TITLE:  Symtech Corporation, B-285358, August 21, 2000
BNUMBER:  B-285358
DATE:  August 21, 2000
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Symtech Corporation, B-285358, August 21, 2000

Decision

Matter of: Symtech Corporation

File: B-285358

Date: August 21, 2000

James P. Gallatin, Esq., Leigh T. Hansson, Esq., and Jeffrey S. Robinette,
Esq., Reed Smith Shaw & McClay, for the protester.

Vincent A. Salgado, Esq., and Chauncey C. Williams, Esq., National
Aeronautics and Space Administration, 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. Allegation that agency improperly evaluated proposals is denied where the
record shows that the agency evaluated the proposals in accordance with the
evaluation factors announced in the solicitation and, except for disagreeing
with the evaluators' individual ratings, protester does not challenge or
otherwise provide any evidence showing that the evaluation team's consensus
ratings were not reasonable.

2. Protester's contention that agency improperly evaluated its past
performance because it excluded two references the firm submitted with its
proposal is denied, where the agency reasonably excluded the references for
contracts that were not directly relevant to the procurement; the record
shows that the agency evaluated proposals in accordance with the criteria
announced in the solicitation; and the record reasonably supports the
overall rating assigned the protester's proposal in this area.

3. Allegation that contracting agency should have rejected awardee's
proposal as unacceptable because it shows that the firm does not intend to
comply with the solicitation's limitation on subcontracting clause is denied
where the awardee did not take exception in its offer to the subcontracting
limitation provision, and the agency reasonably determined that the awardee
will spend at least 50 percent of the cost of contract performance for
personnel for its own employees.

DECISION

Symtech Corporation protests the award of a contract to Infinity Technology,
Inc. under request for offers (RFO) No. 4-99001, issued by the National
Aeronautics and Space Administration (NASA), Dryden Flight Research Center
(DFRC), for technical and administrative support services. Symtech contends
that the agency improperly evaluated technical proposals, its past
performance, and price. The protester also argues that the selection of
Infinity's proposal was improper because the awardee's offer indicated that
the firm would not comply with the mandatory "Limitations on Subcontracting"
clause in the RFO.

We deny the protest.

BACKGROUND

The RFO was issued on January 14, 2000, and was restricted to firms
certified under the Small Business Administration's section 8(a) set-aside
program. RFO at 1. The RFO contemplated the award of a fixed-price contract
with some indefinite-delivery, indefinite-quantity (ID/IQ) provisions for a
phase-in period and a basic 2-year period with one 3-year option period,
which could be extended in 1-year increments, up to an additional 5 years.
RFO, Description/Work Statement/Specification, at 3-4; and para. F, Award Term,
at 6. The services to be obtained on a fixed-price basis include the
following seven functional areas: administrative office support, resources
management, financial management, acquisition management, research library,
technical publications, and reproduction center. In addition to those
services, integrated financial management program (IFMP) support is to be
procured as an ID/IQ item. RFO at 3-7; Contracting Officer's (CO) Statement
of Facts, June 2, 2000, at 2.

The RFO stated that while the following evaluation factors were essentially
equal in importance, they were listed in "slightly descending" order of
importance: technical approach and personnel, relevant experience and past
performance, and price. RFO sect. 52.212-2 Evaluation--Commercial Items (Jan.
1999), at 41. The RFO also stated that the technical approach and past
performance areas were significantly more important than price. Id. Award
was to be made to the responsible offeror whose proposal was deemed most
advantageous to the government.

Eighteen firms, including the protester and the awardee, responded to the
RFO by the time set on March 14 for receipt of initial proposals. Individual
experts then independently rated the technical proposals by evaluating them
under each of the functional areas within their respective area of
expertise. These experts assigned numerical and adjectival ratings for each
area, and identified major and minor strengths and weaknesses for each
proposal. For each offeror, the agency separately evaluated relevant
experience and past performance based on questionnaires completed by the
offerors' references. The agency also evaluated price in terms of relative
ranking when compared with other offers, and reasonableness.

After the functional-area experts individually rated proposals, and past
performance and price were evaluated, an evaluation team, referred to in the
record as the "buying team," then discussed the findings and reached a
consensus overall adjectival rating for each proposal under the evaluation
areas ranging from poor to excellent, with the following results for the
three firms whose proposals earned the most favorable ratings:

             Technical  Past Perf.        Price/Rating

 Infinity    Very Good  Excellent         $13,638,885/Good

 Symtech     Good       Very Good         13,424,708/Very
                                          Good

 Offeror C   Good       Fair              12,863,171/Good

CO's Statement of Facts, supra, at 5, 7; Agency Report (AR) exh. J-8,
Memorandum for the Record, Midrange Buying Team, Apr. 24, 2000, at 4-9.

The lead buying team member, who was designated as the source selection
official (SSO) for this procurement, reviewed the evaluation results and
concluded that Infinity's proposal was most advantageous to the government.
Specifically, the SSO found that the relatively high number of strengths
identified in Infinity's proposal provided confidence that the firm clearly
understood the RFO's requirements. The SSO further found that based on the
agency's analysis of Infinity's price, proposed incumbent personnel would be
retained and adequately compensated. Based on this review, the SSO selected
Infinity for award. AR exh. J-9, Memorandum for the Record from A/Lead,
Buying Team Member, May 1, 2000, at 1. This protest followed a debriefing by
the agency.

PROTESTER'S CONTENTIONS

Symtech argues that the agency's evaluation of technical proposals was
flawed. The protester also claims that the evaluators applied unstated
evaluation criteria and failed to disclose subfactors that the SSO
considered "critical" in his source selection decision. Symtech further
contends that the agency conducted an unreasonable past performance
evaluation. The protester also alleges that award to Infinity was improper
because its offer indicated that the firm would not comply with the RFO's
mandatory "Limitations on Subcontracting" clause, and challenges NASA's
price reasonableness determination. [1]

DISCUSSION

Technical Approach and Personnel

With respect to the evaluation of technical proposals, Symtech's arguments
focus primarily on the different numerical and adjectival ratings assigned
its own and Infinity's proposals by the individual functional-area experts
under the various areas evaluated. For example, Symtech contends that the
functional-area evaluators used an inconsistent evaluation methodology
which, according to Symtech, resulted in arbitrary scoring of proposals and
reflected a lack of uniformity among the evaluators. Except for its numerous
complaints about the different numerical scores and adjectival ratings
assigned the proposals by the individual functional-area experts, however,
Symtech does not challenge any of the specific major and minor strengths or
weaknesses the evaluators identified in the proposals as reflected in the
buying team's final consensus report.

The evaluation of technical proposals, including the evaluation of past
performance, is a matter within the contracting agency's discretion, since
the agency is responsible for defining its needs and the best method of
accommodating them. Federal Envtl. Servs., Inc., B-260289, B-260490, May 24,
1995, 95-1 CPD para. 261 at 3. In reviewing an agency's technical evaluation, we
will not reevaluate the proposals, but will examine the record of the
evaluation to ensure that it was reasonable and in accordance with the
stated evaluation criteria. Id. Technical evaluators have considerable
latitude in assigning ratings which reflect their subjective judgments of a
proposal's relative merits. I.S. Grupe, Inc., B-278839, Mar. 20, 1998, 98-1
CPD para. 86 at 5. Evaluators may have different judgments as to a proposal's
merits, and one evaluator's scoring is not unreasonable merely because it is
based on judgments different from those of other evaluators. Arsenault
Acquisition Corp.; East Mulberry, LLC, B-276959, B-276959.2, Aug. 12, 1997,
97-2 CPD para. 74 at 4. Our review of the record shows that Symtech's
allegations focus mainly on its disagreement with the functional-area
experts' individual notes and ratings, which necessarily reflect their
subjective judgments of the relative merits of the proposals. As explained
in greater detail below, the buying team's consensus report confirms that
the evaluation was reasonable and consistent with the RFO's stated criteria.

Under the technical approach and personnel factor, the RFO stated as
follows:

This factor will be used to evaluate the technical approach to performing
technical services and to evaluate the offeror's approach to managing the
required services in an efficient and cost-effective manner, including all
necessary labor (key personnel and staffing), management, material, and
equipment directly related to this requirement. The Government will evaluate
the offeror's plans for avoiding personal services, assuring safety and
health, and managing the quality, resource utilization, and ISO 9000
compliance requirements of this contract.

RFO sect. 52.212-2, Evaluation--Commercial Items, at 41.

As already explained, the functional-area experts independently evaluated
proposals for each of their respective areas of expertise under this factor,
and identified major and minor strengths and weaknesses for each proposal.
The buying team then reviewed the experts' findings and reached a consensus
on the strengths and weaknesses for each firm. For Symtech's proposal, the
team identified two major strengths and one minor strength, and three minor
weaknesses. Specifically, the team concluded that Symtech had demonstrated a
[DELETED]. AR exh. J-8, Memorandum for the Record, Midrange Buying Team,
supra, at 4. The team also found Symtech's proposed [DELETED], which was
considered a major strength. In addition, the team concluded that Symtech's
[DELETED] was a minor strength. The team noted three minor weaknesses in
this area, however. In particular, the team found that in some areas,
Symtech's proposed [DELETED] were deficient and that Symtech's proposed
[DELETED]. In addition, the team concluded that Symtech had not clearly
demonstrated its understanding of [DELETED]. The team further found that
Symtech's discussion in the [DELETED] area was too general, lacking in both
process and procedures. Based on these findings, the team assigned an
overall rating of "good" to Symtech's proposal under this factor.

By contrast, the team identified four major and several minor strengths in
Infinity's proposal. For example, the team found that [DELETED]. The
evaluators further concluded that the firm's proposed [DELETED] would result
in an excellent appreciation of the DFRC environment, which was considered a
major strength. The team also found that Infinity's proposed [DELETED] areas
were highly qualified for their respective positions. The team further noted
as major strengths, [DELETED]. The team also considered the following four
additional features of Infinity's proposal to be minor strengths: Infinity's
[DELETED]. The team also identified three minor weaknesses in Infinity's
proposal primarily related to its [DELETED]. In view of the four major and
several minor strengths, the team assigned Infinity's proposal an overall
rating of "very good" under this factor.

In sum, the record shows that the team identified two major strengths and
one minor strength in Symtech's proposal, while it identified four major and
several minor strengths in Infinity's proposal, which earned Infinity's
proposal a slightly higher rating under this factor. The record further
reveals that the evaluation team identified an equal number of minor
weaknesses in the firms' proposals. Given that Symtech has provided no
specific argument or evidence showing that the team's consensus ratings were
arbitrary or otherwise unreasonable with respect to the evaluation of either
firm's proposal under this factor, there is no basis to question the team's
consensus ratings in this area.

Symtech also argues that the evaluators applied unstated evaluation
criteria. In this connection, the protester alleges that NASA failed to
inform offerors that certain functional areas were deemed "critical" and
were therefore considered more important in the evaluation relative to the
other functional areas. Symtech's argument is without merit.

In support of its position, the protester relies on a document drafted and
submitted to our Office in response to the protest, in which the SSO
explains in detail the basis for the selection decision. In that document,
the SSO summarizes the evaluation process, including the buying team's
findings, and highlights the discriminators which led to his selection
decision. Specifically, the SSO states that he found Infinity's [DELETED].
AR exh. J-9, Source Selection Statement Addendum, May 19, 2000, at 1. The
SSO goes on to explain that he considered Infinity's [DELETED]. Id. Contrary
to the protester's arguments, there is no evidence in the record that NASA's
functional-area experts considered any of the service areas "critical" to
this requirement. Rather, the record shows that in his cost/technical
tradeoff analysis, the SSO carefully considered the basis of the several
major strengths the evaluators had identified in Infinity's proposal, and
concluded based on his reasoned analysis that they served as discriminators
between Symtech's and Infinity's proposals. See F2M-WSCI, B-278281, Jan. 14,
1998, 98-1 CPD para. 16 at 7-8; Israel Aircraft Indus., Ltd., MATA Helicopters
Div., B-274389 et al., Dec. 6, 1996, 97-1 CPD para. 41 at 7. We see no basis to
object to the SSO's approach in this regard.

Symtech also argues that the evaluation conducted by the functional-area
experts does not adequately support the consensus ratings. In this regard,
the protester contends that the evaluators' handwritten notes do not reflect
a structured effort or approach to the evaluation and in some cases are
illegible, and complains that the major strengths and weaknesses identified
in the buying team's consensus ratings report are not traceable to the
individual evaluators' ratings.

Although the functional-area experts apparently did not use the same
standard worksheet on which to record their individual evaluations, that
does not mean that the evaluation lacked structure or that the buying team's
consensus ratings lack adequate support. As for the evaluation approach, the
record shows that by letter dated March 14, 2000, the contracting officer
provided the functional-area experts with specific instructions and
questions they were to consider in evaluating proposals within their area of
expertise. Some of the areas the evaluators were specifically instructed to
consider included sufficiency of staffing, labor categories, proposed
approach, phase-in plan, managing the effort, and key personnel, to name a
few. Evaluators were also instructed to identify major and minor strengths
or weaknesses in their respective area of expertise and assign an overall
numerical score ranging from 0 to 100. AR exh. J-7.

Following those instructions, each functional-area expert then recorded his
or her handwritten notes in response to the items to be considered, made
other observations regarding major strengths or weaknesses in the proposals,
and assigned numerical ratings to the proposals. In addition to handwritten
notes, some evaluators also generated their own typewritten forms which they
used to record their findings and numerical ratings. Based on their
individual findings, the functional-area experts then met to discuss the
relative strengths and weaknesses of proposals and arrived at consensus
adjectival ratings for each. The record shows that for each proposal, the
buying team identified major strengths and weaknesses under the technical
approach and personnel factor, and provided a narrative explanation for
their overall adjectival ratings. AR exh. J-8. Using a similar approach for
each proposal, the buying team summarized each offeror's past performance
and experience in support of the overall adjectival ratings assigned under
this area.

The fact that, as Symtech points out, the evaluators' individual numerical
scores may differ from the final consensus ratings, by itself, does not
warrant questioning the final consensus ratings. Agency evaluators may meet
to discuss the relative strengths and weaknesses of proposals, as was done
here, in order to reach a consensus rating, which often differs from the
ratings given by individual evaluators, since such discussions generally
operate to correct mistakes or misperceptions that may have occurred in the
initial evaluation. Resource Applications, Inc., B-274943.3, Mar. 5, 1997,
97-1 CPD para. 137 at 5. The overriding concern in the evaluation process is
that the final scores assigned reasonably reflect the actual merits of the
proposals, and not that they be mechanically traceable back to the scores
initially given by the individual evaluators. Dragon Servs., Inc., B-255354,
Feb. 25, 1994, 94-1 CPD para. 151 at 11. Here, as explained above, we think that
the buying team's consensus ratings report reasonably reflects the relative
strengths and weaknesses of the proposals, provide sufficient information
about the actual merits of the proposals for the SSO to reach an informed
decision, and reasonably support the overall ratings assigned the proposals.
[2]

Relevant Experience and Past Performance Evaluation

Symtech argues that NASA's past performance evaluation was unreasonable. In
particular, the protester alleges that the agency arbitrarily excluded two
of the six references it had provided because they were deemed irrelevant to
this procurement. Symtech also generally complains about the methodology the
agency used to obtain past performance information from its references. The
protester further contends that the agency's approach improperly penalized
offerors found to have "no experience" in some of the functional areas.

Under this factor, the RFO stated that the agency would evaluate information
related to prime and subcontractor performance on programs with both
government and private industry. RFO sect. 52.212-2, Evaluation--Commercial
Items, at 41. In order to facilitate the evaluation of proposals under this
factor, offerors were instructed to describe their relevant experience
accomplishing work directly related in technical complexity to the present
procurement, including programs or projects which include technical, cost,
schedule, and management elements "directly related" to those expected to be
encountered in accomplishing the objectives of the instant procurement. RFO
Addendum to sect. 52.212-1, Instructions to Offerors -- Commercial Items, para. E,
Technical Proposal Preparation Instructions, at 38. In addition, offerors
were instructed to provide prime and any first tier subcontractor references
for up to 10 contracts performed within the last 5 years which reflect the
offerors' ability to perform the required services. Id.

The agency explains that the buying team determined the relevance of the
referenced contracts to this procurement based on the contract description
provided by the offerors in their proposals. The agency then sent past
performance questionnaires to those references considered relevant to this
procurement. The questionnaires requested respondents to complete a form by
rating each offeror's performance with an adjectival rating ranging from
"poor" to "excellent" or "no experience" on each of the seven functional
areas covered by the RFO, and to provide any general comments concerning the
offeror's performance. A member of the buying team then prepared a summary
of the responses for each offeror, characterizing prior performance under
the applicable functional areas.

Of the six references Symtech submitted with its proposal, the agency
forwarded questionnaires to four references, two for contracts performed by
Symtech itself and two by its proposed subcontractor Woodside Summit Group
(WSG). The remaining two references were not considered because the buying
team concluded that those contracts had little relevance to the instant
procurement. The contracts involved were for maintenance of computer-aided
drafting systems for the Coast Guard and multi-mission helicopter integrated
logistics support for the Navy.

The completed questionnaires for the two contracts performed by Symtech's
subcontractor WSG show that for four of the seven functional areas
(administrative office services, resources management office service,
financial management office services, and acquisition management, the
references rated WSG's performance "very good" or "excellent." With respect
to the contracts performed by Symtech, one of the two references rated the
firm's performance "fair" for the administrative office service functional
area, and indicated "no experience" for the remaining functional areas. AR
exh. D-2. The reference for the second Symtech contract commented that the
referenced contract was for mathematical, analytical, statistical,
scientific, and technical support of various theoretical and experimental
programs, and that the seven functional areas listed in the questionnaire
were not included in the contract. Id. Based on the questionnaire responses,
the team assigned an overall rating of "very good" to Symtech's proposal
under this factor.

Symtech objects to the agency's past performance evaluation because the
agency did not forward past performance questionnaires to all of the
references Symtech submitted with its proposal. Symtech also objects to the
questions themselves, arguing that they improperly asked for ratings only
with regard to the seven specific functional areas, without also asking more
generally about the management elements, or skills, of the offerors that
might be relevant to the work called for under the RFP.

Where, as here, a solicitation requires the evaluation of offerors' past
performance, an agency has discretion to determine the scope of the
offerors' performance histories to be considered, provided all proposals are
evaluated on the same basis and consistent with the solicitation
requirements. Federal Envtl. Servs., Inc., B-250135.4, May 24, 1993, 93-1
CPD para. 398 at 12. Notwithstanding the protester's assertions to the contrary,
we see nothing unreasonable in the agency's manner of assessing Symtech's
past performance.

While the RFP requested a maximum of 10 references relevant to this
procurement, it did not specify the number of references that the agency
would contact for purposes of the evaluation. Of the six references Symtech
provided, the agency reasonably determined that two were for contracts or
projects which had little or no relevance to the current requirement-the
ones for computer-aided drafting and multi-mission helicopter integrated
logistics support. In view of the RFO's specific instructions for offerors
to describe their relevant experience accomplishing work directly related to
the instant procurement, Symtech should have realized that references for
contracts or projects having little or no relevance to this procurement
might not be considered. In any event, there is no requirement that an
agency contact all of an offeror's references. IGIT, Inc., B-275299.2, June
23, 1997, 97-2 CPD para. 7 at 6. To the extent that Symtech challenges the
questions themselves, we see nothing unreasonable about NASA seeking
information about the offerors' performance on other contracts relative to
the seven functional areas covered by this requirement; moreover, the agency
submitted identical questionnaires to all offerors' relevant references.
Based on our review of the evaluation record, we see no basis to conclude
that Symtech was improperly evaluated, or that Symtech was otherwise
prejudiced as a result of the past performance evaluation methodology NASA
applied here.

The protester also contends that the agency improperly failed to reconcile
an apparent discrepancy in the past performance information it obtained
about one of Symtech's contracts. As relevant here, the record shows that
the reference for a contract performed by Symtech for NASA rated its
performance in one functional area--administrative office services--as fair.
Symtech points out, however, that its proposal shows that for that contract,
it received an outstanding performance award from NASA. Although it appears
that NASA evaluators did not attempt to resolve this apparent inconsistency,
the protester was not prejudiced as a result. Even assuming that NASA had
adjusted the fair rating to reflect the outstanding performance award
Symtech received for that one contract, based on the other references'
qualitative ratings, discussed in detail above, there is no reason to
conclude that its proposal's rating of "very good" overall in the past
performance area would have improved to the next higher level of
"excellent."

Symtech also argues that the agency's rating methodology improperly
penalized offerors with a higher number of "no experience" ratings in the
seven functional areas. In this regard, the protester maintains that by
merely tallying the responses to the past performance questionnaires NASA
sent to offerors' references, the agency placed at a disadvantage those
offerors whose references indicated that they had "no experience" with the
offeror in a particular functional area. Symtech maintains that under the
agency's approach, for example, if one offeror received favorable
qualitative past performance ratings, and another offeror received primarily
ratings of "no experience," the offeror with the qualitative ratings would
earn an overall higher past performance rating.

Federal Acquisition Regulation (FAR) sect. 15.305(a)(2)(iv) provides that, for
past performance evaluations, in the case of an offeror without a record of
relevant past performance or for whom information on past performance is not
available, the offeror may not be evaluated favorably or unfavorably on past
performance. Contrary to Symtech's argument, there is no evidence that the
agency penalized offerors for whom a reference indicated "no experience."
What the record shows is that rather than merely tallying the number of
qualitative ratings to mechanically arrive at a final rating, as Symtech
contends, the evaluators considered all of the responses obtained, including
qualitative adjectival ratings; noted where a reference indicated it had "no
experience" with respect to a particular functional area; summarized all of
the responses in the buying team's report, including any awards earned; and
assigned an overall past performance rating to each proposal based on those
summaries. The record further shows that even though Symtech's references
indicated they had "no experience" with the protester in several of the
functional areas, the agency reasonably concluded that based on the
qualitative responses NASA did obtain and awards noted, the protester's
proposal warranted a "very good" rating overall in this area. Where a
reference indicated that it had "no experience" with the offeror on a
particular functional area, the response was treated as tantamount to a
neutral rating in that area, which, consistent with the FAR, the evaluators
considered neither favorably nor unfavorably in the overall assessment.
Accordingly, we see nothing unreasonable about the methodology the agency
used to evaluate the offerors' past performance.

Alleged Reliance on Subcontractor

The RFO incorporated by reference the "Limitations on Subcontracting" clause
set forth at FAR sect. 52.219-14, required for all solicitations reserved for
exclusive small business participation, pursuant to the requirements of 15
U.S.C. sect. 644(o)(1) (1994). The clause provides that:

(b) By submission of an offer and execution of a contract, the
Offeror/Contractor agrees that in performance of the contract in the case of
a contract for--

  1. Services (except construction). At least 50 percent of the cost of
     contract performance incurred for personnel shall be expended for
     employees of the concern.

This requirement exists to prevent small business concerns from
subcontracting to large businesses the bulk of a contract reserved for small
business participation. Ann Riley & Assocs., Ltd., B-271741.2, Aug. 7, 1996,
97-1 CPD para. 120 at 3.

Symtech asserts that selection of the awardee's proposal was improper
because Infinity's proposal indicated that it would staff more than 50
percent of the personnel needed to perform the work with subcontractor
employees in contravention of the clause. In support of its position,
Symtech asserts that the awardee's proposal shows that Infinity intends to
staff the contract with [DELETED] of its own employees, while relying on its
subcontractor to provide [DELETED] employees to perform the contract. In
supplemental comments, the protester contends that with respect to personnel
costs, the three highest hourly rates in the awardee's proposal are in areas
that Infinity proposes to staff with subcontractor employees. Protester's
Supplemental Comments, July 7, 2000, at 5. Symtech also points to a buying
team's observation that

[t]he Infinity offer reflects the possibility that, as the qualified 8(a)
prime, they may not be performing at least 50% of the effort as required by
the contract clause at [FAR sect. ] 52.219-14 "Limitation[s] [on]
Subcontracting." While this perception can not be verified until after award
(and incurrence of "costs"), if selected Infinity will be reminded to abide
by the clause requirement.

AR exh. J-8, at 11. As such, Symtech asserts that the agency's determination
that Infinity's proposal was acceptable, was unreasonable.

As a general matter, an agency's judgment as to whether a small business
offeror will comply with the subcontracting limitation is a matter of
responsibility, and the contractor's actual compliance with the provision is
a matter of contract administration. Corvac, Inc., B-254757, Jan. 11, 1994,
94-1 CPD para. 14 at 4; American Bristol Indus., Inc., B-249108.2, Oct. 22,
1992, 92-2 CPD para. 268 at 5; Little Susitna, Inc., B-244228, July 1, 1991,
91-2 CPD para. 6 at 3. However, where, as here, a protester alleges that an
offer or bid indicates that the offeror or bidder will not comply with the
subcontracting limitation, we will consider the matter. See, e.g., National
Med. Staffing, Inc.; PRS Consultants, Inc., B-238694, B-238694.2, June 4,
1990, 90-1 CPD para. 530 at 4 (proposal indicating noncompliance with the
subcontracting limitation should have been rejected as technically
unacceptable).

As the agency correctly points out, contrary to Symtech's assertion,
compliance with the referenced provision is measured in terms of the cost of
contract performance for personnel expended by the awardee, and not simply
on a numerical comparison of staffing levels. FAR sect. 52.219-14(b)(1). Thus,
Symtech's mere comparison of the number of Infinity employees with its
subcontractor's does not show noncompliance with the clause. Further, the
agency points out that upon closer scrutiny in response to this allegation,
Infinity's staffing plan reveals that all program management positions and
virtually all administrative positions, with higher salaries, will be
staffed by Infinity employees. By contrast, the agency explains that except
for five employees, the positions staffed by Infinity's subcontractor will
be assigned support staff functions, which are among the lowest salaried
positions. In addition, the agency points out that Infinity proposed an
additional [DELETED] of its own employees to staff the ID/IQ function, which
will increase the costs of Infinity personnel.

Notwithstanding the fact that Infinity's staffing plan shows [DELETED] than
its subcontractor for all functions (other than those staffing the ID/IQ
function) and slightly higher hourly rates for some areas covered by
Infinity's subcontractor, NASA states that based on its analysis, it expects
that Infinity's total cost of performance will exceed 50 percent of the cost
of contract performance for personnel. In any event, the record shows that
the evaluators noted that this issue was not entirely verifiable prior to
award, and that NASA will ensure Infinity's compliance with the
subcontracting limitation provision. Further, based on our review of
Infinity's proposal, there is nothing to suggest that the firm took
exception to the subcontracting limitation provision. Given that an agency
is permitted wide discretion in this area, and in light of the agency's
explanation in response to this allegation, we see no basis to conclude that
NASA abused its discretion in selecting Infinity's proposal for award.

Price Evaluation

Symtech argues that, in its price evaluation, NASA improperly considered
[DELETED]. The evaluation at issue, while referred to in the record as a
price reasonableness evaluation, was actually an effort to see if offerors
were proposing adequate compensation, because of concern about the impact
that low compensation could have on staff morale or retention. AR exh. J-8,
Memorandum for the Record, Midrange Buying Team, supra, at 10. In that
evaluation, the agency compared the offerors' proposed rates in eight labor
categories to the rates paid under the two incumbent contracts, one of which
was being performed by Symtech's proposed subcontractor, WSG. The evaluators
noted whether the offerors' proposed rates were above or below the
incumbent's rates for each of the eight labor categories, with "above"
ratings apparently good, since they suggested a positive impact on staff
morale and retention. Infinity was evaluated as proposing [DELETED]
categories above the incumbent's rates and [DELETED] below; Symtech was
scored as [DELETED] above and [DELETED] below.

Symtech focuses on the fact that, for [DELETED] labor categories, the agency
did not use the incumbent's rates as the benchmarks leading to these
evaluations. For those [DELETED] labor categories, for whom WSG was the
incumbent, the agency determined that the incumbent rates were "vastly
inflated," and the agency therefore developed, for those three categories,
benchmarks that were lower than the incumbent's rates. Id. According to
Symtech, the only reason that the agency deviated from the incumbent's rate
was that the agency personnel [DELETED].

While the agency provides a different explanation of why it used lower
benchmarks for the [DELETED] labor categories, this issue cannot have
prejudiced Symtech and we therefore need not resolve it. Lowering the
[DELETED] benchmarks did not affect the offerors' prices (or evaluated
prices); it simply meant that both Symtech's and Infinity's rates looked
somewhat higher than they would have if compared to a higher benchmark.
Since higher rates suggested a positive impact on staff morale and
retention, this would have improved (not harmed) the offerors' ratings. In
any event, the impact would be comparable for all offerors, so that Symtech
was not prejudiced.

The protest is denied

Robert P. Murphy

General Counsel

Notes

1. In its protest, Symtech also argued that NASA had improperly denied the
firm a post-award debriefing, failed to conduct discussions with Symtech,
and held improper discussions with the awardee. The agency responded to
these allegations in its report, and the protester does not take issue with
the agency's position. Accordingly, we consider these issues abandoned. See
Rockwell Int'l Corp., B-261953.2, B-261953.6, Nov. 22, 1995, 96-1 CPD para. 34
at 12 n.14.

2. To the extent that the protester argues that not all buying team members
evaluated Symtech's proposal, there is no requirement that a minimum number
of evaluators be on an evaluation team. In any event, we view the
composition of a technical evaluation panel to be within the discretion of
the contracting agency. In the absence of evidence of bad faith, conflict of
interest, or actual bias, we have no reason to question the composition of
an evaluation panel. Alcan Envtl., Inc., B-275859.2, Apr. 11, 1997, 97-1 CPD
para. 139 at 6; Delta Ventures, B-238655, June 25, 1990, 90-1 CPD para. 588 at 3-4;
Johns Hopkins Univ., B-233384, Mar. 6, 1989, 89-1 CPD para. 240 at 7. Symtech
does not argue, and there is no evidence in the record, of actual bias,
conflict of interest, or bad faith, on the part of the buying team.