Matter of: TeKONTROL, Inc.
File: B-290270
Date:      June 10, 2002

Thomas S. Kornegay for the protester.

Maj. Michael L. Norris, and Capt. Charles T. Kirchmaier, Department of the Army, for the agency.

Guy R. Pietrovito, Esq., and James A. Spangenberg, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision.

Under a negotiated procurement, which provided for award on the basis of a cost/technical tradeoff, selection of the higher-rated, higher-priced proposal was reasonable where the agency reasonably determined, consistent with the evaluation criteria, that the technical superiority of the awardee's proposal outweighed the price advantage offered by the protester's proposal.

TeKONTROL, Inc. protests the award of a fixed-price contract to Global Services Corporation under request for proposals (RFP) No. USZA92-01-R-0002, issued by the Department of the Army for medical instruction and support services for the U.S. Army Special Operations Command.  TeKONTROL complains that award to Global does not reflect the best value to the government, given TeKONTROL's significantly lower price.

We deny the protest.

The RFP contained a detailed statement of work, which among other things identified the required contract personnel and their qualifications.  For example, for the Special Operations Force Medical Skills Sustainment Program, offerors were informed that they must propose eight instructors, including a senior instructor and assistant senior instructor.  Specific experience, qualifications, and certifications were required for each instructor.  For example, the instructors were required to have specific experience as a special operations forces medic.  With respect to the senior instructor, the RFP required, among other things, more than 5 years of experience as an instructor in the emergency medical field and a pediatric advanced life support instructor (PALS-1) certification.  For the Special Operations Command Medic/Special Forces Medic Sergeant Course, the RFP required four advanced medical instructors, at least three of which were required to have served on active military duty and two of which had special operations forces experience. 
The RFP provided for award on the basis of a cost/technical tradeoff.  Offerors were informed that, after determining the technical acceptability and price reasonableness of an offer, the agency would compare offerors' capability against their proposed prices.  The RFP provided that the following evaluation factors would be used to assess an offeror's capability:

Organizational Experience “The Government will evaluate each offeror's organizational experience on the basis of its breadth, its depth, and its relevance to the work that will be required [by] the prospective contract.   . . .  The Government will evaluate Key Personnel for compliance with the requirements [of] section C.”
Organizational Past Performance “Past performance is a measure of the degree, to which an offeror satisfied its customers in the past and complied with Federal, state, and local laws and regulations. . . .”
Understanding the Government's Requirements “The [G]overnment will evaluate each offeror's relative understanding of the Government's requirements on the basis of [the offeror's] oral presentation. . . .”
Compliance with Instructions “In evaluating an offeror's capability to perform the prospective contract, the Government will consider how well the offeror complied with the instructions in this RFP. . . .”
Offerors were informed that the technical evaluation factors were more important than price. 
Instructions were provided for the preparation of technical and price proposals and conduct of the oral presentation.  As relevant here, the RFP required offerors to provide resumes for key personnel, including the senior instructor, assistant senior instructor, and “a sample (3) instructors” for the Special Operations Force Medical Skills Sustainment Program and one advanced medical instructor for the Special Operations Command Medic/Special Forces Medic Sergeant Course.
The agency received three proposals in response to the RFP, including those of Global and TeKONTROL, both of which were found to be technically acceptable.  In addition, each offeror made an oral presentation to demonstrate their knowledge of the contract requirements.  Following evaluation of initial proposals and oral presentations, discussions were conducted, and revised proposals received.  Global's and TeKONTROL's revised proposals were evaluated as follows:[1]

Factor Global TeKONTROL
Organizational Experience Outstanding Marginal
Organizational Past Performance Outstanding Satisfactory
Understanding the Government's Requirements Acceptable Satisfactory
Compliance with Instructions Outstanding Acceptable
PRICE $15,955,142 $13,558,788

 Agency Report, Tab 13, Final Evaluation Report, at 4.
Global's outstanding, low risk proposal rating reflected the agency's judgment that Global had submitted a technically superior proposal that demonstrated the firm's clear understanding of the contract requirements and established through the firm's past projects that Global could “handle projects of this scope, nature, and complexity.”  Id. at 1.  In particular, the agency's evaluators found that Global proposed key personnel that satisfied all the RFP requirements and had experience with projects of similar scope and complexity.  Id. at 3.
TeKONTROL's lower proposal rating reflected the evaluators' judgment that, although TeKONTROL's proposal was acceptable and the firm was capable, TeKONTROL had only a “50/50 chance of success” in performing the contract.  Id. at 1.  With respect to its organizational experience, TeKONTROL's proposal was rated marginal because the firm's proposal indicated only “minimal organizational experience with projects of a similar nature, specifically medical training” and because a number of TeKONTROL'S proposed key personnel did not satisfy minimum qualification requirements.[2] For example, the protester's proposed senior instructor did not establish that he had the required PALS-I certification and the protester's proposed assistant senior instructor, sample instructor, and advanced medical instructor did not have, among other things, the required special operations forces experience.  Id. at 1-2.
The evaluators recommended award to Global as the best value to the government.  Specifically, the evaluators found that Global had submitted the highest-rated proposal at a competitive price, while TeKONTROL had submitted the lowest-rated proposal, albeit at the lowest price.  The evaluators believed that the “significantly superior difference in technical capability indicated in Global's proposal warrants the additional price.”  Id. at 5.
After review of the evaluation reports and prices, the source selection authority (SSA) agreed with the agency's evaluators that Global's proposal reflected the best value to the government.  Specifically, the SSA noted that the RFP provided for award on the basis of a cost/technical tradeoff and that the solicitation had stated that, if one offeror had better capability at a higher price, the SSA would determine whether the difference in capability was worth the price premium.  Here, the SSA noted that Global's proposal represented a lower risk than did TeKONTROL's, particularly in the area of organizational experience and key personnel.  The SSA found that, although Global's key personnel were fully compliant with the solicitation requirements, TeKONTROL had failed to propose personnel satisfying the RFP requirements or to demonstrate the means to acquire qualified personnel.  Moreover, the SSA noted that, although TeKONTROL had stated in its proposal the intention to hire “incumbents,” the firm stated no plan to satisfy the RFP requirements in the event the firm could not hire the incumbent personnel.  Agency Report, Tab 14, Source Selection Decision Document.
Award was made to Global, and TeKONTROL filed an agency-level protest.  Following the denial of the agency-level protest, TeKONTROL protested to our Office.
TeKONTROL complains that, because its proposal was determined to be technically acceptable and is lower-priced than Global's proposal, TeKONTROL's proposal should have been selected for award.  In this regard, TeKONTROL states that, in its “opinion, significant differences between Global and [TeKONTROL], to justify an award for a price that exceeds over $479,000 per contract year do[] not exist.”  Protest at 6.  TeKONTROL also objects that the agency did not quantify the technical differences between the firms' proposals.  Protester's Comments at 1.
In reviewing protests of alleged improper evaluations and source selection decisions, our Office examines the record to determine only whether the agency's judgment was reasonable and in accord with the stated evaluation criteria and applicable procurement law.  Abt Assocs., Inc., B-237060.2, Feb. 26, 1990, 90-1 CPD ¶ 223 at 4.  Such judgments are by their nature often subjective; nevertheless, the exercise of these judgments in the evaluation of proposals must be reasonable and must bear a rational relationship to the announced criteria upon which competing offers are to be selected.  Southwest Marine, Inc.; American Sys. Eng'g Corp., B-265865.3, B‑265865.4, Jan. 23, 1996, 96-1 CPD ¶ 56 at 10.  Award may be made to a firm that submitted a higher-rated, higher-cost proposal where the decision is consistent with the evaluation criteria and the agency reasonably determines that the technical superiority of the higher-priced offer outweighs the cost difference.  National Toxicology Labs., Inc., B-281074.2, Jan. 11, 1999, 99‑1 CPD ¶ 5 at 7.  However, contrary to the protester's argument, there is no requirement that a selection official, in performing a cost/technical tradeoff, quantify, or “dollarize” by calculating a precise value, the technical advantages offered.  See KRA Corp., B‑278904, B-278904.5, Apr. 2, 1998, 98-1 CPD ¶147 at 14.
The record shows that the SSA recognized that TeKONTROL had offered a lower price than did Global but concluded that Global's proposal represented a lower risk to the government than did TeKONTROL's proposal.  Contrary to the protester's arguments, there were significant evaluated differences in the protester's and awardee's proposals, supporting the respective proposal ratings.  That is, as explained above, the agency found that Global demonstrated relevant organizational experience and proposed key personnel that satisfied the solicitation requirements, and that TeKONTROL had only minimal organizational experience and proposed a number of key personnel that did not satisfy the solicitation requirements.  TeKONTROL does not effectively challenge, and we find reasonable, the agency's evaluation conclusions in this respect.  Although TeKONTROL complains that it has diverse corporate experience and intended to provide personnel that would satisfy the solicitation requirements, the protester admits that it has not had a contract to provide medical instructors, see Protest at 3, and that its proposed senior instructor, assistant senior instructor, sample instructor, and sample advanced medical instructor did not satisfy all of the solicitation requirements.[3]  See Protester's Comments at 2.  Moreover, TeKONTROL admits that although it stated in its proposal its desire to hire incumbent personnel, it had been unable to obtain resumes from any of the incumbent personnel.  Id. at 3.  Based on the record, we think that the SSA reasonably concluded that, weighing these discriminators, TeKONTROL's price advantage did not outweigh Global's technical superiority.  This judgment is consistent with the evaluation criteria which provided for a cost/technical tradeoff and stated that technical merit was more important than price.
The protest is denied.
Anthony H. Gamboa
General Counsel

[1] An outstanding proposal was one that exceeded minimum requirements and was very low or no risk to the government; an acceptable proposal met requirements and posed moderate risk; a satisfactory proposal indicated that the contractor was capable but posed a “50/50 chance of success/failure”; and a marginal proposal indicated that the contractor was “somewhat capable” but moderately high risk.  Agency Report, Tab 3, Source Selection Plan at 8-9.
[2] The Final Evaluation Report states that the majority of TeKONTROL's proposed key personnel do not satisfy RFP requirements, although the report identifies only four such personnel.
[3] TeKONTROL complains that some of the personnel requirements are not necessary for successful performance of the contract.  Protester's Comments at 2.  This post‑award objection to the solicitation requirements is an untimely protest of an alleged apparent solicitation impropriety.  Our Bid Protest Regulations require that protests of alleged apparent solicitation improprieties be filed prior to the time set for receipt of initial proposals.  4 C.F.R. § 21.2(a)(1) (2002).