TITLE:  Grove Resource Solutions, Inc., B-296228; B-296228.2, July 1, 2005
BNUMBER:  B-296228; B-296228.2
DATE:  July 1, 2005
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   Decision

   Matter of: Grove Resource Solutions, Inc.

   File: B-296228; B-296228.2

   Date: July 1, 2005

   Deborah M. Grove for the protester.

   Robert J. McMullen, Esq., Department of the Navy, for the agency.

   John L. Formica, Esq., and Guy R. Pietrovito, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1.  Agency's inclusion of the awardee's proposal in the competitive range
even though the proposal was unacceptable as submitted was reasonable
under the circumstances; the exclusion of technically unacceptable
proposals from the competitive range, while permissible, is not required.

   2.  Agency's price realism analysis of the awardee's proposal was
reasonable where the agency determined that the labor rates proposed by
the awardee were, among other things, similar to those listed for similar
labor categories on the awardee's and other vendors' federal supply
schedule contracts, and were sufficient to provide acceptable personnel.

   DECISION

   Grove Resource Solutions, Inc. protests the award of a contract to
Evolvent Technologies, Inc. under request for proposals (RFP) No.
N00140-05-R-0003, issued by the Department of the Navy for telemedicine
engineering and technical support services for the Naval Medical
Information Management Center, Bethesda, Maryland.  Grove argues that the
agency's evaluation of Evolvent's proposal and selection of it for award
were unreasonable.

   We deny the protest.

   The RFP provided for the award of a time-and-materials contract for a base
period of 6-months with four 1-year options.  RFP at 23.  A statement of
work (SOW) described the services to be provided and stated that the
contractor would be required to furnish the following staff positions:  a
project manager/telemedicine systems engineer, a telemedicine systems
engineer--Naval Medical Information Management Center Telemedicine
Operations Help Desk Support, and a principal analyst.  For each of these
positions, the SOW described a "specific skill set" that the personnel was
required to have.  For example, the project manager/telemedicine systems
engineer position was required to have, among other things, "military
acquired Knowledge and Experience or appropriate accredited Degree,"
"Military Clinical Medical and Dental Experience or equivalent" and
"Telemedicine systems expertise."  RFP amend. 4 at 5-6.

   The solicitation stated that award would be made to the offeror submitting
the proposal determined to represent the best value to the government and
that the technical or non-price evaluation factors combined were more
important than price.  The RFP listed the following technical or non-price
evaluation factors:  technical approach; corporate experience; past
performance; and extent of participation of small businesses, small
disadvantaged businesses, women-owned small businesses, and historically
black colleges or universities and minority institutions in performance of
the contract.[1]  RFP at 48.  The RFP provided with regard to price that
"[u]nrealistic rates, as determined by the contracting officer, may also
be considered in risk assessment and the offeror's overall proposal may be
downgraded."  RFP at 49.  In addition, the RFP incorporated by reference
Federal Acquisition Regulation (FAR) Section 52.222-46, Evaluation of
Compensation for Professional Employees, which provides for an assessment
of each offeror's ability to provide uninterrupted, high-quality work,
considering the realism of the proposed professional compensation and its
impact upon recruiting and retention.  See Engineering & Env't, Inc.,
B-271868.3, Sept. 3, 1996, 96-2 CPD paragraph 182 at 7; Planning Sys.
Inc., B-246170.4, Dec. 29, 1992, 92-2 CPD paragraph 445 at 2.

   The RFP included detailed instructions for the preparation of technical
and price proposals, and required, with regard to price, that the offerors
complete the price schedule set forth in the solicitation.  The price
schedule included, among other things, separate contract line items (CLIN)
for three staff positions (project manager/telemedicine systems engineer,
telemedicine systems engineer, and principal analyst), and an estimated
number of hours for each position.  For example, CLIN 0001AA listed the
position of project manager/telemedicine systems engineer, with an
estimated level of effort of 920 hours for the base period of the
contract, and offerors were required to insert a unit price per hour and
an extended price based upon the RFP's estimated level of effort of 920 
hours.  RFP at 3; RFP amend. 2 at 5.  The RFP also advised that "[t]he 
offeror's price/cost proposal shall support the offeror's technical 
proposal," and that "[i]f the price/cost proposal does not support 
the technical proposal, the offeror's overall proposal rating may 
be downgraded."  RFP at 48.

   The agency received eight proposals by the RFP's closing date.  The
proposal submitted by Grove, the incumbent contractor, was evaluated as
"highly acceptable" overall at an evaluated price of $2,546,162, and
Evolvent's proposal was evaluated as "acceptable" overall at an evaluated
price of $1,591,680.[2]  Agency Report (AR),
Tab 12, Technical Proposal Evaluation Report (TPEP), at 2; Tab 13,
Contract Review Board Presentation, at 4, 7, Tab 14, Contracting Officer's
Determination of the Competitive Range, at 1.  The proposals of only Grove
and Evolvent were included in the competitive range.

   Discussions were conducted, and revised proposals were requested and
received.  Grove's revised proposal was evaluated as "highly acceptable"
at an evaluated price of $2,546,162, and Evolvent's revised proposal was
evaluated as "acceptable" at an evaluated price of $1,526,016.  AR, Tab
20, Source Selection Decision, at 4.  Evolvent's proposal was selected for
award as representing the best value to the government, and after
requesting and receiving a debriefing, Grove filed this protest.

   Grove argues that the agency acted improperly in including Evolvent's
proposal in the competitive range.  The protester states that Evolvent's
initial proposal failed to acknowledge two material amendments to the
solicitation and was thus unacceptable as submitted.  Grove also argues
that Evolvent's proposal was unacceptable because the firm's proposed
labor rates were unrealistically low such that Evolvent would be unable to
provide staff that satisfies the contract requirements.[3]  Comments at
2-3; Supplemental Protest at 5.

   The determination of whether a proposal is in the competitive range is
principally a matter within the sound judgment of the procuring agency. 
Dismas Charities, Inc., B-284754, May 22, 2000, 2000 CPD paragraph 84 at
3.  While exclusion of technically unacceptable proposals is permissible,
it is not required.  Albert Moving & Storage, B-290733, B-290733.2, Sept.
23, 2002, 2003 CPD paragraph 8 at 6.  The significance of the weaknesses
and/or deficiencies in an offeror's proposal, within the context of a
given competition, is a matter for which the procuring agency is, itself,
the most qualified entity to render judgment.  Our Office will review that
judgment only to ensure it was reasonable and in accord with the
solicitation provisions, and a protester's mere disagreement with an
agency's judgment does not establish that the judgment was unreasonable. 
Id.

   Contrary to the protester's view, there is nothing under the circumstances
here that required the exclusion of Evolvent's proposal from the
competitive range.  As mentioned above, there is no requirement that an
agency exclude a proposal that is technically unacceptable as submitted. 
Here, the record includes a relatively detailed analysis of the agency's
decision to include Evolvent's proposal in the competitive range (as well
as the agency's decision to exclude the proposals of other offerors).  
See AR, Tab 13, Contract Review Board Presentation, at 16-17; Tab 14,
Contracting Officer's Determination of the Competitive Range.  The agency
recognized that Evolvent would need to acknowledge its receipt of the
amendments in order for its proposal to comply with the terms of the RFP. 
Moreover, the agency also recognized that Evolvent's proposed labor rates
were significantly lower than those proposed by Grove (the other
competitive range offeror) and concluded that Evolvent should be requested
to provide price information that would allow the agency to assess the
realism of the firm's proposed labor rates.  See AR, Tab 13, Contract
Review Board Presentation, at 15, 17.  A fundamental purpose in conducting
discussions is to determine whether deficient proposals are reasonably
susceptible of being made acceptable.  See Aviate L.L.C., B-275058.6,
B-275058.7, Apr. 14, 1997, 97-1 CPD paragraph 162 at 8.  There is simply
no evidence in the record here to show that the agency unreasonably
concluded that Evolvent's proposal would have reasonable chance of being
selected for award if the firm received discussions concerning its
proposal.  We conclude that the Navy reasonably included Evolvent's
proposal in the competitive range.

   Grove also protests that Evolvent's revised prices could not reasonably
have been found realistic by the agency, arguing that "Evolvent's total
contract costs are so low and unrealistic, that it brings into question
whether they can staff the contract with individuals with the skills,
experience and Functional Area Management knowledge as called for in the
SOW, to perform adequately on this contract."  Protest at 4.

   Although agencies are required to perform some sort of price or cost
analysis on negotiated contracts to ensure that proposed prices are fair
and reasonable, where, as here, the award of a fixed-price contract is
contemplated, a proposal's price realism is not ordinarily considered,
since a fixed-price contract places the risk and responsibility for
contract costs and resulting profit or loss on the contractor.  However,
an agency may, as it did here, provide in the solicitation for a price
realism analysis for such purposes as measuring an offeror's understanding
of the solicitation requirements, or to avoid the risk of poor performance
from a contractor who is forced to provide goods or services at little or
no profit.  The depth of an agency's price realism is a matter within the
sound exercise of the agency's discretion.  Citywide Managing Servs. of
Port Washington, Inc., B-281287.12, B-281287.13, Nov. 15, 2000, 2001 CPD
paragraph 6 at 4-5.  In reviewing protests challenging price realism
evaluations, our focus is whether the agency acted reasonably and in a way
consistent with the terms of the solicitation.

   The agency posed written questions to Evolvent during discussions
regarding, among other things, its proposal as evaluated under the
technical approach factor and its prices as set forth in its completed
schedule.  According to the agency, "in order to ensure that Evolvent's
price [was] realistic," it "requested that [Evolvent] provide a breakdown
of [its] proposed labor-hour rates" and "provide contract references,
including any [General Services Administration] contracts, where
comparable labor-hour rates were charged for comparable labor
categories."  AR, Tab 13, Contract Review Board Presentation, at 15; Tab
15, Agency Discussion Letter to Evolvent, at 2.

   Evolvent responded to the agency's request by providing a price schedule
for its Federal Supply Schedule (FSS) contract, copies of invoices showing
certain position descriptions, such as "systems analyst" and "systems
engineer," as well as the hours billed and billing rate for each position,
and detailed cost breakdowns showing, for example, its overhead pool
including its overhead labor, facilities allocation, and fringe benefits,
as well as its calculated overhead rate.  AR, Tab 16, Evolvent Proposal
Revisions.  Evolvent also provided detailed information regarding the
various accounts that comprise its general and administrative rate (G&A),
as well as its calculated G&A rate.  Id.

   The agency reviewed this information, and found, among other things, that
Evolvent's proposed hourly rate for "Telemedicine Systems Engineers"
represented a reasonable discount from Evolvent's established FSS rate for
a systems engineer.  AR, Tab 21, Post-Negotiation Contract Review Board
Presentation, at 7.  In performing its price analysis, the agency also
compared Evolvent's proposed rates to the FSS rates of other vendors, as
well as the rates proposed by other offerors for this RFP, and determined
that "[t]his sampling of roughly similar labor categories demonstrates
that Evolvent's pricing is in line with a number of other providers of
professional services."  Id. at 8.  The agency ultimately concluded that
"given the existence of Evolvent's GSA pricing, as well as that of several
other providers which is within reasonable margins of the proposed
Evolvent prices . . . Evolvent's price proposal as revised by the [final
proposal revision] is realistic."  Id.  The agency concluded that Evolvent
could successfully complete this effort with the labor prices Evolvent
proposed.

   The protester challenges the agency's determination that Evolvent's
pricing was realistic by repeatedly arguing that Grove as the incumbent
contractor has better understanding of the personnel requirements of the
solicitation than either Evolvent or the Navy, and that Evolvent's pricing
cannot be realistic because it is approximately 40 percent lower than
Grove's.  Protest at 2, 3; Protester's Comments at 7, 8.  The protester
also argues that the agency's reliance in part on the FSS rates of
Evolvent and other vendors in performing its price realism analysis was
"not appropriate or consistent with the Solicitation terms."  Comments at
7.  Specifically, the protester complains that the FSS labor categories
reviewed by the agency "cover[ed] the broad category of Information
Technology Services," rather than the specific positions set forth in the
solicitation of telemedicine systems engineer, lead systems engineer, and
systems engineer.  Id. at 7-8.

   As set forth above, Evolvent's revised proposal included detailed cost and
pricing information that was reviewed by the agency in performing its
price realism analysis.  In determining that Evolvent's pricing was
realistic, the record reflects that the agency, among other things,
compared the rates proposed by Evolvent to the rates for similar positions
included on Evolvent's FSS contract as well as the FSS contracts of other
vendors, and found that the rates proposed were comparable and thus
realistic.  The methodology used by the agency here--the comparison of the
rates proposed by Evolvent with the FSS prices of Evolvent and other
vendors--is consistent with certain of the price analysis techniques set
forth in the FAR.  See FAR Section 15.404-1(b)(2)(iv) (comparison with
competitive published price lists) and (vi) (comparison with prices
obtained through market research for the same or similar items).

   In this regard, we note that both the FAR and our Office recognize that an
agency may use prices for the same or similar items or services in
determining whether the price for an offered item or service is
realistic.  See FAR Section 15.404-1(b)(2)(iv) (examples of price analysis
techniques include the comparison of previously proposed prices and
previous government or commercial contract prices with current proposed
prices for the same or similar items); Information Spectrum, Inc.,
B-256609.3, B-256609.5, Sept. 1, 1994, 94-2 CPD paragraph 251 at 8
(agency's use of the salaries of comparable civil service employees to
assess the realism of a private sector offeror's proposed salaries was
reasonable).  Given that Grove has provided no substantive or detailed
explanation as to why the agency's determination that systems engineers
are "roughly similar" to telemedicine systems engineers was unreasonable,
and the apparent reasonableness of the agency's view given the similarity
of the position titles, we believe it was within the agency's discretion
to use Evolvent's and certain other vendors' FSS rates for systems
engineers as a tool in its price realism analysis.

   Additionally, the record reflects that the agency did consider the prices
proposed by Grove in its price realism analysis of Evolvent's proposal,
and that it was the large difference between the prices proposed that led
to the agency's request during discussions that Evolvent submit cost and
pricing information to allow the agency to better assess the realism of
Evolvent's prices.  The fact that Evolvent's prices were lower than
Grove's does not alone provide a basis for rejecting or downgrading
Evolvent's proposal here; there is no requirement that the agency base its
price realism analysis on a comparison of the prices proposed with the
incumbent contractor's proposed pricing.  Science & Mgmt. Res., Inc.,
B-291803, Mar. 17, 2003, 2003 CPD paragraph 61 at 3.  Agencies have
discretion in determining whether an offeror's proposed prices are
realistic, and as explained above, are free to use a number of techniques
in assessing price realism.

   In our view, the agency reasonably satisfied its obligation under the FAR
and the RFP to perform a price realism evaluation, and Grove's mere
disagreement with how the agency conducted its price realism analysis for
these requirements and the agency's ultimate conclusion that Evolvent's
prices were realistic does not establish that the agency's evaluation of
the realism of proposed prices or its conclusion that Evolvent's labor
rates were sufficient to provide acceptable personnel was
unreasonable.[4] 

   Grove also protests that the agency improperly "continued discussions with
Evolvent after the close of discussions with other offerors."  Comments at
8.

   The record reflects that the agency contacted both offerors by telephone
and forwarded written discussion letters to both offerors on February 24,
2005.  AR, Tabs 15 and 17, discussion Letters to Evolvent and Grove. 
These letters stated, among other things, that "discussions are now
completed," and that the offerors' proposal revisions in response to the
discussions were to be submitted to the agency by March 3.  Id.  The
protester points out that on February 28, 2005--4 days after both Grove
and Evolvent had received written discussion letters, but before the due
date of March 3 for the submission of revised proposals--the agency
communicated with Evolvent by e-mail.  Specifically, the record includes a
copy of an e-mail from the agency to Evolvent stating that the agency
would "like to see some breakdown of [Evolvent's] loaded labor rates
(basic direct labor rates, plus fringes and profit) along with your final
price revisions."  Supplemental Protest, attach., Navy's E-mail to
Evolvent (Feb. 28, 2005).  The agency explained here that this information
would "assist [in the agency's] price evaluation."  Id.

   By way of clarification, we note that the agency's communications with
Evolvent on February 28 cannot be considered or otherwise characterized as
post-final revised proposal discussions, given that the communication
occurred prior to the submission of revised proposals.  Additionally, the
record reflects that the agency's communication of February 28 was in
essence a reiteration of the agency's previous request during discussions
that Evolvent "provide a breakdown of [its] proposed labor-hour rates." 
AR, Tab 15, Agency Discussion Letter to Evolvent (Feb. 24, 2005), at 2. 
We thus see no impropriety.  Further, we fail to see, and Grove has not
explained, how it was prejudiced by the agency's repetition of its written
discussions to Evolvent 4 days later.  See Saberliner Corp., B-290515.4,
Nov. 20, 2002, 2003 CPD paragraph 10 at 6 (prejudice is an element of
every viable protest, and our Office will not sustain a protest unless the
protester demonstrates a reasonable possibility that it was prejudiced by
the agency's actions, that is, unless the protester demonstrates that but
for the agency's actions, it would have had a reasonable possibility of
receiving award).

   In this regard, Grove only complains with regard to the discussions it
received that the agency acted improperly in that it "did not inform
[Grove] of the true nature of the competition during discussions--that it
would award on the basis of low cost, technically acceptable offer." 
Supplemental Comments at 6.  The protester raises this argument in the
context of its contention that the agency had in fact converted the
solicitation to one where the award would be made to the offeror
submitting the lowest priced, technically acceptable proposal; Grove
argues that the agency "should have discussed the fact that [Grove's]
price was too high and its proposal exceeded mandatory minimums and would
be more competitive if its excesses were removed."  Id. at 7.  The
protester contends that to the extent that the agency adhered to the best
value award basis announced in the RFP, its selection of Evolvent's
lower-priced, lower-rated proposal was unreasonable because the record
allegedly did not show that the agency "did any trade off evaluating the
Evolvent proposal versus the additional pluses in the [Grove] proposal." 
Supplemental Comments at 11.

   The record does not support the protester's assertion that the agency
effectively converted the RFP to one where award would be made to the
offeror submitting the lowest-priced, technically acceptable proposal, or
that the agency did not perform a best value analysis in selecting
Evolvent's proposal for award.  Rather, the record includes a source
selection decision memorandum, wherein the agency specifically considered
the evaluated strengths of Grove's proposal and their impact on contract
performance.  For example, the source selection official noted under the
most important evaluation factor of technical approach as follows:

   [Grove] was rated [highly acceptable] because it provided an in-depth
explanation of how it anticipates performing each section of the SOW which
demonstrated a thorough knowledge of the work and would lead to a seamless
transition with virtually no risk, cost of re-work, or ramp-up.  Evolvent
was [acceptable] in that it submitted a tech approach that reflects a
satisfactory understanding of the solicitation's requirements, and a good
understanding of telemedicine, teleradiology, and Picture Archive and
Communications systems.  The Contracting Officer has determined that while
[Grove's] tech approach would represent a benefit to the Navy, that
benefit would not approach the 40% difference in price. 

   AR, Tab 20, Source Selection Decision Memorandum, at 5.  This memorandum
compares the relative strengths of Grove's and Evolvent's proposals under
each of the evaluation factors set forth in the RFP, and whether the
advantages associated with Grove's higher-rated proposal were worth the
difference in price.  The agency concluded that although Grove's proposal
presented a number of advantages, it was not worth the difference in price
over Evolvent's lower-rated, lower-priced proposal.

   In our view, the agency's source selection decision was reasonable, and
demonstrates that the agency did not abandon the stated best value award
scheme in selecting Evolvent's proposal for award.[5]  Although Grove
clearly disagrees with the agency's judgment, it has not shown it to be
unreasonable.  Accordingly, Grove's complaint that the agency failed
during discussions to inform Grove that award would be made to the offeror
submitting the lowest-priced, technically acceptable proposal is without
merit, as is Grove's complaint that the agency's best value analysis was
not reasonably based or supported by the record.

   The protest is denied.

   Anthony H. Gamboa

   General Counsel

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

   [1] As to the relative importance of these factors, the RFP stated that
technical approach was the most important factor, followed by the
corporate experience and past performance factors, which were equal to
each other in importance, and then the extent of participation of small
businesses, small disadvantaged businesses, women-owned small businesses,
and historically black colleges or universities and minority institutions
in performance of the contract factor, which was said to be significantly
less important than the preceding factors.

   [2] Our discussion in this decision is necessarily general because a
protective order was not issued in connection with this protest.

   [3] Grove also appears to challenge the inclusion of Evolvent's proposal
in the competitive range on the basis that the agency "had difficulty
confirming Evolvent's past performance."  Comments at 3.  This argument
does not provide any basis to question the agency's determination to
include Evolvent's proposal in the competitive range.  In any event, the
record establishes that the agency was able to contact two of Evolvent's
four references and determined that Evolvent's past performance was
acceptable.  AR, Tab 12, TPEP, at 10-11.

   [4] Although unclear, it appears that the protester may be arguing (in the
context of the agency's price realism assessment) that the agency's
evaluation of Evolvent's technical proposal was flawed in that the agency
did not perform a "qualitative review to distinguish between the technical
superiority of the staffing offered by one offeror over another." 
Comments at 5.  As set forth above, the record establishes that the agency
met its obligations under the solicitation to evaluate the offerors'
proposed prices.  While it is unclear as to what aspect of the agency's
technical evaluation Grove believes is flawed, or under what particular
evaluation factor or subfactor that aspect of evaluation would fall, we
note that the record establishes that the agency did perform a qualitative
evaluation of proposals received, as evidenced by the record of the
evaluation and the fact that Grove's proposal received a rating of "highly
acceptable" under the technical approach factor while Evolvent's proposal
received the lower rating of "acceptable" under the same factor.

   [5] In any event, to the extent that Grove is arguing that it was not
afforded meaningful discussions with regard to relatively high prices, we
note that where, as here, an offeror's price is high in comparison to
competitors' prices, the agency may, but is not required to, address the
matter during discussions.  Hydraulics Int'l, Inc., B-284684, B-284684.2,
May 24, 2000, 2000 CPD paragraph 149 at 17; see FAR Sections 15.306(d)(3),
(e)(3). Accordingly, if an offeror's price is not so high as to be
unreasonable and unacceptable for contract award, the agency may
reasonably conduct meaningful discussions without advising the
higher-priced offeror that its prices are not competitive.  MarLaw-Arco
MFPD Mgmt., B-291875, April 23, 2003, 2003 CPD paragraph 85 at 6.  Here,
since the agency determined that the prices for Grove's proposal were fair
and reasonable considering its proposed approach, we do not find that
Grove's discussions on this point were not meaningful.