the specified labor categories with the estimated rates stated in
the RFP and found that [DELETED] of ADI's rates were above the RFP's
estimates. [6] Supplemental Agency Report at 11.

In addition, the agency requested verification of the offerors' proposed
direct labor and indirect cost rates from DCAA. DCAA reported that some of
ADI's proposed direct labor rates and its proposed on-site overhead rate
(for a facility to be staffed in Crystal City, Virginia) were understated.
Agency Report, Tab 12, DCAA Audit Report, at 4-6. DCAA, however, accepted as
realistic ADI's proposed labor escalation rate, off-site overhead rate (for
its Springfield, Virginia facility), general and administrative (G&A) cost
rate, and subcontract handling costs. Id. at 6-9. DCAA also reported that
ADI's accounting system was adequate for accumulation, segregation, and
reporting of costs under government contracts. Id. at 2. As a result of
DCAA's audit recommendation, the CAP upwardly adjusted some of ADI's direct
labor rates and the firm's proposed on-site overhead rate; this also
resulted in an increase in ADI's G&A costs (although its proposed G&A rate
was accepted). Agency Report, Tab 8, CAP Report, encl. 1, at 1.

ELS nevertheless complains that the agency's cost realism evaluation was
inadequate because the agency failed to consider technical risk as part of
its assessment of probable costs. Specifically, the protester states that
the TERP noted that some of ADI's proposed general personnel did not meet
the requirements of the RFP, see Agency Report, Tab 6, TERP Report, at 11,
and that the TERP rated ADI's proposal as being a "moderate" risk under the
interface subfactor to the management approach evaluation factor and under
the facilities and resources factor. Id. at 21. ELS asserts that ADI's
proposed costs should have been upwardly adjusted in the cost evaluation to
reflect these concerns. [7]

It is true that the TERP noted some concern with ADI's general personnel
under the personnel qualifications subfactor, but considered this to be a
minor weakness, given the strength of ADI's proposed key personnel. [8] In
fact, the TERP rated ADI's proposal as "good solid" and "low risk" under
this subfactor. Agency Report, Tab 6, TERP Report, at 10-12. As to ADI's
moderate risk rating under the interface subfactor and the facilities and
resources factor, the TERP expressed concern that [DELETED]. The TERP found,
however, that ADI's approach was "likely to meet the requirements of the RFP
with moderate Government assistance during contract performance to ensure
adequate interface." Id. at 21, 27. The TERP's evaluation concerns were
presented to the CARP, which was also briefed by the TERP chairperson
concerning the technical evaluation results; the CARP did not adjust any of
the offerors' evaluated probable costs of performance based upon the
technical evaluation results. Agency Report, Tab 9, CARP Report, at 4-6.

We find no basis in this record to question the reasonableness of the
agency's determination not to upwardly adjust ADI's proposed costs for
evaluated risks in its technical proposal. Contrary to ELS's complaint that
the agency did not consider these concerns in its cost realism evaluation,
the record shows that the CARP, which chose not to disturb the CAP's cost
recommendations, considered these ratings. Id. The fact that there is some
risk associated with an aspect of a proposal does not mean that the agency
cannot regard the costs of performance, as proposed, as realistic inasmuch
as risk is simply a reflection of the degree to which that which is proposed
may or may not happen. See Vinnell Corp., B-270793, B-270793.2, Apr. 24,
1996, 96-1 CPD para. 271 at 6. Here, the agency concluded that ADI could perform
the contract, perhaps with moderate government assistance, within the
level-of-effort proposed. Given that the RFP provided for the award of a
level-of-effort contract and identified estimated staffing levels, and that
ADI's proposal, which offered the RFP's estimated level-of-effort, was found
to reflect a good technical understanding and approach, we find the agency's
determination to be reasonable.

ELS also complains that the agency did not consider ADI's "other historical
data" in performing its cost realism analysis of ADI's proposal. Protester's
Comments at 14-15. Specifically, ELS notes that the RFP required offerors to
submit other historical data as part of their cost proposal for "recent
experience that is similar to the effort/task described" in the RFP. RFP at
113. ADI's proposal included historical data on five recent contracts with
the Navy showing cost growth that ELS alleges the Navy failed to consider.
[9] Agency Report, Tab 4, ADI Proposal, at 3-1 to 3-6.

The Navy responds that the CAP did consider ADI's "other historical data" in
its cost evaluation, although the CAP's report did not document this
consideration. Supplemental Agency Report at 7. The Navy provided the
declaration of the CAP member responsible for drafting the CAP report, who
states that she "was aware that both ELS and ADI indicated a history of cost
growth on prior contracts and I considered this in my cost realism
analysis." Supplemental Agency Report, encl. 1, Declaration of Contract
Specialist, at 1. She further states that she found that ADI provided
"adequate and reasonable explanations" for the five contracts that
experienced cost growth. In this respect, she states that she, as contract
specialist, had personal knowledge of one of the contracts identified by ADI
and knew to be correct ADI's explanation that the cost overrun associated
with this contract was attributable to the scope of work and number of
customers being greater than that anticipated by the original solicitation.
Id. at 1-2.

ELS replies that the CAP's determination that ADI had adequately explained
in its cost proposal that its cost growth was attributable to factors beyond
its control is inconsistent with the TERP's concern expressed under the past
performance subfactor. Specifically, the TERP stated that:

ADI's proposal (section 1.3, table 1-5) indicates a fairly wide disparity
between the average hourly price awarded under a contract and the actual
hourly price paid. This disparity resulted in higher than expected costs.
The Offeror's rationale for this disparity is that after the contract began,
more senior people were required to perform the [statement of work] than
originally proposed. The rationale, however, set a pattern for increased
cost risk.

Agency Report, Tab 6, TERP Report, at 15.

We do not find that this TERP concern demonstrates that the CAP's
determination not to upwardly adjust ADI's probable cost because of ADI's
other historical data was unreasonable. The record shows that the TERP did
not have access to the data available to the CAP regarding ADI's cost
growth, including the contract specialist's personal knowledge. In any
event, the TERP noted that ADI's proposal was low risk under the past
performance subfactor, although "[s]ome government assistance may be
required to monitor increased cost risk." Id. We also note that the TERP
made nearly the same finding in ELS's proposal, whose costs were not
upwardly adjusted, under the past performance subfactor:

The average hourly price awarded versus experienced indicates fairly wide
disparity resulting in higher than expected costs (Fig. 1-8, past
performance). The Offeror and its subcontractors provide a rationale for
this disparity. The overarching rationale stated in the proposal is that the
contract required a higher labor rate than proposed. This is a weakness
because it occurs in every contract for both the prime and its
subcontractors.

Agency Report, Tab 6, TERP Report, at 50-51.

ELS next complains that the Navy did not compare ADI's low proposed costs
with the significantly higher government estimate of the work. The Navy
responds that an independent government estimate was not prepared for this
work and that the estimate to which ELS refers is actually a budgetary
estimate in the agency's purchase request. See Agency Report, attch. B,
Procurement Request, at 2 (estimating a total contract value of
approximately $26.6 million); Supplemental Agency Report, encl. 2,
Declaration of Contracting Officer, at 2.

We find that ELS's arguments do not provide us with any basis to question
the agency's cost evaluation of ADI's proposal. Regardless of the status of
the estimate contained in the procurement request, there is no absolute
requirement that the agency compare an offeror's proposed costs with the
government estimate. See EDAW, Inc., B-272884, Nov. 1, 1996, 96-2 CPD para. 213
at 5-6; Energy and Envtl. Servs. Corp., B-258139.4, May 15, 1995, 95-2 CPD
para. 32 at 4. Rather, the agency may employ various types of analyses in
determining what, in the agency's view, it would realistically cost the
offeror to perform given the offeror's technical approach. Here, as
described above, the agency performed a detailed and reasonable cost realism
evaluation.

ELS also complains that the Navy did not evaluate ADI's professional
compensation in accordance with FAR sect. 52.222-46. ELS argues that ADI's
proposed labor rates, based upon ADI's offer of uncompensated overtime, are
lower than those estimated in the RFP and lower than ELS's incumbent
contract rates. [10]

The record establishes that the Navy reasonably determined that ADI proposed
an adequate professional compensation plan to ensure that ADI would be able
to provide a stable professional workforce to perform the contact. The
purpose of a review of compensation for professional employees under FAR sect.
52.222-46 is to evaluate whether offerors will obtain and keep the quality
of professional services needed for adequate contract performance, and to
evaluate whether offerors understand the nature of the work to be performed.
Research Management Corp., B-237865, Apr. 3, 1990, 90-1 CPD para. 352 at 8.
Here, the Navy compared ADI's rates (after adjusting them to a 40-hour week)
with those in the RFP to assess the quality of compensation ADI provided to
its professional employees, and found ADI's rates comparable to those in the
RFP. [11] In addition, the Navy determined that [DELETED] ADI's proposed
junior and senior professional staff were currently employed by ADI or a
proposed subcontractor at the proposed and/or DCAA verified compensation
levels, and that the average length of employment at ADI or a proposed
subcontractor was [DELETED] years ([DELETED] years for senior staff). Agency
Report at 10; Supplemental Agency Report at 9-10. This, the Navy found,
demonstrated ADI's capability to provide a quality workforce throughout the
contract term. Although ELS challenges the Navy's calculation of ADI's labor
rates, asserts that they are less than ELS's rates, and notes that ADI did
not [DELETED], [12] the fact remains that ADI proposed a currently employed,
stable workforce, which provided the Navy with a reasonable basis for its
determination that ADI's professional compensation plan was acceptable.

ELS also complains that the Navy improperly failed to negotiate ceiling
rates for ADI's overhead and G&A costs where DCAA recommended that the
agency negotiate caps on ADI's indirect rates. The Navy responds that it was
aware that DCAA recommended negotiating a cap of ADI's indirect rates, but
concluded that it was not appropriate here. Specifically, the contracting
officer concluded that fluctuations in ADI's indirect cost rates had been
relatively minor, based upon his experience, which did not indicate a need
for negotiating a cap. Supplemental Agency Report, encl. 2, Second
Declaration of Contracting Officer, at 3. In addition, the contracting
officer was concerned that negotiating ceiling rates with ADI would require
opening discussions with all offerors. Finally, the agency was sensitive to
shifting cost risk from the government (as is normally contemplated in a
cost-type contract) to ADI, where a level-of-effort contract with a broad
statement of work was contemplated. Supplemental Agency Report at 15.

We find no basis in this record to question the agency's decision not to cap
ADI's indirect rates. DCAA audit recommendations are advisory only; the
degree to which they are used is within the discretion of the contracting
officer. OAO Corp., B-228599.2, July 13, 1988, 88-2 CPD para. 42 at 6. In this
regard, FAR sect. 42.707 provides an agency with the discretion, and not the
requirement, to negotiate an indirect cost rate ceiling in certain
situations, including where an offeror has proposed indirect cost rates
lower than what may reasonably be expected during contract performance. FAR
sect. 42.707(b)(1)(iii). Here, the agency concluded that ADI's indirect cost
rates, as adjusted in the cost realism evaluation, did not present such a
risk that a cap should be negotiated. While ELS disagrees with the agency's
exercise of its discretion, it has not shown it to be unreasonable.

ELS also objects to the composition of the TERP, complaining that the panel
did not contain any representatives of PMS-350 (the office to be supported
under the contract) and that during the evaluation of proposals there was a
substitution of evaluators. ELS argues that as a result of this allegedly
unqualified evaluation panel three of its proposed personnel were found not
to meet the RFP requirements. The Navy disputes that it misevaluated the
three named ELS employees and points out that, in any event, ELS was not
prejudiced because this was viewed as a minor concern and ELS received a
high technical score (89 of 100 possible points) under the personnel
qualifications subfactor. See Agency Report, Tab 6, TERP Report, at 47.

We find that ELS's arguments provide us with no basis to question the
agency's technical evaluation. The composition of a technical evaluation
panel is within the discretion of the contracting agency, which we will
question only if there is evidence of the panel's bad faith, bias, or
conflict of interest. Xeno Technix, Inc., B 278738, B-278738.2, Mar. 11,
1998, 98-1 CPD para. 110 at 6. ELS did not timely provide any facts suggesting
bad faith, bias, or conflict of interest on the part of evaluators that
would cause to examine the changes in or composition of the evaluation
panel. [13] Mere speculation as to possible misconduct by the agency's
evaluators or evaluation panel does not provide a basis for protest. Delta
Ventures, B-238655, June 25, 1990, 90-1 CPD para. 588 at 4.

With respect to the evaluation of the three ELS employees, the record
conclusively establishes that the protester was not prejudiced, even
accepting ELS's arguments. Not only did ELS receive a high technical score
under the relevant evaluation subfactor, but the agency also questioned the
qualifications of another seven

employees proposed by ELS, and ELS does not challenge the evaluations of
these employees, or even dispute the agency's statement that ELS was not
prejudiced in any case.

The protest is denied.

Comptroller General
of the United States

Notes

1. The RFP defined "uncompensated effort" to be "hours provided by personnel
in excess of 40 hours per week without additional compensation for such
excess work." RFP at 82.

2. The amount by which ADI's proposed cost was adjusted varied slightly from
that recommended by DCAA. Although the Navy accepted DCAA's recommended
rates, the agency used ADI's proposed labor hours (which, as noted above,
were consistent with the RFP's estimates) to calculate the adjustment.

3. ELS does not challenge the agency's application of the RFP's straight
line methodology.

4. ELS asserts that the contracting officer stated at the protester's
debriefing that the agency had not performed a cost realism analysis and had
simply relied upon a rate check with DCAA. Protest at 2-3. The agency denies
that the contracting officer made these statements and states that a
complete cost realism analysis was performed. Agency Report at 6. As the
protester acknowledges, "the parties' disagreement over what was said at the
debriefing is not dispositive of whether [the agency] conducted a cost
realism analysis." Protester's Comments at 9. Accordingly, we have examined
the entire record to determine whether the analysis that the agency actually
performed constituted a reasonable cost realism assessment. See Aircraft
Porous Media, Inc., B-241665.2, B-241655.3, Apr. 8, 1991, 91-1 CPD para. 356 at
7-8.

5. Contrary to ELS's apparent belief, there is no requirement that DCAA be
provided with offerors' technical proposals or the results of the agency's
technical evaluations. Rather, a contracting agency may appropriately decide
to obtain only rate verification and other historical information from DCAA
as a part of the contracting agency's cost evaluation. See The
Warner/Osborn/G&T Joint Venture, B-256641.2, Aug. 23, 1994, 94-2 CPD para. 76 at
6. Here, the Navy itself assessed offerors' technical approaches and
understanding, which is entirely proper.

6. ADI's average direct labor rate for [DELETED], which was considered to be
a minimal difference, given that these staff members are current ADI
employees. Supplemental Agency Report at 11.

7. ELS also complains that the agency's cost realism evaluation failed to
take into consideration technical risk concerning the technical approach and
corporate experience in a number of other offerors' proposals. Protester's
Comments at 13-14. Because ELS does not identify these concerns in ADI's
proposal, we find these complaints to be irrelevant to the selection of
ADI's proposal and do not consider them.

8. The TERP also expressed concern with the qualifications of some of ELS's
proposed personnel. Agency Report, Tab 6, TERP Report, at 48-49.

9. ELS admits that its other historical data also shows cost growth on
similar work and that no cost adjustments were made in the cost realism
analysis for its proposal, but contends that the cost growth on its
contracts was less than ADI's on its contracts. Protester's Comments at 14.

10. ELS also suggests that the labor rates estimated in the RFP were
mandatory minimum rates. We disagree. The RFP specifically states that these
rates were "not a firm requirement," but were the government's "estimates"
of the minimum rates necessary for adequate performance. RFP at 107.

11. Because the Navy reasonably did not find that ADI had proposed
unreasonably low labor rates or that ADI's rates demonstrated a lack of
technical understanding, there was no basis to reduce ADI's technical score,
as ELS argues. See Energy and Envtl. Servs. Corp., supra, at 6.

12. ELS also did not [DELETED]. See Agency Report, Tab 8, CAP Report, encl.
4, at 2.

13. On September 30, 1999, after the record was closed for this protest, the
protester tendered an unsigned affidavit, bearing the date August 20, of an
employee of a subcontractor asserting improprieties in the evaluation of
proposals.