TITLE:  SOS Interpreting, LTD., B-293026; B-293026.2; B-293026.3, January 20, 2004
BNUMBER:  B-293026; B-293026.2; B-293026.3
DATE:  January 20, 2004
**********************************************************************
   Decision

   Matter of:   SOS Interpreting, LTD.

   File:            B-293026; B-293026.2; B-293026.3

   Date:              January 20, 2004

   Alison L. Doyle, Esq., and Dana B. Pashkoff, Esq., McKenna Long &
Aldridge, for the protester.

   Robert M. Moore, Esq., and Kristen A. Bennett, Esq., Moore & Lee, for
McNeil Technologies, Inc., an intervenor.

   Sandra M. DeBalzo, Esq., and J. Michael Sawyers, Esq., Department of
Justice, for the agency.

   Charles W. Morrow, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1.  Source selection decision selecting lower-priced proposal as the
best-value under a solicitation containing an evaluation scheme that
attached greater weight to technical merit was not reasonably based, where
the lower-level evaluators found and documented that the protester's
higher-priced proposal was technically superior, and the source selection
authority determined the proposals were technically equal and made award
based on the low-priced proposal, without considering the areas where the
protester's proposal was found technically superior.

   2.  Agency should not consider protester's earlier agency-level protest in
evaluating its proposal in the absence of some evidence of abuse of the
bid protest process by the protester.

   3.  Under procurement for translation services covered by the Service
Contract Act (SCA) that required proposals to include realistic prices for
option years that allowed for any increases that may affect price, agency
did not evaluate proposal prices on an equal basis to account for the real
costs to the government, where the awardee's proposed prices for Spanish
linguists did not escalate for the option years and its proposal evidenced
the intention of obtaining contract price increases if SCA wage
determinations increased the awardee's salary or benefit obligations for
Spanish linguists, and the other offerors' proposals (and even the
awardee's proposal for positions other than Spanish linguists) included
escalating prices for the option years that apparently accounted for
possible SCA increases.

   DECISION

   SOS Interpreting, LTD. protests the award of a contract to McNeil
Technologies, Inc. under request for proposals (RFP) No. DEA-02-R-0001,
issued by the Drug Enforcement Administration (DEA), Department of
Justice, for translation, transcription, interpreting, interception, and
monitoring support services.

   We sustain the protests.

   The RFP, issued May 24, 2002, was to acquire a variety of language
services with related clerical and information technology services to
support DEA's New England Field Division under a fixed-price,
indefinite-delivery/indefinite-quantity contract for a base year with four
1-year option periods.  The services were to assist the DEA with
court-ordered (Title III) wiretaps in connection with ongoing criminal
investigations, with consensual listening devices and other media, and
with transcription of recorded material and translation of written
documents.

   The RFP provided for award on a best-value basis considering technical
evaluation factors, past performance, and cost/price.  The technical
evaluation factors, listed in descending order of importance, were: 
management plan, quality control plan, and transition plan.  Under the
management plan factor, three subfactors--furnishing qualified personnel,
recruiting and retention, and security plan--were identified; however, the
relative weight of these subfactors was not disclosed.  RFP S M.2.1.  The
RFP stated that the combined weight of the technical evaluation factors
was more important than cost/price.  RFP S M.2.2.  The relative weight of
the past performance factor was not disclosed in the RFP, although the RFP
stated "the Offeror's technical capability [which includes past
performance] is substantially more important than cost."[1]  RFP
SA M.4.3.  The RFP also noted, "[a]ward will not necessarily be made to
the proposal with the lowest price or highest technical score."  RFP S
M.2.3.  To evaluate past performance, the RFP stated that the agency would
conduct "a performance risk assessment based on the offeror's present and
past performance as related to the probability of successfully
accomplishing the proposed effort."  RFP S M.3.  Prices were solicited for
various labor categories, in particular, linguists in various languages,
for the base and option years, and were to be evaluated for realism and
reasonableness.[2] 

   Six offerors, including McNeil and SOS, submitted proposals in response to
the RFP.  A technical evaluation panel (TEP) rated the proposals under the
technical and past performance factors based on an adjectival rating
scale.[3]  The TEP also assigned an overall proposal risk rating to each
proposal.[4] 

   Both McNeil's and SOS's initial proposals received overall ratings of
"highly satisfactory" with low risk.  The TEP's ratings under each factor
and subfactor were supported by detailed narratives.  According to the
initial consensus evaluation report, these proposals received identical
"outstanding" ratings for the management plan factor with "highly
satisfactory" ratings for each of the three subfactors of that factor.[5] 
Initial Consensus Evaluation, McNeil's Evaluation, at 4-7; Initial
Consensus Evaluation, SOS's Evaluation, at 4-7.  SOS's proposal received
"outstanding" ratings and McNeil's proposal "highly satisfactory" ratings
for the quality control plan and transition plan factors, and both
offerors received "highly satisfactory" past performance ratings.

   SOS's and McNeil's proposals were included in the competitive range along
with two other proposals.  No deficiencies were identified in either
proposal, although several weaknesses were found.  The DEA conducted
detailed discussions tailored to each proposal included in the competitive
range.  Among the questions/clarifications posed to SOS during discussions
were requests for it to identify the background and approach to staffing
the proposed telecommunications specialist and to explain its "drug
testing [policy] as a part of the security procedures."  Agency Report,
SOS's Final Proposal Revisions, at 4-5.  Included among the
questions/clarifications addressed to McNeil was, "Will the offeror be
able to recruit and retain qualified personnel for Spanish [linguists]
based on the rate(s) proposed for this labor category?"  Agency Report,
McNeil's Final Proposal Revisions, at 10.  In addition, since the DEA had
doubts concerning whether the offerors could provide a sufficient number
of qualified interpreters to meet the agency's need to certify transcripts
for court in a timely manner,[6] both McNeil and SOS were asked, "How will
the offeror provide for qualified state/court certified personnel for
review/certification?"  Agency Report, McNeil's Final Proposal Revision at
7; SOS's Final Proposal Revision, at 1.

   Following the receipt of final revised proposals, the TEP reevaluated the
proposals, which it documented in the final consensus evaluation report
and the final TEP report.  The final consensus evaluation report contains
detailed narratives supporting each factor and subfactor rating.  The
final TEP report discusses the evaluation of the factors and subfactors
where discussions were conducted; this report explains how the offerors'
responses affected the ratings and justifies the ratings under these
factors and subfactors.  See Agency Report, Tab 7, Final TEP Report; Tab
8, Final Consensus Evaluation Report. 

   SOS's final revised proposal received the highest rating of the four
proposals remaining in the competition with an overall rating of "highly
satisfactory," with low risk.  The TEP noted that SOS's final revised
proposal reflected a deficiency under the furnishing qualified personnel
subfactor because "SOS did not provide names or resumes for Linguists
[representing at least four languages] who applied for work with SOS and
who are already State/Federal court certified."  Agency Report, TabA 8,
Final Consensus Evaluation, SOS's Evaluation, at 6.  As a result, the TEP
stated that it lowered the SOS's proposal's rating from "outstanding" to
"highly satisfactory" under this subfactor because SOS had "not adequately
demonstrated how [it] will provide state-certified personnel for
review/certification in all the required languages."[7]  Id.; Agency
Report, Tab 7, Final TEP Report, at 14.  However, the TEP increased SOS's
proposal's rating under the security plan subfactor from "highly
satisfactory" to "outstanding" because SOS proposed [DELETED].  SOS's
proposal was still rated "outstanding" under the quality control plan and
transition plan factors, and had "highly satisfactory" past performance.  
SOS's price was [DELETED].

   In contrast, McNeil's final revised proposal received an overall technical
rating of "satisfactory" with moderate risk.  The TEP lowered McNeil's
proposal's overall rating from its initial proposal's rating of "highly
satisfactory" with low risk because the TEP found McNeil's final revised
proposal reflected a deficiency under the personnel subfactor.  This
deficiency was that McNeil "has not demonstrated by what means [it] will
locate federal/state court certified Linguists for the New England
contract."  Agency Report, Tab 8, Final Consensus Evaluation, McNeil's
Evaluation, at 5.  The TEP found in relation to this deficiency that
McNeil had provided documentation for only two linguists, who were
federal/state court certified in Spanish and Jamaican Patois, and that its
other proposed linguists did not show federal/state certifications.  Thus,
McNeil's proposal's rating was lowered to "satisfactory" under the
personnel subfactor and its overall risk was rated moderate.  The other
factor and subfactor ratings for McNeil's proposal did not change in the
final evaluation.  McNeil's proposed price was the lowest at
$40,302,240.[8]

   As noted above, the TEP rated SOS's final revised proposal as "highly
satisfactory" with low risk and superior to McNeil's final revised
proposal rating of "satisfactory" with moderate risk.  The TEP assigned
SOS's and McNeil's final revised proposals identical adjectival ratings
under all of the factors and subfactors, except for the personnel and
security plan subfactors, and the quality control plan and transition plan
factors, where SOS's proposal was rated "outstanding" and McNeil's
proposal was rated "highly satisfactory," which differences accounted for
SOS's higher rating.  The TEP provided narratives supporting the
proposals' ratings under these factors and subfactors.  For example, the
reason that SOS's final revised proposal was rated higher than McNeil's
final revised proposal under the personnel subfactor was that the TEP
found that McNeil had not demonstrated how it would locate qualified
linguists in the New England area and SOS's proposal had done so.  Based
on these evaluation results, the TEP found that SOS

   has demonstrated the best overall proven track record with respect to
translation, transcription, interpreting and monitoring support services
[and that] SOS is currently deployed at the New England Field Division and
continues to provide excellent translation, transcription, interpreting
and monitoring support services. 

   Agency Report, Tab 7, TEP Final Report, at 17.

   In her source selection document, the SSA did not agree with the TEP's
evaluation and determined that competitive range offerors' proposals,
including McNeil's and SOS's, were "technically/substantially equal" and
selected McNeil for award based on its low price.  Agency Report, Tab 11,
Source Selection Decision, at 17. 

   Specifically, the SSA did not agree with the TEP's overall technical and
risk rating of SOS's proposal as "highly satisfactory" with low risk, and
modified the rating to "satisfactory" with moderate risk.  Id. at 15.  In
the source selection document, the SSA stated that SOS's proposal should
have received a satisfactory rating for the personnel subfactor, inasmuch
as she believed that the TEP apparently intended to downgrade SOS's
proposal to a "satisfactory" rating, rather than the "highly satisfactory"
rating it stated under this subfactor, based on the SSA's understanding
that SOS's proposal's initial rating under this subfactor had been "highly
satisfactory" rather than "outstanding."[9]  Id.  Next, the SSA concluded
that SOS's [DELETED] did not warrant increasing SOS's rating under the
security plan subfactor because other proposals with similar [DELETED] did
not receive such high ratings under this subfactor and because, prior to
receipt of proposals, SOS protested to the agency certain provisions
relating to the security process, which the SSA found "seem[ed] to
contradict" SOS's commitment in its security plan to the security
provisions that were protested.  Id. at 15-16.  Last, the SSA disagreed
with the low risk assigned by the TEP to SOS's proposal and concluded that
a moderate risk rating was warranted because of SOS's performance problems
under prior similar contracts.  Id. at 15-16.  The SSA addressed none of
the other areas where SOS's proposal was rated superior to McNeil's
proposal. 

   The SSA also did not agree with the TEP's overall moderate risk rating of
McNeil's proposal, which was based on the evaluated deficiency found in
McNeil's proposal under the personnel subfactor, and found that McNeil's
proposal's overall rating should be "satisfactory" with low risk.  In this
regard, the SSA found, based on her review, that McNeil had "identified
personnel that met the Federal/State certified court interpreter
requirements" and has sufficient resources to fulfill these requirements. 
Id. at 11-12.

   Award was made to McNeil on September 26.  This protest followed.

   SOS challenges the reasonableness of, and lack of support for, the
agency's besta**value decision, and argues that the SSA improperly
converted the procurement to one based on low cost among technically
acceptable proposals by normalizing the adjectival ratings, despite the
technical distinctions between SOS's and McNeil's proposals.

   In a negotiated procurement, contracting officials have broad discretion
in determining the manner and extent to which they will make use of
technical and cost results.  See Preferred Sys. Solutions, Inc., B-292322
et al., Aug. 25, 2003, 2003 CPD PA 166 at 6.  Federal Acquisition
Regulation (FAR) S 15.308 states:

   The [SSA's] decision shall be based on a comparative assessment of
proposals against all source selection criteria in the solicitation. 
While the SSA may use reports and analyses prepared by others, the source
selection decision shall represent the SSA's independent judgment.  The
source selection decision shall be documented, and the documentation shall
include the rationale for any business judgments and tradeoffs made or
relied on by the SSA, including benefits associated with additional
costs.  Although the rationale for the selection decision must be
documented, that documentation need not quantify the tradeoffs that led to
the decision.

   An agency which fails to adequately document its source selection decision
bears the risk that our Office may be unable to determine whether the
decision was proper.  While source selection officials may reasonably
disagree with evaluation ratings and results of lower-level evaluators,
they are nonetheless bound by the fundamental requirement that their own
independent judgments be reasonable, consistent with the stated evaluation
factors and adequately documented.  Johnson Controls World Servs., Inc.,
B-289942, B-289942.2, May 24, 2002, 2002 CPD P 88 at 6.

   Moreover, the propriety of a cost/technical tradeoff turns not on the
difference in technical score, per se, but on whether the contracting
agency's judgment concerning the significance of that difference was
reasonable in light of the solicitation's evaluation scheme.  Where cost
is secondary to technical considerations under a solicitation's evaluation
scheme, as here, the selection of a lower-priced proposal over a proposal
with a higher technical rating requires an adequate justification, i.e.,
one showing the agency reasonably concluded that notwithstanding the point
or adjectival differential between the two proposals, they were
essentially equal in technical merit, or that the differential in the
evaluation ratings between the proposals was not worth the cost premium
associated with selection of the higher technically rated proposal.  Where
there is inadequate supporting rationale in the record for a decision to
select a lower-priced proposal with a lower technical ranking,
notwithstanding a solicitation's emphasis on technical factors, we cannot
conclude that the agency had a reasonable basis for its decision. 
Preferred Sys. Solutions, Inc., supra, at 7; MCR Fed., Inc., B-280969,
Dec.A 14, 1998, 99a**1 CPD P 8 at 5.

   As noted above, the rationale stated in the source selection decision for
selecting McNeil's proposal as the best value was the SSA's conclusion
that all of the competitive range proposals were technically substantially
equal.  In making this decision, the SSA discussed certain aspects of the
proposals, in particular the evaluation of SOS's proposal under the
personnel and security plan subfactors and the past performance factor,
and the evaluation of McNeil's proposal under the personnel subfactor. 
Although the SSA's analysis documents the rationale for adjusting the
adjectival scores under these subfactors and factor, she does not discuss
or acknowledge SOS's evaluated advantage under the other two technical
evaluation factors, quality control plan and transition plan, where SOS's
proposal was assigned "outstanding" ratings and McNeil's proposal received
only "highly satisfactory" ratings.  The record shows that the TEP
provided detailed reasons for the proposals' respective ratings under
these subfactors.[10]  Agency Report, Tab 8, Final Consensus Evaluation,
McNeil's Evaluation, atA 10, 15; Final Consensus Evaluation, SOS's
Evaluation, at 10, 15; Initial Consensus Evaluation, McNeil's Evaluation,
at 8, 12; Initial Consensus Evaluation, SOS's Evaluation at 8, 12. 
Because of SOS's proposal's documented superiority under these factors and
the SSA's failure to consider this evaluated superiority in her source
selection decision, the SSA's statement that the proposals were
technically substantially equal is not reasonably supported by the
contemporaneous documentation.

   A hearing was convened at our Office to address "whether the [agency] had
a reasonable basis for its source selection decision, particularly the
various adjustments made to [the evaluation of SOS's and McNeil's
proposals]."  At this hearing, the SSA did not offer any additional
reasons to supplement the incomplete analysis reflected in the source
selection document.  While the SSA testified that she thought the TEP's
evaluation documentation did not support the ratings assigned SOS's
proposal under the factors and subfactors, Hearing Transcript
(Tr.)A atA 23-25, 38, she only elaborated on the areas where she had
already disagreed with the TEP's ratings, that is, under the personnel and
security plan subfactors, and the past performance factor.  The SSA also
testified that she did not make a comparative assessment of the proposals
under each evaluation factor, as required by FAR SA 15.308.  Tr. at 58. 
Thus, we find that the SSA's relatively conclusory statements at the
hearing fall short of the requirement to justify a source selection
decision, where, as here, there are documented qualitative technical
distinctions between two competing proposals.  See Preferred Sys.
Solutions, Inc., supra, at 7; Johnson Controls World Servs., Inc., supra,
at 9. 

   At the hearing, the SSA also essentially repudiated her finding that
McNeil's and SOS's proposals were substantially technically equal, and
testified that she considered both the proposals to be technically
acceptable, rather than technically equal, and that in reviewing the two
proposals "[she] did not see anything that was basically that superior to
warrant paying [DELETED] extra in costs."[11]  Tr. at 63-64.  In our view,
the inadequately supported source selection decision and testimony of the
SSA suggest that the agency may have improperly converted the source
selection to one based upon technical acceptability and low price, instead
of one that emphasized relative technical superiority, as was contemplated
by the RFP's evaluation scheme here.  An agency does not have the
discretion to announce in the solicitation that it will use one evaluation
plan, and then follow another; once offerors are informed of the criteria
against which their proposals will be evaluated, the agency must adhere to
those criteria in evaluating proposals and making its award decision, or
inform all offerors of any significant changes made in the evaluation
scheme.  See Preferred Sys. Solutions, Inc., supra, at 10.

   Because the source selection decision was not reasonable or consistent
with the solicitation's best-value evaluation scheme, we sustain the
protest.  Before turning to the recommendation, we need to address certain
other issues pertaining to the proposal evaluation and source selection
decision. 

   For example, SOS questions the propriety of the agency's past performance
evaluation, including the SSA's decision to increase SOS's overall
proposal risk rating to moderate risk because of a past performance
problem.  SOS argues that the agency failed to properly take into account
efforts made by SOS to address this problem.  SOS also argues that DEA
failed to similarly consider McNeil's past performance problems. 

   Based on our review of the record, including the hearing testimony, we
find no basis to question the agency's past performance evaluation.  While
SOS claimed that DEA ignored information that it submitted to address
negative past performance concerns, the SSA testified that she considered
all of the information submitted by the protester involving its past
performance, including SOS's efforts to cure prior negative performance,
in determining that SOS's past performance caused its proposal to be
considered a moderate risk.  See Tr. at 56.  An agency may base its
evaluation of past performance upon its reasonable perception of
inadequate prior performance, regardless of whether the contractor
disputes the agency's interpretation of the facts.  Maytag Aircraft Corp.,
B-287589, July 5, 2001, 2001 CPD PA 121 at 7.  Although SOS argues that
DEA failed to consider allegedly similar performance problems in McNeil's
past performance, the SSA testified that she was aware of the alleged
problems, which occurred several years ago, but thought that the
government contributed to these problems.  See Tr. at 69.

   SOS's protests that the agency's use of an overall risk rating constituted
an improper unstated evaluation factor.  We disagree.  As a general rule,
evaluating risk with respect to an offeror's proposal and technical
approach, even though risk is not specifically stated as an evaluation
factor, is not improper because considering risk is inherent in the
evaluation of technical proposals.  Communications Int'l, Inc.,
Ba**246067, Feb. 18, 1992, 92-1 CPD PA 194 at 6.  Here, however, we are
uncertain how the risk ratings affected, or should have affected, the
source selection decision, given that this decision was ultimately based
entirely on price (among acceptable proposals) and the RFP did not state
how risk would be considered in the evaluation.  In our view, the agency
would be well advised to review the propriety and use of this overall risk
rating before making the new source selection decision recommended below. 

   SOS also protested the evaluation of the proposals under the personnel
subfactor.  While we do not agree with SOS that its proposal could not be
reasonably downgraded because it did not provide sufficient names and/or
resumes in the various language categories, the record does not evidence
that SOS's and McNeil's proposals should be rated equally under this
subfactor.  This is so primarily because it appears that the SSA may have
misapprehended the TEP's evaluation and rating of SOS's proposal under
this subfactor, given the confusion (described above) as to whether SOS's
proposal's initial rating was "outstanding" and should be lowered to
"highly satisfactory" or whether it was "highly satisfactory" and should
be lowered to "satisfactory."[12]

   As to the security subfactor, we have no reason to find unreasonable the
agency's judgment that SOS's proposal should not be rated "outstanding"
because of its [DELETED], given that other proposals offering such a
[DELETED] were not given the same consideration.  Nevertheless, we are
concerned about the source selection document's references to an
agency-level protest filed by SOS concerning provisions that relate to the
security plan.  That is, although the SSA acknowledged that SOS had not
taken exception to the protested requirements in its proposal, she
nevertheless expressed concern regarding SOS's security plan solely
because of its agency-level bid protest of these requirements.  Since SOS
had the right to file protests of solicitation terms with which it
disagreed, FAR S 33.103, we question the propriety of the SSA's
considering SOS's protest in evaluating its proposal under this RFP, in
the absence of some evidence of abuse of the bid protest process.  See
Nova Group, Inc., B-282947, Sept. 15, 1999, 99-2 CPD P 56 at 6. 

   Finally, SOS complains about the evaluation of McNeil's price.  As noted
by the protester, the prices in McNeil's final revised proposal for
Spanish linguists in contract line item Nos. 0005 and 0005A (which
constituted a majority of the work required by the contract) failed to
include escalation for the option years.  However, the section L.6.2.b of
the RFP (quoted above) required offerors to propose realistic prices that
allowed for increases, for things such as cost of living, in the option
years, and the record shows that all of the initial proposals, including
McNeil's, provided escalating prices for each labor category in the option
years. 

   In response to the agency's discussion question expressing concern about
McNeil's low rates for the Spanish linguist labor category (which were
escalated over the option years) in its initial proposal, McNeil changed
its pricing for this category and no longer escalated these rates over the
option years,[13] and explained these changes as follows:

   McNeil has reviewed our proposed rates for the Spanish linguists . . . and
has increased the direct hourly rate (i.e., the rate paid to the
linguists) from [DELETED].  This is a rate that is [DELETED].  When SCA
changes are made, McNeil will make the appropriate labor cost changes. 
Our experience on DEA projects in San Diego and on [Blanket Purchase
Agreements] in New England demonstrates that [DELETED] enables us to
recruit and retain highly qualified Spanish linguists.

   Agency Report, McNeil's Final Revised Proposal, at 10. 

   The record indicates that for its Spanish linguist prices, McNeil has not
followed the RFP's proposal instructions by accounting in its proposed
price for "any increases," as was contemplated by the RFP.  Rather, it
appears that its Spanish linguist prices were premised upon receiving
equitable adjustments to its contract price if an SCA wage determination
were issued that increased its salary or benefit obligations for Spanish
linguists.[14]  That is, while it appears that the proposals that followed
the proposal instructions may have accounted for possible SCA increases in
their escalated prices for the option years, it appears that McNeil did
not do so for the Spanish linguists, but retained the right to obtain an
increase in its contract price in such circumstances.[15] 

   Therefore, it appears that the proposal prices may not have been compared
on an equal basis to account for the real cost to the government of
accepting a particular proposal for award because some proposals
apparently took into account possible SCA increases, while, for the
Spanish linguist line items, McNeil's did not.  An agency, at a minimum,
is required to evaluate offerors on an equal basis and in a manner such
that the total cost to the government for the required services can be
meaningfully assessed.  See Symplicity Corp. B-291902, Apr. 29, 2003, 2003
CPD P 89 at 7; Lockheed Aeronautical Sys. Co., B-252235.2, Aug. 4, 1993,
93-2 CPD PA 80 at 7 ("apples and oranges" cost evaluation is "inherently
improper").  According to the protester, if McNeil had included escalation
in its Spanish linguist prices at the same escalation rates it used for
its other prices, its total evaluated price would have been almost $1.5
million higher.  Given the possible impact of this discrepancy in McNeil's
proposal on the competition, this matter should be resolved with McNeil
during discussions.

   We recommend that the DEA review the solicitation's evaluation scheme and
amend it to reflect the agency's requirements,[16] reopen discussions with
all offerors whose proposals were in the competitive range,[17] obtain
revised proposals, reevaluate the proposals, and make a new source
selection with a proper price/technical tradeoff decision.  If McNeil is
not the successful offeror, its contract should be terminated and a new
award made.  We also recommend that the agency reimburse SOS the
reasonable costs of filing and pursuing the protest, including attorney's
fees.  4A C.F.R. S 21.8(d)(1) (2004).  SOS's certified claim for costs,
detailing the time spent and the costs incurred, must be submitted to the
agency within 60 days of receiving this decision.  4 C.F.R. S 21.8(f)(1).

   The protests are sustained.

   Anthony H. Gamboa

   General Counsel

   ------------------------

   [1] Since we otherwise sustain the protest and recommend that discussions
be conducted and revised proposals be submitted, the agency should take
this opportunity to disclose the relative weight of past performance and
the subfactors included in the management plan factor to the competitive
range offerors.  See 41A U.S.C. S 253a(b) (2000) (solicitation is required
to disclose the relative importance of all significant factors and
subfactors).

   [2] The RFP instructed that the "estimated prices for the option periods
shall be a realistic price allowing for any increases which may affect
prices (i.e., cost of livingA .A .A .)" and cautioned that "any
significant inconsistency, if unexplained, raises fundamental issues of
the offeror's understanding of the nature and scope of work required, and
may be grounds for rejection of the proposal."  RFP S L.6.2.b.

   [3] The possible adjectival ratings were "outstanding," "highly
satisfactory," "satisfactory," "marginal," and "unsatisfactory."

   [4] The possible risk ratings were low, moderate, and high. 

   [5] The record contains no explanation for the anomaly of an overall
"outstanding" rating for the management factor, where each of the
subfactors was rated "highly satisfactory," although we note that the
management factor ratings were supported by narratives separate from the
narratives provided for the subfactors.  These proposals also received
"outstanding" ratings for the management factor in the final TEP
evaluation, notwithstanding the general lowering of the subfactor
ratings. 

   Also, as noted above, according to the initial consensus evaluation
report, SOS's initial proposal received a "highly satisfactory" rating for
the personnel subfactor.  However, the record indicates that this "highly
satisfactory" rating may have been a clerical error and an "outstanding"
rating may have been intended for this subfactor.  This is suggested by
the TEP's final evaluation report, which stated that it was lowering SOS's
proposal's rating from the "outstanding" rating it received for its
initial proposal under this subfactor to "highly satisfactory."  Agency
Report, Tab 7, Final TEP Report, at 15.  This is also suggested by the
individual TEP evaluators' rating sheets for this subfactor, each of which
reflects an "outstanding" rating for SOS's proposal, supported by detailed
narratives.  Agency Report, Tab 9, Initial Evaluator's Worksheets, at 5.

   [6] Section C.5.2 of the RFP imposed "stringent time constraints" on
providing personnel in response to task orders under the contract.

   [7] As indicated above, the initial evaluation documentation indicates
that SOS's proposal received a "highly satisfactory" rating for this
subfactor, but that this might well have been a clerical error.

   [8] The other competitive range proposals offered higher prices than
McNeil and SOS, and received overall technical ratings of "satisfactory"
with moderate risk.

   [9] The source selection decision also contains narrative concerning SOS's
discussion responses related to this subfactor, including SOS's failure to
identify individuals who were already federal/state certified (which was
the reason the TEP lowered SOS's proposal rating under this subfactor) and
its response to the telecommunications specialist questions, but does not
explain why these responses support any particular rating for this
subfactor.  Agency Report, Tab 11, Source Selection Decision, at 14.

   [10] For example, SOS proposed a [DELETED], considerably faster than
McNeil's 90-day transition period.

   [11] Consistent with this testimony, the SSA also testified that based on
her review of the proposals and evaluation reports, she "made a
determination as to whom [she] thought was basically capable of award." 
Tr. at 26.  The SSA also testified that because she had an "acceptable
offer" from McNeil "whose proposal is almost [DELETED] less than" SOS's
proposal, "it only makes sense" to make award based on McNeil's proposal. 
Tr. at 35-36. 

   [12] The record indicates that the SSA did not discuss this problem with
the TEP before making her source selection decision.  See Tr. at 52-53. 

   [13] However, McNeil's proposal continued to escalate its other rates over
the option years.

   [14] FAR S 52.222-43, Fair Labor Standards Act and Service Contract
Act--Price Adjustment, which was incorporated by reference into the RFP,
see RFP S I.1, provides for equitable adjustments to the contract price,
where the contractor warrants that the contract prices do not include any
allowance for any contingency to cover increased costs for which
adjustment is provided under this clause.   

   [15] We note that McNeil has not maintained that its fixed price for
Spanish linguists already accounts for possible SCA adjustments.  While
the SSA testified that offerors would always get equitable adjustments for
SCA increases so she was not concerned about McNeil's failure to escalate
its prices, Tr. at 66-67, this does not account for the proposal
instructions that required prices to be realistic "allowing for any
increases that affect prices," or that offerors with prices that accounted
for the contingency covering SCA wage increases would not receive an
equitable adjustment under FAR SA 52.222a**43.

   [16] As noted above, the agency should disclose the relative weight of the
evaluation factors and subfactors, and decide whether award should be
based upon a comparative assessment of the proposals and price/technical
tradeoff, or be based upon the low priced, technically acceptable
proposal.

   [17] Discussions would be needed to resolve the discrepancy in McNeil's
proposal regarding its prices for Spanish linguists.  In such a case,
discussions are required with all competitive range offerors.  See FAR S
15.306(d)(3).