B-245844.2, Mar 27, 1992, 71 Comp.Gen. 319

B-245844.2, Mar 27, 1992, 71 Comp.Gen. 319

PROCUREMENT - Competitive Negotiation - Offers - Personnel experience - Contractor misrepresentation - Intent Protest is sustained where awardee could not reasonably expect that two of its proposed key personnel would be available for contract performance at the time it submitted its best and final offer. PROCUREMENT - Competitive Negotiation - Technical transfusion/leveling Allegation substantiation - Evidence sufficiency Protest alleging that agency engaged in technical leveling is denied where record does not show that agency helped awardee bring its proposal up to the level of the protester's by pointing out weaknesses in awardee's proposal during successive rounds of discussions. PROCUREMENT - Competitive Negotiation - Technical transfusion/leveling Determination criteria Technical leveling does not occur where agency requests clarification about offeror's experience or the qualifications of proposed personnel, even if such requests are made through successive rounds of discussions. PROCUREMENT - Competitive Negotiation - Offers Evaluation errors - Evaluation criteria - Application General Accounting Office review of an agency's technical evaluation is limited to ensuring that the evaluation is reasonable and consistent with the evaluation criteria; mere disagreement with the agency does not itself render the evaluation unreasonable.

Attorneys

CBIS Federal Inc.:

CBIS Federal Inc. protests the award of a contract to Telesec Library Services under request for proposals (RFP) No. 12-3K06-91, issued by the Department of Agriculture, National Agricultural Library (NAL) for library support services. CBIS argues that Telesec proposed key personnel that it did not intend to use in contract performance. The protester also argues that NAL unreasonably evaluated both its own and Telesec's technical proposal. CBIS also contends that the agency engaged in improper "technical leveling" by "coaching" Telesec in multiple rounds of discussions to improve its technical proposal to the level of CBIS's.

We sustain the protest because the awardee proposed key personnel in its best and final offer (BAFO) whom it could not reasonably expect to be available to work on the project. We deny the remainder of the protest.

BACKGROUND

The RFP required that the successful offeror provide personnel to perform specified tasks including receiving and distributing lending branch mail, responding to requests for material in the NAL collection, maintaining the NAL collection, providing a delivery service, processing interlibrary borrowing materials, performing bibliographic searching, and processing microforms into the collection. The RFP, which was issued on September 25, 1990, and amended five times, contemplated the award of a firm, fixed- price contract for a base and four 12-month option periods. Offerors were required to propose fixed monthly rates for the base services and 16 optional services which were designated in the RFP schedule by letters A- P.

The solicitation provided that proposals would be assigned a point value in each of two categories, price and technical, with 25 possible price points and 75 possible technical points. The solicitation provided a formula to assign a point score for price and set forth the following technical evaluation factors and their point scores:

(TABLE OMITTED)

Plan of Operation and Management and Operation were further divided into three and four subfactors, respectively. The solicitation provided that "proposals which meet all applicable requirements will be evaluated to determine which proposal is most advantageous to the Federal Government." The RFP stated that although technical merit would be of paramount importance in the evaluations, price would be an important factor in source selection. The RFP provided further that "in the case of technically superior-- technically equal proposals, price may become the controlling factor in the award decision."

The RFP contained instructions about information that offerors must furnish for each evaluation factor and subfactor. For example, with respect to the factor of Understanding of the Project, the RFP requested "a detailed description of how you propose to perform the work required and maintain performance schedules." It provided further that "this description must include detailed flowcharts which illustrate your understanding of the work flow ..., decision points, and quality control check points." The agency received six proposals in response to the RFP. All technical proposals were submitted to a technical evaluation panel (TEP) composed of a chairperson and three members who were tasked with evaluating and scoring the technical proposals. The TEP determined that four proposals, including those submitted by CBIS and Telesec, were to be included in the competitive range.

In its initial evaluation of proposals, the TEP found that CBIS, as the incumbent, had an "advantage of intimate knowledge of workflow, decisions to be made, problems, etc. and put it to use in their flowcharts and textual descriptions of the work to be performed." The TEP noted also that the weakest parts of CBIS's proposal were the flowcharts and narratives associated with option H, "Expanded Eligibility and AVs [audio visual!," the work which CBIS had not been performing under the previous contract. The protester's initial proposal was the highest technically rated at 56.72 and was considered to be "technically unacceptable but susceptible to being made acceptable." It was the highest priced offer at $6,235,687.

Telesec's proposal received a technical point score of 43.7 and was also considered to be "technically unacceptable but susceptible to being made acceptable." The TEP found that the proposal was "confusing due to the method of flow-charting" and the description of the workflow. The evaluators noted that Telesec's proposal described the work in "Units" rather than in tasks. Consequently, the flowcharts contained numerous errors, omissions, and "deadends" which "demonstrated a lack of understanding of the work flow and its complexity." The proposed organization, key personnel, and experience, however, led the TEP to believe that Telesec's proposal, which was priced at $4,817,102, could be significantly improved.

The agency provided detailed discussion questions to each offeror] Telesec was provided with 81 questions while CBIS was asked 92 questions. The agency also requested and received revised proposals. As a result of its revised proposal, CBIS's technical score increased to 62.68 and that firm's proposal remained the highest technically rated and highest priced. Telesec's proposal improved to a rating of 56.78, the second highest technical score and, like CBIS, the firm did not change its price.

The agency then provided each offeror with another list of questions - this time 58 questions were directed toward Telesec and 30 to CBIS-- and conducted face to face discussions with all offerors in the competitive range. The agency received BAFOs on July 17, 1991. The revised scores and final rankings for CBIS, Telesec, and the other firms in the competitive range are as follows:

(TABLE OMITTED)

The agency concluded that the BAFOs of both CBIS and Telesec were outstanding and technically equal despite the minor difference in score. The agency was quite concerned by CBIS's price, which was by far the highest of the offerors in the competitive range-- more than 30 percent higher than the next highest priced offeror. /1/ The selection official therefore decided that the advantage of incumbency offered by CBIS was simply not worth the price premium and selected the considerably lower priced but technically equal offer of Telesec. Following a debriefing, CBIS filed this protest with our Office on September 25.

PROTEST ALLEGATIONS

Telesec's Personnel

CBIS asserts that none of Telesec's proposed key personnel are performing under the contract and that the awardee knew or should have known that the individuals it proposed would not in fact be available for performance under the contract. /2/

Proposing to employ specific personnel that the offeror does not expect to actually use during the contract performance has an adverse effect on the integrity of the competitive procurement system and generally provides a basis for proposal "rejection." Informatics, Inc., 57 Comp.Gen. 217 (1978), 78-1 CPD Para. 53. This does not mean that an offeror must use the personnel it proposed or risk losing the contract for which it is competing in every case. For example, where the offeror provides firm letters of commitment and the names are submitted in good faith with the consent of the respective individuals (that is, the offeror is not proposing personnel it has no intention of providing), the fact that the offeror, after award, provides substitute personnel does not itself make the award improper. Unisys Corp., B-242897, June 18, 1991, 91-1 CPD 577.

Conversely, however, an offeror may not be awarded a contract where it does not have the individuals' permission to use their names for key positions for which they are proposed and cannot provide a satisfactory explanation for its use of the names. Ultra Technology Corp., B-230309.6, Jan. 18, 1989, 89-1 CPD Para. 42. Similarly, where an offeror knows prior to submission of its BAFO that proposed key employees are no longer available, the offeror should withdraw the individuals and, in its BAFO, propose substitutes who will be available. Omni Analysis, 68 Comp.Gen. 300 (1989), 89-1 CPD Para. 239. To do otherwise is, in effect, to misrepresent the availability of proposed personnel which, in turn, compromises the validity of the technical evaluation, regardless of whether post-award substitutions of key personnel may later be made and approved by the agency pursuant to a clause in the awardee's contract. Ultra Technology Corp., supra.

We are not unmindful of the difficulty faced by a nonincumbent contractor of securing a qualified work force sufficient to secure an award. Nevertheless, we believe that an offeror has a responsibility to propose persons who it reasonably may expect will be available for contract performance without the RFP having to provide that the offeror must do so. This is particularly so where the solicitation expressly states that a proposal should include only those persons the contractor intends to use for performance and that the proposal will be evaluated based upon the qualifications of those persons. Otherwise, there is no assurance to the government that it will receive what was offered. See e.g., Management Serv., Inc., 55 Comp.Gen. 715 (1976), 76-1 CPD Para. 74.

Here, the record shows that, at the time it submitted its BAFO, Telesec could not reasonably have expected that two of the four individuals it proposed as key personnel would be available to perform the contract.

With respect to one of Telesec's proposed key personnel, the collection control and circulation unit supervisor, the record shows that in February 1991, after the submission of Telesec's initial proposal, this individual "withdrew temporarily from work availability" because of the illness of her mother. Telesec states that she was "supposed to call when she became available again" and that "Telesec assumed she would be available to work on the contract." In its revised proposal, dated February 26, 1991, Telesec answered an agency discussion question concerning this supervisor's qualifications. Telesec did not apprise the agency that, at this point, she had "temporarily" withdrawn her name from work availability.

In July, prior to submission of its BAFO, Telesec called the proposed supervisor to "check on (her) status" and was told that she had gone to England. The February conversation with her was the last time Telesec spoke to her. Telesec proposed her again in its BAFO, which also included a response to an agency discussion question about her. Telesec has, to date, been unable to reach her and has substituted another supervisor for her.

Telesec did not have a letter of commitment from the proposed supervisor as required by the RFP for all key employees. While in some cases where the individual is a current active employee of the offeror this is excusable, her mere registration for temporary work with the firm did not provide Telesec with an adequate assurance of her availability or comply with the RFP requirement. While Telesec takes the position that it assumed that this proposed supervisor would be able to work on the contract since it had heard nothing to the contrary and she never formally withdrew her commitment she gave Telesec, we do not think that such an assumption was reasonable.

With respect to the proposed project manager, the record shows that she signed a letter of intent on November 7, 1990, which was provided to the
agency with Telesec's proposal.
Prior to the award of the contract, the
project manager advised Telesec that her circumstances had changed and
that she was no longer available to work on the contract.
The record is
not clear whether the proposed project manager withdrew her name just
before or just after the submission of the BAFO.
Even if we accept
Telesec's assertion that it did not receive the news of the proposed
project manager's withdrawal until after BAFO submission, in view of the
fact that the proposed project manager signed the letter of intent more
than 8 months earlier and Telesec had not communicated with her during
that period, Telesec could not reasonably expect that this individual
would be available for contract performance.

While Telesec had a two-point advantage in technical score as well as a
significant price advantage, the evaluators thought highly of the two key
individuals Telesec proposed who in fact were not available and considered
these positions to be important to successful performance of the
contract.
We conclude that it is possible that the selection would have
been different but for Telesec's failure to assure the availability of the
personnel it proposed.
We sustain the protest for this reason.

We have reviewed the remaining protest allegations and, for the reasons
discussed below, deny them.

Technical Leveling

CBIS argues at length that the agency engaged in improper "technical
leveling" by helping or coaching Telesec through discussions to transform
its "dismal proposal" to one which was considered technically
"outstanding."
The protester points out that the agency conducted two
rounds of written discussions and a round of oral negotiations which, in
effect, gave Telesec step-by-step detailed instructions in how to improve
its deficient proposal.
In this regard, CBIS quotes the Federal
Acquisition Regulation (FAR) which defines technical leveling as "helping
an offeror to bring its proposal up to the level of other proposals
through successive rounds of discussion, such as by pointing out
weaknesses resulting from the offeror's lack of diligence, competence, or
inventiveness in preparing the proposals."
FAR Sec. 15.610(d).
The
protester interprets this regulation, when "viewed as a whole," as
prohibiting discussions when they help an offeror compensate for its lack
of diligence, competence, or inventiveness.
Under the Competition in
Contracting Act of 1984, 41 U.S.C. Sec. 253b(d) (1988) and FAR Sec.
15.610(b) written or oral discussions must be held with all responsible
sources whose proposals are within the competitive range.
Such
discussions must be meaningful, and at a minimum must point out
deficiencies and resolve any uncertainties in the offeror's proposal.
FAR
Sec. 15.610(c); Aydin Vector Div., B-243430, July 22, 1991, 91-2 CPD Para.
79.
In this regard, the content and extent of discussions are within the
discretion of the contracting officer, since the number and type of
proposal deficiencies, if any, will vary among the proposals.
See FAR
Sec. 15.610(d); Pan Am World Servs., Inc. et al., B-231840 et al., Nov. 7,
1988, 88-2 CPD Para. 446.
Consequently, it is proper for an agency to
individualize the discussions according to the evaluated deficiencies of
each offeror.
Id.

On the other hand, in any discussion with competing offerors agencies
must avoid unfairness and unequal treatment.
51 Comp.Gen. 621 (1972).
Disclosure of one offeror's approach to another is unfair and is
prohibited as "technical transfusion."
FAR Sec. 15.610(d)(2); Id.
Similarly, technical leveling is to be avoided.
FAR Sec. 15.610(d).
This
arises only where, as a result of successive rounds of discussions, the
agency has helped to bring one proposal up to the level of other proposals
such as by pointing out inherent weaknesses that remain in the proposal
because of the offeror's lack of diligence, competence, or inventiveness
after having been given an opportunity to correct them.
Price Waterhouse,
B-222562, Aug. 18, 1986, 86-2 CPD Para. 190.

CBIS bases a significant portion of its argument that the agency's
discussions with Telesec constituted leveling on its view that leveling
may occur at any point during discussions.
The protester contends, for
example, that a number of questions put to the awardee in the first round
of discussions resulted in technical leveling.
In our view, the concept
of technical leveling is inapplicable to the first round, as by
definition, leveling requires repeated rounds of discussions.
This is not
to say, however, that the initial round of discussion questions cannot be
used as a basis for an argument that, in the context of the initial round
questions, subsequent questions resulted in leveling.

Similarly, CBIS bases some of its arguments on requests made by the
agency during discussions for substantiation of the qualifications of
proposed personnel and of the relevant experience of the firm.
Under the
circumstances here, this does not constitute technical leveling.
Allowing
an offeror to provide information about the qualifications of proposed
personnel or concerning its prior experience does not result in any
unfairness to other offerors, since whether an individual or a firm has
the required experience is generally not subject to change as a result of
discussions.
Where, as here, the primary purpose of discussions is to
ascertain what the offeror is proposing to furnish rather than to raise
the offeror's technical proposal to the level of the protester's proposal,
technical leveling has not occurred.
Aquasis Servs., Inc., B-240841.3,
July 26, 1991, 91-2 CPD Para. 94.

We conclude that Telesec's technical proposal did not improve as a result
of technical leveling caused by discussions in the first round and did not
improve as a result of technical leveling under the evaluation factors of
Key Personnel or Responsibility and Similar Experience.
The protester
also challenges the form of the questions put to Telesec and the propriety
of the second round of discussions which concerned the remaining technical
factors: Understanding of the Project, Plan of Operation, and Management
and Operation.

CBIS contends that the agency, through its questions, provided Telesec
with explicit information and guidance on what was wrong with its proposal
and how to correct it. For example, the protester asserts that in many
instances the agency's questions are simply a duplication of the TEP's
comments and that the agency provided specific guidance as to Telesec's
overstatement and understatement of staffing levels.
According to the
protester, questions of this sort, by their very nature, guide the offeror
to the answers preferred by the agency and thus lead to technical
leveling.

We have reviewed the record and find the form of the questions here did
not necessarily lead to technical leveling.
While, predictably, the
agency's questions do correspond to the TEP comments, they do not, as the
protester suggests, "spoon-feed" answers to Telesec.
The questions ask
Telesec to "address," "explain," or "discuss" aspects of its proposal.
For example, typical questions are, "please address microforms
reproduction" or "please address processing request from on site patrons
who may want a photocopy or a loan sent to the Circulation Desk."
Even
where the agency identifies a particular problem in the proposal, it does
not suggest the solution.
For example, in round 2, question No. 20, the
agency states, "the flow of 'subject or expanded eligibility apply?' `N'
is incorrect.
Please address."

With respect to Telesec's proposed staffing, CBIS argues that the
agency's questions were improper since they indicated the agency's view of
the appropriateness of the number of hours and the labor skill level
proposed.
The protester also objects to the agency's conversion of
Telesec's proposed level of effort from staff hours to full time
equivalents (FTEs). /3/
For example, the protester objects to the
following question:

"Item C-- Shelfreading.
You have proposed 1.53 FTE to perform this
effort; however, the Government believes that the quantity of hours is
understated.
Also the labor skill may be less than required.
Please
address."

Where a proposal offers a significantly lower level of effort for some
functions than the agency believes reasonable, as occurred here, the
agency should disclose its concern about staffing levels during
discussions.
See Pan Am World Servs., Inc. et al., supra. Not only do we
find the questions to Telesec about proposed staffing to be appropriate,
but the record shows that the agency's questions to CBIS were phrased
similarly.
Consequently, we do not agree that these types of questions
necessarily lead to technical leveling or were otherwise improper.
See
E.H. Pechan Assocs., Inc., B-221058, Mar. 20, 1986, 86-1 CPD Para. 278.
While the agency did not have to convert proposed staff-hours to FTEs in
considering CBIS's proposal, that was a relatively simple conversion which
was entirely reasonable for the agency to perform.

Turning to the allegedly repetitive second round discussion questions
directed toward Telesec, the majority of these questions concerned
Telesec's flowcharts.
Consequently, any improvements in the firm's
proposal would be reflected in the agency's evaluation and scoring of the
Understanding of the Project evaluation factor.
The second round
questions were organized in terms of the Telesec flowcharts; the list of
questions identified a flowchart and enumerated a series of detailed
questions about that flowchart.
In its BAFO, Telesec included
significantly more flowcharts, 31, than it had initially provided, 8, and
the TEP found that they were much improved.
As a result, Telesec received
a final evaluation score of 14.56 out of a possible 17 points under the
Understanding of the Project factor, almost a 5-point increase from the
score received for its revised proposal.

CBIS complains that many of the second round questions concerning the
Telesec flowcharts improperly helped the awardee by focusing on questions
asked in the first round to which Telesec had provided an unsatisfactory
response.
CBIS asserts that the agency, in some instances, repeated
questions concerning the flowcharts which were already asked in the first
round. /4/

The protester has provided our Office with a chart which sets forth the
technical areas of Telesec's proposal which initially were considered weak
or deficient.
With respect to each weakness or deficiency, the chart
purports to duplicate each discussion question, for both rounds, which
correlates to that weakness or deficiency.
CBIS identifies approximately
20 second round questions concerning Telesec's flowcharts which it alleges
"more explicitly repeated issues which Telesec had failed to address in
its answers to the similar questions in the TEP'S initial round of
questions."

We have reviewed the allegedly improper pairs of questions and find, for
the reasons stated below, that the second round questions were proper.
some instances, the second round question identified by the protester has
nothing to do with the first round question.
For example, CBIS argues
that the agency's second round question No. 6 was improper in light of its
first round question No. 10.
The record shows, however, that question No.
6 relates specifically to Telesec's Mail Unit Flowcharts I and Ia. The
first round question No. 10, on the other hand, relates to an entirely
different flowchart, the Collection Control Flowchart.
The protester also
argues that question No. 22 from round 2 repeats question No. 61 from the
first round.
Question No. 61 states "UMD (University of Maryland) return
list processing was omitted," while question No. 22 pertains to "Flowchart
V - Loan Booking AVS," and states, "please describe what material is being
processed if not an NAL holding or UMD format and what information is
being communicated to the patron."
Question No. 22 is simply a new
question relating to a specific aspect of a particular flowchart.
Consequently, we do not consider these types of questions as examples of
technical leveling.

Several other second round questions identified by CBIS as improper
merely request information which the agency previously requested but which
Telesec continued to omit. /5/
We find that these questions did not
constitute technical leveling.
We think that where, as here, an agency
simply points out informational deficiencies, technical leveling has not
occurred since the agency's purpose is to ascertain what the offeror is
proposing to furnish.
See Ultrasystems Defense, Inc., B-235351, Aug. 31,
1989, 89-2 CPD Para. 198.

Many of the second round questions identified by CBIS as improper are
ones that address aspects first included in Telesec's revised proposal and
therefore could not have been the subject of discussions in the first
round.
For example, question No. 69 in the first round identified various
tasks which were omitted.
Question No. 36 in the second round stated,
"regarding question 69, ... discuss your rationale for designating
Reader/Onsite Patron Requests as a BASE SERVICE."
In our view, the agency
could properly hold discussions on weaknesses or deficiencies which first
became apparent when Telesec submitted its revisions to its initial
proposal.

We have also carefully reviewed the numerous other questions that are
related to the two evaluation factors of Plan of Operation and Management
and Operation in the context of the protester's rather lengthy arguments,
and for essentially the same reasons as cited above, we do not agree that
the discussions held constitute technical leveling.

Evaluation of Technical Proposals

The protester objects to the evaluation of both Telesec's and its own
proposal.
The determination of the merits of proposals is primarily the
responsibility of the contracting agency which must bear the burden of any
difficulties resulting from a defective evaluation.
Viking Instruments
Corp., B-238183, Apr. 24, 1990, 90-1 CPD Para. 414.
Accordingly, we will
not reevaluate the proposals and independently judge their merits; we will
examine an agency's evaluation to ensure that it is reasonable and
consistent with the evaluation criteria.
White Water Assocs., Inc.,
B-244467, Oct. 22, 1991, 91-2 CPD Para. 356.
The fact that the
protester
disagrees with the agency does not itself render the evaluation
unreasonable.
ESCO Inc., 66 Comp.Gen. 404 (1987), 87-1 CPD Para. 450.

Evaluation of CBIS's Proposal

CBIS argues that the agency misevaluated its proposal under the Key
Personnel factor by downgrading its BAFO based on the evaluation of a
stacks services assistant manager first proposed by CBIS in its BAFO.
CBIS contends that this position was not required by the RFP and not
subject to any minimum standards set forth in the solicitation so that it
was improper for the agency to have downgraded Telesec based upon criteria
set forth in the RFP for the more important key personnel.

CBIS originally proposed a stacks services assistant manager as one of
its key personnel.
In its first round of discussion questions, the agency
requested that CBIS expand its discussion of this individual's
qualifications.
After receiving the revised offer, the agency was not
satisfied with CBIS's response, noting that it did not adequately address
her qualifications to assume responsibility for such "a large and
important part of the contract" as supervising a proposed staff of 29.
The agency considered the proposed assistant manager CBIS's only weakness
under this factor.
In fact, the agency increased CBIS's score based on
improvements or clarifications regarding other key personnel in its
revised proposal.

In its BAFO, CBIS withdrew its proposed candidate for this position and
substituted an alternate.
The agency found that the individual did not
meet the specific minimum qualifications set forth in the RFP for a unit
supervisor.

The solicitation stated that at a minimum project managers and unit
supervisors would be considered key personnel but also indicated that the
organization was to be established by the offeror and that the firm could
designate those positions it considered to be key.
Here, CBIS
specifically proposed its stacks services assistant manager as one of only
four key personnel.
The agency reasonably considered this individual, who
was to supervise a staff of 29, as a key individual and, in our view,
reasonably evaluated the person as such.

Turning to the actual evaluation of the individual proposed in the BAFO,
the RFP provided that unit supervisors' experience shall include "two
years experience in directing and supervising members of task oriented
units, demonstrated experience in problem solving, and specific experience
in interlibrary loan, circulation, and library collection maintenance."
The agency downgraded him based on the fact that he lacked demonstrated
ability to perform the tasks himself and because he did not have
experience as a first line supervisor.
Rather, they found that his
experience was with "management, directing, fill in, and oversight."
have no basis upon which to object to the agency's judgment in concluding
that the individual's lack of "hands on" experience made him a less than
fully desirable candidate for the position.
CBIS also argues that during
negotiations the agency "suggested" that it replace the assistant manager
originally proposed with the individual who was later found by the agency
to be unqualified.
The protester argues that it merely "followed the
advice of the agency" by substituting him as assistant manager in its
BAFO.

The agency reports that it did not suggest that CBIS propose this
individual or tell CBIS that the proposed substitute assistant manager was
qualified.
The agency acknowledges that CBIS provided it with a "verbal
description" of this individual's background, experience, and skills, and
stated that his "resume would be included in the written, formal
response."
The agency disputes the protester's position that CBIS was
advised that its candidate was acceptable and points out that without
reviewing the resume, which was first submitted with the BAFO, the
evaluators could not determine if the individual was qualified.

It is improbable that the agency "approved" CBIS's candidate during
discussions in the manner described by the protester.
First, as the
agency states, the evaluators were in no position to do so without
reviewing the resume and BAFO.
Second, contracting agencies generally do
not, and should not, conduct evaluations of proposals during discussions,
and offerors should not expect them to or rely on statements of the agency
made during discussions as a preview of what it expects the evaluation to
be. Thus, we do not think that it was reasonable for the protester to rely
on such general statements.
Moreover, the agency's "acceptance," of the
substituted assistant supervisor does not preclude the agency from
awarding less than a perfect score in its evaluation.
Federal Elec.
Int'l, Inc., B-232295.2, Dec. 21, 1988, 88-2 CPD Para. 610.

CBIS also questions its evaluation score under the Management and
Operation factor, which decreased as a result of the evaluators' views
that CBIS (1) overestimated the number of hours to perform the tasks, (2)
failed to provide "time and motion studies" supporting the level of
proposed labor hours, and (3) proposed a supervisor to employee ratio that
was too low.

With respect to the protester's arguments (1) and (2), the record shows
that these were cited by the agency as CBIS weaknesses in the evaluation
subfactor of staffing levels, for which CBIS was awarded 4.19 points out
of a possible 7.
Specifically, the agency found that no documentation was
provided justifying its hourly production rates.
The protester referred
to "time and motion studies" in its initial proposal and that the agency
asked CBIS to provide the studies during discussions.
CBIS explained that
no such studies existed and that they were actually the CBIS project
manager's "discretionary labor hour estimates" of the RFP's increased
tasks.

The protester argues that the agency "accepted that no formal documents
existed and therefore acknowledged the validity" of the project manager's
observations.
While the evaluators may have acknowledged that they
understood the studies to be estimates, there is no support in the record
for the conclusion that they accepted the estimates as sufficient
substantiation for CBIS's staffing levels.
After specifically requesting
the studies in the first round of questions, the TEP found that "no
documentation was provided justifying the hourly production rates or the
resulting proposed increases in staffing levels."
In its second round of
questions, the agency specifically stated that "the Government believes
that the manpower estimates are high," and that "the Government believes
that the manpower proposed on the following options are high: options
F,G,I, and O."

Turning to the final evaluation of CBIS staffing levels, the evaluators
found that loan processing, mailing services, interlibrary borrowing
group, and bibliographic searching estimates still appeared high and
exceeded the agency's overall estimate.
Throughout the evaluation, the
TEP believed that CBIS overestimated the number of hours needed to perform
many of the tasks.
The agency's concerns were communicated to the
protester.
Based on this judgment and the failure of the protester to
justify its estimates, we have no basis to conclude that the agency's
rating of the CBIS proposal in the subfactor of staffing levels was
without a rational basis.

The protester also argues that the agency improperly evaluated its
proposal under the subfactor of organization and control by deducting
points based on CBIS's proposed supervisor to staff ratio.
CBIS argues
that during negotiations the agency indicated that CBIS's management
approach of using "team leaders" to compensate for the relatively low
number of supervisors would be "acceptable."
While the agency may have
approved of the "concept," the record shows that the evaluators did not
find that it adequately remedied the low supervisor to staff ratio.
We do
not think it was reasonable for CBIS to conclude, based on the evaluators'
acceptance of its approach, that the agency could not award it less than a
perfect score for this subfactor, particularly since technical
acceptability represented satisfaction of a minimum standard only.
See
American Dev.
Corp., B-224842, Jan. 7, 1987, 87-1 CPD Para. 26.
The
evaluators found that "the serious weaknesses in the organization were
primarily related to the number of staff directly supervised by a single
supervisor."
The agency concluded that the addition of team leaders did
not improve the organization because they would not perform daily
supervision.
We have no basis to object to the evaluators' judgment in
downgrading the proposal under this subfactor.

Evaluation of the Telesec Proposal

CBIS asserts that Telesec's proposal did not deserve the outstanding
rating it received in the areas of Key Personnel and Responsibility and
Similar Experience.
The protester states that the evaluators had concerns
about Telesec's proposed project manager's qualifications and refers to
the evaluation of Telesec's initial and revised proposals where the
evaluators indicated that they did not have sufficient information about
the proposed project manager's interlibrary loan experience, her
experience as a supervisor and as a manager of projects of similar size
and scope, and her experience with statistical analysis.

Contrary to CBIS's assertion, the record shows that Telesec provided the
agency with additional information about the proposed project manager's
qualifications during discussions and that the evaluators were satisfied
that she met the RFP standards.

CBIS raises similar arguments about the agency's evaluation of Telesec's
proposal under the factor of Responsibility and Similar Experience.
The
protester asserts that the evaluators were unable to "definitively
determine whether Telesec possessed any relevant experience or was really
capable of performing a contract of the size and scope of the NAL."
Contrary to the protester's assertion, the agency evaluators found that
Telesec possessed relevant experience that demonstrated its capability to
perform the contract.
The agency concluded in its BAFO evaluation that
Telesec had "excellent related and similar experience in management and
performance of library projects of this size and complexity," and noted
that activities performed included handling interlibrary loans.
We think
that this conclusion was reasonable based on Telesec's extensive
experience with library projects and its seven current library contracts,
including projects for the National Institutes of Health Library and
National Library of Medicine.

The protester also argues that Telesec's proposed staffing estimates were
too low.
While the record supports the protester's position that during
the evaluation the TEP believed that Telesec's proposed estimates were
low, the BAFO evaluation indicates that the evaluators finally concluded
that the firm's staffing plan was "clearly adequate to perform the
project."
Further, to the extent some doubt lingered as to Telesec's
proposed staffing level, it was reflected in the evaluators' final score,
as the firm received its lowest rating of "fair" for the staffing level
subfactor and was awarded only 4.19 points out of a possible 7.
Consequently, we have no basis to conclude that the agency's evaluation of
Telesec's proposed staffing was unreasonable.

RECOMMENDATION

In sum, we conclude that the record simply does not support CBIS's
arguments concerning the agency's use of negotiations and its evaluation
of the proposals.
Nevertheless, we agree with the protester that Telesec
could not reasonably expect that key personnel it proposed were available,
and had the proposal been accurate and updated in this respect, the agency
might have made a different selection.

We are recommending that the agency reopen negotiations and request
additional BAFOs from the firms in the competitive range.
With respect to
protest costs, except as limited below, CBIS is entitled to recover its
costs of filing and pursuing its protest.
4 C.F.R. Sec. 21.6(d)(1)
(1991).
CBIS is not entitled to recover its costs or attorney's fees
which are allocable to its protest allegation that the agency engaged in
technical leveling.
While the protester directed much of its efforts to
that protest ground, which was separately filed and denied, the issue is,
in our view, so severable from its initial protest as to constitute a
separate and unsuccessful protest.
See Department of Commerce-- Recon.,
B-238452.3, Oct. 22, 1990, 90-2 CPD Para. 322.
CBIS should submit its
claim for costs directly to the agency.
4 C.F.R. Sec. 21.6(e).

The protest is sustained in part and denied in part.

/1/ In addition, the agency notes that CBIS's proposed price exceeded historical prices for the same work by 79 percent.

/2/ Telesec proposed a total of four key personnel. One of the proposed individuals, the photocopy unit supervisor, was available to work on the contract at the time of award and is currently working for Telesec on other projects. The agency permitted Telesec to replace this individual after award with the incumbent supervisor. Another key person proposed by Telesec, the proposed mail unit supervisor, began work under the contract but was later terminated.

/3/ The RFP specified that the offerors' levels of effort were to be expressed in FTEs.

/4/ CBIS argues that the agency should not have conducted a second round of discussions at all, since offerors had one opportunity to address all weaknesses and deficiencies contained in the proposals. We are aware of no requirement that agencies limit discussions to one round. Rather, the extent of discussions is a matter within the discretion of the contracting agency, and we think that the agency properly used the flexibility inherent in the negotiation process to conduct more than single round of discussions. See Mantech Serv. Corp., B-222462, Aug. 5, 1986, 86-2 CPD Para. 149.

/5/ The protester also objects to the agency's second round questions which request flowcharts that Telesec had failed to provide in its initial proposal but were not requested in a first round question. We find that the agency was correct in bringing the deficiency to Telesec's attention, despite its failure to do so in the first round, since the agency has an obligation to point out such deficiencies. See Aviation Contractor Employees, Inc., B-225964, Mar. 30, 1987, 87-1 CPD Para. 363.