T&M Joint Venture

Decision Date19 December 1990
Docket NumberB-240747
PartiesT&M Joint Venture No. 90-2 CPD 503
CourtComptroller General of the United States

PROCUREMENT - Competitive Negotiation - Offers - Cost realism - Evaluation errors - Allegation substantiation DIGEST: Protest that in cost realism analysis agency incorrectly applied Service Contract Act (SCA) wage rates to labor categories filled by employees that are considered professional by protester and therefore exempt from the SCA is denied where protester has not shown that agency unreasonably determined for purposes of determining low-cost offeror, that labor categories in question would likely be found to be subject to the SCA under the contract.


T&M Joint Venture, which consists of team members Tracor Applied Services, Inc. and Mantech Technical Services Corporation protests the award of a contract to Bendix Field Engineering Corporation under request for proposals (RFP) No N00421-88-R-0167, issued by the Navy for systems engineering and integration support services.

We deny the protest.

The solicitation contemplated the award of a cost-plus-fixed-fee level-of -effort contract for a 6-month base period and 5 option years. For the base period and for each of the options, the solicitation included an estimated level-of-effort and an additional optional estimated level-of- effort.

Under the solicitation as amended, the total estimated level-of effort for the base period and all options was 650, 000 man-hours.

The award was to be made to the offeror submitting the technically acceptable proposal with the lowest evaluated total estimated cost-plus fixed-fee for the base period and the options. The solicitation indicated that proposals would be evaluated for cost realism which was to be determined in part by reference to the costs which the offeror could reasonably be expected to incur in performing the contract in accordance with its offer.

The RFP specified numerous labor categories and the corresponding level- of-effort needed for each category. As amended, the RFP notified offerors that a number of the listed labor categories were covered by a Service Contract Act (SCA) wage determination incorporated into the solicitation. The wage determination included a note which stated that for employees in six listed labor categories: Computer Programmer I Computer Programmer II, Computer Programmer III, Computer Systems Analyst I, Computer Systems Analyst II, and Computer Systems Analyst III, the wage determination "does not apply to employees employed in a bona fide executive administrative or professional capacity as defined and delineated in" 29 C.F.R. Sec. 541.

Three firms submitted proposals: Bendix, Tracor, and Mantech. All three proposals were found to be technically unacceptable although the proposals of Bendix and Tracor were considered capable of being made acceptable. The agency rejected Mantech's proposal and created a competitive range consisting of Bendix and Tracor. Bendix and TM Joint Venture as the successor in interest to Tracor, submitted revised proposals. After discussions and technical responses, both were found to be technically acceptable. At that time, the Navy performed a cost realism analysis on the two competitive range proposals and requested best and final offers (BAFO) from both.

The Navy evaluated the BAFOs for cost realism and determined that a contract with Bendix would cost the government $19, 041, 219; with T&M, the cost would be $19, 272, 678. Since both proposals were technically acceptable, based on the cost evaluation, the Navy awarded the contract to Bendix as the technically acceptable offeror with the lowest evaluated total estimated cost.

After the contract was awarded, in preparation for a debriefing of T&M and for this protest, the contracting officer reevaluated the cost proposals and found a number of mistakes in the cost analysis, including mathematical errors and the failure to include the full cost of one SCA labor category in Bendix's proposal. The result of the corrections of the two competitive range proposals is shown below:

                            Proposed Cost
                            Evaluated Cost
                            Corrected Cost
                            $18, 981, 462
                            $19, 041, 219
                            $19, 056, 376
                            $18, 446, 774
                            $19, 271, 678
                            $19, 340, 673

Based on the Navy's reevaluation, Bendix remained the low cost offeror.

T&M first argues that in the cost realism analysis of its proposal, the Navy incorrectly applied SCA wage rates to four categories of professional employees proposed by T&M which are exempt from the SCA.[1] According to T&M, it informed the Navy in its BAFO that its employees in the labor categories in question were professionals outside of the ambit of the SCA and were proposed at the actual salary rates paid to those individuals. T&M notes that the SCA expressly does not apply to persons employed in a bona fide executive, administrative or professional capacity. Also, the RFP wage determination specifically indicated that this statutory exception would apply to bona fide executive, administrative, or professional employees in six specific categories, including the four labor categories which T&M argues are professional and SCA exempt.

T&M also notes that the Department of Labor's (DOL) regulations specifically provide that persons in the field of automatic data processing, such as those in the labor categories in question, may be exempt from the SCA if they perform tasks requiring the exercise of discretion and independent judgment. In support of its view that these labor categories are exempt from the SCA as requiring the services of professional employees, T&M points out that the solicitation described the labor categories in question as "key personnel, " which it defined as "skilled/experienced professional and/or technical personnel" and that under the solicitation such key personnel are expected to exercise judgment and discretion. According to the protester, the education and experience requirements for these positions as described in the RFP's statement...

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