THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING RELEASED TO THE PUBLIC IN REDACTED FORM ON APRIL 29, 1994 ______________________ DENIED: April 6, 1994 ______________________ GSBCA 12702-P LOCKHEED ENGINEERING & SCIENCES COMPANY, Protester, v. NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, Respondent, and ALLIEDSIGNAL TECHNICAL SERVICES CORPORATION, Intervenor. C. Stanley Dees, Patrick K. O'Keefe, and James P. Lamoureux of McKenna & Cuneo, Washington, DC; and J. Charles Dickey of Lockheed Engineering & Sciences Company, Houston, Texas, counsel for Protester. Sumara M. Thompson-King, Office of the General Counsel, National Aeronautics and Space Administration, Washington, DC; and Harold B. Dantone, National Aeronautics and Space Administration, Houston, Texas, counsel for Respondent. Rand L. Allen, Paul F. Khoury, and Scott A. Coffina of Wiley, Rein & Fielding, Washington, DC; and Martin Paskoff of AlliedSignal Technical Services Corporation, Baltimore, Maryland, counsel for Intervenor. Before Board Judges PARKER, DEVINE (presiding), and NEILL. PARKER and NEILL, Board Judges. Protester, Lockheed Engineering & Sciences Company (Lockheed), challenges the award of a contract by respondent, the National Aeronautics and Space Administration (NASA), to intervenor, AlliedSignal Technical Services Corporation (Allied). The contract, entitled the Test, Evaluation and Maintenance (TEAM) contract, calls for the provision of a variety of services at NASA's White Sands Test Facility (WSTF). Lockheed is the incumbent contractor. Lockheed raises a number of issues in its protest. Chief among these are two claims: (1) NASA unfairly penalized Lockheed for proposing to require its professional employees to work each week of mandatory, uncompensated overtime--in effect, a hour work week; and (2) NASA improperly failed to penalize or eliminate Allied for stating in its proposal that it would match the existing pay of incumbent employees yet proposing a rate structure that called for pay well below existing rates. Finding no merit in these or any other of Lockheed's contentions, we deny the protest. Findings of Fact 1. WSTF is located in Las Cruces, New Mexico, and is organizationally a part of the Johnson Space Center. The facility is primarily a research and development center. Much of its work involves testing and experimenting upon spacecraft propulsion systems and subsystems. Protest File, Exhibit 3, C- 1.2.[foot #] 1 2. The bulk of the personnel located at WSTF--about 550 out of 600--are contractor employees. Of the contractor employees, about half are covered by the Service Contract Act and, therefore, also by Department of Labor wage determinations establishing minimum wage rates. The remainder are professional employees who are exempt from that Act. Most of the non-exempt employees are also covered by a union collective bargaining agreement. Transcript at 55, 104. 3. The work at WSTF is heavily dependent upon the use of automatic data processing equipment (ADPE). See Protest File, Exhibit 3, C.3.2.1.4.1, C.3.2.2.4.1. In conducting its tasks, the contractor is required to make extensive use of ADPE to acquire, store, analyze and distribute data. See id. C.4.2.13, C.5.1.8. It also is required to maintain Government-supplied ADPE and develop software. Id. C.5.1.8; Transcript at 213-20. NASA conducted the TEAM procurement at issue here pursuant to a delegation of procurement authority from ----------- FOOTNOTE BEGINS --------- [foot #] 1 Our examination of the voluminous protest file in this case, and particularly of the RFP, has been signifi- cantly hampered by the fact that NASA did not number the pages consecutively, either within each exhibit or throughout the file. Citations to the RFP will be to pages, e.g., "Protest File, Exhibit 3 at L-1-5," or to sections, e.g., "id. H.4," depending ___ upon which is more precise under the circumstances. In some cases, we may have to improvise. ----------- FOOTNOTE ENDS ----------- the General Services Administration. Protest File, Exhibit 3, I-9. 4. Lockheed is the incumbent contractor at WSTF and has been such for nearly twenty years. Transcript at 56. The RFP 5. On April 26, 1993, NASA released an advance RFP for the TEAM contract.[foot #] 2 Protest File, Exhibit 3. The statement of work described the contractor's duties generally as including the following: a. Development, qualification, and limits testing of spacecraft propulsion systems and subsystems b. Testing of materials, components, and experiments which are hazardous, and therefore require a remote site or sizeable deployment area c. Support of Shuttle training aircraft operations and management of an alternate orbiter landing site d. Institutional support to [certain] ground stations e. Technical support including calibration, precision cleaning, photography, electrical and mechanical fabrication, environmental compliance, quality assurance, computer-aided design and drafting, and technical library f. Facility maintenance and construction including lighting, natural gas, water, HVAC [heating, ventilation and air conditioning], fire alarms, phones, roads and grounds, carpentry, plumbing, and heavy equipment operation g. Administrative support including logistics, property, material acquisition, mail, reproduction, travel, and cafeteria operations h. Health and safety services including fire detection and suppression, security, routine physicals, emergency medical care, safety, and industrial hygiene. Id. at C-2. The term was to be for an initial three-year period, with an optional two-year extension. Id. F.2, F.4. ----------- FOOTNOTE BEGINS --------- [foot #] 2 With amendments, this eventually became the official RFP. Protest File, Exhibit 3. ----------- FOOTNOTE ENDS ----------- 6. The RFP contemplated a level-of-effort, cost-plus- award-fee type of contract. Protest File, Exhibit 3, H.4. It required offerors to bid specific numbers of hours for various labor classifications, which were listed in tables. These classifications, or skill positions, covered a broad range, including, for example, various types of engineers, chemists and physicists, computer programmers, secretarial employees, plumbers, librarians, hazardous waste technicians, cafeteria workers, and nurses. The RFP contained level-of-effort listings for the principal contract and also for a space station option. The tables did not set forth skill or experience levels within skill positions, such as "junior engineer" or "senior chemist." Id. L, Tables 1, 2. 7. The contract work was to be done pursuant to task orders: Within the direct labor hours specified in the Level-of-Effort clause of this contract, the Contractor shall incur costs under this contract in the performance of task orders and task order modifications . . . . Protest File, Exhibit 3, H.3(a). The RFP explained as follows: The Government's requirements are stated in terms of productive man-hours, and not in terms of a specific number of individuals. For proposal pricing purposes, offerors should accordingly price the number of hours set forth in each skill category, even though the number of such hours may not equate to an even number of individuals under the offeror's particular leave and accounting policies. The labor hours stipulated for each classification are set forth to arrive at the total direct labor hours required for the contract period; however, the number of individuals actually employed by the selected Contractor, both totally and in individual classifications at any particular time, may fluctuate during the course of the contract period. Id. at L-II-4. Fluctuations of up to twenty percent were allowed; that is, the contractor could expend anywhere from 80 to 120 percent of the hours called for in the RFP before a contract modification was required. Id. H.4. 8. The RFP incorporated the rates that Lockheed was paying its union employees under the collective bargaining agreement. Protest File, Exhibit 3, Attachment J-3. Lockheed was in the process of renegotiating the rates when the RFP was issued, but the negotiations lasted until after initial proposals. Transcript at 816-17. 9. The RFP instructed offerors to add fixed amounts to their proposals to account for certain direct, non-labor costs. These totalled approximately $51 million through the option years. Protest File, Exhibit 3, at twenty-eighth unnumbered page[foot #] 3 following page L-II-27. 10. The RFP contained a clause covering ceilings on general and administrative (G&A) and overhead costs. It stated that such expenses would be "subject to the provisional and ceiling rates set forth below," and provided appropriate blank spaces. Protest File, Exhibit 3, G.9. It also contained the following instruction with respect to both overhead and G&A: "The offeror shall also indicate whether or not ceiling rates will be accepted and at what rate . . . ." Id. at L-II-23. 11. In response to the advance RFP, Lockheed submitted two questions to NASA, as follows: 115. Question: The identification of uncompensated overtime was addressed in RFP #9BE2-16-2-53P for the NASA ETAC recompetition effort . . . . Why was the subject not addressed in the RFP for support of the NASA White Sands Test Facility? Answer: It was an oversight, but has now been included. 116. Question: How will NASA consider cost pro- posals that include uncompensated overtime hours that effectively dilute the normal labor rate? Answer: Please refer to Section L.12, Identification of Uncompensated Overtime, page L-6. Protest File, Exhibit 3, Questions and Answers 115-16 (following Section M).[foot #] 4 As its answer indicated, NASA included in the final RFP the following clause: L.12 IDENTIFICATION OF UNCOMPENSATED OVERTIME (a) As used in this provision, the following definitions apply: (1) "Uncompensated Overtime" means the hours worked in excess of the average 40 hours per week by employees who are exempt from the Fair Labor Standards Act (FLSA), without additional compensation. . . . (2) ----------- FOOTNOTE BEGINS --------- [foot #] 3 See, supra note 1. ___ _____ [foot #] 4 The questions and answers resulting from the advance RFP were incorporated into the final RFP. ----------- FOOTNOTE ENDS ----------- "Effective hourly rate" is the rate which results from multiplying the hourly rate for a 40-hour work week by 40, and then dividing by the proposed hours per week. . . . (b) For any hours proposed against which an effective hourly rate is applied, the offeror shall identify in its proposal the hours in excess of an average of 40 hours per week, at the same level of detail as compensated hours, and the effective hourly rate, whether at the prime or subcontractor level. . . . . . . . (d) Proposals which include unrealistically low labor rates, or which do not otherwise demonstrate cost realism, will be considered in a risk assessment and evaluated for award in accordance with that assessment. (e) The Offeror shall include with its proposal a copy of its policy addressing uncompensated overtime, including a description of the estimating, timekeeping and accounting systems used to record all hours worked by exempt employees. (f) In order for any proposed uncompensated overtime to be considered in the evaluation of proposals, offerors must submit evidence of historical uncompensated overtime worked, consistent with their accounting system or provide rationale that will be sufficient to ensure that the uncompensated overtime proposed will be provided. Id. at L-6 to -7. 12. Four factors were to govern the evaluation of proposals: Mission Suitability, Cost, Relevant Experience and Past Performance, and Other Considerations. Protest File, Exhibit 3, M.2. The relative priorities were as follows: Mission Suitability and Cost are most important and, as related to each other, are of approximately equal importance. Relevant Experience and Past Performance is of somewhat less importance, and Other Considerations is of considerably less importance. Id. M.7. 13. Only Mission Suitability was to be scored. Protest File, Exhibit 3, M.2. The maximum score was 1,000, distributed among three subfactors, each with two or three elements: 1. Management Approach and Understanding the Requirements 525 Management Approach and Understanding of Overall Task 225 Problem Solving 175 Organization Plan 125 2. Key Personnel 275 Suitability of Program Manager 125 Suitability of Other Key Personnel 150 3. Staffing and Business Approach 200 Recruiting and Staffing Plan 50 Total Compensation Plan 50 Small and Economically Disadvantaged Business Plan 100 Id. M.3.2; id. at seventh and eighth unnumbered pages from beginning. With respect to "Suitability of Program Manager," education was listed as a consideration to be examined. Id. M.3.1.2a. The RFP also stated that NASA would determine each offeror's probable cost. Id. M.6. 14. In a cover letter that was expressly incorporated into the final RFP, NASA stated: Offerors are reminded of the overall importance of cost both during the proposal effort and throughout the life of the contract. The Government will not negotiate a contract higher than the offeror's Best and Final Offer. Protest File, Exhibit 3 at twenty-fifth unnumbered page from the beginning. Pre-Proposal Activities 15. One issue that offerors had to address was the pay they planned to offer to incumbent Lockheed employees that they wished to retain. Lockheed understood that its competitors would likely propose lower pay for such employees than they were currently making, but it also believed that NASA would increase the evaluated cost of such proposals to reflect the actual rates. Thus, the minutes of a Lockheed strategy meeting state: It is anticipated that the competition will price to lower salary grades and minimum labor rates, however we expect that NASA-WSTF will "should cost" these lower rates to a level more appropriate to what presently exists. Protest File Supplement, Exhibit 414; see Transcript at 164-65. 16. During the proposal preparation stage, Lockheed sent to the contracting officer its average pay rates for non-exempt employees,[foot #] 5 with the recommendation that this information be made available to the other offerors. Protest File Supplement, Exhibits 414, 417; Transcript at 165-67. After consulting with counsel, Transcript at 352-53, 414-15, the contracting officer sent this information to the other offerors with the following caveat: The data provided by [Lockheed] is being passed on to all offerors for informational purposes only. Each offeror must use its own discretion in determining whether and to what extent to use the data. The Government takes no position as to the utility or accuracy of the data. Protest File Supplement, Exhibit 417. Salary information for professional, i.e., exempt, employees was proprietary to Lockheed and was not disseminated. Transcript at 354. Evaluation Procedures 17. NASA issued a source evaluation plan that established the membership of the Source Evaluation Board (SEB). The SEB was supported by four evaluation committees, one for each of the four evaluation factors. Protest File, Exhibit 15 at 1-2. 18. In addressing Mission Suitability, the Mission Suitability Committee was required to make findings of strengths and weaknesses with respect to each evaluation subfactor and element. It was to characterize strengths and weaknesses as "major" or "minor." Protest File, Exhibit 15 at 5, 35-37. The committee was to reach a consensus with respect to strengths and weaknesses and report it to the SEB. The latter in turn would reach a consensus and then assign an adjectival rating (ranging from "poor" to "excellent") and a numerical score. Id. at 5, 36- 37; Transcript at 257-60, 566-67. 19. The RFP contemplated that NASA would select a single proposal and then conduct negotiations with that offeror. This is in accordance with NASA's regulations, which contemplate negotiations during the competitive stage of a procurement only under unusual circumstances. Protest File, Exhibit 215, Chapter 6, 601, 604; 48 CFR 18-15.613-71 (1993). ----------- FOOTNOTE BEGINS --------- [foot #] 5 That is, employees covered by the Service Contract Act and thus subject to wage determinations. ----------- FOOTNOTE ENDS ----------- The Proposals 20. NASA initially received eight proposals. Protest File, Exhibit 11 at 15. It eliminated half of these from the competitive range, leaving Allied, Lockheed and two other companies. The proposal costs of the four remaining competitors ranged from approximately to , while the probable costs, as determined by NASA, ranged from to . The relative Mission Suitability scores were as follows: Company A Allied Lockheed Company B Id., Exhibit 15 at 16. Allied 21. In its initial proposal, Allied proposed to retain percent of the incumbent work force. Protest File, Exhibit 5, Vol. 1 at 1.1-2, 1.6-1.[foot #] 6 Allied also represented that it would maintain existing salaries for incumbent professional personnel. Id., Vol. 1 at 1.1-2, 1.6-1, Vol. 2 at 5-1. 22. With respect to the skill mix of its personnel, Allied stated in its initial proposal: We have determined on contracts with similar complexity that the employee skill mix which provides best balanced value in terms of technical and cost performance is based on a percent senior, percent mid-level, and percent junior curve. This mix is not achievable in every organizational element because of such factors as number of employees assigned, work requirements, and position qualification requirements. We have established this goal and, over the course of the contract, will manage labor costs by maintaining proper balance between technical and management skills and cost as follows: ----------- FOOTNOTE BEGINS --------- [foot #] 6 With respect to both Allied's and Lockheed's proposal, the protest file contains the initial management proposal, initial cost proposal, final management proposal, final cost proposal, and written questions. In each case, these materials occupy five volumes. Nevertheless, NASA assigned just one exhibit number to each competitor's proposal materials; all five volumes of Allied's proposal materials, for example, are designated as Exhibit 5. In addition, NASA did not number the pages consecutively. We will thus give the volume number when citing to proposals, and will give page references as best we can. ----------- FOOTNOTE ENDS ----------- -- We develop a skill mix curve which reflects a nominal allocation of percent to senior positions, percent to mid-level positions, and percent to junior positions. -- We apply the skill mix curve across the contract, develop staffing plans against the skill curve, and manage direct labor costs by controlling staffing against the approved staffing plan. -- Other labor related costs, such as benefits, are continually trended, analyzed and examined for trade-off between cost and employee retention considerations. Protest File, Exhibit 5, Vol. 1 at 1.1-5. 23. Allied did not rely on any actual pay information in proposing rates for union employees. It had no information about the collective bargaining that was in progress and it could not verify the average figures that Lockheed provided. Transcript at 795-97, 823. Similarly, Allied did not know what Lockheed was paying its professional employees. Instead, it used its own corporate salary structure in its proposal; this was lower than the incumbent rates. Id. at 420-21, 796-97, 810-15. 24. After receiving the initial proposals, the SEB sent the following question to each offeror: [You] intend[] to hire a large percentage of the incumbent work force. Do[] [you] intend to recognize incumbent wages and seniority for those employ- ees[?] . . . If anything other than incumbent wages and seniority is proposed, substantiate your ability to hire and retain incumbent employees at reduced compensation. Allied responded that it would recognize current wages and seniority for employees it retained. Protest File, Exhibit 5, Vol. 5 at seventh unnumbered page. 25. In its best and final offer (BAFO), Allied reduced to the percentage of the incumbent workforce that it intended to retain. It did this due to concerns over cost and the skill mix, and because of a belief that the current pay structure was out of line in some areas. Transcript at 825-26. Allied explained: We have conducted further analysis of data gathered through interviews with incumbent employees and discussions with representatives of the bargaining unit. It should be noted that we did not factor into our analysis the salary information provided through the contracting officer by the incumbent contractor, since the accuracy of the information could not be verified. We have concluded that a potential problem exists in the area of skill mix and distribution in the incumbent workforce. There appears to be a disproportional number of the workforce who are compensated at the high end of their salary range. Our original projection assumed a proper allocation of skill mix among incumbent employees. We staffed according to the requirements of the job as stated in the RFP and supporting documentation. Protest File, Exhibit 5, Vol. 5 at seventh unnumbered page. Allied went on to state that "in no case will [incumbents] be hired at less than current salary levels." It added that it had received resumes, of them from the local area, from which to fill the remaining thirty percent of the positions. Id. at eighth unnumbered page. 26. Between initial proposals and BAFOs, the new collective bargaining agreement became final. Allied asked the contracting officer whether the new agreement would be incorporated into the RFP to replace the old one. NASA responded that it would not and that the new agreement would be addressed during post-selection negotiations. Transcript at 823-24. 27. In its BAFO, Allied proposed to pay employees covered by the bargaining agreement at rates percent above those included in the outdated agreement that was still incorporated into the RFP. Allied stated: Our pricing does not consider the new Collective Bargaining Agreement . . . . It is our understanding that any information not formally included in the RFP, as amended, or directed by the Contracting Officer, will be addressed in negotiations. Protest File, Exhibit 5, Vol. 4 at 5-3. Allied priced non- exempt, non-union personnel at allowed by the applicable wage determination. Id. at 5-3. 28. With respect to exempt employees, Allied proposed a salary escalation rate of percent . This represented a reduction from its initial proposal. Protest File, Exhibit 5, Vol. 4 at 5-4; id., Exhibit 10 at 14-7. It also switched to a different rate structure, specifically, to one that it was using on a different NASA contract. Id., Exhibit 5, Vol. 4 at 5-4. This rate structure was lower than the one Allied used in its initial proposal. In addition, Allied in its BAFO priced employees at the low end of this rate structure. Id. at 5-3; Transcript at 841-45. 29. In its BAFO, Allied repeated the statements in its initial proposal to the effect that it would manage its workforce toward a skill mix. Protest File, Exhibit 5, Vol. 4 at 5-3. In some cases, however, it reduced the experience required for individuals to qualify for certain skill levels; for example, a senior engineer might need fewer years to qualify as such. Id., Exhibit 220 at N005778. 30. Allied's BAFO proposed productivity gains and cost savings, measures that had not been included in its initial proposal. Allied stated that it expected to save money through Allied explained that it had achieved cost savings through these methods in performing another NASA contract and provided supporting historical data. Protest File, Exhibit 5, Vol. 4, at 5-7 to -10. It anticipated cost savings of approximately over the life of the contract from the employment of these methods. Id. at 4-1, -3 n.D. About half of this savings would result from Allied's employees working fewer hours. Protest File, Exhibit 10 at 12- 10. 31. Allied proposed to contribute per hour to the health and welfare plan for exempt employees. Protest File, Exhibit 10 at 14-7. 32. Allied did not propose a ceiling price on medical insurance costs. Protest File, Exhibit 10 at 14-7. 33. As a result of the modifications that Allied made between initial proposal and BAFO, its offered price dropped by over million, from approximately to million. Protest File, Exhibit 5, Vol. 4 at 4-1. Lockheed 34. Lockheed's initial proposal stated that it would require professional employees to work a hour week at no additional compensation. Protest File, Exhibit 7, Vol. 10 at 181-82. It further stated that exempt employees would work an additional percent of their time as uncompensated overtime: [Lockheed] is instituting total time accounting effective January 1994, whereby all salaried hours worked are recorded. In addition, the work week for salaried employees is adjusted to hours. This combination results in an average percent increase in productive hours per salaried employee at no additional labor cost. Id., Vol. 11, Introduction at 2. Stated otherwise, Lockheed proposed that its salaried, i.e., exempt, employees each week would work hours of mandatory, uncompensated overtime, and another hours of uncompensated, voluntary overtime. 35. The sole support for this approach that Lockheed provided in its initial proposal was a chart reflecting the number of uncompensated hours beyond forty per week that its exempt employees had worked in the prior several months. Protest File, Exhibit 7, Vol. 11 at 27-28. Lockheed did not use a forty- four hour work week in the prior contract at this site. Transcript at 171-73. 36. Prior to BAFOs, NASA asked Lockheed a number of questions about its proposed forty-four hour week. In particular, it asked Lockheed to substantiate its ability to hire and retain qualified professionals with such a scheme. Protest File, Exhibit 7, Vol. 14 at eighth unnumbered page. Lockheed in response submitted a report submitted by the Department of Defense to a congressional committee. This report identified significant problems associated with mandatory, uncompensated overtime. In particular, it found strong evidence of resentment and eroded morale among professional employees. Protest File, Exhibit 10 at 15-5 to -6. 37. NASA also asked whether Lockheed was likely to receive percent voluntary, uncompensated overtime with a mandatory, hour week. In response, Lockheed halved its estimate, to percent. Protest File, Exhibit 7, Vol. 14 at tenth unnumbered page. 38. Because the increase in hours for many employees would mean that Lockheed would need fewer employees, NASA asked Lockheed which positions it would cut. Protest File, Exhibit 7, Vol. 14 at fifteenth through twenty-first unnumbered pages. Prior to receiving this question, Lockheed had not thought the matter through. Transcript at 175-76. The proposed cuts that it submitted in its response would have had a disproportionate impact on certain skill positions. For instance, the number of industrial engineering and laboratory department program analyst hours would each have been reduced by forty-five percent. Protest File, Exhibit 10 at 15-3. Lockheed explained at the hearing in this case that the position cuts were based on its current workforce and might have to be altered when the new contract was implemented. Transcript at 177-78. 39. Lockheed's BAFO price was approximately , a its initial proposal. Protest File, Exhibit 11 at 18, 85, and thirty-ninth unnumbered page from beginning. The Evaluation 40. The SEB's findings with respect to the BAFOs were as follows: Mission Suitability Proposed Probable Offeror Score Cost ($000) Cost ($000) Company A Allied Lockheed Company B Protest File, Exhibit 11 at 92. Allied 41. NASA did not assign a weakness to Allied on account of its reduction of its retention rate from percent of the incumbent employees. The Mission Suitability Committee and the SEB believed that, in light of the large number of resumes that Allied had already received, the company would be able to hire qualified employees. They also took into account the fact that there had been a number of layoffs in the WSTF region, such as at the White Sands Missile Range, that might increase the pool of qualified applicants. Transcript at 328, 423-24. 42. NASA interpreted Allied's BAFO to commit the company to paying incumbents at their current rates, regardless of the actual rates contained in the BAFO. Transcript at 419-21, 454. Thus, the Cost Committee added probable costs to the proposal to make up the difference for the percent of the incumbents that Allied proposed to retain. This amounted to a increase. Protest File, Exhibit 10 at 14-9 to -11; Transcript at 419-21, 467. 43. NASA also evaluated Allied's proposed rate structure to determine whether it would be adequate to attract qualified employees.[foot #] 7 Its compensation consultant concluded that the rates were at the low end of the acceptable ----------- FOOTNOTE BEGINS --------- [foot #] 7 It is important to bear in mind that Allied's pay structure primarily affected only the percent that it proposed to hire, because Allied had promised to match the existing pay for the incumbents that it retained. Furthermore, new, non-exempt employees would have been subject to wage determinations and, in most cases, the collective bargaining agreement. Assuming that the exempt/non-exempt split among the new percent was about the same as it was among incumbents on the current contract, i.e., about fifty percent, the impact of Allied's pay structure fell primarily upon new, exempt employees. This would cover about percent of the workforce, or less than employees. See Transcript at 423-24. ___ ----------- FOOTNOTE ENDS ----------- range.[foot #] 8 Transcript at 410-11, 422-23, 458, 615, 627-29. NASA was nevertheless concerned about the adequacy of the compensation that Allied proposed to provide, as evidenced by the fact that one of the Mission Suitability Committee members proposed to give Allied a major weakness on this ground. Protest File, Exhibit 220 at N005789. The SEB, however, did not find a weakness in this area. Its price analyst felt confident that Allied could hire employees at its offered rates, although he was uncertain whether they would have the desired skill levels. Transcript at 728. The SEB ultimately concluded that Allied would be able to attract qualified employees, based in part on the number of resumes that Allied had received. Id. at 423-24. 44. The Mission Suitability Committee recommended that Allied receive a major weakness for reducing the experience required for an employee to qualify for skill levels within job categories. Protest File, Exhibit 220 at N005776. The SEB did not adopt this recommendation. 45. The SEB determined not to penalize Allied for the low pay that its BAFO reflected for incumbents. Because Allied did not know for certain what the incumbents were making, the SEB accepted Allied's assertion that the company would match the existing pay of incumbents. Transcript at 419-21, 454. 46. NASA rejected Allied's proposed productivity gains and thus added the in proposed savings back in as a probable cost. The SEB found that Allied had not adequately documented these savings. Protest File, Exhibit 10 at 14-12 to -13. The SEB considered, and rejected, the possibility of assigning a weakness to Allied on account of its having proposed the savings. Transcript at 618. 47. The SEB assigned Allied a new major weakness on account of its . Protest File, Exhibit 10 at 14-7. It also increased Allied's probable cost to account for a higher . Transcript at 455-56, 481. 48. The SEB also added a minor weakness on account of Allied's . It found that would lower morale. Protest File, Exhibit 10 at 14-7. 49. The SEB noted in its final report, as part of its analysis of Allied's cost, that Allied had not agreed to a ceiling on medical insurance costs. It took this into account in making adjustments to the probable overhead costs of Allied's proposal. Protest File, Exhibit 10 at 14-14; see id., Exhibit 11 at 87. ----------- FOOTNOTE BEGINS --------- [foot #] 8 This consultant did not testify at the hearing. ----------- FOOTNOTE ENDS ----------- 50. The SEB also considered downgrading Allied's Mission Suitability score due to the , but decided not to do so. The SEB noted that most of the adjustment resulted from two factors: the adjustment to take into account Allied's promise to meet actual incumbent pay and NASA's rejection, for probable cost purposes, of Allied's proposed savings due to productivity gains. With respect to the former, the SEB found Allied's unequivocal promise to match the incumbents' pay sufficient. With respect to the productivity gains, one NASA witness explained: I guess you would call it an innovation. [Innovations] were allowed to be proposed. We just did not accept it because it was not justified. But you don't penalize somebody in mission suitability for proposing that. Transcript at 616-18. Lockheed 51. NASA devoted considerable attention to Lockheed's proposed hour work week. The record indicates that, on an informal level, various NASA personnel were quite hostile to the idea out of concerns for the morale of the professional workforce. Transcript at 175-76, 347, 434-35; Lockheed Exhibit P-1 at 160, 177. For example, one (unsubmitted) draft of questions from NASA to Lockheed included the query, "Please identify the idiot that thought the SEB was so dumb that we would not realize that the -hour workweek was devised to gain a cost advantage rather than an innovative serious management offer." Protest File, Exhibit 187 at N001703. 52. Upon reviewing Lockheed's initial proposal, the SEB assigned it a major weakness under the element of Recruiting and Staffing Plan on the ground that the extended work week would seriously hinder recruiting and retention efforts: The new -hour workweek for professional employees is completely inconsistent with the stated intent to retain percent of the incumbent workforce. The predictable outcome of the new policy is supported by the offeror who admitted that the high turnover rate for professional employees in the past was the result of their total compensation package (salary, in that case) being out of line with the local conditions. . . . A mandatory increase in work hours (which effectively reduces the pay per hour) will reduce employee morale and could reduce the quality of the services provided. Protest File, Exhibit 10 at 6-24. 53. The SEB also assigned Lockheed a major weakness under the Total Compensation Plan element. In doing so, it noted some of the same concerns as above. It also found that resentment might arise because professional employees would be working longer hours than non-exempt employees, and that this might particularly be a problem where professional and non-exempt employees were working together on a particular project. The SEB additionally noted that Lockheed had not discussed differences between the compensation plan in its initial proposal and those in other Government contracts it was performing in the area, nor had it addressed whether its subcontractor would enforce a similar policy. Protest File, Exhibit 10 at 6-25 to -26. 54. After reviewing Lockheed's answer to the question regarding which positions it would cut, the SEB assigned the company a new major weakness in the Organization Plan element on the ground that Lockheed had not thought out how it would implement its proposed increase in the work week: In response to written questions and in the BAFO, the offeror identified salaried skill positions that would be eliminated to accommodate the proposed -hour workweek. This would result in a reduction in the number of labor hours for a number of skill classifications and a percent increase for most of the rest. Some of the reductions would be very significant. There would be percent less chemical engineering labor hours and percent less mechanical engineering labor hours in the Propulsion Test Department; percent less industrial engineering labor hours and percent less programmer analyst labor hours in the Laboratory Department; and percent less electrical engineering labor hours, percent less mechanical engineering labor hours, percent less computer programmer labor hours, and percent less computer coordinator labor hours in the Engineering Department than requested in the RFP. No justification was provided for these decreases except for the -hour workweek. No explanation was provided as to how these deficiencies would be made up. Protest File, Exhibit 10 at 15-3. 55. The SEB also added the cost savings resulting from the increased work week back into Lockheed's initial proposal as probable costs on the ground that Lockheed had not adequately documented its ability to provide the uncompensated hours. The SEB did not reject Lockheed's proposal to provide voluntary, uncompensated overtime, as it believed that Lockheed had provided some evidence that such time would actually be worked. Protest File, Exhibit 10 at 6-31. The SEB came to the same result in evaluating Lockheed's BAFO. It rejected the savings from mandatory, uncompensated overtime and credited Lockheed with percent in voluntary, uncompensated overtime.[foot #] 9 The result was an addition of slightly under in probable costs to Lockheed's BAFO price. Id. at 15-9. 56. Another area of concern for the SEB was Lockheed's proposed program manager. Lockheed stated that it would use its current program manager at WSTF, who had been in that position since mid-1990. Lockheed's program manager had no education beyond high school, but had been employed at WSTF for twenty-six years and had served in a number of management positions there. Transcript at 56-62, 163; Protest File, Exhibit 7, Vol. 10 at 138. 57. With one exception, NASA has consistently rated Lockheed's program management function at WSTF as "excellent." Transcript at 64-65, 207-09. The lone exception occurred due to events in 1992, when cost increases in medical and workers' compensation expenses caused an increase in Lockheed's overhead rates well beyond what it had anticipated at the beginning of the year. Id. at 70, 74. Late in the year, Lockheed informed NASA of a possible increase in its overhead rate. In February of 1993, it reported that the rate had risen by . Id. at 73-74, 123. This resulted in a $1 million budget overrun for NASA. Protest File, Exhibit 439 at 18. As a result, NASA reduced Lockheed's rating in the area of program management to a "high good." Id., Exhibit 161 at N002582-84. NASA's evaluation explained the rating as follows: Although not all of [the cost overrun was] avoidable, closer tracking of incremental expenses such as extraordinary medical and workers' compensation claims, coupled with prompt notification of NASA management to allow early and continuous budget/task order adjustments, could have mitigated the severe impact imposed by this square-wave surprise extra cost. [Lockheed] project management bears the overriding responsibility for ensuring day-to-day maximum contract performance on both a technical and cost basis, and although the technical performance in every Department was generally excellent, the cost performance clearly was unacceptable. Id., Exhibit 439 at 18. 58. Other evaluations criticized the performance of Lockheed's program manager, stating that he avoided contact with NASA officials and that things continued to run well largely due to the efforts of the deputy manager. Evaluations noted that ----------- FOOTNOTE BEGINS --------- [foot #] 9 Although Lockheed in its BAFO proposed only % in voluntary overtime, the SEB evidently believed that, with the hour work week eliminated Lockheed would be able to achieve the larger amount. ----------- FOOTNOTE ENDS ----------- diminished attentiveness by project management had contributed to an increase in safety incidents and to an important position remaining filled by a temporary appointment, to the detriment of operations. Protest File, Exhibits 153 at 18-19, 156 at N002375, 439 at 18. When the evaluators checked the program manager's customer references, who were, of course, NASA personnel, their comments evidenced similar concerns.[foot #] 10 Id., Exhibits 444 at 3162-68, 454 at 4. 59. Lockheed received a major weakness for the proposed program manager's lack of a college degree. It reasoned, "This is a handicap when representing the site at technical management meetings and in evaluating and approving major technical management decisions of his department managers." Protest File, Exhibit 441 at 2865. In addition, the company received a minor weakness for the program manager's limited industry-wide knowledge and contacts. The SEB reasoned that, because he had had little contact with industry sources outside Lockheed, he would have "a very limited perspective for innovation, planning, and cooperation with the rest of the aerospace industry and NASA." Id., Exhibit 10 at 6-19. 60. The SEB also assigned Lockheed a major weakness due to recent degradation in the program manager's performance. It cited the cost overrun, failure to fill key positions, and failure to plan ahead. Protest File, Exhibit 10 at 6-18 to -19. 61. Lockheed received a major strength for the program manager's experience at WSTF and knowledge of its operations. Protest File, Exhibit 10 at 6-18. 62. Another area in which the SEB downgraded Lockheed's Mission Suitability score was its response to one of the hypothetical problems posed in the RFP. Problem number 4 posed the following situation: During the past few weeks, numerous personnel in the 200 area have complained of headaches, skin problems, and fatigue. The labor union has recently lodged a complaint. This information is now public and the news media has reacted in an unfavorable manner. Protest File, Exhibit 3 at L-II-12 to -13. 63. The SEB assigned Lockheed a major weakness because its answer included a number of implicit assumptions, thus showing a poor problem-solving methodology. Although Lockheed's answer stated that it included no assumptions, the SEB found that it in fact assumed that: (1) the problem affected only contractor personnel, (2) timely response to the media was unimportant, (3) ----------- FOOTNOTE BEGINS --------- [foot #] 10 There were also some harsher comments, which the SEB disregarded. Transcript at 659. ----------- FOOTNOTE ENDS ----------- the cause was workplace-related, (4) the contractor's health and safety personnel could resolve the problem themselves, and (5) the cause would be relatively easy to identify. Protest File, Exhibit 10 at 6-13. 64. The SEB also assigned four other major weaknesses based upon the specific flaws in the response, as opposed to the methodology: (1) Lockheed did not consider off-site causes, (2) it failed to emphasize timely communication to the media and the WSTF workforce, (3) it made no use of the various governmental health authorities, and (4) it failed to propose a NASA- contractor team approach to the problem. Protest File, Exhibit 10 at 6-13 to -14. 65. We have reviewed Lockheed's response to Problem 4, Protest File, Exhibit 7, Vol. 10 at 116-19, and find NASA's assessment of it to be reasonable. Mission Suitability Scoring At the hearing in this case, Lockheed attempted to introduce expert testimony to challenge NASA's scoring of the Mission Suitability factor. The hearing judge excluded this testimony on the ground that it was irrelevant. Lockheed has proffered, in an attachment to its brief, the testimony that its expert would have given. In essence, this proffered testimony is a rescoring of the proposals, a complete review of which would be the subject of a major litigation in itself. We have nevertheless examined Lockheed's proffer as if it were in evidence and present here the salient points in it. 66. Lockheed's expert, James Armstrong, initially faults NASA for taking an "undisciplined approach" to the evaluation. His criticisms have primarily to do with the documentation of the evaluation. He faults the evaluators for failing to keep individual worksheets on every issue that arose; for failing to provide a paper trail that would show the "origin" of particular issues and precisely how they were treated at each step in the process (i.e., who first raised an issue, how did the relevant committee view it, how did the SEB view it, etc.); and for substantive errors that are covered elsewhere in the parties' briefs. Declaration of James R. Armstrong, Opening Brief of Lockheed, Appendix C (Armstrong Declaration) at 4-7. 67. Mr. Armstrong also faults NASA's scoring of the program manager element. He asserts that the documentation--primarily the evaluations of Lockheed's performance under the existing contract--does not justify the assigned weakness for recent degradation of the program manager's performance. He adds that, in his opinion, the lack of a college degree is not a major weakness. He points to the facts that the RFP did not require a degree and that there is no evidence to show that the lack of a degree has impaired Lockheed's performance under the current contract. Armstrong Declaration at 11-13.[foot #] 11 68. Lockheed's expert is particularly critical of NASA's scoring of Problem 4. His methodology is to compare the solutions of Lockheed, Allied and Company A to the Source Evaluation Plan. This document contains a section setting out guidelines for the evaluators in scoring the offerors' solutions to the four problems included in the RFP. The guidelines include both general criteria applicable to all of the problems and specific criteria for each separate problem. The plan instructs evaluators to score the solutions "using the following questions [i.e., the criteria] as appropriate." Protest File, Exhibit 15 at 19. Mr. Armstrong has rescored Problem 4 by examining each criterion and assessing for himself whether each of the three companies satisfied it. Our summary of his comments is as follows: a. NASA should not have downscored Lockheed on the ground that it failed to establish a contractor/NASA team approach to the problem. Mr. Armstrong states that Lockheed met this criterion by proposing to maintain liaison with NASA. He further states that Allied proposed the same approach as Lockheed, yet was not penalized. Armstrong Declaration at 9. Our review of Allied's solution reveals that Allied proposed to work with NASA in preparing reports required by various authorities (such as OSHA), coordinate with NASA's medical team as it examined any affected Government workers, Protest File, Exhibit 5, Vol. 1 at 1.2- 21, gather various types of data from NASA, assist NASA in notifying appropriate environmental authorities, and coordinate closely with NASA in responding to the media, id. at 1.2-24. b. NASA should have downgraded Allied for failing to state that it would contact federal, state and local health authorities. Mr. Armstrong notes, accurately, that Allied proposed only to contact federal, state and local environ- mental authorities. Armstrong Declaration at 9 & Attachment 3; Protest File, Exhibit 5, Vol. 1 at 1.2-21 to -25. We note, however, that Allied did propose to contact the Chemical Manufacturers Association as appropriate. Protest File, Exhibit 5, Vol. 1 at 1.2-23. c. NASA should have downscored Allied based on its failure to "[p]rovide information to the union and public ----------- FOOTNOTE BEGINS --------- [foot #] 11 Mr. Armstrong also asserts that Allied's proposed program manager should have been given a weakness because the reference checks included comments that he had trouble dealing with persons who had less education than himself and that he could be hard-headed. Armstrong Declaration at 13- 14. ----------- FOOTNOTE ENDS ----------- (through the news media) using [a] single point of contact." Protest File, Exhibit 15 at 23. Mr. Armstrong adds that Lockheed met this criterion. Armstrong Declaration at 9. We find that Allied proposed to deal with its own workforce through a single point of contact. For contact with the media, federal employees and other federal agencies, it proposed a detailed plan whereby it would support NASA in developing responses which NASA would report. Protest File, Exhibit 5, Vol. 1 at 1.2-22, -24. Lockheed, on the other hand, simply proposed to "provide any assistance required by NASA" in dealing with the media. Id., Exhibit 7, Vol. 10 at 118. d. Allied failed to meet the criterion of scheduling initial interviews and medical examinations, yet was not downscored. Armstrong Declaration at 9. Our reading of Allied's response to the problem shows that it states that the company's "first step" would be to schedule medical examinations. It adds that other specialists, such as toxicologists, would assist the staff doctor in this process. It does not use the word "interview." Protest File, Exhibit 5, Vol. 1 at 1.2-21. e. Allied went no further than Lockheed in recognizing the possibility of off-site causes, yet NASA downscored Lockheed on this point and did not penalize Allied. Armstrong Declaration at 10. We note that Lockheed's response makes brief reference to the possibility of off-site causes; it explains the steps to be taken "[i]f . . . the cause or causes were diagnosed to be job related." It makes no mention, however, of gathering information on possible off-site causes.[foot #] 12 Protest File, Exhibit 7, Vol. 10 at 116. Allied's solution states that it would "ascertain if any other people in the community are reporting similar problems." Id., Exhibit 5, Vol. 1 at 1.2-24. 69. Mr. Armstrong challenges the scoring of Lockheed's recruiting and staffing plan. He asserts that, because the RFP emphasized the need to retain incumbent personnel, Lockheed should have received more than the one major strength it received because of its commitment to retaining of the incumbent workforce. Armstrong Declaration at 14-15. ----------- FOOTNOTE BEGINS --------- [foot #] 12 Lockheed's response can reasonably be read to assume either that the cause is job related or that an off-site cause is not the contractor's concern. For instance, it states that Lockheed would determine whether the affected employees worked only in the affected area or whether they visited "another area of WSTF," but it does not make the same inquiries into off- site activities. Protest File, Exhibit 7, Vol. 10 at 116. ----------- FOOTNOTE ENDS ----------- 70. With respect to Lockheed's total compensation plan, Mr. Armstrong raises many of the issues that Lockheed raises elsewhere in connection with the hour work week. He also faults NASA for finding a weakness due to Lockheed's vacation policy. He asserts that the same policy had been in effect for many years under the current contract and there is no evidence that it has been a problem. Armstrong Declaration at 16-17. 71. Finally, Mr. Armstrong challenges NASA's evaluation of Allied's BAFO on the same grounds that Lockheed has otherwise raised in this protest. Armstrong Declaration at 17-20. 72. The end result of this rescoring exercise is that, in Mr. Armstrong's view, Lockheed should have received a Mission Suitability score of , an increase of from the score NASA assigned. Allied's score, on the other hand, would drop points to , while Company A's score would drop points to . In the problem solving element, Lockheed's score would increase [23 points], while Allied's would drop [39 points] and Company A's [91 points]. Armstrong Declaration, Attachment 6. Selection and Final Negotiations 73. After receiving the SEB's findings, the source selection official (SSO) selected Allied for final negotiations. This decision ultimately came down to a choice between Allied and Company A. The SSO believed that the SEB had overstated the impact of Lockheed's proposed hour work week, but nevertheless found that Lockheed trailed significantly behind Allied in the Mission Suitability factor, as well as being higher in probable cost. Transcript at 699-708. 74. After the submission of BAFOs, budget cuts at NASA required that the TEAM contract be reduced in scale. This included the elimination of the space station option and one test area, as well as a number of other positions. This, of course, reduced the cost of the final contract. Transcript at 467-69, 834-35. 75. The parties negotiated an increase to reflect the amounts that Allied would have to pay incumbent workers. This resulted in an increase of roughly . Protest File, Exhibit 200 at N003378; Transcript at 836-38. NASA did, however, insist that the productivity gains that Allied had proposed become a part of the final contract. Id. at 471. 76. The final contract price was $163,100,000. Protest File, Exhibit 203. Discussion Lockheed raises a number of contentions in this protest, which can be listed as follows: (1) NASA improperly deviated from the language of the RFP by prohibiting Lockheed from offering mandatory, uncompensated overtime and increasing Lockheed's probable cost based on the assumption that it would not provide such overtime; by agreeing to a price increase during final negotiations with Allied; and by accepting an offer that did not comply with the RFP's requirement that offerors agree to ceilings on certain costs; (2) Allied's BAFO did not comply with a mandatory requirement, specifically, Allied did not bid specified numbers of labor hours for the various skill positions; (3) Allied's BAFO contained material inconsistencies because it stated that it would match incumbents' existing pay yet offered to pay far less, and because it proposed a skill mix that Allied could not meet; (4) NASA improperly failed to downscore Allied for changes made in its BAFO; (5) NASA failed to conduct a price realism analysis as required by regulations and the RFP; and (6) NASA conducted an unreasonable evaluation of the Mission Suitability factor. In addition to responding to the substantive issues, NASA has raised several timeliness issues, which we will address first. Timeliness Issues NASA challenges the timeliness of Lockheed's claims that NASA improperly increased the contract price during final negotiations, that Allied failed to meet a mandatory requirement of the RFP by failing to bid to the specified numbers of hours, and that Allied failed to comply with the RFP when it declined to accept a ceiling on medical costs. We find that only the last of these claims is untimely. According to NASA, Lockheed's claim with respect to post- selection negotiations appeared only in the second amendment to the protest, which Lockheed filed on January 21, 1994. NASA asserts that Lockheed should have been aware of this claim no later than December 30, 1993, when it received a copy of the contract.[foot #] 13 Because January 21 was more than ten working days after December 30, says NASA, the claim is untimely. See Board Rule 5(b)(3)(ii). We disagree. This claim was sufficiently raised in the first amendment to Lockheed's protest. In that amendment, filed on January 12, Lockheed added a new count alleging improper post- award negotiations. Among other things, the count asserted: ----------- FOOTNOTE BEGINS --------- [foot #] 13 NASA disingenuously asserts that the contract was "available" to Lockheed at the time of award, i.e., December 10, 1993. Lockheed has appended to its reply brief documents showing that it requested a copy of the contract pursuant to the Freedom of Information Act on December 2. NASA replied on December 10 that the contract was unavailable and that Lockheed should resubmit its request on January 3, 1994. ----------- FOOTNOTE ENDS ----------- The negotiations resulted in a contract . . . that contained terms and conditions that were materially different from those contemplated by AlliedSignal's BAFO. The differences between the contract contemplated at the time of BAFOs and the contract actually negotiated with AlliedSignal include, but are not necessarily limited to: significant reductions in the level of effort hours; [and] increased costs for compensation . . . . First Supplemental Protest Complaint at 5. Although the second amendment stated Lockheed's particular claim with more specificity, we find the above passage sufficient to raise this claim under the principles of notice pleading. See Project Software & Development, Inc., GSBCA 8471-P, 86-3 BCA 19,082, at 96,403, 1986 BPD 107, at 16. Furthermore, the precise nature of Lockheed's contention required that Lockheed see the contract before raising it. Lockheed is contesting not just the overall contract, but the fact that NASA agreed to rates of pay in excess of those contained in Allied's BAFO. Because of the work eliminated from the final contract due to budget constraints, Lockheed could not have determined the basis for the claim from just the contract price (which NASA asserts was announced publicly in November 1993). Thus, because Lockheed filed its first amendment within ten working days of its receipt of the contract, this claim is timely. We reach a similar conclusion with respect to Lockheed's allegation that Allied failed to comply with the supposed requirement that it bid certain numbers of hours. Lockheed asserts that Allied's BAFO effectively bid to fewer than the numbers of hours to which the other offerors bid because of the cost savings that Allied proposed. Because the cost savings in part included fewer hours, Lockheed asserts that by subtracting the cost savings from its price Allied was, in effect, bidding fewer hours. We find that, viewed very broadly, Lockheed's first protest amendment raised this issue by asserting that NASA agreed to a final contract that included "significant reductions in the level of effort hours." First Supplemental Protest Complaint at 5. Because Lockheed could not have known the details of Allied's bid until it received the contract, this claim is timely. Lockheed's allegation with respect to cost ceilings, however, is untimely. We can find no hint of it in the protest or either amendment. The claim made its first appearance in Lockheed's post-hearing brief. Protester should have been aware of the basis for this charge upon receiving the contract on December 30,[foot #] 14 or within a few days thereafter. It did not raise this claim, however, until it filed its brief on February 22. The claim is therefore untimely.[foot #] 15 The Merits Most of Lockheed's arguments in this protest challenge NASA's evaluation of its own proposal and Allied's, and particularly NASA's scoring of the Mission Suitability factor. In reviewing such contentions, we keep two principles uppermost in mind. First, in evaluating proposals an agency must adhere to the terms of the solicitation, unless it notifies all the offerors of a change. It must also evaluate all of the offers in a consistent manner. The goal is to allow all offerors to compete on a level playing field. See 48 CFR 15.606 (1993); CPT Corp., GSBCA 8134-P-R, 86-1 BCA 18,727, at 94,239, 1986 BPD 12, at 65. Second, we have recognized that agencies possess considerable discretion in evaluating proposals and particularly in making scoring decisions. We will not grant a protest alleging such grounds except for an abuse of that discretion. See PRC, Inc. v. Department of Justice, GSBCA 12053-P, 93-2 BCA 25,772, at 128,240, 1993 BPD 6, at 15. In determining whether that discretion has been abused, the Board typically applies a test of reasonableness. It is here that we apparently part company with the author of the concurring opinion. We agree with our colleague that protests are not to be granted unless the Board finds a violation of law, regulation, or delegation of procurement authority. We disagree, however, that in a case such as this, a finding can be made without assessing the reasonableness of an agency's evaluation of offers. One of the most fundamental statutory requirements in Government procurement is that offers be evaluated solely on the factors specified in the solicitation. 10 U.S.C. 2305(b)(1); 41 U.S.C. 253b (1988). In determining whether an agency has complied with this and related regulatory requirements, it ultimately becomes necessary to examine the reasonableness of judgments made during the evaluation process. Much is obviously left to agency discretion. But when agency determinations are found to be devoid of a reasonable basis, they can scarcely be ----------- FOOTNOTE BEGINS --------- [foot #] 14 Lockheed complains in another context that the documents it received from NASA during the initial phases of discovery were in some cases incomplete. It does not, however, assert that the contract provisions at issue in this allegation were missing. [foot #] 15 In any event, the claim is meritless. Lockheed asserts that the RFP required offerors to include a ceiling on medical costs. In fact, it did nothing of the kind. Finding 10. ----------- FOOTNOTE ENDS ----------- deemed to be in accordance with the terms and conditions of the solicitation in question. For this reason, in the exercise of its protest jurisdiction, the Board has repeatedly held that for a protester to challenge successfully the selection process, it must demonstrate that the selection lacks a reasonable basis. E.g. Peqrab Business Systems v. Department of the Navy, GSBCA 12124-P, 93-2 BCA 25,638, at 127,590, 1992 BPD 390, at 6 ("[I]t is protester's burden to demonstrate that the technical evaluation was unreasonable."); CBIS Federal Inc. v. Department of Interior, GSBCA 12092-P, 93-2 BCA 25,643, at 127,606, 1992 BPD 386, at 14 ("[T]he result of the clearly erroneous evaluations of resumes of key personnel is that the selection determination lacks a reasonable basis, so the award is not justified"); Hughes STX Corp. v. National Aeronautics and Space Administration, GSBCA 11665-P, 92-3 BCA 25,035, at 124,789, 1992 BPD 105, at 35 ("The law vests considerable discretion in the conduct of technical evaluations. We will not overturn these evaluations unless it is demonstrated to us that they are unreasonable."). We also note that our appellate authority has recently recognized our use of this reasonableness standard to determine whether there has been an abuse of agency discretion. Lockheed Missiles & Space Co. v. Bentsen, 4 F.3d 955, 958 (In affirming the Board's denial of two protests, the Court observed, "Accordingly, the Board denied the bid protests stating that the IRS decision was reasonable and not an abuse of discretion."). The Hour Work Week One of the largest among the many areas of dispute in this case is NASA's treatment of Lockheed's proposal to require its professional staff to work a hour work week or, as Lockheed puts it, hours per week of mandatory, uncompensated overtime. According to Lockheed, NASA made numerous errors in evaluating this part of its proposal. It asserts that NASA effectively prohibited the practice, contrary to the terms of the RFP. Furthermore, it claims that NASA improperly added the savings from the uncompensated overtime back into Lockheed's probable cost, while at the same time inconsistently penalizing Lockheed for the negative impact it believed the practice would have on the workforce. We do not agree that NASA effectively prohibited mandatory, uncompensated overtime. Without question, at least some NASA personnel were quite hostile to the idea. This hostility, however, proceeded from legitimate concerns about the impact of the practice on morale. Lockheed's proposal amounted to a pay cut and NASA reasonably feared that it would create considerable resentment. Furthermore, contrary to Lockheed's belief, the RFP did not state that offerors were free to propose uncompensated overtime practices without fear of being downgraded based on the specifics of the proposal. In fact, the RFP clearly implied that such proposals would be subject to scrutiny by requiring offerors to "submit evidence of historical uncompensated overtime worked . . . or provide rationale that will be sufficient to ensure that the uncompensated overtime proposed will be provided." Lockheed's proposal to use such a practice thus was subject to being graded based on its quality. We further find reasonable NASA's conclusion that Lockheed's proposed work week was ill-considered. Lockheed could cite to no experience with a similar scheme and the only "support" it provided indicated that it was likely to cause severe morale problems. NASA was left with no assurance that morale would remain at an acceptable level. Lockheed's response to NASA's criticisms is unpersuasive. Lockheed points to the RFP requirement that offerors submit historical data or provide rationale that the overtime will actually be provided. In asserting that it met this standard, Lockheed states simply that NASA has pointed to nothing to show that the overtime would not actually be worked. This presumably is a polite way of saying that Lockheed planned to make its professional employees an offer they could not refuse. We do not view the RFP so restrictively. In our view, NASA was not required simply to take Lockheed's assurance that it would make its employees work the extra hours. Instead, NASA could reasonably evaluate whether it believed the proposed scheme would prove workable; if the impact upon morale was too severe, the practice of mandatory, uncompensated overtime might have to be abandoned. Thus, we find that NASA's evaluation of Lockheed's proposed hour work week was consistent with the RFP provisions on uncompensated overtime. For similar reasons, we reject Lockheed's assertion that NASA subjected it to a "double hit" by assigning it multiple weaknesses due to the extended work week while at the same time adding the savings back into its cost. At first blush, there appears to be some merit to this contention: the downgrading in Mission Suitability appears to assume that the plan will be put into effect, while the increased probable costs assume that it will not. Further reflection, however, leads to a different conclusion. We find reasonable NASA's determination that the proposal reflected poor judgment on Lockheed's part, thus justifying the assignment of weaknesses regardless of whether the extended work week was ever effectuated.[foot #] 16 The assigned weaknesses were therefore consistent with the conclusion that NASA reached in estimating Lockheed's probable ----------- FOOTNOTE BEGINS --------- [foot #] 16 We also reject the contention that NASA should not have assigned more than one weakness on account of the extended work week. The weaknesses were assigned for separate factors. Findings 52-53. ----------- FOOTNOTE ENDS ----------- costs, i.e., that the hour work week would prove unworkable.[foot #] 17 We note that Lockheed received yet another penalty due to its response to NASA's question regarding the positions that Lockheed would eliminate due to the increased hours it proposed to have its professional employees work. NASA again explains that apparent anomaly by asserting that it was penalizing Lockheed for poor judgment rather than for cutting the positions. This is somewhat more troubling because, if NASA did not believe that Lockheed could implement the extended work week, there was no need to ask this question. In addition, there has to be some limit to the number of times an offeror can reasonably be penalized for poor judgment on the same general issue. Nevertheless, we need not resolve this point. Given that we find no merit in any of Lockheed's other assertions, the elimination of this one finding of weakness clearly would not have changed the selection decision. Lockheed still would have trailed far behind Allied in Mission Suitability and would have had a higher price as well. See Andersen Consulting, GSBCA 10833-P, 91-1 BCA 23,474, at 117,759-60, 1990 BPD 396, at 22-24, aff'd, 959 F.2d 929 (Fed. Cir. 1992). Lockheed's Program Manager Lockheed vociferously objects to the weaknesses assigned by NASA on account of its proposed program manager. According to Lockheed, the weaknesses were assigned due to the anger of some NASA officials about the overrun in medical costs. Lockheed further argues that the downgrading was inconsistent with the high ratings that it had received during the performance of the existing contract. We find NASA's conclusions to have been reasonable. The record supports NASA's conclusion that the current program manager was struggling in the position. This is reflected more in the reference checks than in the ratings under the incumbent contract, but we do not believe that NASA's procurement officials were bound to rely solely on the evaluations. They could reasonably look to other sources as well. They also could reasonably take into account the cost overruns; while recognizing that the overruns were not the program manager's fault, NASA ----------- FOOTNOTE BEGINS --------- [foot #] 17 We also recognize the possibility that the plan might be put into effect, with resulting degraded morale, and then have to be abandoned. For this reason also, we cannot share Lockheed's view that NASA is trying to "have it both ways" by assuming both lowered morale and higher costs. ----------- FOOTNOTE ENDS ----------- faulted him for inadequate foresight in dealing with the problem.[foot #] 18 The matter of a college degree was also well within the agency's discretion.[foot #] 19 NASA informed offerors that the program manager's education would be considered as part of the evaluation of that individual's suitability for the job. Finding 13. The fact that the incumbent program manager's lack of a degree apparently has not interfered with the performance of the current contract is unpersuasive. NASA may well have different expectations for the new contract. Allied's Labor Rates The second of the two largest areas of contention in this protest concerns Allied's labor rates. Lockheed asserts primarily that Allied proposed labor rates that were too low to allow it to retain incumbent employees and that its stated rates were inconsistent with its promise in its BAFO to match existing pay for incumbents. We see no merit in either assertion. To put it simply, Allied promised to pay incumbents their current salaries, or the rates required by the applicable wage determination or bargaining agreement, as applicable. Period. Allied did not know the precise salaries of the incumbent profes- sionals, nor did it know the outcome of the collective bargaining before it occurred. Even then, NASA explicitly said that it would not incorporate the new agreement into the RFP but would deal with it in final negotiations. Allied did know, or had reason to know, that its proposed rates were well below what it would have to pay in order to fulfill its promise to match existing rates. Nevertheless, the record makes clear both that there was little chance of NASA being misled by Allied's rates and that NASA in fact was not misled. To the contrary, it added the higher pay back into Allied's proposal. It may be that, as a result of this methodology, the evaluation of Allied's proposed rate structure became largely an exercise in pointless number- crunching, but we are aware of no statutory or regulatory prohibition on pointless number-crunching. That was NASA's decision to make. ----------- FOOTNOTE BEGINS --------- [foot #] 18 We also note that Lockheed is incorrect in asserting that the cost overruns were the only fault NASA found with the management of the current contract. The agency also noted slowness in filling vacancies and distraction during the competition for the new contract, as well as a general lack of responsiveness on the part of the program manager. Findings 58, 60. [foot #] 19 Again, the lack of a college degree was not NASA's only basis for concern. It also appeared concerned that the program manager was too much of a Lockheed "insider," with too little knowledge of the industry as a whole. ----------- FOOTNOTE ENDS ----------- For similar reasons, we reject Lockheed's contention that Allied's proposed skill mix was inconsistent with its proposed labor rates. Lockheed asserts that Allied would not be able to attain a mix because its rates were all at the low end of the range, or lower, for the various skill positions. Because Allied promised to match existing pay for incumbents, however, NASA could reasonably conclude that Allied would be able to achieve the mix of skill and experience it proposed.[foot #] 20 Failure to Meet Mandatory Requirement Lockheed asserts that Allied failed to meet a mandatory requirement of the RFP because it failed to bid to the set numbers of hours for the various skill positions that were set out in the RFP. Lockheed reaches this conclusion as a result of its analysis of Allied's proposed productivity gains. Allied subtracted the cost savings from these gains in determining its offered BAFO price. Because a significant part of the savings was to come from Allied's employees taking less time to do the same projects, Lockheed claims that Allied effectively bid to fewer hours than the RFP required. We see no merit to this claim. Lockheed misconstrues the nature of the work required by the RFP. The RFP did not ask offerors to supply set numbers of hours; rather, it required them to bid to set numbers for comparative purposes. The RFP clearly contemplated that the awardee would, in all likelihood, provide total labor hours that differed from the numbers to which the offerors bid, perhaps by a great deal. Allied's proposal allowed NASA to conduct an appropriate comparison of the offerors' costs as reflected in their labor rates, and then to evaluate the productivity gains as a separate issue. Furthermore, as part of doing its cost analysis, NASA declined to take the productivity gains into account, thus removing any possibility of prejudice. Other Issues Relating to Allied's BAFO Lockheed contends that NASA failed properly to evaluate, or for that matter to evaluate at all, a number of changes that Allied made at the BAFO stage. In Lockheed's view, Allied should have been penalized for these changes. Lockheed further asserts that NASA's failure to downgrade Allied evidenced disparate treatment between the two offerors.[foot #] 21 We ----------- FOOTNOTE BEGINS --------- [foot #] 20 We also note that Allied proposed to manage toward a 25/50/25 mix, not to attain one at the start. [foot #] 21 Lockheed has attempted to buttress all of its claims of unfair treatment with a generalized assertion that NASA was biased against it due to the cost overrun. We will not dwell on this point because the record contains nothing resembling the (continued...) ----------- FOOTNOTE ENDS ----------- examine below each of the areas in which Lockheed believes Allied's BAFO to have been subject to criticism. Retention Rate: Lockheed asserts that Allied should have been downgraded for reducing its proposed retention rate from to percent of the incumbent workforce. NASA, on the other hand, believed that this would present little trouble due to the large number of resumes that Allied had collected.[foot #] 22 We have no evidence that would allow us to conclude that Allied could not find competent workers, particularly given that it would still be retaining a large majority of the incumbents. Thus, we find NASA's treatment of this point to be reasonable. Lower Rate Structure: Lockheed points to Allied's change to a different rate structure for exempt employees than the one it used in its initial proposal. Lockheed finds it exceedingly suspicious that the new rate structure was lower, thus contributing to the substantial decrease in Allied's offered price. For the reasons we have already stated, however, we see nothing suspicious in it. Allied promised to match incumbent salaries. In addition, the mere fact that it was using an existing rate structure supports NASA's conclusion that Allied would have been able to attract new employees. Thus, we see nothing unreasonable about NASA's failure to penalize Allied on this point. Pay for Incumbents: Lockheed claims that Allied would have been unable to match existing (for exempt personnel) or required (for non-exempt personnel) pay rates under the pay structure in its proposal. As we have already found, however, Allied promised to match existing or required pay rates. Pay Raises: Lockheed faults Allied for proposing to increase exempt employees' pay by only percent . The SEB, however, assigned a minor weakness on this point. Health and Welfare Plan: Lockheed similarly faults Allied for its proposed, contribution to the health and welfare plan for exempt employees. As we have found, NASA assigned Allied a new major weakness for this change and ----------- FOOTNOTE BEGINS --------- [foot #] 21 (...continued) evidence required to overcome the presumption that Government officials carry out their duties in good faith. See SMS Data ___ ________ Products Group, Inc., GSBCA 10587-P, 90-3 BCA 23,034, at _____________________ 115,658, 1990 BPD 141, at 9. [foot #] 22 In addition, incumbents who were not retained could have reapplied, although it appears likely they would have to take pay cuts. ----------- FOOTNOTE ENDS ----------- increased its probable cost to account for increased contributions.[foot #] 23 Reduced Experience Levels: Lockheed next points to Allied's decision to reduce the experience required to qualify for certain skill levels. NASA appears to have been largely unconcerned about this move. We simply lack an adequate basis for faulting this treatment. We have no evidence to show that the change will result in degraded performance under the contract, particularly given that Allied proposed to retain percent of the incumbent workforce. Productivity Gains: Possibly the most significant of Lockheed's complaints about Allied's BAFO is the treatment of the proposed productivity gains. NASA did not include the resulting savings in its estimate of Allied's probable cost because it found inadequate evidence to support them. It did not, however, assign Allied a weakness for making the proposal. Although this appears, on the surface, inconsistent with the treatment that Lockheed received over its work week proposal, we nevertheless perceive a difference between the two situations. Specifically, in NASA's estimation, Lockheed's proposal raised a strong likelihood of adverse effects on morale. Allied's productivity gains proposal, on the other hand, rather than enforcing a "takeaway" on part of its workforce, primarily contemplated savings through more efficient management techniques. It thus was reasonable for NASA to assign weaknesses to Lockheed, but not to Allied, for bad judgment. As should be apparent from our review of Lockheed's arguments, we find that its challenges to NASA's treatment of Allied's BAFO fall well short of establishing an abuse of discretion. In some areas, NASA did in fact assign weaknesses to Allied.[foot #] 24 In other areas, we might or might not have reached the same conclusion, but these are judgment calls well within the agency's assigned discretion. We thus find no basis for granting the protest here. Documentation Lockheed devotes considerable attention to what it considers inadequate documentation in NASA's decision-making process. It asserts in numerous contexts that NASA failed to create an adequate paper trail, so that it is not possible to determine what individual raised what issues, or how those issues were treated at each stage of the process. Lockheed also claims that ----------- FOOTNOTE BEGINS --------- [foot #] 23 This treatment mirrored the supposed "double hit" that Lockheed took over its extended work week proposal. [foot #] 24 This also shows that NASA was not oblivious to the changes in Allied's proposal at the BAFO stage, as Lockheed charges. ----------- FOOTNOTE ENDS ----------- NASA failed entirely to consider a variety of issues. It particularly points to the changes in Allied's BAFO and it asserts that NASA violated regulation by failing to conduct a price reasonableness analysis. As a general matter, Lockheed misapprehends the nature of the de novo review that this Board conducts. Our focus is not on the question whether the agency performed each procedural step. Our focus is on the substance of the challenged decision. For this reason, we are not limited to the record developed by the agency. This cuts both ways, of course: a protester can introduce evidence to challenge the decision that the agency did not consider, but the agency can also introduce new evidence to support that decision. We thus are not ordinarily concerned with the paper trail that the agency created; we make our own record. In this particular case, we are satisfied with our ability to review the agency's decisions adequately. We are convinced that the reasons that NASA advances for its decisions in this proceeding are not simply after-the-fact rationalizations and thus are not troubled, for example, by the failure of certain evaluators to fill out worksheets. See Andersen Consulting. With respect to price realism, Lockheed is correct in stating that NASA was required to conduct such an evaluation. An agency must satisfy itself that an offeror's price is not so low as to raise doubt about whether the offeror understands the requirements of the solicitation. See 48 CFR 15.605(d) (1993); see generally Planning Research Corp., GSBCA 10697-P, 91-2 BCA 23,881, 1991 BPD 82. As to the substance of this issue, Lockheed has not estab- lished that Allied's BAFO was priced unrealistically low. Allied promised to match the salaries of incumbent professionals and to meet the applicable wage determinations or collective bargaining agreement rates of other employees. Although Allied's offered rates were far too low for it to do this, both Allied and NASA clearly understood this fact. With respect to non-incumbent, exempt employees, although Allied's rates were on the low side, it used an existing rate structure and there was evidence that it would be drawing on a favorable applicant pool.[foot #] 25 Lockheed has not established that Allied failed to grasp the requirements of the RFP or that it would be unable to hire qualified workers. Although NASA apparently never did a formal price reasonableness analysis, this failure does not provide us with a basis for granting the protest. As the above discussion shows, NASA assessed the realism of Allied's BAFO, albeit not through a named vehicle. Furthermore, this protest has provided the ----------- FOOTNOTE BEGINS --------- [foot #] 25 Specifically, Allied had already received a large number of resumes and there had been layoffs in the region. ----------- FOOTNOTE ENDS ----------- opportunity for a full review of this issue. Given the agency's findings, which we consider reasonable, the only purpose that would be served by returning the matter to NASA on this issue would be to allow it to create a record that would lead to the same decision. We decline to require the agency to engage in such file-papering and hoop-jumping. See Technology, Management & Analysis Corp. v. Environmental Protection Agency, GSBCA 12082-P, 93-2 BCA 25,849, at 128,630, 1993 BPD 73, at 20 (declining to grant protest for failure to do price realism analysis where doing analysis would not result in different award). Post-Selection Negotiations Lockheed asserts that NASA violated the terms of the RFP by agreeing to higher labor rates in the final contract with Allied. Lockheed points to the cover letter, which was incorporated into the RFP and which stated that NASA would not agree to a higher price during final negotiations. Although the final price was about the same as Allied's offered BAFO price, Lockheed points out that this occurred only because some work had to be eliminated from the contract due to budget constraints. Lockheed is at least partially correct in its assertions. NASA unquestionably agreed to higher labor rates in order to allow Allied to fulfill its promise to match incumbent professional salaries and applicable wage or union rates for non- exempt employees. Furthermore, the final contract price was contrary to the spirit, and possibly the letter, of NASA's assertion that it would not agree to a higher contract price during final negotiations.[foot #] 26 Nevertheless, this does not provide a ground for granting the protest because Lockheed can show no prejudice from the possible violation of the terms of the cover letter. Because NASA took higher rates into account in calculating Allied's probable cost, Lockheed cannot assert that NASA's failure to apply the terms of the cover letter strictly against Allied gave that company an advantage by allowing it to underbid. NASA effectively evaluated Allied's labor rates as if they were the ones that the parties eventually agreed to in the final negotiations. Thus, we deny this claim. Rescoring We come finally to the criticisms of Lockheed's expert. Many of his comments we have already covered in the rest of our discussion. The remainder primarily has to do with Problem 4. ----------- FOOTNOTE BEGINS --------- [foot #] 26 We find the cover letter puzzling. It may have been intended more as a statement of policy than as a binding requirement, as NASA effectively argues in its brief, but it was not worded that way and it was incorporated into the RFP. ----------- FOOTNOTE ENDS ----------- We see no need to dwell on this point. As our findings reflect, Mr. Armstrong's comments prove, at most, that different people can look at the same evidence and reach different conclusions. This does not establish that NASA's scoring of Problem 4, or of the Mission Suitability element in general, was irrational or an abuse of discretion. Decision The protest is DENIED. ______________________________ ______________________________ ROBERT W. PARKER EDWIN B. NEILL Board Judge Board Judge DEVINE, Board Judge, concurring. I agree with the result reached by the majority, but not with the philosophical approach. This Board does not sit as a Super Source Selection Board, making up its own independent collective mind as to whether or not the award in question was given to the "right" offeror, and if its judgment is that it didn't, fixing the matter by directing the award elsewhere. On the contrary, it is our function to examine the complaints of the protester to see if they (l) are supported by the facts and (2) allege a violation of an applicable statute or regulation, or a delegation of procurement authority, or show some failure to adhere to the terms of the RFP, to the end that fair competition be maintained. It may be that we, individually or collectively, would not have made the award that was made. We may even think it wrong. But as long as it does not violate one of the foregoing it must stand, because within the limits of the discretionary authority vested in them, both the Source Selection Board and the Source Selection Officer have the right to be wrong. The majority, during the course of its opinion, finds the decision of the Source Selection Board "reasonable," but reasonable is not the test. The test is: Was it wrong in the sense that it violated one of the foregoing? If we are to judge a procurement on the sole ground of whether or not it was reasonably conducted, we will have no standard to go by. One man's reasonableness is another man's outrage. Subjective decisions on what is reasonable do not lead to consistent results. It is not the function of the Government to show that what it did with respect to the challenged procurement was reasonable, correct, consonant with the regulations and statutes, and within the terms of the RFP; rather, it is the function and duty of the protestor to show that what was done was wrong, contrary to the regulations and statutes, inconsistent with the terms of the RFP, and in derogation of fair competition. Thus there is no need for the mind-numbing recitations of numbered trivia so common in our opinions (and apparent in this one), designed only to show that the procurement powers-that-be have dotted all the "i"s and crossed all the "t"s and have thus produced a procurement deserving to be blessed by this Board. It is not the Government's function, nor is it our function, to perpetuate the notion. Protester must show us the holes. We must decide whether the transgression (if it exists) merits interference with the procurement process in the name of preserving competition. Once we have considered and decided the protest complaints that are supported by the evidence, we should stop: anything further is a waste of time. This is so because we are not fixers of the procurement process; we are, or should be, buck-stoppers. It is our function to say whether or not protestor's objections to any given procurement are well taken, but not our function to outline how it can be fixed. Nor is it our function, where we find protester's complaint's groundless, to examine aspects of the procurement which the protester did not challenge. We do not sit to bless procurements. As a fellow judge once remarked: "We are not a roving commission to do good." Our primary function is to find the essential facts: those upon which any decision must turn. Merely listing the facts available without sifting them for significance and putting them in logical order leads to muddy thinking and results in such decisions as Locom Corp., GSBCA 895l-P, 87-2 BCA 19,940, 1987 BPD 111. The opinion in that protest gives us five pages of carefully numbered "facts," plus three pages of puzzling "discussion" before we are given the only essential fact, which is that the protest is moot, because the electronic equipment at issue had been delivered and installed nine days before the protest was filed. Under such a state of facts, the Brooks Act makes the contract valid, and we have no power to alter it. 40 U.S.C. 759(f)(6)(B) (1988). The Locom opinion seems to recognize this because it reads: "The record shows that the procurement has been completed. The items in question have already been delivered and installation of the memory upgrade took place over the weekend of April 11 and 12. [The protest was filed on April 21]. Presumably, at this juncture the equipment has been formally accepted as well." 87-2 BCA at 100,916, 1987 BPD 111, at 8. Despite the fact that the Board was apparently familiar with the statute, it went on to find that the contracting officer had acted improperly and granted the protest, but it also found that the impropriety was not so serious as to justify a revision of procurement authority. In a way this was fortunate because we have no authority over a moot protest except to dismiss it. In the end, this decision of a moot protest did nothing but allow the protester to recover its protest and proposal costs, the result of a simple failure to organize and appreciate facts. Locom was not the only case where the forest got lost in the trees. In Grammco Computer Sales, Inc., GSBCA 8940-P, 87-2 BCA 19,839, 1987 BPD 84, we again find five pages of numbered facts, which tell us, among many, many other things, that the protester is also the awardee of the contract. This fact, which is essentially ignored, should have determined the issue. The contract awardee cannot be an interested party since it lacks an interest in the procurement, having already obtained the contract. There is nothing further for the awardee to get, is there? Perhaps. The protester had responded to the Government's request for proposals by proposing several different alternatives. When it was awarded the contract on one of its alternatives, it protested on the ground that it should have been awarded the contract on another, which was more favorable to it price-wise. The Government argued that the awardee should not be heard to complain when what it proposes of its own free will is accepted for award. The Board agreed, but added the caveat: only if there is no irregularity in the procurement. The Board then granted the protest because it found one, thus transforming the successful awardee into a successful protester, and entitling it to just under $37,000 in proposal costs and fees. Grammco Computer Sales, Inc., GSBCA 9049-C(8940-P), 88-2 BCA 20,691, 1988 BPD 57. This case is not so much a lesson in getting the facts sorted out right as it is an illustration of a lack of understanding of the legal effect of such facts. It is also a reflection of the idea that the Government has some sort of duty to show that a procurement not only does not have any of the faults alleged by the protester, but has none at all. These are the principal faults of the majority opinion. If I were a member of the majority, I would write the opinion as follows: Findings of Fact The National Aeronautics and Space Administration (NASA) operates the Johnson Spaceflight Center in Houston, Texas. The Center's test facility is located at the White Sands Missile Range near Las Cruces, New Mexico. NASA has about 50 of its own employees stationed at the White Sands Test Facility (WSTF or White Sands); however, the bulk of the personnel working at the facility, about 500 employees, are contractor personnel. Protest File, Vol. 0, Exhibit 3.0. About half of these employees are salaried professionals: engineers, chemists, physicists and the like. The remainder are hourly workers, most of whom are unionized and whose collective bargaining agreements are subject to the Service Contract Act.[foot #] 27 Id. The principal work of White Sands is to develop and test spacecraft ----------- FOOTNOTE BEGINS --------- [foot #] 27 41 U.S.C. 351-358 (1988). ----------- FOOTNOTE ENDS ----------- propulsion systems, to test various materials and components, to support Space Shuttle training aircraft operations and manage an alternate orbiter landing site, to provide technical support for calibrating test equipment and in aid of computer design and drafting functions, and to provide such housekeeping functions as maintenance of grounds and equipment, fire protection, mail services, cafeteria services, and health services, including routine and emergency medical care. Id. The incumbent contractor is Lockheed Engineering & Sciences Company (LESC or Lockheed), the protester here. See, e.g., Transcript at 104. Lockheed has been the incumbent for some seventeen or more years. Id.; Protest File, LESC Supplement, Vol. 3, Exhibit 216. The procurement at issue seeks qualified contractor personnel to conduct a mix of tasks ranging from the solution of esoteric engineering problems to feeding the employees. The solicitation refers to it as the "Test, Evaluation and Maintenance Contract" (TEAM). Protest File, Vol. 0, Exhibit 3.0. The solicitation contemplated a three-year initial term commencing on February l, 1994, with an option term of two years. Id. The contract is of the cost-plus-award-fee type with an approximate value of $200 million. Id. The Request for Proposals. The request for proposals (RFP), issued on June 1, 1993, sets forth the level of effort expected from successful offerors. Protest File, Vol. 0, Exhibit 3.0. Section L of the RFP contains tables listing labor classifications and labor hour requirements for the base effort and certain options. Id. Professional hours, as well as labor hours, are included. Id. These tables list the skill positions required, such as chemical engineers, programmers, physicists, among many others, and set out the number of hours required of each position in each of the six principle areas enumerated in the RFP's statement of work (SOW). Id. The six areas are: administration, propulsion, laboratories, engineering, environmental, and health and safety. Id. The tables do not set out the experience levels -- referred to as the "skill mix" by the parties -- required for the various positions. Transcript at 162-63. The RFP contemplated a cost-plus-award-fee contract. Id. The principal costs were labor costs and overhead costs related to labor costs, such as health insurance and workman's compensation insurance. Id. There were some fixed costs which NASA set out in the RFP and were thus automatically included in every offeror's bid. Id. Offerors were invited to propose ceilings on their overhead costs but were not required to do so. Id.; Transcript at 761-63. Under the terms of the RFP, the successful contractor was required to provide "not less than 80 percent nor more than 120 percent of . . . total direct labor hours." Protest File, Vol. 0, Exhibit 3.0. This provision was necessary because of the varying levels of activity at White Sands caused by such things as the presence or absence of a shuttle mission. Id. The RFP also set out four scenarios, each of which described a theoretical problem occurring at White Sands. Id. Offerors were asked to give their detailed solutions to each of the problems and a statement of their underlying assumptions. Id. Prior to the issuance of the RFP, Lockheed, in anticipation thereof, had asked the contracting officer how NASA would consider cost proposals that included uncompensated overtime hours "that effectively dilute the normal labor rate." Id., LESC Supplement, Vol. 3, Exhibit 210. NASA responded by including a clause in the RFP notifying the offerors that, if they intended to propose uncompensated overtime, in order for it to be considered in the evaluation of a proposal, "offerors must submit evidence of historical uncompensated overtime worked, consistent with their accounting system or provide rationale that will be sufficient to ensure that the uncompensated overtime proposed will be provided." Id., Vol.0, Exhibit 3.0; Transcript at 411-13, 441. The Evaluation Criteria. Proposals were to be evaluated in four areas. Protest File, Vol.0, Exhibit 3.0. These areas are titled: Mission Suitability, Cost, Relevant Experience and Past Performance, and Other Considerations. Id. Of these, only Mission Suitability was to be scored numerically. Id. Section M of the RFP told offerors that proposals would be evaluated by a source evaluation board (SEB), under applicable regulations, including the NASA Federal Acquisition Regulation Supplement and the NASA Source Evaluation Handbook. Id. The Mission Suitability category was subdivided into a number of subfactors and elements as set out below: Subfactor: Management Approach and Understanding the Requirements 525 Element: Management Approach & Understanding of Overall Task 225 Element: Problem Solving 175 Element: Organization Plan 125 Subfactor: Key Personnel 275 Element: Suitability of Program Mgr. 125 Element: Suitability of Other Key Personnel 150 Subfactor: Staffing and Business Approach 200 Element: Recruiting and Staffing Plan 50 Element: Total Compensation Plan 50 Element: Small and Disadvantaged Business Plan 100 Protest File, Vol.0, Exhibit 3.0. The sub-element entitled "Suitability of Program Manager" lists "education" as one of the considerations to be evaluated. Id. With respect to the Cost category, the RFP indicated that cost realism would be evaluated, and that the SEB would make a determination as to each offeror's probable cost. Protest File, Vol.0, Exhibit 3.0. The Source Evaluation Plan. This plan set out the membership of the SEB, as well as the membership of each of the four evaluation committees. Protest File, Vol. 19, Exhibit 15. Each evaluation factor had its own committee. Id. The SEB chairman was the NASA site manager. Id. The SEB also included the deputy site manager, , and the chiefs of the principal offices at White Sands, with one exception. The Propulsion Office chief, was a member, as was chief of administration, and , engineering office chief. Id. The one exception was the chief of laboratories, , who had a conflict of interest because his wife worked for Lockheed. Transcript at 231-32, 262, 590-91. He was replaced by one of his assistants. Prior to the submission of proposals, wife retired and he was made a consultant to the Board. Id.; Protest File, Vol. 19, Exhibit 15. The fifth member of the Board was [an employee] of the engineering directorate of the Johnson Spaceflight Center. Id. The Board's recorder was , a contract specialist. Id. All of the SEB members, except the chairman and his deputy, were also members of evaluation committees. Id. The evaluation committees numbered four. Protest File, Vol. 19, Exhibit 15. Each committee considered one of the four principal factors: Mission Suitability, Cost, Relevant Experience and Past Performance, and Other Considerations. Id. The RFP had this to say about the four factors: Of the four factors . . . Mission Suitability and Cost are most important and, as related to each other, are of approximately equal importance. Relevant Experience and Past Performance is of somewhat less importance, and Other Considerations is of considerably less importance. Protest File, Vol. 0, Exhibit 3.0. The Committee Evaluation Procedures. With respect to Mission Suitability, it was the responsibility of that committee to make findings with respect to each offeror's proposal for each evaluation subfactor and element. Protest File, Vol. 19, Exhibit 15. The findings were referred to as "strengths" or "weaknesses" and were characterized as "major" or "minor." Id. The source evaluation plan (SEP) contained NASA's standard rating and numerical scoring system for subfactors and elements, with five adjective ratings from "poor" to "excellent," and corresponding descriptions and point scores (where appropriate) from 1 to 100. Id. Under this evaluation scheme, an offeror proposing what NASA would expect of a competent contractor would receive an adjective rating of "good." Transcript 561-62. The SEP also included an individual work sheet (Form 2) which provided a vehicle for committee members to record their individual findings. Protest File, Vol. 19, Exhibit 15. After each member had completed his review of a proposal, the committee met to discuss it and to arrive at a consensus on the strengths and weaknesses (whether major or minor) of each offeror's proposal. Id. The consensus was then recorded on the committee worksheet and committee findings forms (Forms 3 and 4). These forms, along with the committee summary report (Form 5), were then presented to the SEB for its consideration. Id.; Transcript at 258-60. The SEB thereafter reached its own consensus, first as to strengths and weaknesses, then as to adjectival ratings, and finally as to a score for each offeror's proposal, under each subfactor and element, where such scores were required. Protest File, Vol. 19, Exhibit 15; Transcript at 566-67. These findings were recorded on Form 6 of the SEP. Id. The committee dealing with the heading "Cost" operated somewhat differently. It did not assign strengths and weaknesses. Its principal function was to determine a probable cost for each offeror's proposal by performing a probable cost analysis. Protest File, Vol. 19, Exhibit 15. It was also responsible to see that all cost elements contained in the RFP were covered in the various proposals, and to assess the reasonableness thereof. The committee was also to identify any real cost differences among the proposals. Id. The committee dealing with the heading "Relevant Experience and Past Performance" primarily looked into the past performance and experience of key contractor personnel, particularly the proffered program managers, by checking the references supplied by the various offerors. The results were considered under both this heading and the heading "Mission Suitability." Protest File, Vol. 19, Exhibit 15. Appendix B of the SEP provided general guidance to both the committee members and the SEB members in evaluating the various factors, but necessarily left a great deal to the discretion of the evaluators. Protest File, Vol. 19, Exhibit 15; Transcript at 667-68, 681-83. The Initial Proposals. Eight offerors submitted proposals in response to the RFP. See, e.g., Protest File, Vol. 17, Exhibit 11. Each of the non-incumbents, to one degree or another, proposed to retain a majority of the incumbent work force in their current positions and to pay their current salaries. None of the non-incumbent offerors was able to estimate accurately the incumbent's rates which they were promising to match. Six offerors' estimates were low, including the estimates of AlliedSignal and ; one was high. Transcript at 420-21, 454. After evaluation of initial proposals, NASA eliminated four offers from the competitive range, leaving the following offerors ranked in descending order of their Mission Suitability scores: OFFEROR MISSION COST (M$) COST (M$) SUITABILITY PROPOSED PROBABLE SCORE AlliedSignal LESC Protest File, Vol. 15. NASA sent written questions to all four remaining offerors seeking clarification and substantiation of their proposals. Pursuant to NASA FAR Supp. 18-70.303, App. I, NASA did not advise offerors of weaknesses in their proposals: Where the meaning of a proposal is clear and the Board has sufficient information to assess its validity and the proposal contains a weakness that is inherent in an offeror's management, engineering or scientific judgment . . . the contracting officer shall not point out the weakness. Protest File, LESC Supplement, Vol. 3, Exhibit 215; see also Transcript at 558-60. The offerors remaining in the competitive range provided written responses to the questions given them and then participated in oral discussions with NASA, during which they were given an opportunity to amplify their responses to the evaluators. See, Protest File, Vols. 5 (AlliedSignal Written and Orals), 9 ( Written and Orals); 14 (LESC Written and Orals). Subsequently, each of the four offerors submitted BAFOs which incorporated their written responses. Lockheed's initial proposal contained several elements that were controversial in the sense that they negatively affected rankings: The first was its proposal to increase the regular workweek of its salaried (professional) employees from 40 to hours without any increase in pay, Protest File, Vol. 10, at 181-82, and to work an additional percent of their time as voluntary uncompensated overtime, id., Vol. 11, at 2. The second was a proposal to . Protest File, Vol. 16, at 6-26; see also Id., Vols. 10, at 189-91, 12, at 189-91. The third arose out of its solution to a problem (No. 4) set out in the RFP, to which each offeror was required to respond, and which read as follows: During the past few weeks, numerous personnel in the 200 area [one of the areas of the White Sands Missile Range] have complained of headaches, skin problems, and fatigue. The labor union has recently lodged a complaint. This information is now public and the news media has reacted in an unfavorable manner. Protest File, Vol. 0, Exhibit 3.0. Lockheed's solution to this problem was not well received by NASA. Id., Vol. 16, at 6-13, 14; Transcript at 595-98. The fourth grew out of its proposal to . Protest File, Vol. 16, at 6-24. The fifth resulted from Lockheed's omission from its response to the RFP of a plan to control the performance of its subcontractor. Protest File, Vol. 16, at 6-16; Transcript at 608. With respect to AlliedSignal's initial response to the RFP, several matters were controversial: First was its proposal to retain percent of the incumbent work force coupled with its proposed "skill mix" of percent senior employees, percent mid-level employees, and percent junior employees. Protest File, Vol. 1, at 1.1-3, 1.6-1. This was referred to as the Transcript at 852. When contrasted with the incumbent's work force, which contained See id. at 853. Thus, protester felt that AlliedSignal's proposed pattern was at odds with its proposed incumbent employee retention rates. The second was the relatively low levels of AlliedSignal's proposed salary and wage structure, coupled with its stated intention not to reduce incumbent's wages or salaries. Protest File, Vol. 2, at 5-1. Best and Final Offers (BAFOS). Following oral discussions, the four offerors in the competitive range were invited to submit BAFOS. AlliedSignal reduced its incumbent employee retention percentage from its earlier percent to percent, Protest File, Vol. 5, at 3, apparently in response to the problem. The percent figure for retained employees included retaining percent of the more important and highly skilled employees. Id. AlliedSignal also added a new proposal offering productivity gains to be based on process efficiencies allowing more work in less time, and cost savings on material purchases. Id., Vol. 4, at 5-7 to -10. The proposed savings were stated to be $ million over the life of the contract. Id. at 4-1, n.(D). AlliedSignal also changed its labor rates from its corporate rates (ATSC rates) to the somewhat lower rates (STSOC rates) it used under another contract with NASA. Id., Vol. 4, at 4-3, 5-1, 5-9; Transcript at 810-12. Lockheed's BAFO showed no significant changes. It again proposed the hour week, without overtime pay, for professionals, but it reduced the amount of additional voluntary overtime proposed from Protest File, Vol. 13, at 28. Mostly as a result of this change it increased its costs by approximately , to . Id., Vol. 13, at 2c, 28; Id., Vol. 16, at 12-11 & n.(1). Subsequent Events. The proposals of AlliedSignal and Lockheed, among others, were considered by the SEB, together with the reports of the various committees. The initial scores under the factor Mission Suitability are set out in table form below: UNDERSTANDING REQUIREMENTS AVAIL. PTS Understanding of Overall Task Problem Solving Organization Plan Total KEY PERSONNEL Project Manager Other Key Personnel Total STAFFING AND BUSINESS APPROACH Recruiting and Staffing Plan Total Compensation Plan Soc. & Econ. Disad. Bus. Plan Total _ GRAND TOTAL Protest File, Vol. 16, at 3-3. The final strengths and weaknesses based on the above scoring, with adjustments as set out hereafter, were as follows: Management Approach and Understanding of Overall Task: AlliedSignal received 11 major strengths, and 1 major weakness, Protest File, Vol. 16, at 14-1; Lockheed received 12 major strengths, and 4 major weaknesses. Protest File, Vol. 16, at 15-1. Problem Solving: AlliedSignal received 7 major strengths and 3 major weaknesses, Protest File, Vol. 16, at 14-2; Lockheed received 8 major strengths and 8 major weaknesses. Protest File, Vol. 16, at 15-2. Organization Plan: AlliedSignal received 1 major strength and no major weaknesses, Protest File, Vol. 16, at 14-3; Lockheed received 1 major strength and 2 major weaknesses. Protest File, Vol. 16, at 15-2. Suitability of Program Manager: AlliedSignal received 1 major strength and no major weaknesses. Protest File, Vol. 16, at 14-4; Lockheed received 1 major strength and 2 major weaknesses. Protest File, Vol. 16, at 15-4. Suitability of Other Key Personnel: AlliedSignal received 4 major strengths and 3 major weaknesses, Protest File, Vol. 16, at 14-4; Lockheed received 4 major strengths and 1 major weakness. Protest File, Vol. 16, at 15-4. Recruiting and Staffing Plan: AlliedSignal received 1 major strength and no major weaknesses. Protest File, Vol. 16, at 14-6; Lockheed received 1 major strength and 2 major weaknesses. Protest File, Vol. 16, at 15-5. Total Compensation Plan: AlliedSignal received no major strengths and no major weaknesses. Protest File, Vol. 16, at 14-7; Lockheed received no major strengths and 2 major weaknesses. Protest File, Vol. 16, at 15-6. Disadvantaged Business Plan: AlliedSignal received no major strengths and 1 major weakness. Protest File, Vol. 16, at 14-8; Lockheed received l major strength and no major weaknesses. Protest File, Vol. 16, at 15-7. Following discussions and BAFOs, AlliedSignal's score for Total Compensation was downgraded to and its rating dropped to Protest File, Vol. 16 at 14-7. Its score for its Disadvantaged Business plan increased from to , but its rating remained Id. at 14-8. Similarly, Lockheed's score for its Organization Plan under the Mission Suitability factor was reduced from to , and its rating from to Id. at 15-2. This resulted from Lockheed's elimination of a number of salaried skill positions (made necessary by its new hour work week) with no explanation as to how these lost skills would be replaced. Id. at 15-3. Lockheed was assigned an additional major weakness for this situation. Id. Lockheed had no other significant changes. Thus, after the above adjustments, Lockheed's total under Mission Suitability decreased points to , and AlliedSignal's total decreased a net points to . Under the major factor Cost, AlliedSignal's proposed cost of was increased by the SEB to and Lockheed's proposed cost of was also increased by the SEB to . These increases resulted from the SEB's probable cost analysis and were the costs considered by it in awarding the contract. Protest File, Vol. 17, at 92. With respect to the major factor Relevant Experience and Past Performance, AlliedSignal was rated and assigned two major strengths and one major weakness. Protest File, Vol. 16, at 14-8. Lockheed also attained a "very good" rating, and was assigned two major strengths and one major weakness. Id., Vol. 16, at 15-7. The final ratings for this factor of both AlliedSignal and Lockheed following BAFOs showed no change. With respect to the major factor entitled Other Considerations, AlliedSignal's general rating was for its phase-in plan, and for such matters as labor relations, purchasing system, EEO compliance, financial condition, small business plan, and its quality and productivity improvement plan, all of which were included (among others) under that heading. Protest File, Vol. 16, at 5-23, -24. There were no changes following BAFOs. Id. at 14-8. Lockheed's ratings were similar. It received a rating of for all elements except its Disadvantaged Business subcontracting plan which was rated Id. at 6-29, -30. These ratings did not change following BAFOs. Id. at 15-7. Following its evaluations of the four proposals in the competitive range, the SEB put its findings in a voluminous report, Protest File, Vol. 17, and presented it to the source selection official (SSO), in this case, Mr. Paul Weitz. Mr. Weitz, in conjunction with his advisors, and based on the documents before him, ranked the proposals in descending order, as follows: , , , , and awarded the contract to AlliedSignal. Id., Vol. 0. Discussion Lockheed attacks the procurement on the general ground that its own proposal was improperly evaluated, resulting in too low a score, while at the same time complaining that AlliedSignal's proposal was also improperly evaluated, resulting in too high a score. In doing so, Lockheed fails to distinguish between low evaluation results that are based on the facts presented, are consonant with the RFP requirements, in accord with applicable regulations, and consistent with the evaluation results of other offerors, from those which result from a failure to abide by one or more of the foregoing. The latter are redressable, the former are not. Procurement law vests considerable discretion in the judgment of technical evaluators. Computer Sciences Corp., GSBCA 11497-P, 92-1 BCA 24,703, at 123,297, 1992 BPD 6, at 32. Their evaluations will be upheld unless the protester proves that the evaluation results were "clearly erroneous" or "an abuse of discretion." Corporate Jets, Inc., GSBCA 11049-P, 91-2 BCA 23,998, at 120,118, 1991 BPD 111, at 17; American Computer Educators, Inc., GSBCA 10539-P, 90-2 BCA 22,919, at 115,075, 1990 BPD 110, at 9; Advanced Technology, Inc., GSBCA 8878-P, 87-2 BCA 19,817, at 100,272, 1987 BPD 16, at 33. Mere disagreement with a particular evaluator's assessment of its proposal is insufficient to prove the evaluation score was flawed. The protester must show an "abuse of discretion" through evidence showing a "gross disparity or unfairness." Health Systems Technology Corp., GSBCA 10920-P, 91-2 BCA 23,692, at 118,643, 1991 BPD 20, at 13-14. Lockheed has failed to make such a showing. Even where the protester can demonstrate flaws in a technical evaluation, the protester must also show that had the flaws not occurred, the evaluation would have produced a different result. For example, if the upward adjustment of a protester's technical scores, lowered by an evaluation flaw, would not result in a different award, the protest will be denied. Corporate Jets, Inc., 91-2 BCA at 120,119, 1991 BPD 111, at 19-20; International Business Machines Corp., GSBCA 8948-P, 87-2 BCA 19,941, at 100,922, 1987 BPD 107, at 11 (citation omitted); Arthur Andersen & Co., GSBCA 8870-P, 87-2 BCA 19,922, at 100,815, 1987 BPD 94, at 18. According to the evidence, Lockheed was ranked in this procurement. Both and were on both technical worth and cost. The contract at issue was of a type known as cost plus award fee. The contract value was approximately $200 million. About $51 million (or about 25 percent) of the costs are fixed. These costs were given to all offerors by NASA and appear in the same amounts in all offers. The remaining costs are almost all wages and salaries. Thus any differences in offers among the offerors will almost certainly be reflected in differences in the proposed wage and salary schedules of the offerors. The task of making the lowest cost offer was complicated by this fact. All of the offerors knew that in order to maintain continuity and acceptable skill levels amongst the work force (and receive credit therefor on their offers) it would be necessary to retain a substantial part of the incumbent work force. None of the offerors, except Lockheed as the incumbent contractor, knew the wage and salary levels of incumbent employees. Most knew that many were longtime employees and could be expected to be at the upper end of their wage or salary brackets. The offeror's task is doubly difficult because the RFP specifies the number of labor hours and the number of professional hours (give or take 20 percent) that must be supplied in each of a large number of trades and professional specialties. The RFP also requires that the key people, whether they are managers, artisans, or specialized professionals, be qualified and experienced. Lockheed, as the long time incumbent contractor, was in the best position to know what the wage and salary costs were. It knew On the other hand, Lockheed apparently felt that the only way to retain the contract was to show NASA some method of reducing the payroll. It chose to offer a hour workweek (as opposed to its usual 40 hours) for its professional employees with no increase in pay, and it chose to retain percent of its existing work force. Lockheed also initially proposed an additional 3.8 percent voluntary overtime. Unfortunately for Lockheed, the evaluators were concerned that the longer work week for professional employees, plus the percent voluntary overtime would make it difficult for Lockheed to retain the professional people it had, and also difficult to replace them if they left. They were also afraid that productivity might suffer. There was the further problem that the RFP required a certain number of productive hours for the various specialties but since all professionals would now be working percent more hours, the present professional work force would be too large. When NASA asked Lockheed what positions would be cut in order to make the productive hours come out right, Lockheed's answer indicated that it would lay off salaried employees including mechanical engineers, electrical engineers, a chemical engineer, and chemists. The drop in skill levels represented by these proposed layoffs was unacceptable to NASA. As a result of Lockheed's proposal for a -hour workweek, it received a major weakness on the ground that it would adversely affect the recruiting and retention of high quality personnel, reduce employee morale and tend to reduce the quality of the services provided. Lockheed now complains that the RFP allowed it to propose what it calls mandatory overtime, but did not warn that any such proposal might not be well received. This is a curious position, because the only reason the RFP had a clause on overtime is because of a question posed by Lockheed before the RFP was issued as to whether or not an offeror could propose mandatory overtime. Lockheed chose to do so. Lockheed must have known that, like any other proposal, this one could be down scored. NASA's concerns, as outlined above, and reasons for assigning a weakness to this aspect of Lockheed's proposal, were thoroughly considered and well-thought out. Its action was reasonable under the circumstances and well within its discretionary authority. Lockheed also received a major weakness for its proposal to retain percent of its incumbent employees. The effect is to guarantee that on the first day of the new contract it will have a staff in place, trained, experienced and ready to go; however, it also guarantees that it will be virtually impossible to use the changeover to weed out substandard employees. In this case, as in others, the same set of circumstances produces both strengths and weaknesses. NASA's actions in assigning both a strength and a weakness with respect thereto, were reasonable, and well within its discretionary authority. AlliedSignal's approach to the same problem, how to show a possibility of lower payrolls where the parameters were so stringent, produced what it called the pattern for its salary plan. It proposed a mix of percent senior people, percent mid-level people, and percent junior people. It also proposed to retain percent of the incumbent employees, including percent of the most important and most skilled. AlliedSignal explained that it intended to replace as many highly paid (senior) employees as possible by promoting younger (less highly paid) employees. The effect is to gradually shift the employee population as a whole to the lower ends of the several wage and salary brackets, and thus lower the total payroll. The danger is that the overall quality of the work force may be lowered. Lockheed did not believe that both of these two parameters, the percent replacement and the percent mix, could be met with a single work force, and therefore it labelled the proposals inconsistent, and, as such, a violation of procurement law, but does not cite us to any authority for the proposition. It may be that there are a number of working populations that do not meet both requirements, but it is at least equally as likely that there may be a number that do. In such a situation, the two parameters are not necessarily inconsistent, and an employee-mix that meets them both, attainable over time, is entirely possible. Whether this situation is acceptable under this RFP is not for this Board to decide. It is a judgment within the province of the SSO, who has decided that it is, and in doing so has acted well within his discretionary authority, which will not be challenged by this Board. Lockheed's next major complaint is with NASA's grading of its proposed project manager who is also the incumbent project manager. Lockheed points out that, although his formal education ended with high school, he has at one time or another headed, with excellent results, most of the major offices of WSTF. He has also had excellent ratings as project manager since 1991, and until a recent degradation of his performance, according to his references, in the fall of 1992. Lockheed received two major weaknesses because of its project manager's lack of a college degree (and thus a lack of technical understanding) and his recent degradation of performance. However, the decisions made by NASA with respect to Lockheed's project manager are NASA's to make. There is no question that he lacks a college degree and will be required to work in highly technical areas. There is also no question that there has been a recent degradation in his managerial performance, just as there is no question that, in the past, his performance has been excellent. No irregularity in NASA's procedures with respect to the project manager's rating has been shown or even suggested. It may be that another evaluation board might have a different view, but all such decisions are matters of judgment, and will not be disturbed unless clearly arbitrary. Lockheed complains of the five major weaknesses it received for its response to Problem No. 4, the text of which is set out above. These weaknesses were based upon NASA's collective judgment of what a proper response should consider. The basis of each assigned weakness was clearly set out, together with the rationale for awarding it in each case. No evidence of any procedural improprieties was produced, nor was there any evidence of unfair or unequal treatment amongst the offerors. Many received multiple weaknesses for their responses to this scenario. We find nothing improper in the assignment of these weaknesses. Lockheed's chief complaint about NASA's handling of AlliedSignal's proposal is that the wages and salaries proposed are too low to recruit and retain qualified personnel. Lockheed also says that, if NASA had evaluated the pay proposal, it would not have awarded AlliedSignal the contract. This contention is somewhat ironic because NASA said some of the same things about Lockheed's proposed 44 hour workweek. The evidence shows that NASA was concerned enough to look closely at AlliedSignal's wage structure for the percent of the incumbent work force it did not propose to keep. These were primarily non-exempt positions. Some were unionized and were under a collective bargaining agreement. The balance were under Department of Labor (DOL) wage determinations. AlliedSignal had priced the union workers at above the minimum union rate for each labor category, and the non-union workers at the minimum rates under the appropriate DOL wage determination category. NASA's price-cost analyst, , analyzed AlliedSignal's rates and concluded that AlliedSignal would have no trouble acquiring employees at the proposed rates but that their skill levels would be of the entry level variety. Transcript at 717. felt that the SEB was the best judge of what skill levels were required by the RFP. Id. at 718. His recommendation to the SEB was that, if the SEB decided that higher skill levels were required, the 30 percent be priced at AlliedSignal's proposed composite rates. recommendation went to the SEB and to the Cost Committee. The SEB considered the recommendation and decided that the skill levels associated with the rates proposed for the 30 percent were appropriate. The SEB was assisted in this decision by the evidence from AlliedSignal that its advertisements for new employees had elicited some l,600 responses, of which some 900 had been from the local area. The SEB concluded that the proposed wage rates would produce the skill levels required. Whether that determination was correct or not, it was made within the parameters of the RFP, and is not inconsistent with the NASA procurement regulations or the NASA procurement handbook. It was a judgment call made by NASA employees who were completely familiar with the skill levels necessary to the work of the RFP and was well within their discretionary authority. Lockheed's final complaint is that NASA awarded the contract to AlliedSignal at more than its BAFO cost figure. The cover letter that accompanied the RFP contained the following: Offerors are reminded of the overall importance of cost both during the proposal effort and throughout the life of the contract. The Government will not negotiate a contract higher than the offeror's Best and Final Offer. Protest File, Vol. 0, Exhibit 3.0. Lockheed says that NASA did what the letter proscribes. We examine the evidence. The contract at issue was basically a contract for the acquisition of services. Of the approximate $200 million value of the contract almost $150 million represented wages and salaries. All offerors knew from the RFP that a stable, experienced labor force was required, and all offerors proposed to retain a large proportion of the incumbent workforce at its current rates. This fact put all of the offerors except Lockheed at a disadvantage, because only Lockheed (and NASA) knew precisely what Lockheed's incumbent employees were paid: Lockheed from its payrolls and NASA from its reimbursement accounts. In order to fairly compare the numbers, NASA, knowing the incumbent rates, adjusted each offeror's BAFO by an amount which reflected the amount by which the offeror's rates differed from the incumbent rates. Thus, AlliedSignal's BAFO cost number was actually the stated number plus whatever additional amount it would have to pay to match the current incumbent rates. In AlliedSignal's case, it had stated that it would retain of the incumbent work force, and of that it would retain of the most important and most highly skilled employees. NASA termed these adjusted figures "probable cost." The probable cost figures allowed NASA to make intelligent comparisons amongst the offerors. With the foregoing in mind, NASA did not negotiate a contract at a figure higher than the BAFO. The stated figure plus the adjustment figure matched the contract price. As a matter of record, due to the cancellation of the proposed NASA space station (one of the options under this contract) and Congressional budget cuts that necessitated closing a part of the White Sands facility, the final figure was less than the adjusted BAFO figure. The procedure would have been exactly the same had any other offeror, including Lockheed, been awarded the contract. Lockheed has not established that any of NASA's evaluators committed arbitrary or irrational acts with respect to its offer. Neither has the protester demonstrated that the violations it alleges were in fact prejudicial or even significant. We have recognized that while "[a]ny good lawyer can pick lint off any Government procurement," we "will not set aside an award, even if violations of law are found, unless those violations have some significance." Andersen Consulting, GSBCA 10833-P, 91-1 BCA 23,474, at 117,759, 1990 BPD 396, at 22. The foregoing are Lockheed's major complaints with respect to the procurement before us; it also had several minor ones. Some of the members of the SEB, while acting as heads of committees, did not fill out one of the forms prescribed by the NASA Handbook (although they did reduce their impressions to writing on informal notes) under the impression that they were not required to do so. There is no evidence that this omission, if it was one, affected either their work or the recommendations of their respective committees. We regard this as de minimis. Protester points out that AlliedSignal's proposed large number of subcontractors will make their control difficult, but produces no evidence on the point. Lockheed complains that it has received no credit for its prior nineteen years of excellent service; however, we find no provision in the RFP under which such a credit might fit. We have examined the remaining complaints of Lockheed with respect to this procurement and find them to be unsupported by the evidence and without merit. For the reasons stated, I would deny the protest. ______________________________ DONALD W. DEVINE Board Judge