TITLE:  Language Service Associates, Inc., B-293041, December 22, 2003
BNUMBER:  B-293041
DATE:  December 22, 2003
**********************************************************************
Language Service Associates, Inc., B-293041, December 22, 2003

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

   Decision
    
Matter of:   Language Service Associates, Inc.
    
File:            B-293041
    
Date:              December 22, 2003
    
Robert G. Fryling, Esq., and Edward J. Hoffman, Esq., Blank Rome, for the
protester.
G. Lindsay Simmons, Esq., Thad S. Huffman, Esq., and James Eric Whytsell,
Esq., Jackson Kelly, for Bowne Global Solutions II, Inc., an intervenor.
John R. Caterini, Esq., and Morton J. Posner, Esq., Department of Justice,
for the agency.
Paul E. Jordan, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
Where technical proposals were scored within a few points of one another
in various award scenarios, and none was found to possess significant
technical advantages over the others, agency reasonably concluded
proposals were technically equivalent and properly based award on low
evaluated price.
DECISION
    

   Language Service Associates, Inc. (LSA) protests the award of a contract
to Bowne Global Solutions II, Inc. (BGS) under request for proposals (RFP)
No. JDOIR-03-0232, issued by the Department of Justice, Executive Office
for Immigration Review (EOIR) for language interpreter services. LSA
challenges the agency*s *best value* award determination.
    

   We deny the protest.
    
The EOIR is responsible for interpreting and administering the immigration
laws and regulations of the United States through the Immigration Courts,
the Board of Immigration Appeals, and the Office of the Chief
Administrative Hearing Officer.  When an individual appearing before an
immigration judge does not speak English, the EOIR must provide an
interpreter to ensure due process.  The EOIR employs some 103 staff
interpreters, but obtains the vast majority of its translation
requirements through contract interpreters.  The RFP sought proposals to
provide qualified, professional, and experienced on-site and telephonic
interpreters for any language requested.  The overall requirement was
divided into five parts--nationwide (NW)(all languages), and four
noncontiguous regions (primarily Spanish).
    
The RFP contemplated the award of up to five fixed-price,
indefinite-delivery, indefinite-quantity contracts for any combination of
the identified requirements for a base period, with 4 option years. 
Proposals were to be evaluated on the basis of two factors--technical
merit and price.  Technical merit was to be evaluated on the basis of six
subfactors, listed in descending order of importance--interpreter
recruitment, retention, and evaluation (35 points); quality assurance (20
points); past performance (15 points); management plan (15 points);
qualifications/experience (10 points); and small disadvantaged business
(SDB) participation (5 points).  In deciding which proposal represented
the best value, technical merit was significantly more important than
price.  A best value determination was to be made for each possible
combination (scenario) of services--nationwide, the four regions, or any
combination thereof.  With regard to making these best value decision(s),
the RFP provided that the total evaluated price would be the determining
factor where all proposals were considered substantially equal in
technical merit, but where there were significant differences in technical
merit, a more expensive proposal could be selected if the government
decided it was worth the price differential.  RFP S: M.1.2(b).
    
LSA and BGS were among the eight offerors submitting proposals, and (along
with two other offerors) both were included in the competitive range after
initial evaluations.  The agency conducted discussions with the
competitive range offerors and obtained revised proposals.  The evaluators
separately scored the proposals under each subfactor for each award
combination proposed and the technical evaluation panel (TEP) then
calculated a final, average consensus score for each proposal.  The
contracting officer then derived a technical score and price for each of
the 52 possible award combinations, which in instances involving multiple
awards, required the agency to calculate combined technical scores.[1]  
The final consensus evaluations for the top 12 technically ranked
scenarios, covering the four regions and NW were as follows:
    
    
    
    
    
    

   +------------------------------------------------------------------------+
|Tech|Scenarios: Offeror [Territory(ies)]         |Average|Combined Price|
|Rank|                                            |Score  |              |
|----+--------------------------------------------+-------+--------------|
|1   |BGS [NW] LSA [All Regions]                  |92.2   |$113,437,244  |
|----+--------------------------------------------+-------+--------------|
|2   |BGS [NW] LSA [Regs. 1,2,4] Off. 3 [Reg. 3]  |90.4   |[deleted]     |
|----+--------------------------------------------+-------+--------------|
|3   |BGS [NW + Reg. 4] LSA [Regs. 1,2,3]         |90.4   |[deleted]     |
|----+--------------------------------------------+-------+--------------|
|4   |BGS [NW + Regs. 1,4] LSA [Regs. 2, 3]       |90.1   |[deleted]     |
|----+--------------------------------------------+-------+--------------|
|5   |LSA [NW + Regs. 1,2,4] Off. 3 [Reg. 3]      |89.9   |[deleted]     |
|----+--------------------------------------------+-------+--------------|
|6   |LSA [NW + All Regions]                      |89.5   |$107,825,896  |
|----+--------------------------------------------+-------+--------------|
|7   |BGS [NW + Regs. 1,2,4] LSA [Reg. 3]         |89.5   |[deleted]     |
|----+--------------------------------------------+-------+--------------|
|8   |BGS [NW + Reg. 4] LSA [Regs.1,2] Off. 3     |89.4   |[deleted]     |
|    |[Reg. 3]                                    |       |              |
|----+--------------------------------------------+-------+--------------|
|9   |BGS [NW + Regs. 1,4] LSA [Reg. 2] Off. 3    |89.3   |[deleted]     |
|    |[Reg. 3]                                    |       |              |
|----+--------------------------------------------+-------+--------------|
|10  |BGS [NW] LSA [Regs.1,2] Off. 3 [Reg. 3] Off.|87.5   |[deleted]     |
|    |4 [Reg. 4]                                  |       |              |
|----+--------------------------------------------+-------+--------------|
|11  |BGS [NW] LSA [Reg. 2] Off. 3 [Reg. 3] Off. 4|86.6   |[deleted]     |
|    |[Regs. 1,4                                  |       |              |
|----+--------------------------------------------+-------+--------------|
|12  |BGS [NW + All Regions]                      |86.4   |$106,545,262  |
+------------------------------------------------------------------------+

    
In making its award recommendation, the TEP considered the strengths,
weaknesses, and risks attributable to each proposal, as well as the prices
for the 52 award scenarios.  The TEP concluded that LSA*s, BGS*s, and the
third offeror*s proposals were essentially equal based on proposal scores
ranging from the high 80*s to the low 90*s, and found that an award to BGS
for the entire requirement (the 12th scenario) represented the apparent
best value based on the fact that it was the lowest-priced scenario.  The
TEP conducted a further analysis to determine whether there were any
technical differences among the proposals that were not reflected in the
scores, and that would justify an award at a higher price.  Finding no
such differences, the TEP concluded that scenario 12, under which BGS
would perform the entire requirement, represented the best value.  The
source selection official agreed and awarded the contract to BGS.  After
receiving notice of the award and a debriefing, LSA filed this
protest.[2] 
    
BEST VALUE DETERMINATION
    
LSA asserts that the best value determination was flawed.  In LSA*s view,
the evaluation record does not support the agency*s finding that the top
12 scenarios were technically equivalent, and it therefore was improper to
make price the determining factor for the award decision. 
    
Source selection officials are vested with broad discretion to determine
the manner
and extent to which they will make use of evaluation results.  Resource
Mgmt. Int*l, Inc., B-278108, Dec. 22, 1997, 98-1 CPD P: 29 at 4.  Although
evaluation ratings are useful as guides, they do not mandate automatic
selection of a particular proposal.  PRC, Inc., B-274698.2, B-274698.3,
Jan. 23, 1997, 97-1 CPD P: 115 at 12.  Whether a given spread between two
competing proposals indicates a significant superiority of one proposal
over the other depends on the facts and circumstances of each procurement
and is primarily a matter within the discretion of the procuring agency. 
Resource Mgmt. Int*l, Inc., supra, at 4.  Where selection officials
reasonably regard proposals as being essentially equal technically, price
becomes the determining factor in making award, even where the evaluation
scheme assigned price less importance than technical factors.  Id.; The
Parks Co., B-249473, Nov. 17, 1992, 92‑2 CPD P: 354 at 4.
    
LSA*s assertions are without merit.  The record shows that the agency
reasonably evaluated the proposals as technically equal.  In this regard,
as noted, the agency recognized that the three highest-rated proposals--as
well as the 12 top-ranked award scenarios--were all scored in the high 80s
to low 90s, and concluded that those point differences simply were not
indicative of material technical differences.  Source Selection
Recommendation Report (SSRR) at 11.  For example, the highest-scored
scenario (scenario 1), under which BGS would perform the NW portion and
LSA all regions, had a combined score of 92.2 points, which was only 5.8
points higher than BGS*s score to perform the entire requirement (scenario
12).  The TEP noted that the cost of this multiple award scenario exceeded
the cost of BGS*s proposal by $6.9 million.  The scores were even closer
for the scenarios involving LSA or BGS alone performing the entire
requirement--89.5 points for LSA (scenario 6) and 86.4 points for BGS
(scenario 12), a difference of only 3.1 points. [3]  Under these
scenarios, award to LSA represented a price premium of some $1.2 million. 
(In addition, the evaluation record shows that, for the NW requirement
alone and the complete requirement scenarios, the consensus scores for
BGS*s proposal actually exceeded those for LSA*s under the most important
evaluation criterion, interpreter recruitment, retention, and evaluation.)
    
As indicated, the agency also considered the underlying basis for the
scores.  While LSA*s proposal had 36 identified strengths and BGS*s 26,
the TEP identified four risks posed by LSA*s proposal and only one risk
and two weaknesses posed by BGS*s.  The TEP considered these different
strengths, weaknesses, and risks in making its best value recommendation,
and concluded that, as the scores had indicated, the proposals were
technically equivalent.  SSRR at 3-4, 9-10.  Having made this
determination, and after finding no technical differences that would
justify the higher costs associated with other award scenarios, the TEP
concluded that an award under the lowest-priced of the technically
equivalent scenarios--BGS alone (scenario 12)--represented the best
value.  While LSA asserts that its proposal offered real benefits to the
agency over BGS*s at a minimal price premium, it does not identify any of
those alleged benefits but, rather, points only to the TEP*s description
of its proposal as *innovative,* *excellent,* *outstanding,* and
*comprehensive.*  LSA Comments at 10.  Having failed to identify any
particular benefit for which it did not receive credit or that would call
into question the agency*s determination of technical equivalence, LSA*s
assertions amount to mere disagreement with the agency*s conclusions,
which is not sufficient to establish that the best value determination was
unreasonable.  UNICCO Gov*t Servs., Inc., B‑277658, Nov. 7, 1997,
97-2 CPD P: 134 at 7.   
    
LSA asserts that the agency also erred because it did not conduct a
comparative analysis of each scenario before arriving at its award
determination.  LSA Comments at 10.  This assertion is without merit.  As
indicated by the above chart, the agency calculated a separate score for
each proposal and, where applicable, calculated an average score for
multiple award scenarios.  This process served to establish technical and
price measures that reflected the relative merits of the proposals and
scenarios.  The RFP provided that price would be the determining factor
where all proposals were considered substantially technically equal, and
that award would be made to an offeror with a more expensive proposal only
where the government determined that it offered technical advantages that
were worth the price differential.  RFP S: M.1.2(b)(1), (2).  Once the
agency determined that the top solutions were essentially technically
equal, price properly became the determining factor and eliminated any
need for any further comparative analysis of the different solutions. 
    
ADDITIONAL BEST VALUE REVIEW
    
As noted above, after concluding from the scores that the various proposal
scenarios were technically equivalent and that BGS*s lower-priced proposal
represented the best value, the TEP re-examined the proposals specifically
to determine whether there were any technical differences that would
justify selecting a different scenario at a higher price.  SSRR at 11. 
The TEP examined four proposal discriminators--transition and start-up
issues and associated risk; administrative oversight by the agency;
innovation and upside potential; and past performance and relevance of
past performance.  Id. at 12-17.  Based on this analysis, which identified
some proposal differences that favored LSA over BGS, the TEP concluded
that *[a]ny advantages presented by LSA . . . in the merit scoring and/or
the discriminator analysis . . . [were] insufficient to justify the price
differential and additional risks that selection would convey to [the
government].*  SSRR at 17.  LSA asserts that this analysis was flawed
because it duplicated matters already covered in the technical evaluation
and was otherwise not supported by the record. 
    
These assertions are without merit.  First, it is not surprising that the
discriminators *duplicated* matters, such as risk, which were considered
as part of the technical evaluation.  The discriminator analysis was not
intended as an additional technical evaluation; rather it was for the sole
purpose of further considering the existing evaluation record to determine
if there was any technical difference that would warrant paying a price
premium.  Under these circumstances, there was nothing unreasonable in the
agency*s again considering risk and other matters as part of this
discriminator analysis.
    
Further, we find nothing unreasonable or unsupported in the discriminator
analysis.  In this regard, while the agency identified some advantages to
LSA*s proposal, it found offsetting advantages in BGS*s proposal.  For
example, with regard to risk under the transition and start-up
discriminator, the TEP observed that BGS, with 2,983 qualified
interpreters in 252 languages, was in a better risk position than LSA to
quickly perform the NW requirement.  Specifically, the TEP noted that,
unlike BGS, LSA and the other non‑incumbent offerors would have to
adapt the existing infrastructure or, in some instances, create a new
infrastructure, and that LSA itself recognized the necessary transition
investment in its price proposal.  LSA asserts that the TEP*s analysis is
unsupported because its proposal showed capabilities comparable to
BGS*s--2,208 interpreters supplied in 2002-03 and a roster of 3,161
telephonic and on-site interpreters representing 172 languages.  However,
LSA*s proposal indicates that the 2,208 interpreters represented the total
number of interpreters used in a year--from 59 in 1 month to 250 in
another.  LSA Comments, exh. 5.  Therefore, this total did not necessarily
represent the total number of interpreters LSA could furnish to perform
this contract.  Further, while LSA*s roster of interpreters exceeded the
number of BGS interpreters, some unidentified number of those interpreters
represent telephonic, as opposed to on‑site, interpreters; although
the requirement here calls for telephonic interpreter capability, we note
that the majority of the requirement is for on-site interpreters.[4]  The
TEP also identified as a risk the fact that the scope of LSA*s past
performance involved telephonic versus on-site work.  TEP Report at 11. 
In our view, these considerations support the TEP*s determination that
there was more risk associated with LSA*s transition than with BGS*s under
this discriminator.  Accordingly, we have no basis to question the
agency*s conclusion that there were no technical advantages to LSA*s
proposal (or scenarios under which LSA would receive one of multiple
awards)
sufficient to warrant paying a price premium over the BGS solution
selected for award. 
    
The protest is denied.
    
Anthony H. Gamboa
General Counsel
    
    

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

   [1] For example, the score of top-ranked scenario 1, involving multiple
awards to LSA and BGS, was calculated by averaging LSA*s score (94.1) with
BGS*s (90.3), which yielded a combined score of 92.2; the agency then
added the price for LSA*s portion of the work [deleted] to the price for
BGS*s portion [deleted], which resulted in a total price of $113 million. 
[2] LSA raises a number of arguments.  We have reviewed them all and find
that none has merit.  This decision addresses the more significant issues
raised.
[3] According to the agency, the offerors* proposal scores were even
closer, because the contracting officer deducted one point from BGS*s SDB
participation score due to erroneous information provided by the Small
Business Administration regarding the SDB status of one of BGS*s
subcontractors.  After award, and prior to the filing of this protest, BGS
submitted documentation establishing the subcontractor*s SDB status. 
Agency Report at 7, n.5.  When properly calculated, the difference in
scores for the entire requirement for BGS (scenario 12) and LSA (scenario
6) was 2.1 points.
[4] For example, for evaluation purposes, offerors on the NW requirement
for on-site common languages interpreters provided pricing for 55,000
hours, 17,000 half-days, 3,500 days, 4 weeks, and 2 months, but only 1,700
hours for telephonic common languages interpreters.  RFP, attach. 1.