TITLE: B-296355, Burns and Roe Services Corporation, July 27, 2005
BNUMBER: B-296355
DATE: July 27, 2005
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B-296355, Burns and Roe Services Corporation, July 27, 2005

   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: Burns and Roe Services Corporation

   File: B-296355

   Date: July 27, 2005

   Kenneth B. Weckstein, Esq., and Constance A. Wilkinson, Esq., Epstein
   Becker & Green, PC, for the protester.

   William A. Roberts III, Esq., Richard B. O'Keeffe, Jr., Esq., and Joseph
   E. Ashman, Esq., Wiley Rein & Fielding LLP, for Del-Jen International
   Corporation, an intervenor.

   Richard G. Welsh, Esq., Ken Wilson, Esq., and Robert E. Little, Jr., Esq.,
   Naval Facilities Engineering Command, for the agency.

   Linda C. Glass, Esq., and Michael R. Golden, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest that agency's evaluation and source selection decision were flawed
   is denied where the record shows that the agency's evaluation and source
   selection decision were reasonable and consistent with the solicitation's
   evaluation factors.

   DECISION

   Burns and Roe Services Corporation (BRSC) protests the award of a contract
   to Del-Jen International Corporation (DJIC) under request for proposals
   (RFP) No. N62470-03-R-4200, issued by the Department of the Navy for base
   support services for the United States Naval Base at Guantanamo Bay, Cuba.
   BRSC primarily objects to the agency's technical evaluation of the BRSC
   and DJIC proposals and maintains that the agency failed to perform a
   proper price realism analysis of DJIC's proposal.

   We deny the protest.

   BACKGROUND

   The solicitation was issued on August 11, 2004 for the award of a
   combination fixed-price/indefinite-quantity award fee contract for a base
   year with four 1-year option periods. The contractor is to provide all
   labor, supervision, tools, materials, equipment and transportation
   necessary to provide base support services.

   The RFP provided that the award would be made on the basis of the proposal
   determined to represent the best value to the government. The RFP stated
   that technical proposals would be evaluated to determine whether the
   offeror possessed the capability to successfully perform the requirements,
   and listed four equally weighted technical evaluation factors--past
   performance, corporate experience, management and project staffing, and
   technical approach/method. RFP sect. M.2. The RFP provided that the
   technical factors combined were approximately equal to price/cost. Id.
   Offerors were further advised that price proposals would be evaluated to
   determine reasonableness and realism of price, as well as to determine
   whether the proposed pricing demonstrated an understanding of the work and
   an ability to perform the contract. The RFP stated that the agency would
   consider the results of any or all of the following types of analysis in
   evaluating price: comparison of proposed prices received in response to
   the solicitation, comparison of proposed prices with independent
   government estimates, comparison of proposed prices with available
   historical information, and information/reports obtained from other
   agencies. Id.

   The agency received five proposals by the closing date. The technical
   evaluation board (TEB) evaluated the technical proposals and a price
   evaluation board (PEB) evaluated the price proposals. As a result of the
   initial evaluation by the TEB, BRSC's technical proposal was ranked first
   and DJIC's was ranked third. Agency Report (AR), Tab 7, Technical
   Evaluation Board Report at 8. BRSC was ranked first based on ratings of
   very good under the past performance, management and project staffing, and
   technical approach/method factors, and satisfactory under the corporate
   experience factor, resulting in a very good overall technical rating and a
   low overall risk rating. DJIC was ranked third based on ratings of very
   good under the past performance and management and project staffing
   factors, and satisfactory under the corporate experience and technical
   approach/method factors, resulting in a satisfactory overall technical
   rating and a moderate overall risk rating.

   The source selection board (SSB), after reviewing the TEB report, PEB
   report and all proposals, agreed with the TEB evaluations with the
   exception of the rating under the corporate experience factor for DJIC.
   The TEB rated DJIC satisfactory for corporate experience because in its
   view, DJIC's proposal did not indicate refuse collection experience
   required under the RFP. Id. at 10. The SSB rated DJIC very good for
   corporate experience because the SSB determined that the information
   provided by DJIC under the past performance factor, should also be
   considered under the corporate experience factor, even though it was not
   specifically furnished under that factor, since the past performance
   information also identified DJIC's experience. AR, Tab 10, SSB Memo to
   Source Selection Authority (SSA), at 2. As a result of the SSB's rating
   for DJIC under corporate experience, DJIC's overall technical rating
   increased to very good and the risk factor was now evaluated as low risk.

   The SSB recommended that only the proposals of BRSC and DJIC be included
   in the competitive range. Id. at 3. The SSA subsequently determined that
   the competitive range should consist of the four proposals rated
   satisfactory or higher. AR, Tab 11, Amended SSB Report.

   Discussions were held with all competitive range offerors and revised
   proposals were received on February 18, 2005. The results of the
   evaluation of the revised proposals by the TEB and PEB were as follows:

+------------------------------------------------------------------------------+
|     Evaluation Factors     |          DJIC          |          BRSC          |
|----------------------------+------------------------+------------------------|
|      Past Performance      |       Very Good        |       Very Good        |
|----------------------------+------------------------+------------------------|
|    Corporate Experience    |       Very Good        |      Satisfactory      |
|----------------------------+------------------------+------------------------|
|   Management & Staffing    |       Very Good        |       Very Good        |
|----------------------------+------------------------+------------------------|
|     Technical Approach     |      Satisfactory      |      Exceptional       |
|----------------------------+------------------------+------------------------|
|       Overall Rating       |      Satisfactory      |       Very Good        |
|----------------------------+------------------------+------------------------|
|        Risk Rating         |        Moderate        |          Low           |
|----------------------------+------------------------+------------------------|
|           Price            |      $41,927,813       |       $[DELETED]       |
+------------------------------------------------------------------------------+

   AR, Tabs 16 and 17.

   The SSB reviewed the ratings of the TEB and PEB and again made adjustments
   to the technical ratings. Specifically, with respect to DJIC, under the
   technical approach/method evaluation factor, the SSB rated DJIC's proposal
   as very good based on its determination that the TEB had concluded
   incorrectly and without support that DJIC's proposed staffing was
   inadequate to perform some of the work and that DJIC had not explained its
   proposed staffing efficiencies based on the [DELETED]. The SSB found that
   DJIC had increased its staffing in response to the discussion questions.
   The SSB also found that DJIC's revised proposal addressed DJIC's approach
   to obtaining staffing efficiencies through the [DELETED]. In addition,
   contrary to the TEB's view, the SSB found that DJIC had clearly defined
   the indefinite- delivery/indefinite-quantity (IDIQ) process to be used
   under this contract. As a result, the SSB increased DJIC's rating for the
   technical approach/method factor to very good, changed DJIC's risk rating
   from moderate to low and increased its overall technical rating from
   satisfactory to very good. AR, Tab 18, SSB Report, at 2.

   With respect to BRSC, for the corporate experience evaluation factor, the
   SSB disagreed with the TEB conclusion that BRSC had no relevant experience
   with providing base support vehicles and equipment services, and changed
   BRSC's rating from satisfactory to very good. The SSB concluded that BRSC
   currently maintains all vehicles and equipment under various current
   contracts, and determined that this work is similar to the vehicles and
   equipment functions required by this solicitation. The SSB also changed
   the rating for BRSC under the technical approach factor from exceptional
   to very good. The SSB did not agree that the three significant strengths
   identified by the TEB were enough to substantiate an exceptional rating
   for BRSC under the technical approach/method factor. In the SSB's opinion,
   the strengths, such as the proposed [DELETED] and the proposal to
   [DELETED], did not provide any significant benefit to the Navy. Id. at 3.

   The SSB determined that DJIC's price proposal, although $[DELETED] lower
   than BRSC's total price, was fair and reasonable based on a comparison to
   BRSC's price proposal. The SSB concluded that differences in technical
   approach accounted for approximately $[DELETED] which indicated that "the
   proposals are within $[DELETED] [million], or less than [DELETED] of each
   other." AR, Tab 18, SSB Report at 4. Since the other two competitive range
   offerors were significantly higher priced than either DJIC or BRSC, the
   SSB recommended that those two proposals not be further considered for
   award. The SSB determined that the DJIC's and BRSC's proposals, which each
   received very good ratings for each of the four technical factors, were
   technically equal. Based on DJIC's low cost, the SSB recommended award to
   DJIC because its proposal represented the best value to the Government.
   Id. at 5. The SSA agreed with the SSB, concluding that DJIC and BRSC "are
   technically rated equal with a very good rating" and that "[BRSC's]
   proposal offers no added value to the Government to justify the additional
   $[DELETED]." AR, Tab 19, Business Clearance Memorandum, at 11. Award was
   made to DJIC on April 12, 2005. After receiving a debriefing, BRSC filed
   this protest with our Office on April 28, 2005.

   ISSUES AND ANALYSIS

   The protester alleges that the agency misevaluated the BRSC and DJIC
   proposals.

   In reviewing an agency's evaluation, we will not reevaluate proposals, but
   instead will examine the agency's evaluation only to ensure that it was
   reasonable and consistent with the solicitation's stated evaluation
   criteria and with procurement statutes and regulations. See MAR, Inc.,
   B-246889, Apr. 14, 1992, 92-1 CPD para. 367 at 4. An offeror's mere
   disagreement with the agency's evaluation does not render the evaluation
   unreasonable. McDonnell Douglas Corp., B-259694.2, B-259694.3, June 16,
   1995, 95-2 CPD para. 51 at 18.

   Evaluation of DJIC's Proposal

   The protester maintains that the agency improperly gave DJIC credit for
   remote overseas experience under the past performance and corporate
   experience factor, because the only DJIC overseas contract experience was
   in Alaska and Hawaii, locations which are not comparable to the "hostile
   environment" in Cuba. Protester's Comments to Agency Report at 7.

   The RFP, however, did not require offerors to have past performance or
   corporate experience at remote, hostile or overseas locations. Under the
   past performance and corporate experience evaluation factors, offerors
   were to identify each contract performed during the past 3 years which
   were "similar in complexity (i.e., type of work, size (contracts in excess
   of $5,000,000 per year) and volume) as required by this solicitation." RFP
   para. L.9.c.[1] The TEB rated DJIC's revised proposal very good for the
   past performance and corporate experience factors based on its
   determination that DJIC provided references of past performance on
   contracts that were similar in scope, size, and complexity to the current
   requirement, and for which it received ratings justifying a very good
   rating. While the protester disagrees with these ratings, the record shows
   that they were reasonable and consistent with the solicitation.

   The protester next challenges the SSB's decision to increase DJIC's
   ratings. The protester argues that even after revised proposals were
   submitted, the TEB still had concerns about DJIC's overall staffing and
   assigned DJIC's proposal a satisfactory rating for technical
   approach/method, and that the SSB's revision of this rating to very good
   based on DJIC's discussion in its revised proposal was unreasonable.

   Source selection officials have broad discretion in determining the manner
   and extent to which they will make use of technical and cost evaluation
   results, subject only to the tests of rationality and consistency with the
   evaluation criteria. KPMG Consulting LPP, B-290716, B-290716.2, Sept. 23,
   2002, 2002 CPD para. 196 at 13. Here, as explained below, the SSB's
   decision to revise upward DJIC's ratings under the technical
   approach/method factor, and the overall technical and risk ratings, in our
   view, was reasonable, supported by the record, and consistent with the
   evaluation criteria.

   The SSB reports that it conducted an in-depth review of the revised TEB
   and PEB evaluations, offerors' responses to discussion questions, and the
   offerors' revised proposals. With respect to DJIC, the SSB agreed with the
   TEB with respect to the first three evaluation factors. However, as
   previously stated, with respect to the technical approach/method factor,
   the SSB found the TEB concerns about inadequate staffing to be
   unsupported. The SSB found that DJIC had increased reasonably its staffing
   in the areas of concern identified during discussions. The SSB also noted
   that DJIC, in various parts of its revised proposal, specifically
   discussed the proposed efficiencies gained through [DELETED] . The SSB
   also found that DJIC had clearly addressed another discussion question
   regarding the IDIQ process which the TEB had failed to note. Thus, based
   on its review of DJIC's proposal, the SSB concluded that DJIC'S proposal
   rated a very good for technical approach/method factor.

   Since DJIC's proposal received a very good rating for all of the technical
   evaluation factors, the SSB concluded that DJIC's proposal deserved an
   overall rating of very good. Further, given its conclusion that the
   staffing had been satisfactorily addressed by DJIC, the SSB changed DJIC's
   risk rating from moderate to low.[2] We think the SSB reasonably could
   come to a different conclusion than the TEB as to the substance of DJIC's
   discussion responses, especially where, as here, the TEB's concerns were
   not well-documented. In our view, based on the record, the SSB's
   evaluation here of DJIC's proposal was unobjectionable.

   Technical Evaluation of BRSC

   The protester argues that the Navy did not give it appropriate credit for
   its experience at Guantanamo Bay. The protester acknowledges that the SSB
   increased its ratings under corporate experience from satisfactory to very
   good based on its experience in base support vehicles and maintenance at
   Guantanamo Bay, but maintains that this was not the only factor under
   which its experience at Guantanamo Bay should have been recognized. As
   previously stated, the RFP did not require that offerors have specific
   experience at Guantanamo Bay, rather, the RFP required offerors to
   demonstrate experience providing the specific services required by the
   RFP. Here, BRSC received credit for its experience at Guantanamo Bay under
   the corporate experience factor. The protester argues that the agency
   should have considered the importance of its experience at Guantanamo Bay
   under the technical approach/method factor. However, the RFP did not
   provide for consideration of experience at Guantanamo Bay under the
   technical approach/method factor.

   The protester also objects to the SSB's downgrading of its rating for the
   technical approach/method factor from exceptional to very good. The SSB
   found that the TEB justified the exceptional rating on the basis of BRSC's
   proposal having three significant strengths and no weaknesses. However,
   the SSB concluded that the three particular significant strengths did not
   offer sufficient value to the government to justify an exceptional rating.
   The protester nevertheless maintains that even after eliminating the three
   significant strengths identified by the TEB, it still had 10 strengths and
   no weaknesses and that therefore its proposal still deserved an
   exceptional rating. Based on our review of the record, we have no basis to
   object to the SSA's analysis that the significant strengths identified by
   the TEB did not justify an exceptional rating, and the SSA's view that,
   absent any significant strengths, the 10 strengths equated to a very good
   rating. In sum, we have no basis to question the evaluation of BRSC under
   the technical approach/method evaluation factor and, therefore, we have no
   basis to conclude that BRSC's very good rating under this factor was
   unreasonable.

   Price Evaluation

   BRSC's primary complaint is that the agency did not reasonably evaluate
   the DJIC price proposal for price realism. In a fixed-price contract, an
   agency may provide, as here, for the use of a price realism analysis in a
   solicitation for such purposes as measuring an offeror's understanding of
   the solicitation's requirements and for assessing the risk inherent in an
   offeror's proposal. Star Mountain, Inc., B-285883, Oct. 25, 2000, 2000 CPD
   para. 189 at 4. The Federal Acquisition Regulation (FAR) provides a number
   of price analysis techniques that may be used to determine whether prices
   are reasonable and realistic, including comparison of the prices received
   with each other; comparison of previously proposed prices for the same or
   similar items; comparison with the independent government estimate; and
   analysis of pricing information provided by the offeror. FAR sect.
   15.404-1(b)(2). The nature and extent of an agency's price realism
   analysis ultimately are matters within the sound exercise of the agency's
   discretion, unless the agency commits itself to a particular methodology
   in a solicitation. Id.

   Here, section M of the RFP stated that the agency would evaluate price
   proposals to determine reasonableness and realism as well as whether
   proposed pricing demonstrates an understanding of the work and an ability
   to perform the contract. RFP M.2. Section M simply repeated the types of
   price analysis techniques identified in the FAR.

   The record shows that the agency evaluated the realism of an offeror's
   price proposal by comparing prices against one another and the independent
   government estimate, reviewing each offeror's cost proposal for compliance
   with the terms of the solicitation, for mathematical accuracy, and
   comparing pricing data with the technical proposal. AR, Tab 17, PEB
   Report. Moreover, recognizing DJIC's significantly lower price when
   compared with the protester's prices, the SSB specifically made a detailed
   comparison of the price proposals of DJIC and BRSC, and concluded that
   DJIC's price was fair or realistic and reasonable in comparison to BRSC's.
   As explained above, the SSB found several areas where DJIC's and BRSC's
   differences in technical approach accounted for approximately $[DELETED]
   of the difference in proposed prices, which explained a significant amount
   of the price difference. For example, the SSB found that DJIC proposed
   [DELETED], while BRSC did include these costs, that DJIC proposed
   [DELETED], that DJIC proposed [DELETED], and that DJIC proposed [DELETED].
   In our view, the agency reasonably satisfied its obligation under the FAR
   and the RFP to perform a price realism evaluation and BRSC's mere
   disagreement with how the agency conducted its price realism analysis for
   these requirements and the agency's ultimate conclusion that DJIC's prices
   were realistic does not establish that the agency's evaluation of the
   realism of proposed prices was unreasonable. Bevilacqua Research Corp.,
   B-293051, Jan. 12, 2004, 2004 CPD para. 15 at 8 n.8.

   Best Value Analysis

   The protester argues that the agency's best value determination was flawed
   because it failed to look beyond the adjectival ratings assigned the DJIC
   and BRSC proposals and failed to acknowledge the additional value of
   BRSC's proposal, such as the benefit of new equipment and its proposed
   savings in repair costs.

   While the agency evaluators did use adjectival ratings in assessing
   offerors' proposals, the record shows that the agency's ratings and
   conclusions were based on detailed narrative technical evaluations of the
   proposals, and a detailed price evaluation report. We think the record
   contains adequate support for the SSA's conclusion that the BRSC and DJIC
   proposals were technically equal and therefore the record supports the
   award to DJIC on the basis of its low price.

   The protest is denied.

   Anthony H. Gamboa

   General Counsel

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

   [1] To the extent the protester is alleging that the agency should have
   specifically required experience and past performance in hostile, remote
   overseas locations, the objection is untimely. A protest based upon
   alleged improprieties in a solicitation apparent prior to the time set for
   receipt of proposals and filed after award, as in this case, is untimely,
   and will not be considered. Bid Protest Regulation, 4 C.F.R. sect.
   21.2(a)(1) (2005).

   The protester also argues that the source selection plan (SSP) somehow
   required the Navy to give more weight to experience at hostile overseas
   locations or at Guantanamo Bay specifically, we note that the SSP is an
   internal agency guide that does not give the parties any rights. It is the
   evaluation scheme in the RFP, not internal agency documents such as the
   SSP, to which an agency is required to adhere in evaluating proposals and
   making the award selection. Islandwide Landscaping, Inc., B-293018, Dec.
   24, 2003, 2004 CPD para. 9 at 4.

   [2] The protester also argues that the agency improperly considered the
   experience of DJIC's proposed project manager to justify the increase in
   DJIC's rating under DJIC's technical approach/method factor from
   satisfactory to very good. The protester maintains that the experience of
   proposed personnel is not a part of the offeror's technical approach.
   Contrary to the protester's argument, the record shows that experience of
   DJIC's project manager was discussed under the evaluation of the
   management and project staffing evaluation factor. AR, Tab 18, SSB Report,
   at 2. As stated above, the SSB increased DJIC's technical approach rating
   based on its determination that DJIC provided the staffing necessary to
   successfully perform the requirement.