TITLE:  Northeast MEP Services, Inc., B-285963.5; B-285963.7; B-285963.8, January 5, 2001
BNUMBER:  B-285963.5; B-285963.7; B-285963.8
DATE:  January 5, 2001
**********************************************************************
Northeast MEP Services, Inc., B-285963.5; B-285963.7; B-285963.8, January 5,
2001

Decision

Matter of: Northeast MEP Services, Inc.

File: B-285963.5; B-285963.7; B-285963.8

Date: January 5, 2001

William A. Shook, Esq., Kelley P. Doran, Esq., and Gary J. Campbell, Esq.,
Preston Gates Ellis & Rouvelas Meeds, for the protester.

Jay P. Urwitz, Esq., David A. Wilson, Esq., Barry J. Hurewitz, Esq., Aimen
Mir, Esq., and Karen L. Tinsky, Esq., Hale and Dorr, for the Center for
Technology Commercialization, the intervenor.

Bernard J. Roan, Esq., National Aeronautics and Space Administration, 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. Protest challenging the evaluation of technical proposals is denied
     where the contemporaneous evaluation record, hearing testimony of the
     evaluation board chair, and arguments of the parties establish that the
     agency's evaluation was reasonable and in accord with the evaluation
     criteria.
  2. Agency's assessment of the awardee's past performance as very good and
     the protester's as good was reasonable, where the agency considered the
     awardee's lower-rated performance of the incumbent contract together
     with its exceptional ratings of other significant, relevant contracts
     and found that the protester's past performance did not include efforts
     that were comparable in size, scope and complexity to the work to be
     awarded under the solicitation.

DECISION

Northeast MEP Services, Inc. (NEMEP) protests the award of a contract to the
Center for Technology Commercialization (CTC) under request for proposals
(RFP) No. RFP2-37066-CDT, issued by the National Aeronautics and Space
Administration (NASA) for the operation and maintenance of the Northeast
Regional Technology Transfer Center (RTTC). NEMEP challenges the evaluation
of its technical proposal.

We deny the protest.

Under its Commercial Technology Program, NASA seeks to disseminate and
encourage the commercialization of the agency's technology and information.
To accomplish this, NASA operates a national network of six RTTCs, each of
which has responsibility for an assigned region (i.e., Northeast,
Mid-Atlantic, Southeast, Midwest, Mid-Continent, and Far West). The RTTCs
link with affiliated organizations (federal, state, and local entities and
non-profit institutions) having similar technology transfer and industrial
development objectives, and establish relations with industry and trade
groups to promote and make available the transfer of technology and
information. Agency Report, Tab 2, Acquisition Plan, at 1-2.

The RFP, as issued, contemplated the award of multiple, cost-no-fee
contracts to operate and maintain the six RTTCs. [1] Offerors were informed
that NASA intended to award a separate contract for each region. RFP sect.
M.2(a) at 67. A performance-based statement of work (SOW) was provided that
described the RTTC's required capabilities and operations. Each RTTC was

established as a node for a regional technology transfer network, comprised
of regional infrastructure participants which shall perform on a no profit
or fee basis. As such, each NASA RTTC is encouraged to view itself as a core
of a regional consortium of cooperating organizations (such as state and
local economic development entities, universities, high-tech research parks,
incubators, business and venture capital organizations, and other
appropriate entities). The NASA RTTC will contribute materially to the
transfer, application and commercial use of U.S. developed technologies to
enhance the public and private interests of the region.

RFP attach. J.1(a)1, SOW, at 3.

The RFP stated that award would be based upon a cost/technical tradeoff
without conducting discussions. RFP sect.sect. M.2(a)(2), M.3, at 67, 74-75. The
three evaluation factors (and subfactors for the mission suitability factor)
were identified as set out in the chart on the following page:

 Mission Suitability

          Understanding the requirement

          Management approach

          Small disadvantaged business participation

 Past Performance

 Cost

Offerors were informed that the mission suitability factor was slightly more
important than the past performance factor, and that each of these factors
was significantly more important than the cost factor. RFP sect. M.3(c) at 75.
Narrative descriptions of the evaluation factors were provided, as well as
numerous elements and sub-elements for each of the mission suitability
subfactors. For example, under the understanding the requirement subfactor,
the RFP provided that NASA would evaluate the offeror's technical plan (an
element) and under that element would evaluate (as a sub-element) the
offeror's proposed "[d]evelopment of working relationships with U.S.
industry to access data, information sources and technical expertise." RFP sect.
M.2 at 69.

The RFP provided that the mission suitability factor would be point-scored
on a 1,000-point scale. Within the mission suitability factor, the
understanding the requirement subfactor had an assigned maximum score of 500
points, the management approach subfactor 450 points, and the small
disadvantaged business participation subfactor 50 points. [2] RFP sect. M.3 at
75. The past performance factor was to be adjectivally rated on a scale
ranging from "excellent" to "fails." RFP sect. M.2 at 73.

With respect to the cost factor, the RFP provided for a cost realism
evaluation to assess the probable cost and a "level of confidence" for each
proposal. RFP sect. M.2(3) at 74. The RFP also informed offerors that the
mission suitability factor score would be "adjusted downward by a specified
number of points depending upon the percentage difference (positive or
negative) between the Government calculation of probable cost and the
offeror's proposed cost." RFP sect.sect. M.2, M.3 at 74-75. The reduction in score
ranged from 0 points for percentage differences of less than 5 percent to a
300-point decrease for percentage differences of greater than 30 percent. As
amended, the RFP provided that if an offer was submitted "on an other-than
cost reimbursement basis," any downward adjustment in an offeror's mission
suitability score, as a result of the agency's cost realism evaluation,
would be based upon the difference between the offeror's estimated cost and
the government's evaluated probable cost. RFP amend. 0002, sect. L.5(3), at 4.

NASA received 22 proposals for the different regional contracts.
Three proposals, including those of NEMEP and CTC (the incumbent
contractor), were submitted for the Northeast RTTC contract. In addition,
NASA received an offer from the U.S. Technology Consortium (USTEC) for a
single, national contract to operate all six RTTCs. Contracting Officer's
Statement at 3. USTEC is comprised of a group of six Manufacturing Extension
Partnership (MEP) entities and MEP-related entities, including NEMEP. [3] An
MEP is a non-profit entity, operating under the auspices of the National
Institute of Standards and Technology to provide help to small- and
medium-sized local manufacturing firms in a wide variety of business and
technical areas. See . NEMEP operates
MEP centers in Maine, Massachusetts, and New Hampshire.

The proposals for each region were evaluated by a regional source evaluation
committee (SEC). Proposals for the Northeast RTTC were evaluated at the
Goddard Space Flight Center, which administers the Northeast RTTC contract.
Each member of the SEC for the Northeast region individually evaluated
NEMEP's, CTC's, and the third offeror's proposals. The evaluators documented
their evaluation by completing evaluation and rating forms by hand. The SEC
then met to discuss their findings and arrive at a consensus judgment
regarding the proposals. Hearing Transcript (Tr.) at 21. The consensus
judgment was documented in a summary evaluation report for each offeror.
See, e.g., Agency Report, Tab 34, Consensus Evaluation of NEMEP's proposal.
After reaching the consensus judgment, the evaluators' individual
evaluations and ratings were not retained. [4] Tr. at 33.

NEMEP proposed a $[DELETED] million fixed-price contract, and CTC proposed a
$7.13 million cost-no-fee contract. The offers were evaluated as set out in
the table on the following page:

          Mission                    Cost (in millions)
 Offeror  Suitability   Past         Proposed Probable Confidence

          (1,000        Performance
          pts.)

 CTC      Good/690      Excellent    $7.13        $[DELETED]    High

 NEMEP    Fair/349      Good         $[DELETED]   $[DELETED]    Moderate
                                     [5]

 A        Poor/163      Neutral      $[DELETED]   $[DELETED]    Low

CTC's significantly higher mission suitability score reflected the SEC's
assessment of CTC's proposal as containing 12 strengths (4 of which were
significant) and only 3 weaknesses (2 significant) under this factor. In
contrast, NEMEP's proposal was assessed under the mission suitability factor
as containing only 4 strengths (1 significant) and 20 weaknesses (7
significant). Id. Among the significant weaknesses in NEMEP's offer was the
SEC's concern that NEMEP had proposed USTEC as a subcontractor performing a
number of important services, where USTEC's future viability was unclear to
the evaluators, given the consortium's failure to receive a national
contract to operate all the RTTCs. [6] Other significant weaknesses were
stated to be NEMEP's failure to address what steps it would follow in
cultivating relationships with U.S. industry and NEMEP's failure to provide
a clear high-level interface with the Goddard Space Flight Center. Agency
Report, Tab 34, Consensus Evaluation Report for NEMEP.

The source selection authority (SSA) was briefed as to each of the regional
SECs' findings. With regard to the Northeast region, the SSA concluded that
CTC's proposal was the most advantageous to the government. Award was made
to CTC, and NEMEP and USTEC protested to our Office (file numbers B-285963;
B-285963.2; B-285963.3; B-285963.4). Prior to the receipt of the agency's
report on that protest, NASA informed us that it was withdrawing its
selection decision for the Northeast region and would reassess the offerors'
proposals. On September 1, 2000, we dismissed these protests as academic.

The reassessment of proposals in the Northeast region resulted in some
changes in the evaluation of CTC's and NEMEP's proposals. NASA downgraded
CTC's past performance rating from excellent to very good [DELETED]. Also,
the agency recognized that its initial evaluation had treated NEMEP's fixed
price as if it were cost reimbursable, so it amended its evaluation to
reflect NEMEP's fixed price. NASA also downgraded NEMEP's mission
suitability score to reflect the increased difference between NEMEP's
estimated costs and the agency's probable cost determination caused by the
agency's determination that two positions offered in NEMEP's proposal were
unnecessary. Contracting Officer's Statement at 19-20. As a result of the
reassessment, the agency evaluated CTC's and NEMEP's proposals as follows:

           Mission                   Cost (in millions)
 Offeror   Suitability  Past         Proposed Probable Confidence
                        Performance
           (1,000
           pts.)

 CTC       Good/690     Very Good    $7.13         $[DELETED]   High

 NEMEP     Poor/299     Good         $[DELETED]    $[DELETED]   Moderate

The SSA was again briefed as to the evaluation findings in the Northeast
region. The SSA accepted the SEC's findings, noting that:

NEMEP proposed functions depend on a USTEC network which, if its network
partners are not selected in all or most of the other regions, may not be
able to fulfill the requirement. Among other serious flaws, the proposal
does no address what steps will be followed in cultivating relationships,
nor does it identify critical issues related to the commercialization of
technology as required in the RFP. In addition, NEMEP's anticipated incurred
costs reflect a serious lack of cost realism, differing by over 14% from its
probable incurred costs.

Agency Report, Tab 54, Source Selection Decision, attach. E, at 2. The SSA
again concluded that CTC's proposal was the most advantageous to the
government:

Starting with the most important factor, Mission Suitability, CTC's proposal
best expresses an understanding of the Northeast RTTC mission functions. The
proposal is well balanced, and brings to bear a range of capabilities that
[NEMEP's and the other offeror's] do not. CTC's much superior technical
approach and capabilities--as well as its management structure and
approach--translate into more and better products and services, and less
performance risk, than the other proposals. CTC had a marginal advantage in
Past Performance ratings over the other two offerors. I found the clearly
superior technical proposal of CTC to be well worth the modest cost/price
difference with [NEMEP's] proposal . . . .

Agency Report, Tab 54, Source Selection Decision, at 6. This protest
followed a written debriefing.

NEMEP challenges virtually every one of the agency's assessed weaknesses of
its proposal, contending that the evaluated weaknesses are factually
inaccurate and reflect unequal treatment of NEMEP's and CTC's proposals.
NEMEP also complains that NASA's contemporaneous evaluation documentation is
nothing more than conclusory lists of asserted strengths and weaknesses,
which do not demonstrate the method by which points were assigned under the
mission suitability subfactors nor support the reasonableness of the
agency's evaluation.

In reviewing protests challenging the evaluation of proposals, we do not
conduct a new evaluation or substitute our judgment for that of the agency
but examine the record to determine whether the agency's judgment was
reasonable and in accord with the RFP evaluation criteria. Abt Assocs.,
Inc., B-237060.2, Feb. 26, 1990, 90-1 CPD para. 223 at 4. Judgments are by their
nature often subjective; nevertheless, the exercise of judgment in the
evaluation of proposals must be reasonable and bear a rational relationship
to the announced criteria upon which competing offers are to be selected.
Southwest Marine, Inc.; American Sys. Eng'g Corp., B-265865.3, B-265865.4,
Jan. 23, 1996, 96-1 CPD para. 56 at 10.

In order for us to review an agency's evaluation judgment, an agency must
have adequate documentation to support its judgment. Id. While point scores
are useful as guides to decision-making, they must be supported by
documentation of the relative differences between proposals, their
strengths, deficiencies, weaknesses and risks. Federal Acquisition
Regulation sect. 15.305(a); Century Envtl. Hygiene, Inc., B-279378, June 5,
1998, 98-1 CPD para. 164 at 4. While an agency is not required to retain every
document or worksheet generated during its evaluation of proposals, the
agency's evaluation must be sufficiently documented to allow review of the
merits of a protest. KMS Fusion, Inc., B--242529, May 8, 1991, 91-1 CPD para.
447. Where an agency fails to document or retain evaluation materials, it
bears the risk that there may not be adequate supporting rationale in the
record for us to conclude that the agency had a reasonable basis for the
source selection decision. Southwest Marine, Inc.; American Sys. Eng'g
Corp., supra, at 10.

In determining the rationality of an agency's evaluation and award decision,
we do not limit our review to contemporaneous evidence, but consider all the
information provided, including the parties' arguments, explanations, and
hearing testimony. Id. While we consider the entire record, including the
parties' later explanations and arguments, we accord greater weight to
contemporaneous evaluation and source selection material than to arguments
and documentation prepared in response to protest contentions. Boeing
Sikorsky Aircraft Support, B-277263.2, B-277263.3, Sept. 29, 1997, 97-2 CPD
para. 91 at 15.

We conducted a hearing here because the evaluation documentation prepared
and retained by NASA did not adequately explain the agency's evaluation of
NEMEP's and CTC's proposals. As noted, the primary discriminator between
CTC's and NEMEP's proposals was the respective mission suitability scores
received by the two firms; CTC's proposal was assessed as being good (with
690 of a possible 1,000 points), while NEMEP's proposal was assessed as
being poor (with 299 points).

However, as asserted by the protester, NASA's consensus evaluation documents
for the mission suitability factor stated NEMEP's and CTC's strengths and
weaknesses in a conclusory fashion. Although NASA provided additional
information in its legal memoranda and contracting officer statements to
explain its evaluation and to specifically respond to the protester's
contentions that NASA evaluated NEMEP's and CTC's proposals unequally, NEMEP
noted that NASA's post-protest documentation should be entitled to less
weight than the contemporaneous documentation and questioned whether these
agency arguments represented the evaluators' contemporaneous judgment.
Accordingly, we received testimony from the chair of the SEC, who testified
as to the evaluation board's contemporaneous judgment and specifically
addressed four significant weaknesses in NEMEP's proposal. [7] As explained
below, we find from our review of the hearing testimony, parties' arguments,
and the evaluation record that the agency's evaluation and selection of
CTC's proposal for award was reasonable.

One of the significant weaknesses identified in NEMEP's proposal under the
mission suitability factor, and specifically cited by the SSA in his
selection decision, was NEMEP's proposed reliance on USTEC to meet some of
the contract performance requirements. See Agency Report, Tab 45,
Presentation Charts for the Northeast RTTC, at 22; Tab 54, Source Selection
Decision, attach. E, at 2. In the written debriefing provided to NEMEP, NASA
explained the agency's concern that USTEC, which was formed to compete for a
national contract to operate the RTTCs, may not be viable to perform the
subcontract, given NASA's determination not to make an award to USTEC.
Agency Report, Tab 50, First Debriefing to NEMEP, at 3.

NEMEP argues that NASA unreasonably assumed that USTEC might not have the
resources to perform the subcontract to NEMEP and that this assumption was
"based on a profound misunderstanding of the operation of USTEC."
Protester's Comments at 9. NEMEP argues that, although the award of a
national RTTC contract to USTEC would have provided "an important source of
funding," each of the USTEC partners was a viable entity that would continue
to function. Id. at 10. NEMEP also challenges NASA's determination that
USTEC's subcontract with NEMEP would be "major," as characterized by NASA.
Id. at 9.

We agree with NASA that NEMEP's proposal indicated that USTEC was to be a
significant subcontractor in NEMEP's performance of the RTTC contract. As
the SEC chair noted in her testimony, NEMEP's proposal repeatedly referred
to specialized services that NEMEP would receive from USTEC. Tr. at 71-74.
For example, NEMEP proposed the [DELETED] that was "developed, maintained,
and upgraded by USTEC on behalf of partnering RTTCs." [8] NEMEP Mission
Suitability Proposal at 15. Similarly, NEMEP proposed that it would
"subcontract with the USTEC to create a [DELETED]," which would be
administered by USTEC. Id. at 29-30. NEMEP also proposed to obtain other
services from other companies as subcontractors to USTEC (not NEMEP); for
example, the [DELETED] (which USTEC would administer) would actually be
operated by [DELETED] and [DELETED] under contracts with USTEC. Id. at 30.
Also, NEMEP stated that it would have access to "[DELETED]" through USTEC.
[9] Id. at 49.

We find reasonable NASA's concern that NEMEP's reliance on USTEC posed
significant risk to the agency. In its proposal, NEMEP represented that
USTEC was formed by NEMEP and five other MEPs to seek a "performance-based
national network of RTTCs." Id. at 1. NEMEP explained to NASA that NEMEP,
"like its partnering RTTCs, [has] budgeted [DELETED] percent of the contract
value to subcontract USTEC." Id. at 49. In our view, NASA reasonably
concluded from these proposal representations that the MEPs formed USTEC to
perform a national network of RTTCs and would use that contract performance
to finance USTEC. Although it is true that the MEPs comprising USTEC will
have their own continuing existence, this does not alleviate concerns,
flowing from NEMEP's proposal description, whether the new entity, USTEC,
would necessarily continue if the purpose for the venture failed, or whether
USTEC, without the national RTTC funding, would have sufficient funds to
satisfy the promises made for it in NEMEP's proposal.

Another significant weakness identified in NEMEP's proposal under the
mission suitability factor, and cited by the SSA in his selection decision,
was that NEMEP did not identify what steps would be followed to develop
working relationships with industry. Agency Report, Tab 45, Presentation
Charts for the Northeast RTTC, at 22; Tab 54, Source Selection Decision,
attach. E, at 2. Offerors were required in their technical plans to describe
the understanding of, and approach to, the "[d]evelopment of working
relationships with U.S. industry to access data, information sources and
technical expertise." RFP sect. L.5 at 53. The RFP also provided that this
requirement would be evaluated under the technical plan element of the
understanding the requirement subfactor of the mission suitability factor.
RFP sect. M.2 at 69. NASA found that NEMEP's proposal included a general
description of the organizations that the firm would target, but provided
only a limited description of how the firm would forge and cultivate
relationships; in addition, NASA was concerned that NEMEP's designation of
two "important industry groups" at the Goddard Space Flight Center--the
[DELETED] and [DELETED]--with which NEMEP stated it would form
relationships, did not show understanding of this requirement because these
groups have nothing to do with the technology to be transferred under the
contract. Agency Report, Tab 50, First Debriefing to NEMEP, at 4; Tr. at
51-53.

NEMEP disagrees that its proposal does not adequately demonstrate its
understanding and approach to cultivating relationships with industry. NEMEP
contends that NASA treated NEMEP and CTC unequally under this evaluation
criterion, arguing that the two firms provided similar information
describing how they would cultivate relationships.

We find no basis from our review of the record to find unreasonable NASA's
assessment of a significant weakness in NEMEP's proposal under this factor
or to find that NASA treated NEMEP and CTC unequally in this respect.
Rather, we find from review of the proposals and evaluation documents that
NASA reasonably found that CTC provided more detail addressing its
understanding and approach to cultivating relationships with industry. For
example, as the SEC chair noted in her testimony, CTC described [DELETED].
CTC Mission Suitability Proposal at 19-21; Tr. at 48-49, 232. Although NEMEP
also indicated that it would use an information database system and
web-based communication and networking systems to reach out to industry and
that it had a network of MEP centers, NEMEP's proposal description of what
it was offering is more general than that of CTC. See NEMEP Mission
Suitability proposal at 20-22. Futhermore, NEMEP does not dispute NASA's
concern that the implication in NEMEP's proposal representation--that
establishing relationships with the [DELETED] and the [DELETED] would be
valuable in this regard--indicated a lack of understanding by NEMEP.

NASA also assessed as significant weaknesses in NEMEP's proposal the firm's
failure to propose a high-level interface with the Goddard Space Flight
Center, which NASA found indicated a lack of commitment on the part of
NEMEP. [10] Agency Report, Tab 45, Presentation Charts for the Northeast
RTTC, at 29; Tab 50, First Debriefing to NEMEP, at 9. NEMEP proposed as its
management approach to have its proposed director for the Northeast RTTC be
the principal interface between NEMEP and the Goddard Space Flight Center.
[11] NEMEP Mission Suitability Proposal at 57. However, NEMEP also proposed
a full-time, on-site liaison at the Goddard Space Flight Center to serve as
the "[DELETED]" to NASA. NEMEP Mission Suitability Proposal at 56-59. The
evaluators had a number of problems with NEMEP's proposal of a lower-level
employee to serve as full-time liaison between NEMEP and NASA. See Tr. at
91-97. For example, the evaluators were concerned that NEMEP's proposal to
have this person be the [DELETED] was inefficient and would result in a
"bottleneck." Tr. at 96-97. In the evaluators' view, the offer of a
[DELETED], as CTC proposed, see CTC's Mission Suitability Proposal at 60-63,
was more appropriate and better demonstrated the firm's commitment to the
program. [12] Tr. at 101. While NEMEP disagrees with the agency's judgment
concerning the appropriate level at which the firm should interface with
NASA, we have no basis to find that the agency's concerns are unreasonable.

In sum, we find from our review of the SEC chair's testimony (which was
consistent with the contemporaneous evaluation record), [13] the evaluation
record, and the parties' pleadings that NASA's evaluation of the firms'
mission suitability proposals was reasonable and consistent with the RFP. In
this regard, although we have primarily focused our review on the
significant weaknesses identified by the protester as a means of testing the
agency's evaluation record, based on our review of the record, we find no
basis to object to the other weaknesses assessed in NEMEP's mission
suitability proposal, and we do not find that NEMEP's mission suitability
rating was understated in any material way.

NEMEP also objects to the point reduction in its mission suitability score
due to NASA's determination in its reassessment of proposals that NEMEP's
offer to provide two of its employees, a full-time, on-site liaison and a
[DELETED], offered NASA no actual benefit. [14] NASA states that it removed
the costs associated with these two positions from NEMEP's evaluated
probable costs because the agency concluded that these two positions offered
no value to the agency. With respect to the on-site liaison, NASA concluded,
as noted above, that this position actually hindered the ability of the
offeror to efficiently perform the contract requirements; also the agency
was concerned that NEMEP expected NASA to provide space for this person. See
NEMEP Mission Suitability Proposal at 58. With respect to the [DELETED],
NASA found that this position was superfluous because a full-time employee
was not necessary to allow the contractor to satisfy the contractor's goal
of [DELETED]. Although NEMEP disagrees with NASA's assessment, it does not
show the determination that these two individuals offered NASA no actual
benefits to be unreasonable.

NEMEP nevertheless contends that NASA treated it and CTC unequally because
CTC also proposed an employee to serve as a liaison to the Goddard Space
Flight Center yet NASA did not reduce CTC's probable costs to reflect the
costs associated with this employee. Although it is true that both firms
proposed employees to serve as liaisons with NASA, NEMEP's liaison to the
Goddard Space Flight Center would be a full-time, on-site employee working
in space provided by NASA. CTC, however, proposed that its chief technical
officer would, in addition to other duties, serve on a part-time basis (an
average of 2 days per week) as a liaison. In contrast to NEMEP's proposed
[DELETED], CTC's proposed liaison was not proposed as [DELETED]. We see no
basis in this record to conclude that NASA acted unreasonably in not
reducing CTC's probable costs of performance for its chief technical
officer.

NEMEP also challenges NASA's evaluation of the firms' past performance. As
noted above, CTC's past performance was assessed as very good, and NEMEP's
was assessed as good.

NEMEP complains that CTC's past performance should have been rated lower
because CTC's performance of the [DELETED] received ratings of [DELETED] to
[DELETED]. NASA responds that besides the incumbent contract, CTC presented
other significant and relevant instances of past performance, which all
received exceptional evaluation ratings. NASA thus concluded that a very
good rating was warranted considering all of CTC's past performance. While
NEMEP disagrees with this judgment, it does not show it to be unreasonable.

NEMEP also complains that its past performance rating should have been
higher. NASA points out, however, that NEMEP's past performance did not
include efforts that were comparable in size, scope and complexity to the
RTTC contract. In addition, the majority of NEMEP's experience was under
cooperative agreements and grants, and not contracts. We see no basis in
this record to find that NASA's past performance evaluation was
unreasonable.

The protester finally complains that NASA unfairly assigned NEMEP's
fixed-price offer a moderate level of confidence rating as compared to the
high level of confidence rating assigned CTC's cost reimbursable offer. [15]
NASA assigned only a moderate level of confidence rating to NEMEP's
$[DELETED] million fixed-price offer because NEMEP proposed $[DELETED]
million in estimated costs, which reflected a loss of nearly $[DELETED].
NEMEP does not explain why the firm's proposal to perform at a loss, when
coupled with the firm's evaluated weaknesses under the understanding the
requirement subfactor, does not justify a moderate level of confidence
rating. Moreover, unlike NEMEP's proposed price, CTC's offer was found to be
realistic in that its proposed and probable costs closely tracked one
another, justifying a high level of confidence. We do not agree with NEMEP
that

NASA should have assigned CTC's offer a lower confidence rating simply
because CTC proposed a cost reimbursable contract, as contemplated by the
RFP. [16]

The protest is denied.

Anthony H. Gamboa

Acting General Counsel

Notes

1. NASA believed that "these services [could not] be performed on a
fixed-price basis due to the uncertainty of requirements." Agency Report,
Tab 2, Acquisition Plan, at 11. By amendment No. 0002, the agency permitted
the submission of proposals on "other-than a cost reimbursement basis," but
required offerors who did so to submit cost data sufficient for the agency
to perform a cost realism analysis. RFP amend. 0002, sect. L.5(3) at 3.

2. The technical proposals were also adjectivally rated from "excellent" to
"poor" under the mission suitability factor. A "good" rating, which was
identified as having a numerical equivalent of 510 to 700 points, reflected
a proposal having no deficiency, showing a reasonably sound approach, and
having weaknesses that do not significantly detract from the offeror's
response. A "poor" rating, which was identified as 0 to 300 points,
reflected a proposal with one or more deficiencies or significant weaknesses
demonstrating a lack of overall competence or requiring a major proposal
revision. Agency Report, Tab 45, Presentation Chart for the Northeast RTTC,
at 12.

3. Each of the six MEP entities comprising USTEC submitted a "stand-alone"
proposal for its respective region. Agency Report, Tab 54, Source Selection
Decision, at 4.

4. NASA informed us that the Goddard Space Flight Center "generally disposes
or destroys" the evaluators' individual documents after a consensus
evaluation board judgment is achieved. Tr. at 33. We find troubling the
routine destruction of documents such as these, where the retention of this
documentation, at least until the agency can determine whether its
evaluators' judgment will be challenged, does not work any undue hardship
upon the agency.

5. NEMEP proposed a firm, fixed-price of $[DELETED] million, although its
cost data showed an estimated $[DELETED] million estimated cost. Agency
Report, Tab 34, Defense Contract Audit Agency (DCAA) Audit Report of NEMEP's
Proposal, at 3.

6. USTEC's offer to operate all the RTTCs received a rating of poor/288
points under the mission suitability factor and of good under the past
performance factor. Agency Report, Tab 41, Presentation Charts for the Far
West RTTC, at 18.

7. The protester identified three significant weaknesses and we identified
an additional one on which testimony would be taken at the hearing.

8. The [DELETED] constituted the only evaluated significant strength in
NEMEP's proposal. See Agency Report, Tab 45, Presentation Charts for the
Northeast RTTC, at 22.

9. [DELETED].

10. This problem constituted two of the significant weaknesses designated in
NEMEP's proposal.

11. NEMEP's proposal actually stated that the director would be the
principal interface between the firm and the Glenn Research Center in Ohio.
NEMEP Mission Suitability Proposal at 57. NASA understood that this was a
clerical error and that NEMEP meant that the director would be the interface
with the Goddard Space Flight Center. Tr. at 90-91. However, the SEC noted
this as demonstrating the lack of focus and sloppy approach of this section
of the proposal. Agency Report, Tab 50, First Debriefing to NEMEP, at 9.

12. CTC also proposed a high-level employee, its chief technical officer and
one of its three partners, as a part-time liaison to NASA. CTC Mission
Suitability Proposal at 39, 63-64. This person, unlike NEMEP's dedicated
lower-level liaison, performs other management tasks related to the
performance of the RTTC contract.

13. Although NEMEP complains that the SEC chair did not have complete recall
of the details surrounding the SEC's evaluation and SSA's briefing, see
Protester's Post-Hearing Comments at 3-5, the SEC's chair's testimony was
consistent with the contemporaneous evaluation record and was sufficient to
allow our review of the evaluation. Moreover, we do not find the chair's
lack of complete recall surprising considering that the evaluation board's
evaluation was conducted more than 6 months before the hearing.

14. NEMEP argues that reducing its technical score is unreasonable because
NEMEP proposed a fixed-price approach to performing the work and argues that
a reduction in its mission suitability should not be based upon the
difference between estimated and evaluated costs. This protest argument
constitutes an untimely challenge to the terms of the RFP. 4 C.F.R.
sect. 21.2(a)(1) (2000). The RFP, as amended, informed offerors that proposals
submitted on an "other-than a cost reimbursement basis" would be subject to
a cost realism analysis and that any reductions in the mission suitability
score would be based upon the difference between the evaluated probable
costs of performance and the proposed estimated costs. RFP amend No. 2, sect.
L.5(3) at 4.

15. NEMEP also complains that it was treated unequally in the DCAA
investigations of the two firms' costs. Although it is true that DCAA's
review of CTC's and NEMEP's cost proposals was different (that is, DCAA
performed a rate review of CTC's proposal and a more complete audit of
NEMEP's offer), NEMEP does not state what, if any, impact this difference
had in NASA's assessment of the firms' proposals.

16. We anticipate addressing, in a separate decision, NEMEP's supplemental
protest (B-285963.9), alleging that certain "clarifications" received from
CTC actually constituted discussions.