PubKLaw™

Recent Decisions

• United States Supreme Court
• Court of Appeals for the Federal Circuit
• Court of Federal Claims
• Circuit Courts
• Other Courts
• Government Accountability Office-2004 to Present
• Government Accountability Office-2001-2003
• Boards of Contract Appeals
• FAA Office of Dispute Resolution for Acquisition Cases
• Small Business Administration and Other Cases

NOTICE REGARDING CHANGES TO PROTECTIVE ORDER, April 07 , 2008 New GAO Mail Procedures Effective March 03, 2008 GAO-06-716SP, Guide to GAO Protective Orders, May 2006 GAO Bid Protest Annual Report to the Congress for Fiscal Year 2007

Bid Protests: Guide for Document Redactions(Sept. 2009)

Government Accountability Office (by date)

Energy Systems Group, B-402324, February 26, 2010 .
DIGEST: Protest challenging potential offeror’s exclusion from competition on the basis of an organizational conflict of interest (OCI) is denied where the agency reasonably concluded that the protester’s preparation of a report that was used to prepare a statement of work for a competitive solicitation created a biased ground rules OCI.

KAES Enterprises, LLC--Protest and Costs B-402050.4 February 12, 2010.
DIGEST: 1. Protest of cancellation of solicitation is denied where agency determined that its needs had changed, such that solicitation no longer met its needs, and protester failed to show otherwise.
2. Request that GAO recommend reimbursement of costs of filing and pursuing protest is granted with regard to argument that protester’s proposal improperly was excluded from competitive range without consideration of price; GAO considers that protest ground clearly meritorious, as evidenced by advice from GAO attorney during alternative dispute resolution conference that protest likely would be sustained on that ground.

Space Exploration Technologies Corporation, B-402186, February 1, 2010.
DIGEST: 1. Agency reasonably concluded, under the Commercial Space Act of 1998, 42 U.S.C. § 14701 et seq. (2006), that cost-effective commercial alternatives to use of intercontinental ballistic missile assets for launch services were not available.
2. The Commercial Space Act of 1998 does not require notice to Congress of conversion of an intercontinental ballistic missile for space launch services prior to issuance of delivery order to perform such work.

ZAFER Construction Company, B-401871.4, February 1, 2010.
DIGEST: Protest challenging agency’s corrective action, which included terminating the awarded contract and allowing all offerors whose proposals were in the competitive range to submit a revised proposal, is denied where the agency reasonably concluded that offerors should be given the opportunity to submit completely revised proposals because the time lapse since proposals were first submitted suggests that the original price proposals may no longer accurately reflect the cost of the project.

Eiden Systems Corporation, B-401997.2, January 28, 2010.
DIGEST: 1. Protest that vendors in Federal Supply Schedule procurement based their quotations on different interpretations of the solicitation requirements regarding key personnel is denied where protester fails to demonstrate that it was prejudiced as a result of any ambiguity in the solicitation.
2. Protest challenging evaluation of quotations is denied where record shows that agency’s evaluation was reasonable and consistent with the solicitation.

JND Thomas Company, Inc. B-402240 January 28, 2010.
DIGEST: Protest that intended awardee’s bid is impermissibly unbalanced--due to alleged overstated prices for excavation/dredging line items and understated prices for related re-handling of material items--is denied where agency conducted analysis of pricing and concluded that there was no significant price risk in accepting bid.

Ball Aerospace & Technologies Corporation, B-402148, January 25, 2010.
DIGEST: Protest challenging agency’s evaluation of awardee’s price and technical quotes is dismissed in part and denied in part where the protester did not timely challenge the terms of the solicitation prior to the time for receipt of initial quotations, and the evaluation was otherwise consistent with the evaluation scheme.

Cahaba Safeguard Administrators, LLC B-401842.2. January 25, 2010.
DIGEST: 1. Protest is sustained where agency failed to reasonably consider plan proposed by awardee to mitigate its impaired objectivity organizational conflicts of interest.
2. Agency’s exchanges with offeror regarding its proposed mitigation strategy to address organizational conflicts of interest were not discussions such that the agency was required to reopen discussions with all offerors.

C2C Solutions, Inc. B-401106.5 January 25, 2010.
DIGEST: Protest is sustained where agency failed to reasonably consider plan proposed by awardee to mitigate its impaired objectivity organizational conflicts of interest.

General Dynamics One Source, LLC; Unisys Corporation, B-400340.5; B-400340.6, January 20, 2010.
DIGEST: 1. Transportation Security Administration’s (TSA) challenge to GAO’s jurisdiction to review protest--based on agency’s position that it initiated phase I of acquisition prior to effective date of GAO’s jurisdiction over TSA protests--is denied where record shows that, although phase I was for purpose of down-selecting firms to compete under phase II, agency abandoned phase I results and engaged in all acquisition activities under phase II, which was initiated after effective date.
2. Protest challenging agency’s evaluation of awardee’s proposal for price realism is sustained, where record shows that agency failed to evaluate disparity between staffing offered in awardee’s technical proposal and price proposal, and also failed to evaluate awardee’s ability to hire incumbent’s employees (as it proposed) given relatively low labor rates in its price proposal.
3. Agency unreasonably accepted awardee’s proposal with incentive fee lower than amount specified in solicitation where solicitation reasonably led protesters to understand that specified fee was mandatory; agency should either have amended solicitation or engaged in discussions to advise all firms that different incentive fee could be proposed.

AINS, Inc., B-400760.4; B-400760.5, January 19, 2010.
DIGEST: 1. Agency failed to conduct meaningful discussions with protester where it did not reasonably advise the protester of agency’s real concern with protester’s quotation-- that evaluators considered its project schedule to be too short. Agency’s request during discussions that protester submit a new project schedule as part of its final revised quotation did not reasonably convey to the protester that the evaluators viewed its proposed schedule as too aggressive, particularly given that a period of over a year had elapsed between submission of initial quotations and submission of final revised quotations.
2. Protest challenging agency evaluation of quotations received in response to solicitation for establishment of a blanket purchase agreement for an automated Freedom of Information Act system and associated services is sustained where record fails to demonstrate that the evaluation was reasonable and even-handed.

LaBarge Products, Inc., B-402280, January 19, 2010.
DIGEST: 1. Protester’s challenge to the issuance of a delivery order valued under $10 million-- and hence outside the jurisdiction of GAO’s bid protest forum to hear protests involving task and delivery orders--is dismissed.
2. Protester’s contention that a delivery order was outside the scope of the underlying indefinite-delivery/indefinite-quantity (ID/IQ) contract against which the order was issued--and hence is eligible for consideration under the statutory exemption to the bar on our jurisdiction available when a protester alleges that the order increased the scope, period, or maximum value of the ID/IQ contract under which the order is issued--is dismissed where the protester itself holds one of the underlying ID/IQ contracts; this exemption is not for aggrieved competitors for the issuance of the order, but for other entities, who, because they do not hold one of the underlying ID/IQ contracts, were not allowed to compete for what is, in essence, a new procurement which improperly circumvented the competition requirements of the Competition in Contracting Act of 1984.

Overseas Lease Group, Inc., B-402111, January 19, 2010.
DIGEST: Contract modification requiring lease and maintenance for “unarmored” vehicles was within scope of contract calling for lease and maintenance of both “non-tactical” and “up-armored” vehicles; while protester argues that “non-tactical” vehicles can be armored, solicitation’s differentiating between “non-tactical” and “up-armored” vehicles was sufficient to put protester on notice that term “non-tactical” was intended to refer to unarmored vehicles.

American Security Programs, Inc. B-402069; B-402069.2, January 15, 2010.
DIGEST: Protest that vendor is ineligible to receive a task order under Federal Supply Schedule (FSS) procurement is sustained where certain required services are outside the scope of the vendor’s FSS contract.

PMO Partnership Joint Venture, B-401973.3; B-401973.5, January 14, 2010.
DIGEST: Agency improperly rejected the proposal of a joint venture offeror for a cost- reimbursement contract because the indirect cost rate structure included in the joint venture’s accounting system was considered unacceptable, where the agency has provided no supportable or reasonable bases for its determination and unreasonably failed to consider a revised indirect cost rate that the agency specifically requested from the joint venture prior to award. [See also McKissack+Delcan JV II, B-401973.2; B-401973.4, January 13, 2010.]

Kiewit Texas Construction L.P., B-402090; B-402090.2, January 12, 2010.
DIGEST: Protest of agency’s rejection of proposal as technically unacceptable for failure to demonstrate ability to schedule and accomplish timely performance is denied where record shows evaluation was reasonable and consistent with solicitation’s terms.

Alsalam Aircraft Company, B-401298.4, January 8, 2010.
DIGEST: Protest challenging the reevaluation—after corrective action in response to an earlier protest—of an awardee’s proposed transition approach is denied where the agency reasonably concluded that the approach could be achieved within the time required by the solicitation, even though the approach was inconsistent with solicitation guidance indicating that such an approach would not likely be successful; protester cannot claim to have been prejudiced by the agency’s revised views about the solicitation guidance because there is no reason to think, based on the record, that the protester would have offered a different approach had it known of the agency’s revised views.

TJ’s Marine Construction LLC, B-402227 January 7, 2010.
DIGEST: Where an invitation for bids required the submission of a bid guarantee, agency properly rejected protester’s bid as nonresponsive where protester’s bid bond contained a copy of the surety agent’s signature.

C&B Construction, Inc. B-401988.2 January 6, 2010.
DIGEST: 1. The limit on GAO’s bid protest jurisdiction at 41 U.S.C. § 253j(e) to review protests of orders under task or delivery order contracts only where the order is valued in excess of $10 million, does not apply to a protest challenging the issuance of task order valued under $10 million where the task order was issued under a blanket purchase agreement (BPA), since a BPA is not a task or delivery order contract.
2. Protest challenging task order issued to higher-rated, but higher-priced, vendor is sustained where the contemporaneous evaluation record consists of numerical scores assigned to each vendor’s quotation, and lacks any information to show a basis for those scores, or a reasoned basis for any tradeoff judgments made in the source selection.

Baron Services, Inc., B-402109, December 24, 2009.
DIGEST: Government Accountability Office will not consider protest of an award of subcontract as “by” the government, where record shows that prime contractor conducted the acquisition, including drafting solicitation and evaluation criteria, receipt and evaluation of proposals, and selection of subcontractor.

Excel Building & Development Corporation, B-401955, December 23, 2009.
DIGEST: Where an invitation for bids required the submission of a bid guarantee, agency properly rejected protester’s bid as nonresponsive where protester’s bid bond contained a copy of the surety agent’s signature.

TMM Investments, Ltd., B-402016, December 23, 2009.
DIGEST: Agency conducted meaningful discussions with the protester concerning its proposed room sizes where protester was informed that it should clarify its room sizes in accordance with the solicitation.

DME Corporation, B-401924; B-401924.2, December 22, 2009.
DIGEST: 1. Agency’s determination that awardee’s proposal was technically superior to protester’s properly reflects the agency’s consideration of matters that were reasonably encompassed within the solicitation’s stated evaluation factors.
2. Protester’s various arguments regarding the agency’s judgments and ratings constitute mere disagreement with those judgments, and provide no basis for sustaining the protest.
3. Protest that awardee improperly obtained protester’s proprietary information from protester’s former employee will not be reviewed where protester failed to comply with the statutory 14-day reporting requirement regarding an alleged procurement integrity violation.

Coastal Environments, Inc. B-401889 December 18, 2009.
DIGEST: Protest is sustained where the record shows that, in making an award on initial proposals, the agency conducted a tradeoff between the two highest-rated, highest- priced proposals, but did not consider in its tradeoff decision the lower prices offered by other lower-rated offerors, whose proposals were nonetheless rated technically acceptable and assessed as low risk.

Lockheed Martin Systems Integration-Owego; Sikorsky Aircraft Company--Modification of Recommendation B-299145.7; B-299145.8, December 15, 2009.
DIGEST: Requests that recommended corrective action be modified to include reimbursement of proposal preparation costs--based on fact that agency ultimately canceled solicitation--is denied where agency undertook implementation of recommended corrective action (by reopening competition, amending solicitation, conducting discussions, and requesting and evaluating revised proposals), and there is no showing that cancellation was improper.

Navistar Defense, LLC; BAE Systems, Tactical Vehicle Systems LP, B-401865; B-401865.2; B-401865.3; B-401865.4; B-401865.5; B-401865.6; B-401865.7, December 14, 2009.
DIGEST: 1. Protest challenging evaluation of awardee’s technical proposal is sustained where agency did not reasonably apply a solicitation criterion which stated that existing production capabilities will be viewed as having less risk than those that do not currently exist.
2. Protest challenging evaluation of protester’s past performance is sustained where the agency cannot produce a record that demonstrates the basis for the evaluation.
3. Protest challenging evaluation of awardee’s proposed price is denied where the depth and detail of the agency’s price realism analysis was a matter within its discretion, and the record shows that the evaluation was reasonable.

Gas Turbine Engines, Inc. B-401868.2, December 14, 2009.
DIGEST: In a negotiated procurement where award was to be made on the basis of low price, agency did not conduct meaningful discussions where the agency sent identical letters to protester and other competitive-range offerors that did not inform protester that the agency viewed its proposed price to be unreasonably high; nonetheless, protest is denied where the record does not establish a reasonable possibility that the protester was prejudiced by the lack of meaningful discussions.

Velos, Inc., B-400500.8; B-400500.9, December 14, 2009.
DIGEST: 1. Source selection decision, which concluded that the awardee’s proposal for providing software was technically superior to the protester’s proposal because of one aspect of the software, was unreasonable where the agency’s technical evaluation panel had determined that this aspect of the software did not change the panel’s determination that the proposals were technically equal and the source selection decision was substantially based on the evaluation of a consultant (not a panel member), who only considered the offerors’ responses to a discussion question on this point and did not consider existing relevant information included in the panel’s evaluation report and the offerors’ proposals.
2. Performance risk assigned to the protester’s proposal for failing to provide a more current Dun & Bradstreet (D&B) report was unreasonable where the contracting officer did not question the financial viability of the protester or the accuracy of the information in the report and only relied on the currency of the date on the D&B report to assign the rating.
3. Contracting officer’s decision not to evaluate the protester’s alternate technical and price proposals contained in its final proposal revisions (FPR) was reasonable where the agency expressly advised offerors in the request for FPR that it would not consider any revisions to the technical proposals or price, except for matters relating to software license and escrow provision.

BW JV1, LLC B-401841 December 4, 2009.
DIGEST: Agency properly rejected bid of a joint venture that submitted a bid bond that states that it was executed by a corporation, which was one of the joint venture members, and the joint venture agreement provided that both joint venture members were required to execute the bid bond.

IAP-Leopardo Construction, Inc. B-401923 December 2, 2009.
DIGEST: Protest challenging agency’s decision to allow correction of low bidder’s mistake of misplacing a decimal point when entering two subcontractor quotes is denied because the agency reasonably determined that there was clear and convincing evidence of the mistake.

Philips Healthcare Informatics B-400733.8; B-400733.11; B-400733.13, December 2, 2009.
DIGEST: Protester is not an interested party to maintain protest challenging proposal evaluation where it did not offer a firm fixed-price proposal as required by the solicitation; protester would be ineligible for award even if protest of evaluation were sustained.

Port of Bellingham, B-401837, December 2, 2009.
DIGEST: 1. Agency had no reasonable basis to determine that awardee’s proposed pier was located outside a designated floodplain area and therefore complied with the solicitation’s limitations regarding lease of property located within a base floodplain.
2. Where awardee’s proposed pier construction was within a designated floodplain area, agency failed to properly consider whether there was any practicable alternative to selecting awardee’s proposal, as was required by the terms of the solicitation.

Enterprise Information System B-401037.5; B-401037.6 December 1, 2009.
DIGEST: 1.Protest that statement by agency during discussions--that price below representative current contract price may create performance risk--misled protester into not lowering its price in revised proposal is denied; statement did not prohibit offerors from proposing a price below specified level but, rather, provided offerors with opportunity to explain how they would be able to perform at price below that level.
2.Protester is not interested party for purposes of challenging evaluation of awardee’s proposal where record shows that, even if protest were sustained, an intervening offeror, not protester, would be next in line for award.

Honeywell Technology Solutions, Inc. B-400771.6, November 23, 2009.
DIGEST: Agency decision to limit corrective action to the area of past performance is unobjectionable where it is adequate to remedy the procurement impropriety at issue.

Bruce Bancroft--Agency Tender Official; Sam Rodriquez--Designated Employee Agent, B-400404.7; B-400404.8; B-400404.9; B-400404.10; B-400404.11, November 17, 2009.
DIGEST: Protest challenging evaluation of agency tender in public-private competition under Office of Management and Budget Circular A-76 is sustained where the record establishes that the agency’s evaluation of the private sector offeror’s staffing plan was not adequately documented, and the protester was prejudiced by the error.

Washington-Harris Group B-401794; B-401794.2, November 16, 2009.
DIGEST: Protest challenging service-disabled veteran-owned small business (SDVOSB) awardee’s ability to perform more than 50 percent of the contract requirements is denied because, although the solicitation stated that SDVOSB concerns would receive an evaluation preference, the solicitation was not set aside for SDVOSB offerors; thus, the Federal Acquisition Regulation provisions which state that SDVOSB prime contractors must perform more than 50 percent of a contract’s requirements do not apply to this solicitation.

The Analysis Group, LLC B-401726; B-401726.2, November 13, 2009.
DIGEST: 1. Where agency allowed successful vendor to make material revision that made its quotation acceptable, but did not provide protester similar opportunity to revise its quotation, agency improperly engaged in discussions only with successful vendor, and protest on that ground is sustained.
2. Protest that successful vendor has “impaired objectivity” organizational conflict of interest (OCI) is sustained where record (1) shows that successful vendor’s advice and assistance could lead to agency’s procurement of other products and services offered by successful vendor, and (2) does not show that agency adequately considered possibility of “impaired objectivity” OCI, or whether such a potential OCI could be avoided, neutralized or mitigated.

Light-Pod, Inc. B-401739; B-401739.2, November 12, 2009.
DIGEST: Where record shows that contracting agency reasonably determined small business protester’s proposal technically unacceptable on the basis of factors not related to responsibility, referral to Small Business Administration for Certificate of Competency review was not required, even though agency also found the proposal unacceptable based on responsibility-related considerations.

Science Applications International Corporation, B-401773, November 10, 2009.
DIGEST: Where solicitation limited competition to vendors holding Federal Supply Schedule contract for required items, issuance of purchase order with items not included on successful vendor’s FSS contract was improper.

Trison Construction, Inc. B-401537.2 November 9, 2009.
DIGEST: Agency reasonably limited competition for renovation services to holders of indefinite-delivery, indefinite-quantity, multiple-award, task-order contracts, where the record shows that this acquisition approach was necessary to meet the agency’s urgent requirements.

Alsalam Aircraft Company--Costs B-401298.3, November 5, 2009.
DIGEST: 1. Protester is entitled to reimbursement of costs of filing and pursuing protest where agency did not take corrective action in response to a protest until after submission of agency report, and does not dispute that the protest grounds were clearly meritorious.
2. For a procurement conducted under the Foreign Military Sales program, neither the Competition in Contracting Act, nor the Arms Export Control Act, bars GAO from recommending that the agency reimburse a successful protester’s costs of filing and pursuing a protest, or bars the agency from making such reimbursement.

All Seasons Apparel, Inc. B-401805; B-401805.2 November 4, 2009.
DIGEST: Agency’s cancellation of solicitation for Army combat shirts, which was set aside for Historically Underutilized Business Zone (HUBZone) small business concerns, is reasonable, where cancellation was due to disagreement between GAO and Executive Branch on interpretation of authorizing statutes for small business programs, agency was faced with threat of litigation, and another procurement vehicle was available to meet at least part of the agency’s needs while the agency decides how best to meet its remaining needs.

Humana Military Healthcare Services B-401652.2; B-401652.4; B-401652.6, October 28, 2009.
DIGEST: Protest of award of contract for T-3 TRICARE managed health care support services for the South Region is sustained where evaluation did not adequately account for the network provider discounts associated with protester’s existing TRICARE network.

RBC Bearings Incorporated B-401661; B-401661.2, October 27, 2009,
DIGEST: Protest of a sole-source contract award justified on the basis of urgency is sustained where the protester’s pursuit of source approval to compete for purchases of helicopter swashplate bearings for more than 9 years, combined with continuing requirement for these parts, show that the urgent need to limit competition here was caused by a failure of advance planning.

General Dynamics--Ordnance & Tactical Systems B-401658; B-401658.2, October 26, 2009.
DIGEST: 1. Protest that agency improperly failed to conduct price realism evaluation of awardee’s proposed price is denied where record shows that agency, in fact, conducted such an evaluation, and reasonably determined that awardee’s prices were realistic.
2. Protest that awardee’s prices were impermissibly unbalanced is denied where prices were virtually identical for all quantity ranges of essentially identical units being purchased, and record fails to establish that awardee’s unit prices were overstated or understated.
3. Agency did not conduct unequal discussions with protester and awardee where record shows that agency discussed all concerns relating to each firm’s proposal; fact that agency did not discuss price with protester is unobjectionable where record does not show that agency found its proposed prices unreasonable.
4. Agency’s decision to select lower-rated, lower-priced proposal for award, even though technical considerations were more important than price, was unobjectionable where tradeoff is fully supported by record.

Frank A. Bloomer--Agency Tender Official, B-401482.2; B-401482.3, October 19, 2009.
DIGEST: Protest challenging a public-private competition between an agency tender and a private sector proposal is sustained where: (1) the agency unreasonably accepted the private-sector offeror’s revised fringe benefit ratios in its cost realism analysis; (2) the record provides no reasonable basis for the agency to accept the private- sector offeror’s unsupported assumption that the firm could perform a significant portion of the workload 10 percent more efficiently; and (3) the agency unreasonably allowed the private-sector offeror to omit the labor cost associated with the material supply function from its cost proposal, and these errors prejudiced the protester.

Telephonics Corporation B-401647; B-401647.2, October 16, 2009.
DIGEST: Protest challenging exclusion of protester’s proposal from revised competitive range is denied where proposal was both lower rated under technical factor and significantly higher priced than the two proposals included in competitive range; agency reasonably found it had no reasonable chance of being selected for award.

Aleut Facilities Support Services, LLC B-401925, October 13, 2009,
DIGEST: GAO will generally not review agency’s decision to cancel a solicitation to perform the work in-house because decision whether to perform work in-house is generally a matter of executive branch policy.

DMS-All Star Joint Venture B-310932.6; B-310932.7, October 9, 2009.
DIGEST: 1.Protest that agency’s price evaluation of awardee’s low fixed-price was not in accordance with the solicitation criteria is denied where the record shows that the agency reasonably determined that awardee’s price was reasonable and realistically reflected the awardee’s understanding of the complexity and risk associated with the requirement.
2. Protest that agency failed to conduct meaningful discussions is denied where agency was not required to hold discussions regarding protester’s indirect labor rates, or its fuel, maintenance and insurance costs for vehicles, where these rates and costs were not considered a significant weakness or deficiency and did not prevent the protester from having a reasonable opportunity for award.

Bering Straits Technical Services, LLC B-401560.3; B-401560.4, October 7, 2009.
DIGEST: 1. Agency reasonably evaluated protester’s proposal as good, rather than excellent, under technical approach factor where offer contained weaknesses indicating a lack of understanding including proposal of services under incorrect work area, start of services in base year when not required until option years, and lack of clarity on required inspections.
2. Evaluation of protester’s past performance as neutral was reasonable where only past performance information submitted concerned protester’s parent firm and affiliates, and agency reasonably found that proposal failed to demonstrate that resources of those entities would affect contract performance.
3. Agency reasonably assigned risk to protester’s proposal based on low fixed burden rate for indefinite-quantity items, where it determined that proposed rate was insufficient to profitably perform the work, and proposal failed to explain how protester could realize sufficient revenue by performing work more efficiently than estimated standards.
4. In fixed-price procurement, awardee’s failure to provide price information called for by solicitation for purposes of assessing offerors’ understanding of requirement did not preclude award, where agency was able to calculate the missing informationfrom other aspects of awardee’s price proposal and reasonably concluded the awardee understood contract requirements.

Outdoor Venture Corporation, B-401628, October 2, 2009.
DIGEST: Protest that agency improperly obtained items outside the scope of a multiple-award indefinite-delivery/indefinite-quantity contract is denied where the item is reasonably encompassed by the contract at issue.

Armed Forces Hospitality, LLC B-298978.2; B-298978.3 October 1, 2009.
DIGEST: 1. Protest jurisdiction of the Government Accountability Office (GAO) extends to protest of a no-cost contractual agreement for the provision of lodging services to transient soldiers, as part of the Department of the Army’s privatization of Army lodging program, because the contract concerns a procurement for services by a federal agency and results in a benefit to the government.
2. Protest challenging agency’s alleged modification of a contract as an improper relaxation of requirements is denied where there was no change to the scope of work anticipated by the underlying solicitation.

AMI-ACEPEX, Joint Venture B-401560 September 30, 2009.
DIGEST: 1. Where past performance and experience evaluations were based in part on relevance—similarity in size, scope, and complexity—agency reasonably established size threshold for relevance at approximately one-half annual value of solicited work, and reasonably rated protester no higher than satisfactory for experience and past performance based on single project above threshold, despite high rating on that project from past performance reference.
2. Agency reasonably evaluated protester’s proposal as satisfactory under technical approach factor where proposal failed to address a required position and lacked discussion of specific risks, and agency had concerns with performance risk where price proposal indicated lack of available capital funds.
3. Agency properly considered past performance and experience record of awardee’s parent firm and affiliates where awardee’s proposal demonstrated that resources of those entities would affect performance and solicitation did not prohibit consideration of parent/affiliate information.

TMI Management Systems, Inc. B-401530, September 28, 2009.
DIGEST: Agency’s misclassification of a procurement for facilities support services on the Federal Business Opportunities Internet website under a “miscellaneous” product classification code improperly deprived the protester of an opportunity to respond to the agency’s solicitation and was not consistent with the agency’s obligation to use reasonable methods to obtain full and open competition.

Caddell Construction Company, Inc. B-401596; B-401597; B-401598, September 21, 2009.
DIGEST: The Omnibus Diplomatic Security and Antiterrorism Act of 1986, 22 U.S.C. § 4852 (2000), established statutory qualification requirements for construction firms seeking to build a U.S. embassy, including a requirement that an entity seeking contracts for diplomatic construction projects over $10 million must have performed construction services “similar in complexity, type of construction, and value to the project being bid.” Agency’s determination that vendor satisfied this requirement is unreasonable where vendor’s projects were not similar in complexity or value.

T-C Transcription, Inc. B-401470, September 16, 2009.
DIGEST: Protest challenging the award of contracts for transcription services at multiple locations is sustained where the record shows that: (1) the evaluation of the protester’s proposal under the most important technical factor was internally inconsistent and unreasonable; (2) the agency relied on a single overall adjectival rating and on prices in making its selection decision, and the overall rating failed to capture the differences between the relative ratings of the offerors’ proposals, or to reflect a reasonable conclusion that proposals with the same overall rating were technically equal; and (3) the agency tradeoff decision included only the two awardees and did not consider the protester for award, even at locations where the protester’s proposal was rated higher than the awardee’s proposal.

Ashland Sales & Service Company B-401481 September 15, 2009.
DIGEST: In implementing the section 827(a) of Title VIII of Division A of the National Defense Authorization Act for Fiscal Year 2008, Pub. L. No. 110-181 (appearing at 10 U.S.C.A. § 2410n and note), which restricts noncompetitive purchases of product categories from Federal Prison Industries (FPI) by the Department of Defense (DOD) for those categories where FPI has been found to have a significant market share in DOD, DOD acted reasonably in establishing an effective date of 30 days from DOD’s issuance of an amended list of product categories for which FPI has a significant market share.

Major Contracting Services, Inc., B-401472, September 14, 2009.
DIGEST: Agency improperly extended a contract on a sole-source basis where it did not establish that only the incumbent could provide the services and the agency could have avoided the urgency that ultimately led to the sole-source award through advance procurement planning.

OSC Solutions, Inc. B-401498 September 14, 2009.
DIGEST: Protest challenging the cancellation of a request for quotations (RFQ) and issuance of orders on a sole-source basis to a non-profit agency under the authority of the Javits-Wagner-O’Day Act is sustained where the acquired items are not on the procurement list maintained by the Committee for Purchase From People Who Are Blind or Severely Disabled, so that the sole-source procurement was improper and therefore the cancellation of the RFQ was not reasonable.

Golight Inc. B-401866, September 10, 2009.
DIGEST: Protest of award that was filed more than 10 calendar days after receipt during business hours of the agency’s email notification of award is untimely; for purposes of our timeliness rules, the mechanical receipt of an email during regular business hours constitutes notice of basis for protest.

CES Industries, Inc. B-401427 September 1, 2009.
DIGEST: 1. Protest that agency improperly failed to make sole-source award to a service- disabled veteran-owned small business concern and impermissibly competed the acquisition on an unrestricted basis is dismissed where the protest was filed after award.
2. Protest alleging bias against protester and favoritism toward awardee is denied where record fails to support the protester’s allegations.

FedSys, Inc. B-401453, September 8, 2009.
DIGEST: 1. Protest challenging agency’s cost realism analysis is denied where the agency reasonably adjusted the protester’s proposed costs to account for its failure to propose the correct number of labor hours, as required by the solicitation.
2. Protest challenging agency’s technical evaluation is denied where the record shows that even if the agency’s identification of a minor weakness in the protester’s proposal was unreasonable, the conclusion did not materially affect the award decision.

ESCO Marine, Inc. B-401438, September 4, 2009.
DIGEST: 1. Where, in connection with task order for dismantling ships, offerors are required to sell the scrap resulting from the ship dismantling, are permitted to retain the scrap sale proceeds, and are required to offset their proposed prices by the scrap sale proceeds, the determination of whether the task order is “valued” in excess of $10 million--as part of a determination of GAO’s jurisdiction to review a protest of the task order placed under an indefinite-delivery/indefinite-quantity contract--is not limited to consideration of offerors’ proposed prices but properly includes consideration of estimated ship scrap values.
2. Protest challenging the evaluation of technical proposals is denied where the record establishes that the agency’s evaluation was reasonable, consistent with the stated evaluation criteria, and adequately documented.
3. Affirmative determination of awardee’s financial responsibility under task order for ship dismantling services was not reasonable where, notwithstanding the fact that the awardee’s proposal expressly represented that it planned to tow and dismantle three ships simultaneously, the contracting officer nevertheless based his determination of adequate financial resources on the awardee incurring the towing and dismantling costs sequentially.

L-3 Services, Inc. B-400134.11; B-400134.12, September 3, 2009.
DIGEST: 1. Protest that agency unreasonably determined that the awardee did not have a “biased ground rules” organizational conflict of interest is sustained where the record shows that the awardee’s subcontractor provided procurement development services that put it in a position to affect the subsequent competition in its favor.
2. Protest that agency unreasonably determined that awardee did not have an “unequal access to information” organizational conflict of interest is sustained where the record shows that the awardee’s subcontractor had access to competitively useful, non-public information, and the drafts of the mitigation plans intended to prevent the disclosure of that information were not furnished to the agency until after the conclusion of the performance of the work covered by those plans.
3. Protest that agency unreasonably determined that the awardee did not have an “impaired objectivity” organizational conflict of interest is denied where the relationships between the awardee’s subcontractor and the firm that was its prime contractor on a prior task order are too attenuated to support such an allegation.

Cashman Dredging and Marine Contracting Co. LLP, B-401547, August 31, 2009.
DIGEST: Protest arguing that agency improperly permitted correction of low bidder’s mistake of omitting a single digit from the unit price for one line item is denied because the correct amount was shown in the extended price for that line, the extended prices summed to the bid total, and because the handwritten copy of the bid also reflected the corrected price.

Electronic Vision Access Solutions B-401473, August 25, 2009.
DIGEST: 1. Agency reasonably found awardee’s proposed system to be commercially available where it was of a type customarily used by, and had been sold to, the general public, in accordance with the Federal Acquisition Regulation definition incorporated by the solicitation, as amended.
2. Protest that awardee’s proposal was technically unacceptable, because the awardee did not propose a Braille study function, is denied where the solicitation did not require such a function.

Viking Inc.--USA B-401528, August 25, 2009.
DIGEST: Where protester failed to furnish, and agency officials were otherwise unable to gain access to, documentation demonstrating that protester’s product had previously been approved as an acceptable alternate to specified product, agency properly sought data package for the product from the protester and rejected its quotation when protester failed to furnish a complete package.

Northrop Grumman Information Technology, Inc., B-400134.10, August 18, 2009.
DIGEST: 1. Protest that Air Force failed to properly evaluate the awardee’s proposal and assess its proposal risk is sustained where, contrary to the evaluation scheme announced in the solicitation, the agency failed to evaluate staffing under all of the Mission Capability subfactors.
2. Protest that agency improperly evaluated proposals is sustained where the solicitation stated that they would be evaluated on “the extent to which” they exceeded a requirement, and proposals that were substantially different were nevertheless rated the same.
3. Protest of agency’s decision not to consider revised proposals in the reevaluation following corrective action is untimely when filed after the issuance of the new award decision, where protester knew or should have known prior to that award decision of the agency’s intent not to consider proposal revisions.

ALJUCAR, LLC, B-401249.4, August 17, 2009.
DIGEST: Protest alleging that agency deviated from solicitation’s stated evaluation scheme in evaluating price proposals is denied where protester failed to show that it was competitively prejudiced by any alleged deviations.

Glenn Defense Marine-Asia PTE, Ltd. B-401480 August 17, 2009.
DIGEST: Protest of the rejection of the protester’s quotation is denied, where the solicitation required the contractor to satisfy business licensing requirements in the Commonwealth of the Northern Mariana Islands and where the agency was informed by the Northern Mariana Islands that the protester’s quoted business arrangement would not satisfy the Island’s licensing requirements.

Healthcare Resolution Services, Inc., B-400826.4, August 13, 2009.
DIGEST: Protest challenging source selection authority’s (SSA) selection of lower-priced proposal based on determination that protester’s and awardee’s proposals were technically equal is denied where the record shows that, in reconsidering his selection of the protester’s proposal for award based on proposal strengths noted by the technical evaluation panel, the SSA reasonably concluded that the strengths noted by the evaluators did not reflect a substantial difference between the proposals and did not warrant the payment of the price premium associated with the protester’s proposal.

Argon ST, Inc., B-401387, August 6, 2009.
DIGEST: 1. Protest that agency improperly found proposal unacceptable is denied where record shows that proposal never demonstrated--initially, during discussions, or in final proposal revision--compliance with material solicitation requirement.
2. Protest that agency misled protester during discussions is denied where there was no reasonable basis for protester to assume, based on agency’s silence in subsequent discussions, that its proposal was acceptable or that it should submit information in a manner inconsistent with express requirements of solicitation.

Commercial Design Group, Inc., B-400923.4, August 6, 2009.
DIGEST: 1. Where solicitation provided for award to offeror submitting lowest-priced, technically acceptable proposal, protest that agency improperly conducted discussions with offerors other than protester is denied where protester’s proposal had already been found technically acceptable and protester was given the opportunity, like all other offerors, to submit a revised proposal after discussions had concluded.
2. Protest challenging evaluation of proposals is denied where the record establishes that the agency’s evaluation was reasonable and consistent with the solicitation.

First Coast Service Options, Inc., B-401429, July 31, 2009.
DIGEST: Where performance of more than one-third of the contract requirements created a conflict of interest for the protester, agency reasonably rejected protester’s final revised proposal that, for the first time, offered to perform the conflicted requirements by relying on a “firewalled subcontractor,” but failed to meaningfully address the cost and technical impacts associated with this significant proposal revision.

Lakeshore Engineering Services, B-401434, July 24, 2009.
DIGEST: In a negotiated procurement that required offerors to submit a portion of cost/price proposals electronically, agency’s elimination of proposal from the competitive range is reasonable where the record shows that the protester electronically sent, but the agency did not receive, a portion of the protester’s cost/price proposal.

Subject: Department of Defense-Retired Military Officers as Media Analysts, B-316443, July 21, 2009.
Summary Section 1056 of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009 directs the Comptroller General to issue a legal opinion to Congress on whether the Department of Defense violated appropriations prohibitions on publicity or propaganda activities by offering special access to prominent persons in the private sector who serve as media analysts. Pub. L. No. 110-417, § 1056(c), 122 Stat. 4356, 4610--11 (Oct. 14, 2008). Department of Defense (DOD) appropriations acts for fiscal years 2002 through 2008 provide, “No part of any appropriation contained in this Act shall be used for publicity or propaganda purposes not authorized by the Congress.” See, e.g., Pub. L. No. 110-116, § 8001, 121 Stat. 1295, 1313 (Nov. 13, 2007). This opinion addresses whether DOD’s funding of public affairs activities involving retired military officers (RMO) who served as media analysts violated the prohibition. ... “However, as we discuss below, and based on the record before us in this case, we conclude that DOD’s public affairs outreach program to RMOs did not violate the prohibition.”

Kuhana-Spectrum, B-401270, July 20, 2009.
DIGEST: Agency reasonably found that the past performance of the protester represented a moderate risk based upon documented and undisputed performance problems under the predecessor and other very relevant contracts, notwithstanding numerous instances of reported successful performance under other contracts.

Public Communications Services, Inc., B-400058; B-400058.3, July 18, 2008.
DIGEST: 1. Government Accountability Office has jurisdiction to hear protest of the award of a no-cost contract for provision of phone services to detainees in the custody of the Bureau of Immigration and Customs Enforcement because the contract concerns a procurement for services by a federal agency and results in a benefit to the government.
2. Protest challenging the evaluation of offerors’ prices is sustained where the solicitation required offerors to propose eight international calling rates, but the agency evaluated only one rate as a surrogate for the others without a reasonable basis to do so.
3. Protest challenging the evaluation of protester’s technical proposal is sustained where the agency’s identification of technical deficiencies was not reasonable because certain features viewed as missing from protester’s proposal were not required by the solicitation, and because the record shows that the offerors were not evaluated equally.
4. Protest alleging that awardee made material misrepresentations concerning its proposal and in connection with a Small Business Administration size status protest is denied where the record does not show that misrepresentations were made.

GC&E Systems Group, Inc., B-401315; B-401315.2, July 9, 2009.
DIGEST: Protest that agency misled protester into increasing its staffing and, consequently, its price, when it provided vendors with government’s minimum estimated staffing is denied where agency specifically advised offerors that estimate was just that, and that it was vendor’s responsibility to determine adequate staffing.

Controlled Systems, B-401208.2, July 8, 2009.
DIGEST: Protest that a quotation contains conflicting delivery terms and should have been found technically unacceptable because it did not conform to the solicitation’s requirement for delivery to destination is denied, where the awardee’s quotation included pricing for delivery to destination, the agency determined that the inclusion of a conflicting delivery term was a minor error, and the purchase order issued to the awardee provided for delivery to destination at the price quoted.

New Dynamics Corporation, B-401272, July 8, 2009.
DIGEST: Protest of agency’s decision to retain custodial services in-house based on results of a standard public-private competition conducted pursuant to Office of Management and Budget (OMB) Circular No. A-76 is sustained where the agency failed to reasonably consider whether agency tender’s material and supply costs were realistic, as required by the solicitation and OMB Circular A-76.

Library of Congress-Obligation of Guaranteed Minimums for Indefinite-Delivery, Indefinite-Quantity Contracts under the FEDLINK Program, B-318046, July 7, 2009.
DIGEST: The Library of Congress uses indefinite-delivery, indefinite-quantity (IDIQ) contracts, against which agencies place orders for library and information products and services, in support of its Federal Library and Information Network (FEDLINK). FEDLINK is a voluntary program, and the Library states that it cannot accurately anticipate use of an IDIQ contract. The Library proposes using a standard amount of $500 as the guaranteed minimum for these contracts regardless of the maximum ordering limitations or total contract value, which amount would be obligated at the time it awards the IDIQ contract. To provide adequate consideration for a binding IDIQ contract, an agency must establish a guaranteed minimum that is more than a nominal amount and reflects the amount the agency is fairly certain to order. In the absence of reliable historical data indicating that a $500 guaranteed minimum for a particular IDIQ contract is too high or too low, we have no basis to object to the use of $500 as a guaranteed minimum.

Holloway & Company, PLLC--Costs, B-311342.5, July 6, 2009.
DIGEST: Request for recommendation for reimbursement of protest costs is dismissed where the protester initially filed its claim with the contracting agency; the agency agreed to reimbursement of a portion of the claim; the protester then asked the agency to reconsider its denial of the rest of the claim; and, after more than 8 months had passed without a response from the agency, the protester then filed a request for a determination of the amount of reimbursement at GAO. Delay in filing at GAO until more than 8 months had passed without receiving a response from the contracting agency (and with no attempt to follow up on its request with the agency) constitutes a failure to diligently pursue the claim.

Rosemary Livingston--Agency Tender Official, B-401102.2, July 6, 2009.
DIGEST: Protest challenging evaluation of agency tender in public-private competition under Office of Management and Budget Circular A-76 is sustained where the record contains inconsistent statements by the agency in its contemporaneous evaluation and inadequate documentation of the agency’s findings regarding the tender’s shortcomings.

Small Business Administration--Reconsideration, B-401057.2, July 6, 2009.
DIGEST: 1. Request for reconsideration from the Small Business Administration (SBA), arguing that our Office exceeded its statutory grant of authority to decide bid protests when we concluded in Mission Critical Solutions, B-401057, May 4, 2009, 2009 CPD ¶ 93, that set-asides under the Historically Underutilized Business Zone (HUBZone) program are mandatory where the enumerated conditions of the HUBZone statute are met, is denied where, despite the SBA’s contentions to the contrary, our decision did not “invalidate” the SBA’s conflicting regulation, and the decision, and the recommendation within it, were consistent with our statutory jurisdiction.
2. Request for reconsideration of prior decision sustaining protest is denied where newly raised information fails to show that our prior decision contains any errors of fact or law.

Natural Resources Conservation Service-Obligating Orders with GSA’s AutoChoice Summer Program, B-317249, July 1, 2009.
DIGEST: The General Services Administration (GSA) instructs agencies to obligate current year appropriations for orders of next year model motor vehicles submitted through GSA’s AutoChoice Summer Program, even though such orders cannot be finalized until the next fiscal year when vendors first make available the requisite information on next year models. The Natural Resources Conservation Service requested an advance decision on whether orders submitted through GSA DIGESTs AutoChoice Summer Program constitute a valid obligation of the current fiscal year. We conclude that they do not, because, until finalized in October, they are tentative and incomplete.

Denali Commission-Anti-Lobbying Restrictions, B-317821, June 30, 2009.
DIGEST: Anti-lobbying provisions prohibit Commissioners and their personal staff as well as agency officials from using appropriated funds to engage in grassroots lobbying by encouraging interest groups to contact Members of Congress and their staff regarding Denali’s reauthorization. The Byrd Amendment prohibits Commissioners and their personal staff, in their role as grantees, from using grant funds to lobby Members of Congress and their staff in connection with the making of a grant. Commissioners and their personal staff may be reimbursed for travel expenses incurred while conducting the official business of the agency.

Carahsoft Technology Corporation, B-401169; B-401169.2,June 29, 2009.
DIGEST: Protest challenging an order under a Federal Supply Schedule contract for faceted search capability software pursuant to a competition conducted under Federal Acquisition Regulation subpart 8.4 is sustained where the agency unreasonably issued an order on the basis of a quotation that failed to meet one of the minimum technical specifications of the solicitation.

Public Communications Services, Inc.--Costs, B-400058.4, June 25, 2009.
DIGEST: 1. Reimbursement of attorneys’ fees sought by a successful small business protester is recommended, notwithstanding agency’s argument that the fees are unreasonable because they are inconsistent with conference report language found in the legislative history of the Federal Acquisition Streamlining Act, which states that the statutory cap on hourly rates for attorneys’ fees that can be reimbursed for successful large business protesters should serve as a “benchmark” for reviewing the otherwise reasonable hourly rates for attorneys’ fees incurred by successful small business protesters. The benchmark is one among several factors to be considered in evaluating the reasonableness of attorney fees and does not, under the circumstances here, show that the requested fees are unreasonable.
2. Agency’s argument that the attorneys’ fees sought by a successful small business protester are unreasonable because the protester used a private law firm, and because, in the agency’s view, billings by private law firms are inherently unreliable, does not provide a basis for our Office to deny a request that we recommend reimbursement of such costs, when the record shows that the hours incurred, and rates charged, are adequately documented and reflect customary costs for similar work.

Brooks Range Contract Services, Inc., B-401231, June 23, 2009.
DIGEST: 1. Protest that agency improperly included oral presentation in evaluation is denied; where oral presentations were to become part of quotation and were to cover information encompassed by evaluation factors, it was implicit that content of presentations would be evaluated.
2. Protest that agency improperly failed to perform price-technical tradeoff under “best value” evaluation scheme is denied where task order was issued to vendor that submitted highest rated and lowest priced quotation; accordingly, no tradeoff was required.

Caddell Construction Company, Inc., B-401281, June 23, 2009.
DIGEST: Post-award protest challenging awardee’s eligibility for award as a “United States person” is untimely, where, before the submission of proposals, the agency prequalified firms as United States persons and posted a list of prequalified firms on FedBizOpps and where the protester knew, prior to the submission of proposals, the basis of its allegations that the awardee did not satisfy the requirement to be a United States person.

TFab Manufacturing, LLC, B-401190, June 18, 2009.
DIGEST: Protest challenging propriety of solicitation provision--stating that offerors must meet requirements under Limitations on Subcontracting (LOS) clause separately for services and supply portions of work under solicitation--is sustained where provision is inconsistent with Small Business Act, which provides for application of either services or supply portion of LOS clause, but not both.

AINS, Inc., B-400760.2; B-400760.3, June 12, 2009.
DIGEST: Protest challenging agency evaluation of quotations received in response to solicitation for establishment of a blanket purchase agreement is sustained where record fails to demonstrate that the evaluation was reasonable.

Commercial Design Group, Inc.--Costs, B-400923.3, June 10, 2009.
DIGEST: Protest is clearly meritorious and reimbursement of costs of filing and pursuing protest is recommended where reasonable agency inquiry into initial protest allegations would have revealed insufficient basis for technical evaluation results related to awardee’s proposed technical personnel.

Bernard Humbles--Designated Employee Agent, B-401349, June 8, 2009.
DIGEST: Protest filed by Designated Employee Agent challenging agency’s decision to contract for headstone setting services without conducting a public-private competition is dismissed where the protester represents a group of employees whose positions are not at risk as a consequence of the contemplated contracting decision.

Northrop Grumman Information Technology, Inc., B-401198; B-401198.2, June 2, 2009.
DIGEST: Agency reasonably found that awardee’s proposal complied with solicitation provision calling for nearby performance facility, even though it proposed to have only management personnel at that facility, where solicitation only required management--not all--personnel to be located at nearby facility.

Core Tech International Corporation--Costs, B-400047.3, June 2, 2009.
DIGEST: Request that GAO recommend reimbursement of attorneys’ fees at a rate higher than the statutory cap of $150 per hour based on increase in cost of living is granted where claim filed with agency presented reasonable basis for adjustment.

Ashbury International Group, Inc., B-401123; B-401123.2, June 1, 2009.
DIGEST: 1. Protest that agency misevaluated awardee’s proposal is sustained where record shows that, while solicitation provided that agency would conduct extensive testing on submitted product samples, it failed to conduct testing on awardee’s product, as revised following discussions, and instead accepted awardee’s unsubstantiated representation that it would provide product that meets solicitation requirements.
2. Protest that agency failed to engage in meaningful discussions with protester is sustained, where record shows that agency downgraded protester’s proposal for failure to include information that was not called for in solicitation, the information was not the subject of discussions, and weakness assigned to protester’s proposal ultimately was the sole technical discriminator between proposals; agency either should have amended solicitation to reflect changed requirements, or conveyed new requirements to protester during discussions.

Northern Light Productions, B-401182, June 1, 2009.
DIGEST: Protest that an agency’s inclusion of data rights requirements in the solicitation’s evaluation scheme precluded an agency determination that the protester’s proposal was unacceptable on the basis that it took exception to those requirements is denied where the data rights requirements are a material term of a solicitation and the record shows that the protester’s proposal took exception to those requirements.

Financial Crimes Enforcement Network-Obligations under a Cost-Reimbursement, Nonseverable Services Contract, B-317139, June 1, 2009.
DIGEST: A nonseverable services contract that is not separated for performance by fiscal year may not be funded on an incremental basis without statutory authority. Failure to obligate the estimated cost (or ceiling) of a nonseverable cost-reimbursement contract at the time of award violated the bona fide needs rule.
     Contract modifications to a cost-reimbursement contract increasing original ceiling are chargeable to appropriations available when the modifications were approved by the contracting officer. The actual date the agency records the obligation in its books is irrelevant to the determination of when the obligation arises and what fiscal year appropriation to charge.
     A provision in an annual appropriations act designating that a portion of a lump-sum amount “shall be available for” a specific project does not preclude the use of other available appropriations for the project.

Stateside Associates, Inc., B-400670.2; B-400670.3, May 28, 2009.
DIGEST: 1. In solicitation for monitoring developing legislation, where performance objectives clearly encompassed awardee’s proposed use of case law data holdings, agency reasonably assigned evaluated strength for that aspect of awardee’s proposal, even though solicitation did not specify that type of research.
2. Agency reasonably assessed evaluated weakness in protester’s proposal where experience under protester’s incumbent contract reflected users’ need to access [deleted] protester’s proposed websites--rather than a single website--in order to obtain full benefit of features such as search capabilities.
3. Where protester was provided opportunity to explain past performance issue during performance of ongoing task order, agency was not required to provide protester with another opportunity to address the matter in discussions.
4. Protest that agency improperly assigned single, overall adjectival rating, which allegedly gave undue weight to only factor where awardee’s proposal had more strengths than protester’s, is denied, since record shows that award decision was based not on adjectival ratings, but on relative strengths and weaknesses of protester’s and awardee’s proposals.

Wartsila Defense, Inc., B-401224, May 26, 2009.
DIGEST: Protest that agency improperly rejected protester’s fixed-price proposal in research and development procurement is denied where the record shows that the agency reasonably determined that award of a cost-type contract was required.

Academy Facilities Management--Advisory Opinion, B-401094.3, May 21, 2009.
DIGEST: 1. Contracting agency did not engage in misleading discussions where record shows that it accurately advised protester of specific instances where its line item prices were overstated in comparison to the government estimate.
2. Where solicitation contemplated award of fixed-price contract, price realism analysis was reasonable where, consistent with the solicitation methodology, agency compared proposed prices to government estimate, other proposed prices, and reviewed separate cost elements.
3. Protest allegation that awardee enjoyed an unfair competitive advantage by having employed a former government employee as a consultant as part of proposal preparation is denied where record contains no evidence that the government employee had access to sensitive business information regarding protester’s performance of the incumbent contract.

Engineering Management & Integration, Inc., B-400356.4; B-400356.5, May 21, 2009.
DIGEST: Where solicitation instructed offerors that their proposed staffing plans should at a minimum indicate the percentage of their staffs with third party certification, and protester identified in its proposal the number of its staff members holding third party certification, protester’s failure to express the proposed staff numbers also as a percentage of total staff may not reasonably be viewed as a deficiency since the information that protester did furnish in fact provided a better understanding of its proposed staffing.

Kuwait Leaders General Trading & Contracting Company, B-401015.2, May 21, 2009.
DIGEST: Agency properly excluded protester from competition where, although firm’s ineligibility may not have been clear from solicitation, agency had statutory authority to limit competition and executed determination and finding citing that authority, making it clear that it intended to limit competition in a manner that excluded protester; GAO will not recommend that agency undertake useless act of amending solicitation to make clear that protester is ineligible to compete.

Med-South, Inc., B-401214, May 20, 2009.
DIGEST: Agency’s decision to set aside a procurement for small businesses is reasonable where the agency performed market research that demonstrated a reasonable likelihood that the agency would receive offers from two or more responsible contractors at a fair and reasonable price, the agency consulted with the Office of the Small Disadvantaged Business Utilization, and the agency received three offers from small businesses in response to the solicitation.

Ahtna Support and Training Services, LLC, B-400947.2, May 15, 2009.
DIGEST: Protest is sustained where the agency evaluated the awardee and the protester unequally by crediting the awardee with the experience of its subcontractor, but not similarly crediting the protester with the experience of its subcontractor, even though the agency viewed both subcontractors as having relevant experience.

Spectrum Systems, Inc., B-401130, May 13, 2009.
DIGEST: 1. Agency properly accepted a quotation that complied with the solicitation’s requirements, where there was no significant countervailing evidence reasonably known to the agency evaluators that should have created doubt as to whether the vendor will or can comply with the solicitation’s requirements; whether the vendor, whose quotation agreed without exception to furnish a product in accordance with the terms of the solicitation, actually delivers a product compliant with the terms of the solicitation is a matter of contract administration, which is for consideration by the contracting agency, rather than GAO.
2. Agency, in calculating the vendors’ proposed prices and in its best value analysis, properly did not perform a life cycle cost analysis regarding the solicited software and associated maintenance, where the solicitation did not provide for the performance of a life cycle cost analysis.

American K-9 Detection Services, Inc., B-400464.6, May 5, 2009.
DIGEST: In implementing corrective action in response to a protest, agency improperly limited discussions to requesting information to show that a proposed key position complied with the solicitation requirements, where the discussions did not provide the protester with the opportunity to become more competitive through meaningful discussions by allowing it to address significant weaknesses or deficiencies found in its proposal.

Messier-Bugatti, Safran Group, B-401064, May 5, 2009.
DIGEST: Protest that specification requirement for lock-ring, demountable flange wheel design as part of retrofit systems for C-130 aircraft unduly restricts competition, improperly precluding protester from offering a tie-bolt, split-rim wheel design, is denied where agency reasonably determined that tie-bolt wheel will require significantly more time to maintain than a lock-ring wheel, such that it does not meet agency need for wheel design permitting efficient maintenance.

Government Acquisitions, Inc., B-401048; B-401048.2; B-401048.3, May 4, 2009.
DIGEST: 1. Agency reasonably evaluated protester’s proposal as containing various weaknesses and deficiencies, including rating the proposal as “Unacceptable” with regard to protester’s proposed management plan, where record shows that protester’s proposal failed to comply with solicitation requirements and the protester’s complaints constitute mere disagreement with the agency’s judgments.
2. Agency reasonably rated awardee’s proposal as “Acceptable” with regard to past performance where record established that awardee has performed various prior contracts of similar size, scope and complexity.
3. Where agency has not retained individual evaluator notes or worksheets, protest that evaluation record is inadequate is denied where the agency’s consensus evaluation report contains sufficient detail to establish that the agency’s judgments were reasonable.

Mission Critical Solutions, B-401057, May 4, 2009.
DIGEST: Protest is sustained where contracting agency did not consider whether two or more qualified Historically Underutilized Business Zone (HUBZone) small businesses could be expected to submit offers and whether award could be made at a fair market price, as required by the HUBZone statute, 15 U.S.C. § 657a, prior to deciding to award contract to an Alaska Native Corporation on a sole-source basis.

National Transportation Safety Board-Application of Section 1072 of the Federal Acquisition Streamlining Act (41 U.S.C. § 254c) to Real Property Leases, B-316860, April 29, 200.
DIGEST: Statutory language authorizing the National Transportation Safety Board to “enter into such contracts, leases, cooperative agreements, and other transactions as may be necessary” to carry out its functions and duties permits the agency to enter into leases of real property. The 1994 recodification of that provision omitting the word “leases” did not change the provision’s meaning.
Under 41 U.S.C. § 254c, the phrase “acquisition of property” includes leases of real property. Accordingly, agencies with authority to lease real property may enter into contracts for up to 5 years for the lease of real property using fiscal year appropriations if the conditions of 41 U.S.C. § 254c are met.

Petro Star, Inc., B-401108 , April 29, 2009.
DIGEST: Awardee’s challenge to the amount of its contract price to supply military fuel requirements is dismissed because it raises a matter of contract administration over which we do not have jurisdiction

Southern Scrap Material Company, B-401059, April 29, 2009.
DIGEST: Protest that liquidated damages provision in solicitation for ship sale/dismantlement is improper because agency profits from sales program, and thus suffers no loss from breach, is denied where agency reasonably determined that it will suffer damages as a result of delayed performance; fact that program under which contract is issued generates revenue is irrelevant to propriety of provision.

National Science Foundation-Potential Antideficiency Act Violation by the National Science Board Office, B-317413 , April 24, 2009.
DIGEST: The National Science Board Office’s (NSBO) fiscal year 2006 appropriation is not available to fund cost overruns incurred during performance of a contract that was settled by a modification to the contract in fiscal year 2007. This settlement represents a new obligation properly chargeable to fiscal year 2007. NSBO can correct this improper recording through an account adjustment by deobligating the amounts that were improperly charged to fiscal year 2006 appropriations and charging these amounts to the fiscal year 2007 appropriation. If after NSBO adjusts its accounts it has insufficient funds in its fiscal year 2007 appropriation, it should report an Antideficiency Act violation in accordance with 31 U.S.C. § 1351.

AHNTECH, Inc., B-401092, April 22, 2009.
DIGEST: Small Business Administration (SBA) properly accepted requirement for operations, maintenance and support of an Air Force range into the 8(a) program without determining whether acceptance would have an adverse impact on an existing small business that had been performing similar services at the range where based on the record there is no reason to object to the SBA and the Air Force decision that the services to be obtained under the 8(a) program constituted a new requirement.

PlanetSpace, Inc., B-401016; B-401016.2, April 22, 2009.
DIGEST: 1. Protest is denied in procurement for commercial resupply services for International Space Station where source selection authority reasonably determined that outstanding and very good past performance of protester’s proposed subcontractors did not warrant an overall significant strength where protester itself lacked significant relevant past performance and technical expertise, leaving subcontractors responsible for technical performance and approximately [REDACTED]% of overall contract effort.
2. Protest is denied in procurement for commercial resupply services for International Space Station where agency reasonably ascertained significant financial risk to the government from protester’s proposal under fixed-price prime contract to subcontract technical performance and approximately [REDACTED]% of overall contract effort; significant development and integration work, the risk and cost of which was underestimated, was to be performed by subcontracting on a cost basis; protester’s business case, although reflecting additional unrealistically optimistic assumptions, nevertheless assumed that cost of performing would exceed contract payments until last year of contract; protester had limited contract management resources; and protester, a recently organized entity, proposed to finance performance using only minimal internal financial resources, depending instead on debt financing and obtaining additional investment for nearly all of performance costs.

B-317636 April 21, 2009 Subject: Severable Services Contracts This responds to your request for our legal opinion on whether 10 U.S.C. § 2410a and 41 U.S.C. § 253l restrict a federal agency using multiple year or no-year appropriations to contracts for periods of performance no longer than 1 year. Both of these provisions permit agencies to enter into severable services contracts that cross fiscal years for up to 1 year and obligate the appropriations current at the time the agencies enter into the contract. In our opinion, these statutory provisions do not restrict to 1 year the contract periods of severable services contracts funded by no-year appropriations or by multiple year appropriations.

FPM Remediations, Inc., B-401017.2, April 16, 2009.DIGEST: Protest that agency improperly failed to consider protester for award of a small business contract is dismissed where the solicitation anticipated awards in multiple small business subcategories, and additional awards for up to three remaining small businesses, and where the protester initially received award of a Historically Underutilized Business Zone (HUBZone) contract, and hence was not considered for one of the remaining small business awards; the fact that the protester was subsequently decertified as a qualified HUBZone small business concern in no way renders the agency’s earlier small business awards improper--if anything, the protester’s failure to receive a small business award resulted from its inaccurate representation that it was eligible for a HUBZone award, not from any violation of procurement law or regulation by the agency.

George G. Sharp, Inc., B-401077; B-401077.2, April 15, 2009.
DIGEST: 1. Agency reasonably determined that indication in quotation that successful vendor would hire incumbent personnel and that it and team member had corporate resources and qualified personnel to meet requirements satisfied solicitation requirement that vendors confirm ability to have requisite personnel at time of issuance of task order.
2. Agency’s evaluation of successful vendor’s proposed project manager (PM) and alternate was unobjectionable where agency based evaluation primarily on resume detailing proposed PM’s qualifications, and also gave credit for alternate candidate based on information from outside quotation.
3. Agency reasonably evaluated successful vendor’s and team member’s experience and past performance as superior where quotation and past performance reference response demonstrated relevant experience and overall superior past performance.

RTI Technologies, LLC, B-401075, April 15, 2009.
DIGEST: Protest is untimely under GAO’s Bid Protest Regulations, where a protest on the same grounds was initially filed at the agency and denied, and filed with GAO more than 10 days after receipt of the denial; the protester’s receipt of a required debriefing after receipt of the denial of the agency-level protest does not toll or provide an exception to our timeliness rules where an agency-level protest was filed.

Precision Mold & Tool , B-400452.4; B-400452.5, April 14, 2009.
DIGEST: Agency’s evaluation of offerors’ “quality” and “delivery” past performance was reasonable, where solicitation advised offerors that past performance would be evaluated based on information listed in Past Performance Information Retrieval System--Statistical Reporting (PPIRS), offerors were given an opportunity to correct inaccuracies in PPIRS records, and the agency confirmed the validity of negative past performance; agency’s decision not to select protester’s lower-priced proposal was reasonable given its poor record of delivery performance and the agency’s rational decision that awardee’s superior performance record was worth the additional cost.

Report to Congress on Bid Protests Involving Defense Procurements, B-401197 April 9, 2009.
Digest: This report responds to the direction from the Committee on Armed Services, House of Representatives, contained in the report on the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009, Pub. L. No. 110-417 (2008) (H.R. Rep. No. 110-652, at 394-95, May 16, 2008). The committee directed the Comptroller General of the United States to review bid protests filed with the Government Accountability Office (GAO) during the last 5 years associated with procurement actions by the Department of Defense (DOD). The committee requested that we assess the extent to which bid protests may be increasing, the extent to which frivolous and improper protests may be increasing, and the causes of any identified increases. The committee further directed the Comptroller General to provide recommendations regarding actions that Congress, or the executive branch, could take to disincentivize frivolous and improper bid protests on the part of industry.

Solutions Lucid Group, LLC, B-400967, April 2, 2009.
DIGEST: Protest challenging agency’s decision not to solicit a quotation from the protester is sustained where the record shows that the agency knew that the protester was interested in competing and did not have a reasonable basis to question the protester’s ability to perform.

Armorworks Enterprises, LLC, B-400394.3, March 31, 2009.
DIGEST: Protest challenging agency’s body armor testing, which is based on findings contained in a Department of Defense Inspector General Report, is dismissed where the findings contained in the report do not reasonably support a conclusion that the protester suffered any prejudice in the testing of its body armor, which ultimately failed testing.

Savannah River Tank Closure, LLC, B-400953; B-400953.2; B-400953.3, March 30, 2009..
DIGEST: In a procurement for liquid waste remediation, agency reasonably selected technically superior but higher priced proposal for award, where awardee’s technical approach for tank cleaning was significantly superior to the protester’s less feasible approach, the awardee’s proposal exceeded the requirements of the solicitation to a much larger degree than did the protester’s in several technical areas, and the awardee demonstrated proposal superiority under nearly all of the evaluation factors.

RN Expertise, Inc., B-401020, March 27, 2009.
DIGEST: Agency’s decision to cancel solicitation and obtain its requirements through an interagency agreement is not objectionable where it is based on reasonable conclusion that utilizing the interagency agreement would result in substantial cost savings as compared with an award under the canceled solicitation.

LIS, Inc., B-400646.2; B-400646.3, March 25, 2009.
DIGEST: Protest is sustained in a negotiated procurement, where solicitation required best-value evaluation and agency failed to document or adequately explain how awardee’s proposal overcame significant weaknesses identified in the initial evaluation, and failed to document or adequately explain its assessment of the relative merits of the proposals or perform a comparative assessment of proposals when making the source selection.

Triple Canopy, Inc.--Costs, B-310566.9; B-400437.4, March 25, 2009.
DIGEST: Where agency took corrective action following submission of an agency report responding to the protests, request that Government Accountability Office recommend reimbursement of protest costs is denied where protest grounds, though potentially meritorious, were not clearly meritorious--that is, the protest allegations presented close questions regarding their merit.

B-317450 March 23, 2009.
Subject: Antideficiency Act-Applicability to Statutory Prohibitions on the Use of Appropriations. Interesting opinion wherein the GAO disagrees with the Office of Legal Counsel on the requirement to report Antideficiency Act violations to Congress.

Pegasus Global Strategic Solutions, LLC, B-400422.3, March 24, 2009.
DIGEST: Protest challenging agency’s justification and approval for the sole source modification of a contract on an urgency basis for upgraded counter improvised explosive device electronic warfare systems is denied, where agency reasonably determined from market research and testing that only the contract holder could meet its urgent requirements.

Pond Security Group Italia JV--Costs, B-400149.2, March 19, 2009.
DIGEST: Agency’s contention that protester was not prejudiced by solicitation defect (and protest thus was not clearly meritorious for purposes of determining whether reimbursement of protest costs is appropriate) because protester failed to submit a compliant proposal even after the solicitation was amended to address the protested defect is without merit since prejudice in the context of a protest alleging a solicitation defect is not based on post-protest developments, but rather on whether the alleged defect affected the protester’s ability to compete at the time the protest was pending.

Core Tech International Corporation--Costs, B-400047.2, March 11, 2009.
DIGEST: Reimbursement of costs of filing and pursuing protest is recommended where a reasonable agency inquiry into protest allegations would have shown that agency had failed to reasonably evaluate awardee’s past performance and experience, and had conducted disparate, unequal discussions, but agency delayed taking corrective action until after submission of agency report responding to allegations and GAO conducted "outcome prediction" alternative dispute resolution.

Alatech Healthcare LLC, B-400925; B-400925.2, March 9, 2009.
DIGEST: Government Accountability Office will not consider protest of an award of subcontract as “by” the government, where record shows that prime contractor had extensive involvement in conducting acquisition, including drafting of solicitation, receipt and evaluation of proposals and selection of successful concerns.

ACCESS Systems, Inc., B-400623.3, March 4, 2009.
DIGEST: Protest is sustained in a competition for the issuance, on a best-value basis, of a task order to a higher-priced vendor under 8(a) Streamlined Technology Acquisition Resources for Services (STARS) government-wide acquisition contract, where the record does not show meaningful consideration of price in the agency’s selection of the higher-price quotation, nor identify the superior capabilities of the awardee’s quotation that would justify paying the price premium associated with that quotation.

Futurecom, Inc., B-400730.2, February 23, 2009.
DIGEST: Past performance provision in solicitation that limits past performance references to those performed within the past 3 years is consistent with Federal Acquisition Regulation (FAR) § 15.305(a)(2)(i), which requires that the currency of past performance be evaluated, and is not unduly restrictive of competition, particularly given the requirement in FAR § 15.305(a)(2)(iv) that offerors with no current or relevant past performance may not be evaluated favorably or unfavorably on past performance.

Kellogg Brown & Root Services, Inc., B-400787.2; B-400861, February 23, 2009.
DIGEST: Agency’s disqualification of the protester from further participation in two task order competitions for combat support services issued under an indefinite-delivery/ indefinite-quantity contract was reasonable, where an employee of the protester improperly accessed source selection sensitive and proprietary information, and the protester, in response to a request from the agency that the employee be isolated from the two open task order competitions for which the improperly accessed proprietary information would be competitively useful, refused to do so.

Arc-Tech, Inc., B-400325.3, February 19, 2009.
DIGEST: Agency may not exclude from the competitive range a proposal that has not been determined technically unacceptable without taking into account the proposal’s price.

Northrop Grumman Space and Missile Systems Corporation; Textron Marine & Land Systems Corporation B-400837; B-400837.2; B-400837.3; B-400837.4; B-400837.5, February 17, 2009.
DIGEST: 1. Protest of agency evaluation of system maturity of offerors’ proposed joint light tactical vehicle configurations is denied; agency reasonably determined that awardees had previously constructed and tested demonstrators or prototypes that were sufficiently representative of proposed configurations such that risk awardees would be unable to meet demanding performance schedule was materially reduced.
2. Agency reasonably determined that incorporated joint venture awardee satisfied requirement for Cost Accounting Standards disclosure statement where proposal included disclosure statements originally submitted by, and concerning cost accounting systems of, joint venture members/subcontractors; proposal indicated that all costs to be billed under contract would be incurred and accounted for by joint venture members/subcontractors, with no allowance for any costs to be incurred and accounted for at joint venture level; and proposal delineated overall share in cost of performance and specific roles to be filled by each joint venture member/subcontractor.

Kellogg Brown & Root Services, Inc., B-400614.3 , February 10, 2009.
DIGEST: Agency reasonably determined that the protester’s proposal, submitted in response to a competitive solicitation for a task order for combat support services issued under an indefinite-delivery/indefinite-quantity contract, was unacceptable, and reasonably excluded the proposal from the task order competition, where the proposal included an assumption regarding the agency’s provision of force protection to contractor employees that, considered most favorably to the protester, rendered the proposal ambiguous with regard to its acceptance of the solicitation’s material provisions regarding force protection.

Advanced Scientific Applications, Inc., B-400312.2, February 5, 2009.
DIGEST: Protest that the solicitation for Federal Supply Schedule (FSS) contract is defective because it includes a standard contract cancellation clause set forth in General Services Administration (GSA) Federal Acquisition Regulation Supplement § 552.238-73, is denied where the protester has not shown that the clause exceeds the authority of the GSA in establishing FSS contracts, or otherwise conflicts with statute or regulation.

Computer Cite, B-400830, February 3, 2009.
DIGEST: 1. Protest that award is improper because awardee’s parent company is not registered in the Central Contractor Registration (CCR) database is denied since there is no requirement in the Federal Acquisition Regulation that a potential contractor’s parent company be registered in the CCR.
2. Protest that the agency improperly used an unstated evaluation criterion is denied where the statement that gave rise to this protest ground was made by a different contracting officer, in connection with a different procurement than the one at issue in the protest.
3. Protest that agency improperly evaluated protester’s proposal for performance confidence is denied where the record shows that, even if the protester’s proposal had received the highest possible rating for performance confidence, the proposal would still have been rated no higher than another lower-priced proposal, and therefore there was no competitive prejudice to the protester.

e-Management Consultants, Inc.; Centech Group, Inc., B-400585.2; B-400585.3, February 3, 2009.
DIGEST: 1. Agency reasonably cancelled solicitation based on concerns, supported by the record, that the primary author of the solicitation’s statement of work and evaluation factors had a conflict of interest with regard to one offeror.
2. GAO is not authorized to consider a protest challenging the award of a task order valued at less than $10 million where the protest does not assert that the order increases the scope, period, or maximum value of the contract under which the order was issued.

Abba International, Inc. et al., B-311225.4, February 2, 2009.
DIGEST: 1. Pursuant to the bid protest authority granted GAO under the Competition in Contracting Act of 1984, GAO will consider a protest of the terms of a request for competitive rate tenders for transportation services, even though they are not subject to the Federal Acquisition Regulations, where the responses will form the basis for placement of government bills of lading for the services; however, GAO will not consider issues relating to the agency’s decision not to include certain traffic channels in the request for rate tenders since this involves the exercise of the agency’s business judgment and executive branch policy.
2. As a general rule, solicitations must contain sufficient information to allow offerors to compete intelligently and on a relatively equal basis, although there is no requirement that a solicitation contain such detail as to completely eliminate all risk or remove all uncertainty from the mind of every prospective offeror.

Honeywell Technology Solutions, Inc., B-400771; B-400771.2, January 27, 2009.
DIGEST: 1. Post-closing time protest that awardee has an impermissible organizational conflict of interest (OCI) is untimely where (1) solicitation was issued on an unrestricted basis, (2) protester was aware of the underlying facts giving rise to the potential OCI (and knew awardee was participating in the procurement), and (3) in response to protester’s inquiry, agency specifically informed protester that it did not believe awardee had an impermissible OCI.
2. Protest that awardee gained an unfair competitive advantage through its retention of a former agency official as a consultant will not be reviewed where the protester did not timely report the underlying alleged procurement integrity provision violation to the contracting agency within 14 days after the protester first discovered the possible violation, as required by GAO’s Bid Protest Regulations.
3. Contracting agency engaged in meaningful discussions where the agency advised protester of specific weaknesses regarding its technical proposal; agency was not required to also afford the protester an opportunity to cure proposal defects first introduced either in response to discussions or in a post-discussion proposal revision.
4. Protest challenging the evaluation of offerors’ technical proposals is denied where the record establishes that the agency’s evaluation was reasonable and consistent with the evaluation criteria.
5. Protest challenging the agency’s cost realism evaluation of awardee’s proposed staffing levels is denied where the record demonstrates that the agency’s conclusions were reasonable.
6. Protest challenging the evaluation of offerors’ past performance is sustained where the record establishes that the agency’s evaluation was not reasonable or consistent with the stated evaluation criteria.

SMARTnet, Inc., B-400651.2, January 27, 2009.
DIGEST: Protest against solicitation requirement that telecommunications equipment be certified by the Joint Interoperability Test Command at the time of submission of quotations is sustained where the record does not establish that the requirement for such certification at the time of quotation submission is necessary to meet the agency’s needs.

OPTIMUS Corporation, B-400777, January 26, 2009.
DIGEST 1. Protest asserting that General Services Administration (GSA) contracting officials improperly rescored quotations after technical evaluation was performed by requiring activity (Indian Health Service) evaluators is denied where record shows that GSA officials were adjusting numeric scores to more accurately reflect evaluation criteria and source selection plan evaluation standards, and made adjustments only after reviewing quotations and initial evaluation results.
2. Protest that agency misevaluated quotations is denied where record shows that evaluation was reasonable and consistent with terms of solicitation and standards generally applicable to negotiated procurements.
3. Agency’s request for vendor price reductions in Federal Supply Schedule acquisition conducted under Federal Acquisition Regulation (FAR) part 8.4 did not constitute discussions, and therefore did not trigger agency obligation to engage in meaningful discussions, as would be required in a negotiated acquisition conducted pursuant to FAR part 15; FAR part 8.4 expressly requires agencies to seek price reductions in specified circumstances.

Critical Process Filtration, Inc., B-400746, B-400747, B-400750, B-400751, B-400752, B-400785, January 22, 2009.
DIGEST: 1. Protester’s contentions that three agency procurements for brand-name filters improperly limit competition are denied where the record shows that the agency is procuring the brand-name items using simplified acquisition procedures and has adequately justified the use of its brand-name approach under the procedures applicable to simplified acquisitions.
2. Protester’s contention that a fourth agency procurement for brand-name filters improperly limits competition is sustained where the procurement history information set forth in the solicitation shows that the value of the requirement is likely to exceed the applicable simplified acquisition threshold of $100,000; accordingly, the streamlined procedures applicable to simplified acquisitions cannot be used for this requirement.

Gary Johnson -- Designated Employee Agent, B-310910.3, January 21, 2009.
DIGEST: Designated Employee Agent is not an interested party to protest actions other than agency’s final selection of the source of performance with regard to a public-private competition conducted pursuant to Office of Management and Budget Circular A-76 that was initiated prior to January 28, 2008.

Tiger Truck, LLC, B-400685, January 14, 2009.
DIGEST: In a procurement covered by the Trade Agreements Act (TAA), protest of an award to a vendor whose quotation identified products that were not TAA-compliant is sustained, where the agency failed to follow required evaluation procedures for TAA procurements, improperly failed to ascertain whether the products identified by the protester were TAA-compliant, and did not conduct meaningful discussions with the protester even though the agency regarded the protester’s quoted price as unreasonably high.

Granite Construction Company, B-400706, January 14, 2009.
DIGEST: Protest challenging evaluation of protester’s technical proposal as unacceptable is denied where record demonstrates agency reasonably concluded that protester’s offered small business subcontracting plan did not meet the solicitation’s subcontracting requirements or provide sufficient rationale supporting its lower goals; protester’s arguments amount to mere disagreement with agency’s conclusions.

DBI Waste Systems, Inc., B-400687; B-400687.2, January 12, 2009.
DIGEST: 1. Protest that agency’s publishing of notice of solicitation on government-wide point of entry was inadequate because protester lacks internet access is denied; potential offerors are on constructive notice of solicitation notice published on GPE.
2. Protest that awardee’s proposal was ineligible for award because it did not acknowledge solicitation amendment is denied where record establishes that amendment was immaterial; failure to acknowledge immaterial amendment was properly waived by agency.

Marinette Marine Corporation, B-400697; B-400697.2; B-400697.3, January 12, 2009.
DIGEST: 1. Protester’s proposal submitted in response to a solicitation issued by the Coast Guard for Fast Response Cutters, B-Class (FRC-B) was reasonably evaluated under an evaluation subfactor as “unsatisfactory,” and subsequently determined to be ineligible for award, where the “unsatisfactory” rating was due to the proposed FRC-B, as set forth in the proposal, failing to meet a material solicitation requirement regarding the stability of the vessel.
2. Awardee’s proposal submitted in response to a solicitation issued by the Coast Guard for Fast Response Cutters, B-Class (FRC-B) was reasonably evaluated under an evaluation subfactor as “satisfactory” where certain evaluated weaknesses concerning the structure of the vessel were reasonably found by the agency not to materially affect the compliance of the proposal with the solicitation’s requirements.
3. Agency reasonably evaluated the awardee’s past performance as “marginal” with “low risk,” notwithstanding the awardee’s unsatisfactory performance on a relevant contract, where the awardee’s past performance on contracts that were reasonably found to be more relevant was “excellent” or “very good,” and the agency reasonably accounted for the contract with the unsatisfactory past performance in the evaluation and award selection.
4. Price reasonableness evaluation conducted under a solicitation for the design and construction of a vessel is unobjectionable where the agency’s evaluation took into account the specifics of the vessels being offered in determining that the awardee’s proposed price was reasonable.
5. Assistance provided to the awardee during the proposal preparation process by an entity that also assisted the contracting agency in the evaluation of proposals did not create a significant “impaired objectivity” organizational conflict of interest that had to be avoided, neutralized, or mitigated, where the record reflects that the entity also provided advice to the protester during the proposal preparation process; any potential benefit to the entity is speculative and too remote to establish a significant conflict of interest; and the record otherwise reflects that there is no reasonable possibility of prejudice, as evidenced by the fact that the entity, in evaluating proposals, was more critical of the awardee’s proposal than it was of the protester’s proposal.

Cambridge Systems, Inc., B-400680; B-400680.3, January 8, 2009.
DIGEST: Agency’s decision to establish a revised competitive range and conduct discussions with small business concerns whose proposals were deemed the most highly rated rather than withdraw the set-aside and reissue the solicitation on an unrestricted basis was reasonable under the circumstances; the exclusion of technically marginal proposals from the competitive range, while permissible, is not required.

PWC Logistics Services Company, B-400660, January 6, 2009.
DIGEST: 1. Agency properly issued waiver in accordance with Federal Acquisition Regulation § 12.302(c), for commercial item solicitation requirements that may be inconsistent with customary commercial practice, where agency reasonably found that requirements subject to waiver were legitimate agency needs.
2. Solicitation is defective for failure to adequately identify bases for proposal evaluation, as required by Competition in Contracting Act of 1984, 10 U.S.C. 2305(a), where the solicitation divides requirement for food distribution into two geographic zones, with estimated value of one nearly five times that of the other, expresses intent to award each zone to different offeror, but fails to state factors that will be applied to determine which zone will be awarded to offeror whose proposal is found most advantageous for both zones.

Spaltudaq Corp., B-400650; B-400650.2, January 6, 2009 Protest that agency unreasonably discontinued negotiations under a Broad Agency Announcement is denied, where the agency reasonably determined, after four months of negotiations, that the parties could not reach agreement on contract terms concerning intellectual property rights.

Nortel Government Solutions, Inc., B-299522.5; B-299522.6, December 30, 2008.
DIGEST: Where offeror will be required to review and provide input on designs proposed by itself under separate contract with same agency, agency unreasonably failed to determine the extent of offeror’s organizational conflict of interest (OCI) and unreasonably concluded that offeror’s mitigation plan was acceptable, where it did not avoid, mitigate, or neutralize the OCI and instead relied on agency’s existing process that made government responsible for final decisions.

USGC Inc., B-400184.2; B-400184.3; B-400184.4, December 24, 2008.
DIGEST: 1. Agency’s exchanges with the vendors in a procurement conducted under the Federal Supply Schedule, and the evaluation of the vendor responses to those exchanges, were fair and equitable.
2. Agency’s selection of lower-priced, highest technically rated quotation in a procurement conducted under the Federal Supply Schedule was reasonable, consistent with the stated evaluation criteria, and adequately documented.

Raytheon Company-Integrated Defense Systems, B-400610; B-400618; B-400619, December 22, 2008.
DIGEST: Sole-source awards of follow-on contracts for the continued development of a sophisticated weapon system are unobjectionable where the agency reasonably determined that award to any other source would be likely to cause unacceptable delays in fulfilling the agency’s requirements.

Datamaxx Group, Inc., B-400582, December 18, 2008.
DIGEST: Protest that agency improperly proposes to issue a task order under an indefinite-delivery/indefinite-quantity contract without considering a small business set-aside is dismissed as untimely where the protest was filed after the closing date for submission of proposals under the solicitation for the indefinite-delivery/indefinite-quantity contract, and the solicitation provided clear notice that its scope included the services under the task order.

Major Contracting Services, Inc., B-400737.2, December 17, 2008.
DIGEST: Corrective action (consisting of terminating the protested award, canceling the solicitation, issuing a new solicitation, obtaining proposals, and making a new selection decision) taken by an agency in response to a prior protest is reasonable where the agency needs to evaluate offerors’ ability to meet contract specifications but the solicitation failed to require offerors to submit technical proposals.

Hart Security Limited, B-400796.2, December 16, 2008.
DIGEST: 1. Where solicitation amendment provided that a successful offeror must hold a facility security clearance in order to perform the solicitation requirements, and protester submitted a proposal responding to those requirements, protester’s post-closing-date protest challenging the agency’s amendment of the solicitation is not timely filed.
2. Even if protest were timely filed, protester’s complaint that agency delayed identification of the facility clearance requirement for 6 weeks following initial solicitation publication fails to state a basis for protest.

Mill City Partnership, B-400712, December 16, 2008.
DIGEST: Bid of a joint venture, which submitted a bid bond in the name of only one of the corporations forming the joint venture, was properly rejected by the agency as nonresponsive.

Orbital Sciences Corporation, B-400589; B-400589.2, December 15, 2008. NAVAIR procurement. Orbital argues that award to ATK is precluded by a conflict of interest arising out of ATK’s employment of a former NAVAIR official. GAO dismisses the protest finding that Orbital knew of the alleged possibility of a Procurement Integrity Act violation more than six months prior to filing the protest and that both GAO regulations and the Act require notice to the CO within 14 days

Madison Services, Inc., B-400615, December 11, 2008.
DIGEST: 1. Small Business Administration’s (SBA) decision to accept requirements into its 8(a) program, notwithstanding the fact that the solicitations for the requirements previously had been issued as small business set-asides, is unobjectionable where SBA concluded that the relevant procurement history supported the view that the initial small business set-asides were issued in error and therefore justified the application of the “extraordinary circumstances” provision under SBA’s regulations.
2. SBA properly accepted requirements into the 8(a) program without first determining whether doing so would have an adverse impact on existing small business concerns where the requirements qualified as new under SBA’s regulations.

Detica, B-400523; B-400523.2 December 2, 2008.
DIGEST: 1. Protest that successful vendor has an impermissible “biased ground rules” type of organizational conflict of interest is denied, where record shows that, contrary to protester’s assertion, former agency official working for successful vendor did not participate in planning the acquisition or preparing the solicitation.
2. Protest that agency evaluator was biased in favor of successful vendor is denied where protester presents no evidence to support its assertion and record shows that evaluator in question rated protester’s and successful vendor’s quotations consistently.
3. Protest challenging agency’s technical evaluation of protester’s quotation is denied where record supports agency’s evaluation conclusions, including its criticisms of protester’s quotation.
4. Protest challenging agency’s selection decision is denied where record reflects reasoned judgment of source selection official, and selection was consistent with terms of solicitation.

Nordic Air, Inc., B-400540 , November 26, 2008.
DIGEST: Protest of agency’s award to firm that offered products that have not been assigned the national stock numbers (NSN) referenced in solicitation is denied where solicitation referenced NSNs for illustrative purposes to describe types of required items, along with list of salient characteristics of the items, and encouraged offerors to propose alternative terms and commercial items to meet solicitation’s requirements.

Sallie Mae, Inc., B-400486 November 21, 2008.
DIGEST: Protest that modification of contract for management of student loans to include the servicing of loans the government will acquire pursuant to recent legislation is denied where protester fails to demonstrate that contract, as originally awarded, did not contemplate the servicing of the type of loans to be acquired.

Major Contracting Services, Inc., B-400616, November 20, 2008.
DIGEST: Where an awardee was found to be ineligible for service-disabled veteran-owned small business concern (SDVOSBC) status by the Small Business Administration (SBA) and the SBA’s Office of Hearings and Appeals based on a timely status protest filed after award under an SDVOSBC set-aside, the agency was not required to terminate the contract under the SBA’s applicable regulations.

Advant-EDGE Solutions, Inc., B-400367.2, November 12, 2008 .
DIGEST: 1. Where solicitation did not require offeror itself to possess specific licenses and permits, agency properly evaluated licenses and permits issued in name of awardee’s subcontractor.
2. Evaluation of protester’s proposal was unobjectionable where, due to weakness associated with “sharps” exchange program, agency reasonably evaluated proposal as satisfactory and, although it experienced difficulty in contacting protester’s past performance references, reasonably evaluated past performance as low risk.

Coffman Specialties, Inc. B-400706.2, November 12, 2008.
DIGEST: Protest based on speculation is dismissed because the protester failed to state sufficient legal and factual grounds for protest as a direct result of not making a timely request for a post-award debriefing.

VT Griffin Services, Inc., B-299869.2, November 10, 2008.
DIGEST: 1. Protester’s challenge to the evaluation of its key personnel experience is denied where the resume for a proposed individual did not list employment that demonstrated compliance with the minimum experience requirements.
2. Protester’s challenge to the evaluation of its staffing plan is denied where agency reasonably determined that the protester did not propose sufficient higher-skilled personnel, and also reasonably determined that the proposal’s cross-utilization staffing approach did not address this weakness.

Bay Area Travel, Inc.; Cruise Ventures, Inc.; Tzell-AirTrak Travel Group, Inc., B-400442; B-400442.2; B-400442.3; B-400547; B-400547.2; B-400547.3; B-400564; B-400564.2; B-400564.3, November 5, 2008.
DIGEST: 1. GAO will review the issuance of task and delivery order in excess of $10,000,000 under indefinite-delivery/indefinite-quantity contracts to ensure that the “enhanced competition” requirements of the National Defense Authorization Act are met and to ensure that the evaluation is in accord with the solicitation and applicable procurement laws and regulations.
2. Protests challenging the issuance of three task orders for travel services are denied where the agency evaluated proposals consistent with the evaluation criteria stated in the solicitation and reasonably selected the higher technically rated, higher priced proposals.

Celadon Laboratories, Inc.--Costs, B-298533.2. November 7, 2008.
DIGEST: 1. Proposal preparation costs should not be reimbursed to the extent that the claimed hours are excessive.
2. Hourly rates for individuals may not be the basis for reimbursement of proposal preparation costs where the rates include profit.

Maryland State Department of Education, B-400583; B-400583.2, November 7, 2008.
DIGEST: Government Accountability Office will not consider protest by state licensing agency (SLA) challenging the elimination of its proposal from the competitive range under a solicitation issued pursuant to the Randolph-Sheppard Act (RSA) because mandatory binding arbitration procedures by the Department of Education are provided for under the RSA to resolve the SLA’s complaint. [Good discussion of Kentucky, Educ. Cabinet, Dept. for the Blind v. U.S., 424 F.3d 1222 (Fed. Cir. 2005), which addressed jurisdiction of RSA protests.]

Asia Resource Partners K.K., B-400552, November 5, 2008.
DIGEST: Protest arguing that agency acted improperly when it excluded offeror from competition for contracts at the base where the wife of the offeror’s president serves as a contracting officer is denied because the agency decision was a reasonable attempt to avoid the appearance of impropriety.

Bruce Bancroft--Agency Tender Official; Sam Rodriquez--Designated Employee Agent, B-400404.2; B-400404.3; B-400404.5, October 31, 2008.
DIGEST: Agency tender official and designated employee agent are not interested parties to protest agency actions other than final selection of the source of performance with regard to a pending public-private competition being conducted pursuant to Office of Management and Budget Circular A-76 that was initiated prior to January 28, 2008.

Triple Canopy, Inc., B-310566.4, October 30, 2008.
DIGEST: 1. Pursuant to the National Defense Authorization Act of 2008, which authorizes protests of task orders valued in excess of $10 million, this Office’s consideration of such protests will include an assessment of whether a procuring agency’s source selection decision was reasonably consistent with the terms of the underlying solicitation and applicable procurement laws and regulations.
2. Where, prior to the submission of proposals, the agency expressly advised offerors that it would not require contractors to obtain facilities security clearances to perform task order requirements, protest that awardee was ineligible for task order award on the basis that it does not hold a facilities clearance is essentially an untimely challenge to the terms of the solicitation.
3. Protest that agency failed to reasonably evaluate the past performance of protester and awardee is denied where agency’s past performance evaluation record is consistent with solicitation’s definition of relevant past performance, contains adequate contemporaneous documentation supporting the agency’s assessments, and the opinions of protester’s personnel regarding the awardee’s prior performance provide no credible basis to question the reasonableness of the agency’s assessments.

Turner Consulting Group, Inc., B-400421, October 29, 2008 .
DIGEST: Where a request for quotations contains a late submission clause and provides for the electronic submission of quotations, an agency reasonably rejected protester’s quotation as late where there was no evidence that the quotation was received by the time specified for the submission of quotations.

Seaborn Health Care, Inc., B-400429, October 27, 2008.
DIGEST: Protest is sustained in Federal Supply Schedule (FSS) acquisition where request for quotations (RFQ) requires that competing vendors offer non-FSS services (specific on-site supervisory personnel) as part of their quotations, since non-FSS products and services may not be purchased using FSS procedures.

T-L-C Systems, B-400369 . October 23, 2008.
DIGEST: Protest that agency improperly awarded fire alarm contract on sole-source basis is denied where agency has shown that immediate replacement of 51 failed fire alarms was necessary to prevent serious injury to property or loss of life, and the agency procured the only alarms compatible with the agency’s current central alarm receiver.

Optelec U.S., Inc.. B-400349; B-400349.2, October 16, 2008.
DIGEST: Protest that failure to submit timely response to solicitation resulted from agency’s failure to provide timely notice of solicitation is denied where agency advised protester that solicitation would be posted on FedBizOpps website, and protester then failed to avail itself of all reasonable means to view solicitation when it was posted.

Aegis Defence Services Limited, B-400093.4; B-400093.5, October 16, 2008.
DIGEST: 1. Protest that agency misevaluated awardee and protester under experience and past performance factors by downgrading protester based on its limited experience in Afghanistan, and by giving awardee credit for experience of its subcontractors, including contracts performed in Afghanistan, is denied where agency judgments were reasonable and consistent with terms of solicitation.
2. Protest that agency improperly disregarded risk posed by awardee’s low price is denied where record demonstrated that agency had compared individual fixed price line items to government estimate and to prices offered by competitors, identified those where there were significant differences, and documented the agency’s basis for concluding that the awardee’s prices were reasonable.

Fintrac, Inc., B-311462.2; B-311462.3, October 14, 2008.
DIGEST: 1. Protest challenging agency’s revision to scoring methodology used to evaluate offerors’ technical proposals is denied where the revision reasonably addressed an error in the agency’s prior scoring methodology.
2. Protest challenging agency’s evaluation of offerors’ technical and cost proposals is denied where the record supports the reasonableness of the evaluations.

Delex Systems, Inc., B-400403, October 8, 2008.
DIGEST: 1. The set-aside provisions of Federal Acquisition Regulation (FAR) § 19.502-2(b) apply to competitions for task and delivery orders issued under multiple-award contracts.
2. Protest is sustained where agency failed to comply with the set-aside provisions of FAR § 19.502-2(b), when issuing, on an unrestricted basis, the solicitation for a delivery order under multiple-award contracts.
3. Protest alleging that agency erred in concluding that it had no reasonable expectation of receiving offers from two small businesses is sustained where the record shows that the agency’s set-aside determination is not adequately supported by the record.

Burchick Construction Company, B-400342, October 6, 2008.
DIGEST: Agency failed to conduct meaningful discussions in a negotiated procurement, where discussions conducted with offerors were limited to cost proposals and did not identify significant weaknesses or deficiencies that the agency had identified in the protester’s technical proposal.

Information Ventures, Inc., B-299361.2; B-299361.3, October 1, 2008.
DIGEST: 1. Agency’s evaluation of the protester’s proposal, submitted in response to a solicitation for the management of chemical and biological databases, was reasonable and in accordance with the solicitation’s evaluation criteria, where the protester’s proposal was downgraded because, among other things, one of the proposed key personnel lacked certain experience and training, and where the protester’s initial proposal and final proposal revision stated that certain details regarding the protester’s proposed approach were not provided because of what the protester viewed as informational deficiencies in the solicitation, and that this information would be provided during contract performance.
2. Discussions conducted by the agency were meaningful where they identified the evaluated deficiencies and significant weaknesses in the protester’s proposal; there is no requirement that discussions be all encompassing, or that an agency, in identifying the deficiencies and significant weakness in a proposal, also identify possible solutions to those deficiencies and significant weaknesses.

Simont S.p.A., B-400481, October 1, 2008.
DIGEST: Protest is denied where invitation for bids required submission of a bid guarantee, the protester failed to submit a bid guarantee, and the agency rejected the bid, notwithstanding the confusion regarding the agency’s intent to delete a conflicting mislabeled bid guarantee provision, and the protester’s claim that the omission of a bid guarantee was in good faith.

Helicopter Transport Services LLC, B-400295; B-400295.2, September 29, 2008.
DIGEST: 1. Protest that agency improperly evaluated proposals under one of four technical factors on a pass/fail basis is sustained where the solicitation, by stating that the four technical factors were listed in descending order of importance and calling for a price/technical tradeoff, contemplated that each technical factor would be evaluated qualitatively.
2. Protest that agency improperly evaluated protester’s past performance is sustained where the record contains no contemporaneous documentation of the oral discussion that the agency states provided the basis for the evaluation, and the evaluators relied on unidentified written documents.

PR Newswire Association, LLC, B-400430, September 26, 2008.
DIGEST: Agency was not required to provide actual notice of solicitation to incumbent contractor; posting of solicitation on FedBizOpps Internet site provided constructive notice to all potential offerors, including protester.

FitNet Purchasing Alliance, B-400553, September 24, 2008.
DIGEST: Protest alleging solicitation impropriety is dismissed as untimely where protest was not considered to have been filed with GAO until after the time set for receipt of quotations.

Armorworks Enterprises, LLC, B-400394; B-400394.2, September 23, 2008.
DIGEST: 1. Protest allegations challenging agency’s methodology for testing body armor are dismissed as untimely where the alleged problems were apparent from the face of the solicitation and the protester failed to raise its concerns prior to the time set for receipt of proposals.
2. To be timely, challenge to solicitation amendment, issued after initial proposals had been submitted and which did not provide offerors with an opportunity to submit revised proposals, should have been filed within 10 days of the issuance of the amendment.

Gentex Corporation, B-400328; B-400328.2, September 23, 2008.
DIGEST: 1. Where it was apparent, prior to closing time for receipt of proposals, that Federal Prison Industries (FPI)--a federally-owned corporation--was a potential competitor in supply procurement, protest that agency should have provided for cost analysis under Office of Management and Budget Circular A-76, based on notice of award to FPI, is untimely; protest concerns a solicitation impropriety, and therefore should have been filed prior to the closing time for receipt of proposals.
2. Agency reasonably evaluated awardee’s proposal as satisfactory, despite catastrophic hardware failure in one ballistics test, where it concluded that correction of deficiency was simple and solicitation defined satisfactory rating as including deficiencies that will require preventative corrective action in production.
3. Agency reasonably evaluated awardee’s and protester’s past performance/ experience as satisfactory where protester had performed more helmet contracts than awardee, including current version, but had never produced required new version of helmet, which included more stringent testing requirements, and awardee had produced similar helmets.

International Business & Technical Consultants, Inc., B-310424.2; B-310424.3; B-310424.4, September 23, 2008.
DIGEST: 1. Protest challenging agency’s evaluation of protester’s technical proposal is denied where record demonstrates that evaluation was reasonable and consistent with stated evaluation criteria.
2. Protest that agency failed to hold meaningful discussions with protester is denied where record shows that discussions either were adequate to lead protester into areas of its proposal with which agency was concerned, or that allegations concern minor weaknesses that agency was not required to discuss.
3. Raising limited cost-related questions with awardee during second round of discussions, while requesting protester’s revised proposal without further questions, did not constitute improper disparate discussions; agency conducted detailed initial discussions with both offerors and found revised proposals acceptable, and only remaining questions concerned matters unique to awardee’s cost proposal.

BAE Systems San Diego Ship Repair, B-400350, September 22, 2008.
DIGEST: Requirement in invitation for bid for drydock and repair of a Coast Guard cutter that work be done at “Contractor’s facility” did not render nonresponsive the bid of awardee, which proposed to perform the work at a Navy-owned drydocking facility under a use agreement between the awardee and the Navy, in the absence of an IFB provision that precluded the use of government-owned drydocking facilities.

International Program Group, Inc., B-400278; B-400308, September 19, 2008.
DIGEST: 1. Given the unambiguous language of the applicable statutes regarding the Historically Underutilized Business Zone (HUBZone) and service-disabled veteran-owned small business concern (SDVOSBC) programs, contracting agency, before proceeding with an SDVOSBC set-aside, must first reasonably consider whether the conditions for a HUBZone set-aside exist, and, if they do, agency must proceed with a HUBZone set-aside.
2. Protests challenging agency’s decision to acquire services through SDVOSBC set-asides are sustained where the agency failed to reasonably consider the possibility of a HUBZone small business set-aside, by failing to make a reasonable inquiry into the availability of HUBZone small businesses.

Radiation Oncology Group of WNY, PC, B-310354.2; B-310354.3, September 18, 2008.
DIGEST: 1. Protest is sustained where agency permitted awardee to submit additional support for technical proposal after deadline for submission of final proposal revisions; agency’s acceptance of information violated solicitation’s late proposal clause and constituted improper discussions with a single offeror.
2. Contracting officer’s conclusion that protester’s and awardee’s proposals were technically equal was unreasonable, and protest is sustained, where determination lacks adequate supporting explanation or documentation.

Richard Bowers & Company, B-400276, September 12, 2008.
DIGEST: Protest challenging solicitation requirement for a minimum building floor plate of 18,000 square feet as unduly restrictive of competition is denied where agency demonstrates a reasonable basis for the requirement.

AT&T Government Solutions, Inc., B-400216, August 28, 2008.
DIGEST: Protest of firm’s elimination from competition due to perceived organizational conflict of interest (OCI) is sustained where agency failed to evaluate protester’s proposed mitigation plan, failed to consider whether protester would actually be in a position to evaluate its own products, and did not give protester notice of and an opportunity to respond to OCI findings prior to firm’s disqualification.

Hendry Corporation, B-400224.2, August 25, 2008.
DIGEST: Protest challenging contracting officer’s affirmative determination of responsibility regarding the awardee is dismissed where the assertion on which the protest is basedÑfailure to consider allegedly poor business performance by principal members of the awardee during their association with a previous firmÑdoes not constitute the type of information that, by its nature, would be expected to have a strong bearing on whether the awardee should be found responsible, as required under Government Accountability Office (GAO) Bid Protest Regulations for GAO review of such a protest.

ASRC Research & Technology Solutions, LLC, B-400217; B-400217.2, August 21, 2008.
DIGEST: 1. Protest is sustained where agency unreasonably concluded that the protester’s proposed plan for capturing incumbent personnel presented significant technical risk. The agency’s technical evaluation in this regard stemmed from its determination, in the context of the agency’s cost evaluation, that the protester’s weighted average direct labor rates were too low to successfully capture incumbent employees. This conclusion, however, was based upon the premise that the agency’s own unweighted average direct labor rates were a better reflection of the cost of the incumbent workforce, a premise not supported by the record.
2. Agency’s evaluation of the awardee’s past performance was unreasonable since the agency did not consider the substantial difference in size between the awardee’s past performance references and the size of the contemplated contract, as required by the solicitation.

Ahntech-Korea Company, Ltd., B-400145.2, August 18, 2008.
DIGEST: Protest that agency improperly evaluated protester’s experience is denied where record shows agency properly determined that protester did not have 3 years of relevant experience, as required by solicitation, and experience of protester’s parent company could not properly be considered because proposal did not establish that parent company’s resources were committed to contract performance.

Domain Name Alliance Registry, B-310803.2, August 18, 2008.
DIGEST: 1. Protest arguing that the agency could not properly complete a reevaluation, pursuant to an earlier corrective action, without holding discussions with the protester, and allowing it to submit a revised proposal, is dismissed as untimely where the protester waited until the second award decision to challenge the lack of opportunity for discussions, despite the fact that the agency’s actions--from the time it initiated the corrective action until the second award decision--clearly indicated that the agency did not contemplate holding discussions.
2. Protester challenging agency’s evaluation of offerors’ quotes is denied where the record supports the reasonableness of the evaluations.

Labatt Food Service, Inc., B-310939.6, August 18, 2008.
DIGEST: 1. Protest that the agency improperly rejected the protester’s proposal due to the late acknowledgement of an amendment is denied where the solicitation stated that the deadline in the solicitation would be used to assess whether submissions were late, and the record establishes that the proposal did not meet the deadline in the solicitation.
2. Notwithstanding that each of the offerors submitted its proposal by a method not permitted by the solicitation, protest that agency was required to reject all offerors’ proposals as late is denied; the protester has failed to show how it was prejudiced by the agency’s failure to enforce the method of submission requirement.

G. Koprowski, B-400215, August 12, 2008.
DIGEST: Protest that solicitation for medical research services requiring the work to be performed on-site at agency violates statute barring agencies from discouraging government contractors from allowing their employees to telecommute is denied where the record shows that the agency reasonably determined that on-site performance was necessary to meet its needs because, among other reasons, the contractor will need to use highly specialized government equipment located on-site to conduct the research, as well as interact with research subjects and other government personnel.

Lockheed Martin MS2 Tactical Systems, B-400135; B-400135.2, August 8, 2008.
DIGEST: Agency reasonably determined, in procurement for unmanned maritime surveillance aircraft, that awardee had significant advantage over protester with respect to past performance where: protester’s subcontractor, responsible for approximately 50 percent of contract effort, had recent past performance history of being unable to resolve staffing and resource issues, resulting in adverse cost and schedule performance on very relevant contracts for unmanned aircraft; record did not demonstrate that protester’s subcontractor had implemented systemic improvement that resulted in improved performance; while operating division of the awardee also had performance problems on very relevant contracts for unmanned aircraft, many had been addressed through systemic improvement; and overall performance of awardee’s team on most evaluated contract efforts was rated better than satisfactory, while the overall performance of protester’s team on 11 of 26 contract efforts was only marginal.

Carahsoft Technologies Corporation and Avue Technologies Corporation, B-400405, August 4, 2008.
DIGEST: Pursuant to statutory and regulatory limitations on this Office’s jurisdiction to hear protests challenging Transportation Security Administration (TSA) procurements, this Office will not consider a protest challenging a TSA procurement conducted in connection with a solicitation issued prior to June 23, 2008.

John Gage--Designated Employee Agent, B-400379, August 4, 2008.
DIGEST: Pursuant to statutory and regulatory limitations on this Office’s jurisdiction to hear protests challenging Transportation Security Administration (TSA) procurements, this Office will not consider a protest challenging a TSA procurement conducted in connection with a solicitation issued prior to June 23, 2008.

Gary M. Williamson--Agency Tender Official, B-400153, August 1, 2008.
DIGEST: Agency tender official is not an interested party to protest agency actions other than final selection of the source of performance with regard to a pending public-private competition, to be conducted pursuant to Office of Management and Budget Circular No. A-76, that was initiated prior to enactment of the National Defense Authorization Act of 2008.

Exec Plaza, LLC, B-400107; B-400107.2, August 1, 2008.
DIGEST: Protest challenging terms of a solicitation for lease of office space that apply only to the incumbent lessor is denied where the agency demonstrates that the requirements are reasonable, despite imposing unequal burdens on the protester.

ECI Defense Group, B-400177; B-400177.2, July 25, 2008.
DIGEST: 1. Offeror’s failure to acknowledge a material amendment to a request for proposals which significantly altered the government’s guaranteed minimum quantity renders the proposal unacceptable.
2. Protester is not an interested party to maintain protest challenging proposal evaluation where it did not acknowledge material amendment; protester would be ineligible for award even if protest of evaluation were sustained.

Environmental Protection Agency; CGI Federal, Inc.--Reconsiderations, B-299504.3; B-299504.4, July 23, 2008.
DIGEST: GAO will not grant request to vacate protest decision based on subsequent developments where the parties requesting such action have not demonstrated that newly-disclosed information has rendered the decision as issued invalid, or that the public interest would be served by vacating the decision.

Systems Research and Applications Corporation, B-400227, July 21, 2008.
DIGEST: Where protest challenges the issuance of a task order that occurred prior to the effective date of the provision of the National Defense Authorization Act of Fiscal Year 2008 that provides statutory authority for this Office to review protests challenging task orders, the applicable provisions of the Federal Acquisition Streamlining Act of 1994 preclude this Office’s consideration of the protest

Advanced Seal Technology, Inc., B-400088; B-400089, July 14, 2008.
DIGEST: Protests challenging agency’s decision to proceed with procurements for an item requiring source approval on the basis that the protester was deprived of a reasonable opportunity to requalify its alternate item is denied where the protester was notified of its removal as an approved source and the reasons for the removal before the challenged solicitations were issued; contracting agency need not delay a proposed procurement while a vendor pursues qualification of its product.

Aquaterra Contracting, Inc., B-400065, July 14, 2008.
DIGEST: Protest of agency’s rejection of bid as late is denied where bidder’s failure to address and label its bid package as instructed by the solicitation was paramount cause of its late arrival to bid opening location.

L-3 Communications EOTech, Inc., B-311453; B-311453.2, July 14, 2008.
DIGEST: Protester’s challenge to the exclusion of its proposal from the competitive range based on the failure of its bid sample during testing to satisfy an “essential criteria” is denied, where the solicitation advised offerors that the failure to satisfy an “essential criteria” would result in elimination of the proposal from the competition, the agency’s testing method was reasonable and consistent with the solicitation instructions, and the protester’s complaint about the test failure was related to its inadequately written proposal.

Colliers International, B-400173, July 3, 2008.
DIGEST: Protest that agency improperly obtained services outside scope of multiple-award indefinite-delivery/indefinite-quantity contract is denied where the services were reasonably encompassed by the contract at issue.

New Jersey & H Street, LLC, B-311314.3, June 30, 2008.
DIGEST: 1. Protest is sustained where agency credited awardee’s proposed building with availability of certain future amenities based solely on promise in offer, without requiring supporting evidence that amenities would exist, which was required by solicitation; agency essentially relaxed evidence requirement only for awardee, without providing protester with opportunity to propose amenities under relaxed standard.
2. Protest that agency failed to engage in meaningful discussions is sustained where agency failed to raise during discussions significant weaknesses associated with access to amenities in or near protester’s proposed office building.

Precision Lift, Inc., B-310540.4, June 26, 2008.
DIGEST: 1. Agency reasonably determined that the awardee’s quotation complied with the solicitation’s requirement that a commercial, non-developmental item be provided, where the awardee’s offered item has been previously offered for sale to the general public, although none have been sold.
2. Agency’s evaluation of quotations is reasonable, where the record of the technical evaluation evidences that the agency reasonably determined that the awardee’s quoted item was technically superior to that quoted by the protester, and the record of the past performance evaluation evidences that the agency reasonably determined that previous contracts performed by the awardee were for items similar to those sought in this procurement.

Master Lock Company, LLC, B-309982.2, June 24, 2008.
DIGEST: 1. Protest is sustained where agency’s evaluation of awardee’s proposal as “neutral” under two evaluation factors resulted in those factors not being considered in the tradeoff determination, which was inconsistent with solicitation’s award criteria.
2. Protest is denied where agency reasonably relied on awardee’s representations regarding compliance with the Trade Agreements Act.

Global Solutions Network, Inc., B-298682.3; B-298682.4, June 23, 2008.
DIGEST: 1. Protest is denied where agency evaluation of proposals was reasonable and conformed to solicitation in most respects, and protester was not competitively prejudiced by agency evaluation either of past performance information submitted after deadline in solicitation, or additional pages in resume for awardee’s key personnel.
2. Protest that awardee’s price was unreasonably low is denied where the awardee’s price was significantly lower than the government estimate, but was considered reasonable given the agency’s receipt of a similar price from a third, highly-rated, offeror.

Trammell Crow Company, B-311314.2, June 20, 2008.
DIGEST: 1. Protest is sustained where agency improperly credited awardee’s proposed building with availability of certain future amenities; while solicitation required third party evidence that amenities “will exist” by date of occupancy, awardee only provided in its proposal its own commitment that it would provide the amenities in its building by occupancy date.
2. Protest that agency failed to engage in meaningful discussions with the protester is sustained where agency failed to raise significant weaknesses associated with protester’s key personnel during discussions.

DIT-MCO International Corporation, B-311403, June 18, 2008.
DIGEST: Protest that agency failed to conduct an adequate best value analysis is denied where award was made to the lower priced of two technically equal proposals and the protester does not timely challenge either the underlying technical or price evaluations; in a negotiated procurement with a best value evaluation award methodology, where selection officials reasonably regard proposals as being essentially equal technically, price properly may become the determining factor in making award, notwithstanding that the solicitation assigned price less importance than technical factor.[Historical note. I first ran across this company in 1962 when working on the Atlas missile program. DITMCO then stood for the Drive-In Theatre Manufacturing Company, see http://www.ditmco.com/history. asp, -JAW]

The Boeing Company File: B-311344; B-311344.3; B-311344.4; B-311344.6; B-311344.7; B-311344.8; B-311344.10; B-311344.11, June 18, 2008.
DIGEST: 1. Protest is sustained, where the agency, in making the award decision, did not assess the relative merits of the proposals in accordance with the evaluation criteria identified in the solicitation, which provided for a relative order of importance for the various technical requirements, and where the agency did not take into account the fact that one of the proposals offered to satisfy more “trade space” technical requirements than the other proposal, even though the solicitation expressly requested offerors to satisfy as many of these technical requirements as possible.
2. Protest is sustained, where the agency violated the solicitation’s evaluation provision that “no consideration will be provided for exceeding [key performance parameter] KPP objectives” when it recognized as a key discriminator the fact that the awardee proposed to exceed a KPP objective relating to aerial refueling to a greater degree than the protester.
3. Protest is sustained, where the record does not demonstrate the reasonableness of the agency’s determination that the awardee’s proposed aerial refueling tanker could refuel all current Air Force fixed-wing tanker-compatible receiver aircraft in accordance with current Air Force procedures, as required by the solicitation.
4. Protest is sustained, where the agency conducted misleading and unequal discussions with the protester, where the agency informed the protester that it had fully satisfied a KPP objective relating to operational utility, but later determined that the protester only partially met this objective, without advising the offeror of this change in its assessment and while continuing to conduct discussions with the awardee relating to its satisfaction of the same KPP objective.
5. Protest is sustained, where the agency unreasonably determined that the awardee’s refusal to agree to the specific solicitation requirement that it plan and support the agency to achieve initial organic depot-level maintenance within 2 years after delivery of the first full-rate production aircraft was an “administrative oversight,” and improperly made award, despite this clear exception to a material solicitation requirement.
6. Protest is sustained, where the agency’s evaluation of military construction costs in calculating the offerors’ most probable life cycle costs for their proposed aircraft was unreasonable, where the evaluation did not account for the offerors’ specific proposals, and where the calculation of military construction costs based on a notional (hypothetical) plan was not reasonably supported.
7. Protest is sustained, where the agency improperly added costs to an element of cost (non-recurring engineering costs) in calculating the protester’s most probable life cycle costs to account for risk associated with the protester’s failure to satisfactorily explain the basis for how it priced this cost element, where the agency did not determine that the protester’s proposed costs for that element were unrealistically low.
8. Protest is sustained, where the agency’s use of a “Monte Carlo” simulation model to determine the protester’s probable cost of non-recurring engineering associated with the system demonstration and development portion of the acquisition was unreasonable, where the model’s inputs concerned total weapons systems at an overall program level and there is no indication that this is a reliable predictor of anticipated growth of the protester’s non-recurring engineering costs. Page 2 B-311344 et al.
9. Protester is not required to file a “defensive protest” when during the procurement it is apprised of an agency’s evaluation judgments with which it disagrees or where it believes the evaluation is inconsistent with the solicitation’s evaluation scheme, because GAO’s Bid Protest Regulations, 4 C.F.R. § 21.2(a)(2) (2008), require that where the protest involves a procurement conducted on the basis of competitive proposals under which a debriefing is requested and, when requested, is required, these protest grounds can only be raised after the offered debriefing.
10. While an agency, in an appropriate case, may request under GAO’s Bid Protest Regulations, 4 C.F.R. § 21.3(d) (2008), that a protester provide specific relevant documents, of which the agency is aware and does not itself possess, this does not allow for “wide-open” document requests by an agency of broad categories of documents.

Pemco Aeroplex, Inc., B-310372.3, June 13, 2008 1. In responding to this Office’s prior decision that sustained a previous protest and recommended that the agency perform and document a price realism and proposal risk analysis as contemplated by the solicitation, the agency was not required to reopen discussions with offerors to perform the necessary analysis.
2. Agency’s record documenting its various judgments and analysis regarding the impact of awardee’s final proposal revisions reasonably supports the agency’s conclusions with regard to price realism and proposal risk and complies with solicitation requirements.

Canon USA, Inc., B-311254.2, June 10, 2008.
DIGEST: Protest that contracting agency improperly cancelled an order under a Federal Supply Schedule (FSS) blanket purchase agreement is denied where the protester’s FSS contract expired before the order was issued.

Consolidated Engineering Services, Inc., B-311313, June 10, 2008.
DIGEST: 1. Protest is sustained where agency’s evaluation of offerors’ experience relied on factors not identified in the solicitation and on distinctions between offerors’ experience that were not supported by the record.
2. Protest is sustained where source selection decision was based on a flawed technical evaluation, and also considered an undisclosed evaluation criterion of transition risk in assuming that any non-incumbent contractor would likely cause mistakes in performance that would result in costs for the agency.

Al Qabandi United Company; American General Trading & Contracting--Costs, B-310600.3; B-310600.4, June 5, 2008.
DIGEST: Reimbursement of costs of filing and pursuing protests is recommended where a reasonable agency inquiry into initial protest allegations would have shown that agency had failed to conduct price realism evaluation required by solicitation, but agency delayed taking corrective action until after submission of the agency report.

Advanced Seal Technology, Inc., B-311308, June 5, 2008.
DIGEST: Protest that offeror was deprived of a reasonable opportunity to qualify its alternate item is denied where, although the procuring agency failed to promptly notify offeror of deficiencies in its item, the record shows that the offeror did not suffer competitive prejudice as a result.

SKE International, Inc., B-311383; B-311383.2, June 5, 2008.
DIGEST: 1. Evaluation of protester’s technical proposal was unobjectionable where agency reasonably found weaknesses associated with firm’s timeliness of performance because of minor schedule delays in connection with some prior contracts; corporate experience, based on limited information regarding task orders; and management approach, based on questions regarding organizational structure and limited job order contract experience of key personnel.
2. Agency reasonably evaluated awardee’s past performance as very good notwithstanding some poor rating responses in limited areas of two Construction Contractor Appraisal Support System (CCASS) reports, where firm’s rating was otherwise based on 5 past performance questionnaires and 11 other CCASS reports, all of which contained a significant majority of excellent, outstanding, and above average ratings.

Superlative Technologies, Inc., B-310489.4, June 3, 2008.
DIGEST: 1. Agency’s cancellation of solicitation, based on a potential “unfair advantage” provided to one or more of the offerors as a result of the agency’s communications with and disclosure of information to the various offerors, cannot be reasonably reconciled with the agency’s subsequent sole-source contract award to a team comprised of one of the offerors with whom the various communications occurred and to whom the information was disclosed, absent the agency’s determination and creation of documentation regarding the substance of the communications with and the specific information disclosed to the various offerors.
2. Where agency has canceled a solicitation on the basis of concerns regarding procurement integrity violations and/or organizational conflicts of interest, and subsequently reopened the procurement under another contract vehicle, the agency must comply with Federal Acquisition Regulation requirements regarding identifying and resolving procurement integrity issues and/or organizational conflicts of interest.

Bill Henson--Designated Employee Agent, B-400060, June 2, 2008.
DIGEST: Protest filed by Designated Employee Agent alleging that Department of Labor’s (DOL) planned reorganization of certain services constitutes an improper implementation of the “most efficient organization” following public-private competition is dismissed; protester has standing only to challenge agency actions related to conduct of a public-private competition, or agency decision to convert a function to private sector performance without such a competition, and not to challenge agency actions regarding implementation of results of a public-private competition.

Professional Performance Development Group, Inc., B-311273; B-311273.2, June 2, 2008.
DIGEST: Protester’s proposal was reasonably evaluated by the contracting agency as technically unacceptable and excluded from the competitive range, where the proposal contained numerous informational deficiencies and the agency reasonably determined that discussions would not likely improve the proposal such that it would have a reasonable chance for award.

Masai Technologies Corporation, B-400106, May 27, 2008.
DIGEST: 1. Protest filed within 10 days of contracting officer’s letter resolving a timely agency-level protest, but after the closing time for submission of quotations, is untimely where the issue protested at GAO is different from the issues raised in the timely agency-level protest.
2. Protester’s e-mail to officials in agency small business office, which suggested that a procurement could be set aside for small businesses, was not an agency-level protest, and a subsequent protest at GAO raising that issue, filed after the closing time for submission of quotations, is therefore untimely.

National Science Foundation-Disposition of False Claims Act Recoveries. B-310725, May 20, 2008.
DIGEST: The Inspector General (IG) for the National Science Foundation (NSF) may not credit to the IG appropriation amounts recovered pursuant to the False Claims Act that represent investigative costs incurred by the office. Recovery of these costs cannot be characterized as a repayment of an appropriation-the narrow exception to the miscellaneous receipts rule, 31 U.S.C. § 3302(b). Congress appropriates a specific amount to the IG for costs to carry out its duties under the Inspector General Act of 1978, including investigations of payments made pursuant to a false claim. Crediting the IG appropriation with these amounts recovered for investigative costs without specific statutory authority would violate the miscellaneous receipts statute and constitute an improper augmentation of the IG appropriation.

Mark Whetstone-Designated Employee Agent, B-311327, May 20, 2008.
DIGEST: Protest that agency is improperly converting a publicly performed function to a privately performed function without first conducting a public/private competition is dismissed where agency is acquiring the services in question through the exercise of an optional line item under a preexisting contract; the statute requiring agencies to conduct public/private competitions and providing designated employee agents standing to protest such competitions is, by its terms, inapplicable to acquisitions publicly announced prior to enactment of the statute.

Carahsoft Technology Corporation; Allied Technology Group, B-311241; B-311241.2, May 16, 2008.
DIGEST: Protests are sustained where, in a competition for human resources services Federal Supply Schedule contracts, the contemporaneous record fails to adequately document the basis for the agency’s decision to exclude compensation management services from the awards made to the protesters, and the agency’s explanation of its reasoning, in its responses to the protests, is inconsistent with the limited contemporaneous record.

MCT JV, B-311245.2; B-311245.4, May 16, 2008.
DIGEST: 1. Where, due to concerns about their negative effect on contract performance, the solicitation instructed offerors not to propose unrealistically low costs, and the awardee capped its indirect rates at levels that the agency concluded were significantly below its costs, protest is sustained because the agency failed to consider performance risk associated with the awardee’s decision to cap its indirect rates.
2. Discussions with protester regarding allocation of labor hours in its cost proposal were not meaningful where the discussions did not communicate that the agency was concerned about the protester’s inconsistent allocation of labor hours between its technical proposal and cost proposal.

United Way of the National Capital Area, B-311235, May 16, 2008.
DIGEST: Government Accountability Office does not have jurisdiction to hear protest of the signing of a memorandum of understanding under a competition conducted by a Local Fund Campaign Committee of the Combined Federal Campaign, because, while this action would appear to be a procurement of services for the benefit of the government, a Local Fund Campaign Committee is not a federal agency.

Alanna Orr, B-310966.2, May 14, 2008.
DIGEST: Protest that successful quotation did not include adequate technical proposal, that agency improperly provided sample quality control program to successful vendor, and that successful vendor submitted plagiarized technical documents is denied where stated evaluation factors included only price and past performance; since evaluation of vendors’ technical proposals, including quality control program and technical documents, was not a factor in evaluation, allegations regarding technical proposal do not provide a basis for challenging selection decision.

Joint Venture Penauille/BMAR & Associates, LLC, B-311200; B-311200.2, May 12, 2008.
DIGEST: Protest challenging price evaluation is sustained, where the procuring agency unreasonably determined that the protester’rsquo;s lower-priced line items for a small portion of the work created an “extremely high” performance risk and based its decision on an erroneous belief that the contractor could reject work that was ordered.

Mark Whetstone--Designated Employee Agent, B-311284, May 9, 2008.
DIGEST: Protest filed by Designated Employee Agent challenging agency’s decision to issue a solicitation for processing a backlog of Freedom of Information Act requests without conducting a public-private competition is dismissed where the protester represents a class of employees whose positions are not at risk as a consequence of a contract awarded under the solicitation.

Rhonda Podojil--Agency Tender Official, B-311310, May 9, 2008.
DIGEST: Protest by agency tender official (ATO) challenging result of competition conducted pursuant to OMB Circular A-76 is dismissed as untimely where the ATO filed the protest more than 10 days after the ATO knew or should have known the basis of protest. While debriefing exception to timeliness rules applies to A-76 competitions conducted on the basis of competitive proposals, protest nevertheless is untimely because the ATO did not timely request a debriefing--a predicate to invoking the exception.

Lisa Hartman-Designated Employee Agent, B-311247, May 6, 2008.
DIGEST: Protest filed by a Designated Employee Agent alleging that a public-private competition under Office of Management and Budget Circular A-76 is required before the agency can award a contract for ground maintenance services which are currently being provided by 7 civilian employees (who also perform other functions, and none of whom will lose their jobs here) is denied because the Circular does not require issuance of a solicitation in the case of a function as small as this, and because recently-enacted changes to the Office of Federal Procurement Policy Act, 41 U.S.C. § 403, do not impose cost comparison requirements on conversions of functions performed by fewer than 10 employees.

Tip Top Construction Corporation, B-311305, May 2, 2008.
DIGEST: Protest that agency improperly rejected bid as nonresponsive for lack of a valid bid bond is denied where the contracting officer reasonably determined that the assets pledged by the surety, which were incapable of being placed in escrow, were unacceptable.

Eastern Medical Equipment, Inc.; Omnicare, Inc.; Dania Medical Equipment & Supplies, Inc.; Chronic Care Pharmaceutical Services, LLC; Wound Management Technologies, Inc., B-311423; B-311423.2; B-311423.3; B-311423.4; B-311423.5, May 1, 2008.
DIGEST: Pursuant to title 18 of the Social Security Act (42 U.S.C. §§ 1395-1395hhh), Government Accountability Office lacks jurisdiction over protests of awards made by Centers for Medicare & Medicaid Services, Department of Health and Human Services under the agency’s Competitive Acquisition Program.

Wyle Laboratories, Inc., B-311123, April 29, 2008.
DIGEST: 1. Agency source selection evaluation board’s (SSEB) rejection of a lower-level evaluation team’s assessment of risk regarding the awardee’s proposal is reasonably supported by the record, and the source selection authority’s (SSA) reliance on the SSEB rating, rather than the rating of the lower-level evaluation team, was reasonable.
2. Agency’s cost realism evaluation reasonably relied on the agency’s estimate of labor rates where that estimate reflected the protester’s own proposed rates for the predecessor contract, escalated to account for the passage of time, and the protester’s contract manager advised agency personnel that the government’s estimate of labor rates were “still good.”
3. Where SSA considered all of the evaluation record, including the reports of the various evaluation teams and the SSEB, which identified and described the various evaluated strengths and weaknesses of both offerors’ proposals, the SSA’s ultimate conclusion that the protester’s higher-rated, higher-priced proposal did not represent the best value for the government was adequately documented and reasonably supported by the evaluation record.

Burns and Roe Services Corporation--Costs, B-310828.2, April 28, 2008.
DIGEST: In recommending reimbursement of protest costs, GAO will not sever successful issues from unsuccessful issues--but rather recommends reimbursement for all issues raised--where issues are interconnected and based on common factual underpinnings.

Savannah River Alliance, LLC, B-311126, B-311126.2, B-311126.3, B-311126.4, April 25, 2008.
DIGEST: 1. Agency’s selection of higher-priced, higher-rated proposal for award is reasonable, where the key discriminator between proposals was under the key personnel factor, which was one of the most heavily weighted factors in the evaluation and was “critical” to successful performance, and where the agency reasonably concluded that awardee’s superior key personnel were worth the additional price; protester’s disagreement with the evaluation of multiple other factors and subfactors does not render the evaluation unreasonable.
2. Allegation that a key personnel reference had a personal conflict of interest that tainted the evaluation of key personnel is denied, where the reference was provided by the offeror and did not have an official role in the procurement, and the information provided by the reference had no impact on the evaluation.
3. Allegation that organizational conflicts of interest exist due to the employment of several of the awardee’s key personnel is denied, where any conflict, if it exists, is personal to the employees, and not the organization, and is too speculative to impute to their employers.

Marshall Company, Ltd., B-311196, April 23, 2008.
DIGEST: Agency’s evaluation of option pricing is unobjectionable where the record does not evidence “reasonable certainty” that funding is not available or that options will not be exercised.

Singleton Enterprises- GMT Mechanical, A Joint Venture, B-311343, April 23, 2008.
DIGEST: Agency properly rejected bid of joint venture under a solicitation set aside for service-disabled veteran-owned small business concerns (SDVOSBC), where the Small Business Administration had determined with regard to another solicitation that the joint venture did not qualify as an SDVOSBC and this determination, which had been affirmed by the SBA’s Office of Hearings and Appeals, remained in force and effect when the agency rejected the joint venture’s bid.

Forest Service-Light Refreshments for National Trails Day, B-310023, April 17, 2008.
DIGEST: U.S. Forest Service appropriations are not available to provide light refreshments for attendees of National Trails Day events. Appropriations are not available to pay for food unless specifically authorized, or unless the agency can demonstrate that such expenditures are an essential, constituent part of accomplishing an authorized agency function. Neither of these conditions is present in this case. Providing light refreshments to attendees of Trails Day does not contribute materially to the accomplishment of an agency function.

Gloria Kortum--Designated Employee Agent, B-311266, April 15, 2008.
DIGEST: Protest objecting that agency intended to convert performance of home oxygen services to contractor performance in violation of law is dismissed as academic where agency currently has no plan to convert to contractor performance, and will consider whether to include the services at issue in a forthcoming solicitation.

Clark E. Myatt, Agency Tender Official, B-311234.2, April 15, 2008.
DIGEST: Where the agency tender official protested the terms of a solicitation issued for purposes of conducting a public-private competition pursuant to Office of Management and Budget Circular A-76, and the agency states that no acceptable private sector offers were received in response to the solicitation, there is no prejudice to the protester from the solicitation provisions at issue, since Circular A-76 requires that the agency either revise and reissue the solicitation, or implement the agency tender.

ManTech International Corporation, B-311074, April 15, 2008.
DIGEST: Protest by incumbent contractor that evaluation of offerors’ proposed approaches to phase-in at start of contract failed to account for incumbency advantage is denied where agency recognized that incumbent protester’s policies and incentives, reflected in 95 percent employee retention rate, had a high probability of maintaining incumbent workforce, thereby significantly reducing transition risk and warranting a significant strength, and also reasonably determined that awardee offered an exceptional strategy, with many incentives for incumbent employee retention, in support of plan to recruit [REDACTED] percent of incumbent workforce, thereby also warranting a significant strength.

Native American Industrial Distributors, Inc., B-310737.3; B-310737.4; B-310737.5, April 15, 2008.
DIGEST: 1. Protest that agency unreasonably made award of a contract under a Buy Indian Act set-aside because there are no American Indians holding management positions in the company is denied where the solicitation did not impose a specific test for eligibility for award, and the agency reasonably interpreted the Buy Indian Act as allowing the company to qualify for award, since the company is a wholly-owned subsidiary of an Alaska Native Corporation pursuant to the Alaska Native Claims Settlement Act.
2. Protest that agency improperly selected for award proposal that failed to provide letters of commitment for key personnel is sustained where solicitation specifically required offerors to submit letters of commitment for all key personnel.

Re-Engineered Business Solutions, Inc., B-310301.5, April 4, 2008.
DIGEST: Corrective action, taken by contracting agency in response to prior protests, of amending a solicitation and requesting revised proposals, is unobjectionable where the solicitation provided for the award of a cost reimbursement contract, but erroneously requested the offerors submit price (rather than cost) proposals and provided for a price (rather than cost realism) evaluation.

In and Out Valet Co., B-311141, April 3, 2008.
DIGEST: The Department of Veterans Affairs has statutory authority to make a sole-source award to a service-disabled veteran-owned small business (SDVOSB) concern where the anticipated award price exceeds the simplified acquisition threshold but does not exceed $5 million, the SDVOSB is determined to be a responsible source, and the contracting officer has determined that award can be made at a fair and reasonable price.[Authority is at Sec. 502 of Pub Law 109-461]

Potomac Electric Corporation, B-311060, April 2, 2008.
DIGEST: Under a request for proposals (RFP) for motors, which did not request a technical proposal or descriptive literature, a proposal including a cover letter stating that the offeror is proposing a motor that is a “FIT, FORM and FUNCTION replacement of the motor described” in the RFP renders the proposal’s blanket offer to comply with the specifications ambiguous, such that the proposal was properly rejected as unacceptable.

General Atomics Aeronautical Systems, Inc., B-311004; B-311004.2, March 28, 2008.
DIGEST: Protest against exclusion of protester’s proposal from competitive range (leaving only one proposal in the range) in procurement for airborne radar is denied where agency reasonably determined that (1) protester’s proposal failed to satisfy solicitation requirement to substantiate compliance with specifications and/or took exception to required levels of performance, and (2) some of the deficiencies resulted from fundamental limitations on performance of protester’s proposed radar system, or otherwise would require a major rewrite to correct.

Harris Enterprises, Inc., B-311143, March 27, 2008.
DIGEST: In solicitation for warehouse support services, requirement that awardee be registered as ISO-9001:2000 compliant is unobjectionable where agency reasonably determined that contractor meeting strict quality assurance standards will best be able to meet agency’s need for handling of security sensitive items, including personally identifiable information.

Singleton Enterprises-GMT Mechanical, Joint Venture--Costs, B-310454.3, March 27, 2008.
DIGEST: Protester’s request that the Government Accountability Office recommend reimbursement of costs is denied where the agency did not file a report in response to a protest that was clearly meritorious, but instead, 2 days after the report was due, announced its intention to take corrective action; thus the corrective action was reasonably prompt, since the protester was not required to incur the costs of beginning to draft comments in answer to an agency report.

Fedcar Company, Ltd., B-310980; B-310980.2; B-310980.3, March 25, 2008.
DIGEST: 1. Where an agency bases its source selection decision for the award of a lease on incorrectly calculated costs, the source selection is not reasonably based.
2. Source selection document that only discusses strengths of awardee’s higher-rated, higher-priced proposal but not its weaknesses, or the strengths and the weaknesses found in protester’s slightly lower-rated, lower-priced proposal does not reasonably justify tradeoff decision.
3. A purported acceptance of a lease offer by the General Services Administration that is conditioned on the offeror’s assent to terms additional to, or different from, those offered is not an acceptance, but a counteroffer, and does not create a binding lease contract.

Colson Services Corporation, B-310971; B-310971.2; B-310971.3, March 21, 2008.
DIGEST: 1. Protest challenging source selection decision is denied where source selection authority recognized that solicitation requirements not addressed by protester in its technical proposal had been satisfactorily addressed in protester’s business proposal.
2. Request for clarification of whether proposed rebate amounts had been offered on a monthly or an annual basis did not constitute discussions where offerors were not given the opportunity to revise their rebate amounts.

Evans Security Solutions, Inc., B-311035, March 19, 2008.
DIGEST: 1. Protester is not an interested party for purposes of challenging the agency’s ability to perform the requirements of the solicitation where the record shows that, even if the protest were sustained on this ground, an intervening offeror would be next in line for award.
2. Protest that agency improperly failed to give “priority” to the protester as a small business, surplus labor area concern is denied where the agency regulations at issue contain no such requirement.
3. Protest that the awardee’s and the protester’s proposals should have received comparable technical scores because they offered the same equipment is denied where the solicitation lists several factors to be considered in the technical evaluation, of which equipment offered is but one.
4. Allegations that the agency failed to make the solicitation requirements sufficiently favorable to small businesses are untimely where made after the solicitation closing date.

Eisenhower Real Estate Holdings, LLC, B-310941, March 18, 2008.
DIGEST: Protest of reasonableness of agency’s cost-benefit analysis that served as basis for agency determination that government cannot expect to recover through competition substantial relocation or duplication costs involved in award of lease to other than incumbent lessor is denied where record shows cost-benefit analysis was reasonably based, and protester provides no persuasive support for assertion that a lease for its property would provide cost savings exceeding agency’s relocation or duplication costs.

FlowSense, LLC, B-310904, March 10, 2008.
DIGEST: 1. Protest that agency improperly passed over protester, a service-disabled veteran-owned small business (SDVOSB), in order to award contract to 8(a) firm is denied where agency reasonably determined that neither protester nor other SDVOSBs were viable potential offerors.
2. Protest that awardee and protester were similarly situated firms, and that agency thus unreasonably determined that awardee could perform the work while protester could not, is denied where agency determined that awardee had capability to perform based on its prior performance of contracts for agency.

Strong Environmental, Inc., B-311005, March 10, 2008.
DIGEST: Use by Library of Congress of cooperative agreement instead of contract for disposal and recycling of cassette tape players is denied where the applicable regulations do not require use of a contract for the requirement.

Ceres Environmental Services, Inc., B-310902, March 3, 2008.
DIGEST: Protest that the agency improperly used negotiated procedures instead of sealed bidding procedures to solicit proposals to construct a drainage canal is denied where the agency reasonably concluded that the importance of completing the project justified an accelerated construction schedule and, as a consequence, necessitated consideration of non-price factors in selecting a proposal.

Karrar Systems Corporation, B-310661.3; B-310661.4, March 3, 2008.
DIGEST: 1. Protest that agency unreasonably rated awardee’s technical proposal acceptable despite eight weaknesses and only three strengths is denied where determination of acceptability was not based solely on number of strengths versus weaknesses and protester does not argue that awardee’s proposal did not satisfy any of the criteria agency applied.
2. Assertion that protester’s proposal should have been rated good rather than acceptable under one management subfactor is denied where record demonstrates that evaluators reasonably assigned acceptable rating and, in any case, conclusion that awardee’s proposal was superior under management factor was based, not solely on adjectival ratings under subfactors, but on source selection official’s consideration of underlying strengths and weaknesses of protester’s and awardee’s proposals.
3. Protest that “best value” determination was unreasonable is denied where, in determining that protester’s technically superior proposal was not worth a 30 percent price premium, source selection official specifically considered proposals’ ratings under each factor and subfactor, weight accorded each factor, and proposals’ underlying strengths and weaknesses.
4. Protest that awardee’s proposal to recruit spouses of transferred government personnel created improper conflict of interest due to potential for unduly favorable consideration from evaluators is denied where proposal was general in nature and did not identify individuals that could be affected, and there is no other evidence or reason to believe that evaluators were unduly influenced.

DRS C3 Systems, LLC, B-310825; B-310825.2, February 26, 2008.
DIGEST: 1. Protest alleging that firm had developed governmentwide standard applicable to the item being procured, thereby having an unfair informational advantage over other competitors, is denied where record establishes that firm did not have a role in developing the relevant governmentwide standard.
2. A competitive advantage that derives from an offeror’s previous performance under a government contract is not an unfair competitive advantage that agency is required to neutralize.
3. Contracting agency engaged in meaningful discussions where agency advised protester of specific weaknesses regarding lack of a selected software architecture approach; agency was not required to also afford the protester an opportunity to cure proposal defects first introduced either in response to discussions or in a post-discussion proposal revision.
4. Protest challenging the evaluation of technical proposals is denied where the record establishes that the agency’s evaluation was reasonable and consistent with the evaluation criteria.
5. Protest that past performance evaluation was unreasonable is sustained where record shows that: the findings in the agency evaluation report were not consistent with the information upon which the findings were based; the agency evaluators could not remember whether they evaluated and gave proper consideration to adverse past performance information regarding the awardee; and the agency did not properly assess the relevance of the offeror’s prior contracts.

Para Scientific Company, B-310976, February 25, 2008.
DIGEST: Protester’s contention that a procurement must be set aside for small business concerns is dismissed where, during the course of the protest, the Small Business Administration concluded that the protester does not qualify as a small business under the applicable North American Industrial Classification System code; under these circumstances, the protester is not an interested party for the purposes of arguing that the procurement must be set aside.

IBV, Ltd., B-311244, February 21, 2008.
DIGEST: Decision to set aside procurement for small business participation instead of service-disabled veteran-owned small business concerns (SDVOSBC) was unobjectionable where, prior to making decision, contracting officer concluded that agency would not receive fair market price in offers from SDVOSBCs and conclusion was confirmed when all SDVOSBC proposals received, including protester’s, significantly exceeded agency’s estimate and prices proposed by non-SDVOSBCs.

Accumark, Inc., B-310814, February 13, 2008.
DIGEST: 1. Protest that agency unreasonably found that awardee’s prices were realistic under a fixed-price contract is denied where record shows agency based its determination on a comparison of all offerors’ prices to one another and to the government estimate, and all prices received were within a narrow range.
2. Protest that agency should have rejected awardee’s proposal for offering unbalanced prices is denied where awardee’s price was low overall and, to extent that its prices for one element of contract were high in comparison to other offerors’ prices and government estimate, record shows estimated quantity for that element was reasonably accurate; thus, based on the record, there is little risk that award will not result in lowest cost to government.

Klinge Corporation. B-309930.2, February 13, 2008.
DIGEST: Protest that awardee’s proposed large field refrigeration system (LFRS) did not meet requirements of Trade Agreements Act is denied where agency, after requesting further information from awardee, reasonably determined that components of awardee’s LFRS would be substantially transformed in U.S. and thus qualify as a U.S.-made end product.

NHIC Corporation, B-310801; B-310801.2, February 12, 2008.
DIGEST: Protest challenging cost realism analysis is denied, where agency performed a comprehensive analysis of all major cost elements and relied on subject matter experts to reasonably determine that proposed costs were consistent with each offeror’s technical approach and were realistic for the work to be performed.

Tiger Truck LLC, B-310759; B-310759.2, February 7, 2008.
DIGEST: 1. Protest that successful vendor did not furnish a quotation for utility trucks with features requested by the agency such as E-85 (ethanol) engines and automatic transmissions is denied where it was clear from the successful vendor’s quotation that it was offering trucks with the specified features.
2. Where request for quotations required past performance references from customers who had purchased vehicles of “the same or similar makes and models” as those solicited, vendors were not restricted to submitting references from customers who had previously purchased vehicles identical to those solicited.

Global Computer Enterprises, Inc., B-310823; B-310823.2; B-310823.4, January 31, 2008.
DIGEST 1. Protest challenging the issuance of modifications to a task order under an indefinite-delivery/indefinite-quantity (ID/IQ) contract as being beyond the scope of the task order is dismissed; Government Accountability Office lacks jurisdiction to consider whether a modification is beyond the scope of the task order.
2. Protest that the agency improperly bundled work requirements previously performed by separate small businesses by means of the modification of an ID/IQ task order being performed by a small business is dismissed given the statutory bar on protests concerning the issuance of task orders.

Data Integrators, Inc., B-310928, January 31, 2008.
DIGEST: Protest that agency improperly issued purchase order to vendor whose quotation was received after the deadline for submission of quotations is sustained, where solicitation incorporated by reference late quotation provision expressly providing that quotations must be received by deadline to be considered.

T. F. Boyle Transportation, Inc., B-310708; B-310708.2, January 29, 2008.
DIGEST: 1. Provision in solicitation that required offeror to demonstrate its capability of passing a Department of Energy Office of Transportation “Motor Carrier Evaluation Program” audit did not constitute a definitive responsibility criterion because it does not contain specific and objective standards.
2. Protest challenging affirmative responsibility determination is denied where the protester’s allegations do not establish that the contracting officer failed to consider available relevant information.

Daylight Tree Service & Equipment, LLC, B-310808, January 29, 2008.
DIGEST: Protest that the agency improperly considered the past performance of another company in evaluating protester is denied where the two companies shared the same address, telephone number, and point of contact, and where the protester included contacts from contracts performed by the affiliated company in its references.

Rocketplane Kistler, B-310741, January 28, 2008.
DIGEST: The National Aeronautics and Space Administration could use a Space Act agreement under that agency’s “other transactions” authority, and was not required to use a procurement contract, for the development and demonstration of a space transportation system, where the principal purpose of the announcement was not to acquire goods or services for the direct benefit of the agency, but to stimulate a public purpose authorized by law.

IVI Corp., B-310766, January 23, 2008.
DIGEST: 1. Under brand name or equal procurement, the contracting agency’s determination regarding whether an offered product is acceptable will not be disturbed unless it is unreasonable.
2. Offer of an “equal” product under brand name or equal solicitation was properly rejected where the technical information provided to the contracting agency failed to demonstrate that the “equal” product met all of the salient characteristics set forth in the solicitation.

Group GPS Multimedia, B-310716, January 22, 2008.
DIGEST: 1. Awardee’s proposal submitted in response to a solicitation for audio-visual products and services was reasonably evaluated, where the agency reasonably considered the awardee’s proposed approach consistent with the evaluation factors set forth in the solicitation.
2. Awardee’s proposal that included a particular labor category to perform service contract work was not legally objectionable where the proposal, submitted in response to a solicitation that provided for the award of a fixed-price contract, did not violate any solicitation provisions; contention that the use of the proposed labor category would violate the Service Contract Act will not be considered by GAO because it is a matter for consideration by the Department of Labor and whether contract requirements are met during the performance of the contract is a matter of contract administration.

World Communications Center, Inc.--Costs, B-310398.4, January 16, 2008.
DIGEST: GAO recommends that agency reimburse protester’s costs of filing and pursuing earlier protests where agency does not contest the protester’s request, and where the record shows that the agency did not take prompt corrective action in the face of a clearly meritorious protest.

PWC Logistics Services Company KSC(c), B-310559, January 11, 2008
DECISION PWC Logistics Services Company KSC(c) protests the award of a contract to Anham, LLC, under request for proposals (RFP) No. W91GXZ-07-R-0011, issued by the Joint Contracting Command--Iraq/Afghanistan, for the operation and maintenance of two wholesale distribution center warehouse and staging area operations. The protester argues that the agency’s evaluation and selection of Anham’s proposal for award were unreasonable.
We dismiss the protest because of a violation of the terms of the GAO protective order issued in connection with this protest and other actions by the protester inconsistent with the integrity of GAO’s bid protest process.

Singleton Enterprises-GMT Mechanical, A Joint Venture, B-310552, January 10, 2008.
DIGEST: Protest of agency’s rejection of firm’s bid as nonresponsive under a solicitation set aside for service-disabled veteran-owned small business concerns (SDVOSBC) is sustained because the matter does not involve the responsiveness of the bid; rather, the protest involves the question of the status of the bidder as an eligible SDVOSBC, a matter within the exclusive authority of the Small Business Administration, not the procuring agency.

IMLCORP LLC; Wattre Corporation, B-310582; B-310582.2; B-310582.3; B-310582.4; B-310582.5, January 9, 2008.
DIGEST: Protests challenging the testing methodology employed by an agency in product sample testing is denied, where the solicitation did not specify a particular testing methodology and the protesters have failed to show that the agency’s test was an unreasonable method of assessing how well the firms’ products would meet the agency’s needs.

Gap Solutions, Inc., B-310564, January 4, 2008.
DIGEST: Protest that agency’s point scoring scheme was not sufficiently sensitive to highlight the distinctions among technical proposals is denied where record shows source selection decision was based on detailed narrative evaluation materials that reflected relative strengths and weaknesses of competing proposals, and protester raises no substantive challenge to agency’s evaluation findings; point scores are merely guides to intelligent decision making and, absent a legitimate challenge to agency’s underlying substantive findings, there is no basis to object to evaluation on basis of the point scoring.

Superlative Technologies, Inc., B-310489; B-310489.2, January 4, 2008.
DIGEST: Agency did not have a reasonable basis for canceling solicitation where agency states that cancellation was necessitated by the agency’s disclosure of source selection information, which the agency believed gave an “unfair advantage” to at least one offeror, and where the agency subsequently awarded a sole-source contract to a contracting team that included the same contractor to whom the source selection information was disclosed.

Utility Tool & Trailer, Inc., B-310535, January 3, 2008.
DIGEST: Protest challenging an agency’s selection of an offeror with lower-rated delivery schedule and lower-priced proposal is denied where the agency reasonably decided that the price premium involved in selecting the protester’s higher-priced proposal to obtain the benefit of that proposal’s slightly more favorable delivery schedule was not justified.

Team BOS/Naples--Gemmo S.p.A./DelJen, B-298865.3, December 28, 2007.
DIGEST: 1. Protest challenging evaluation of offerors’ technical and price proposals is denied where agency’s evaluation was reasonable and supported by the record.
2. Protest challenging the adequacy and reasonableness of the agency’s source selection decision is denied where the record supports the source selection authority’s explanation that certain errors in the selection decision did not affect underlying rationale.

Comprehensive Health Services, Inc., B-310553, December 27, 2007.
DIGEST: 1. Evaluation of protester’s technical proposal was unobjectionable where, after discussions, agency reasonably determined that protester failed to correct identified weaknesses in technical approach; in particular, downgrading based on loss of proposed subcontractor after proposal submission was reasonable where loss of subcontractor reasonably was found to significantly impact protester’s ability to provide certain health care specialists.
2. Agency reasonably determined that awardee’s loss of proposed subcontractor after proposal submission did not warrant downgrading proposal--despite assessing weakness and revising strength associated with subcontractor in initial evaluation--where agency reasonably concluded that loss of subcontractor was not significant in light of awardee’s substantial other proposed resources.
3. Agency provided meaningful discussions where, in response to failure of protester’s initial proposal to address all statement of work requirements, it asked protester to describe and more fully explain identified processes, thereby leading protester into areas of its proposal that required amplification.
4. Agency’s evaluation of awardee’s price as reasonable was unobjectionable where evaluation was based on comparison of prices received and comparison of individual line item prices to independent government cost estimates (IGCE) for low and high ranges of estimated costs, and awardee’s price--though higher than average IGCE--was lower than high range IGCE.

Pemco Aeroplex, Inc., B-310372, December 27, 2007.
DIGEST: 1. Protest challenging the agency’s past performance evaluation is denied where agency considered all reasonably available relevant past performance information and, based on consideration of that information, made confidence assessments that were not unreasonable.
2. Protest that agency was required to assign a “Blue/Exceptional” rating for any mission capability subfactor in which protester’s proposal contained an evaluated strength is denied where solicitation stated that proposals containing one or more evaluated strengths could properly receive either “Blue/Exceptional” or “Green/Acceptable” ratings.
3. Where solicitation required that agency perform a price realism analysis and risk assessment, and identified the particular data that would be considered, including [deleted], protest is sustained given the absence of any agency documentation reflecting the required analysis of the awardee’s final proposal revisions, which reflected [deleted] that appear to conflict with the agency’s internal [deleted] projections. 4. Protest based on alleged conflicts of interest and an alleged violation of procurement integrity provisions is denied where record does not support the protester’s allegations.

KAR Contracting, LLC, B-310454; B-310537, December 19, 2007.
DIGEST: Protests challenging an agency’s decision that the protester is ineligible for the award of two construction projects are denied where the agency reasonably concluded that these awards would create the appearance of an impropriety because of the protester’s founder’s role in both projects while a government employee, including serving as the contracting officer’s technical representative, and participating in the preparation of construction drawings.

Command Management Services, Inc., B-310261; B-310261.2, December 14, 2007.
DIGEST: 1. Protest challenging agency’s evaluation of technical proposals is denied where the record establishes that the evaluation was reasonable and consistent with the evaluation criteria.
2. Agency reasonably found that discrepancy in name of entity appearing in the proposal was a mere clerical error where the differences in the name from the entity to which award was made are minor and the data universal numbering system number and address matched that of the entity which received the award.

B-158766, GAO Bid Protest Annual Report to the Congress for Fiscal Year 2007, December 10, 2007

Nilson Van & Storage, Inc., B-310485, December 10, 2007.
DIGEST: Protest that contracting officer improperly determined awardee to be responsible, notwithstanding awardee’s failure to supply all information requested by solicitation regarding previous performance of comparable contracts, is dismissed, where information request did not constitute definitive responsibility criterion, and there is no evidence raising serious concern that contracting officer ignored relevant responsibility information.

Essan Metallix Corporation, B-310357, December 7, 2007.
DIGEST: An agency may properly exclude a defaulted contractor from the competition for the reprocurement of the work remaining under the terminated contract.

RKR Joint Venture, LLC--Costs, B-299856.2, December 7, 2007.
DIGEST: Where record reasonably supports agency’s determination that cancellation of a protested procurement was necessary because, due to the passage of time, the solicitation no longer reflected the agency’s actual requirements, we do not view cancellation as corrective action taken in response to a protest and, accordingly, do not recommend reimbursement of protest costs.

Cornell Companies, Inc., B-310548, December 3, 2007.
DIGEST: 1. Assessment of a weakness against the protester’s proposal was not improper where the considerations on which the assessment was based were encompassed by the evaluation criteria.
2. Assessed weakness was not required to be raised in discussions where the weakness was not considered significant, and did not prevent the proposal from meeting the solicitation requirements or having a reasonable chance of award.

Qualicon Corporation, B-309989.2, December 3, 2007.
DIGEST: Protest alleging that agency deviated from solicitation’s stated evaluation scheme in evaluating bids is denied where protester has not demonstrated a reasonable possibility that it was prejudiced by any deviation.

B-308968, November 27, 2007, The Honorable Barbara A. Mikulski, United States Senate
Subject: No-Cost Contracts for Event Planning Services
This opinion responds to your letter of January 26, 2007, requesting that we “clarify the suitability of using no-cost contracts to obtain conference, event and trade show planning services.” Specifically, you asked us to review a model contract supplied to us by National Conference Services, Inc.’s (NCSI) counsel. Letter from Antonio R. Franco and Jonathan T. Williams, Piliero Mazza, to Thomas H. Armstrong, Assistant General Counsel, GAO, Re: No Cost Contract for Conference Services, Jan. 23, 2007 (NCSI Letter). In its model contract, NCSI offers to provide conference planning services with no financial obligation to the government; NCSI would recoup its costs by charging exhibitors, sponsors, and attendees of the conference. Id.
   We conclude that the NCSI contract is a valid, binding no-cost contract that agencies may utilize to obtain conference planning services without violating the voluntary services prohibition of the Antideficiency Act, 31 U.S.C. § 1342. Because of the terms and conditions of the NCSI contract, an agency would incur no financial liability and NCSI would have no expectation of payment from the government. Before engaging in no-cost contracts, however, agencies should address several considerations to balance the financial flexibility of no-cost contracts with achievement of agency objectives in hosting a conference.

Charles Kendall & Partners, Ltd., B-310093, November 26, 2007.
DIGEST: In a negotiated procurement which provided for award on the basis of a price/delivery/small business participation tradeoff, protest challenging the selection of the high-priced proposal is denied, where, consistent with the solicitation’s evaluation factors, the source selection authority considered the awardee’s offer of a shorter delivery schedule, and concluded that faster deliveries outweighed the protester’s price advantage; this kind of conclusion is well within the discretion given selection officials to make tradeoff decisions.

Firestorm Wildland Fire Suppression, Inc., B-310136, November 26, 2007.
DIGEST: Evaluation of awardee’s past performance was reasonable, notwithstanding protester’s identification of alleged negative information concerning awardee, where agency did not have personal knowledge of some of the information, and fully considered information of which it was aware.

Eggs & Bacon, Inc., B-310066, November 20, 2007.
DIGEST: Protest challenging source selection of higher-rated, higher-priced proposal over lower-rated, lower-priced proposal is denied where the agency’s determination was based upon a reasonable evaluation consistent with the evaluation scheme that gave greater weight to non-price factors.

NAC International, Inc., B-310065, November 21, 2007.
DIGEST: 1. The Tennessee Valley Authority (TVA), while a federal agency subject to GAO’s bid protest jurisdiction under the Competition in Contracting Act (CICA), has its own statute, the TVA Act, which governs the agency’s procurement procedures; as a result, the TVA is not subject to CICA’s requirement to obtain “full and open competition” and is not required to comply with the Federal Acquisition Regulation.
2. Protest challenging terms of solicitation as unduly restrictive is denied where agency had reasonable basis to conclude it would receive proposals that satisfied the agency’s statutory requirement to obtain “adequate competition.”

AT&T Corp., B-299542.3; B-299542.4, November 16, 2007.
DIGEST: 1. Agency’s discussions with protester were not meaningful where the agency found the protester’s staffing plan contained significant weaknesses but failed to sufficiently identify the scope of the agency’s concerns in discussions.
2. Protest challenging the evaluation of awardee’s management approach proposal (specifically, its proposed staffing plan) is sustained where the agency subsequently reached conclusions that differed from the underlying evaluation findings, and provided no explanation for the inconsistency.
3. Protest challenging the evaluation of offerors’ technical proposals is denied where the record establishes that the agency’s evaluation was reasonable and consistent with the evaluation criteria.
4. Protest challenging the evaluation of the protester’s past performance is denied where the record establishes that the agency’s evaluation was reasonable and consistent with the stated evaluation criteria.

Doyon-American Mechanical, JV; NAJV, LLC, B-310003; B-310003.2, November 15, 2007.
DIGEST: Where solicitation provided that evaluation of an offeror’s experience would be based on the offeror’s submission of previously performed projects, and specifically provided that only projects for which the offeror or a primary teaming partner was the prime contractor should be submitted, the awardees’ submission of projects that were performed by the awardees’ parent/affiliate corporations, and the agency’s reliance on such projects in evaluating the awardees’ experience, was improper.

Subject: Department of Energy-Report of Antideficiency Act Violation, B-308715, November 13, 2007
Introduction: The Antideficiency Act requires agencies to report violations of the Act to Congress and the President and transmit copies of those reports to the Comptroller General at the same time. 31 U.S.C. §§ 1351, 1517(b). The purpose of this letter is to advise you that the Department of Energy (DOE) violated the Antideficiency Act in fiscal years 2006 and 2007 but has not reported the violations as required by the Act and by Office of Management and Budget (OMB) Circular No. A-11.1

The Protective Group, Inc., B-310018, November 13, 2007.
DIGEST: Agency determination not to set aside body armor procurement for small businesses was proper where record shows agency was familiar with body armor marketplace, and responses from firms participating in “industry day” conference with agency demonstrated that it was not likely to receive proposals from at least two responsible small businesses capable of meeting the unique requirements of the solicitation

ITT Industries Space Systems, LLC, B-309964; B-309964.2, November 9, 2007.
DIGEST: 1. Protest challenging evaluation of proposals and source selection decision is denied where record demonstrates that the evaluation was reasonable and consistent with the solicitation, and protester’s arguments amount to mere disagreement with agency’s conclusions.
2. Agency’s failure to address Defense Contract Audit Agency qualification of audit results regarding awardee’s cost proposal due to awardee’s noncompliance with cost accounting standards was not prejudicial where agency demonstrated that awardee’s noncompliance would not result in any increased costs to the government.

Nautical Engineering, Inc., B-309955, November 7, 2007.
DIGEST: 1. Protest challenging consolidation of requirements previously provided under separate small contracts as improper bundling under the Small Business Act is denied where agency reasonably demonstrates that measurably substantial benefits to the government justify the consolidation.
2. Protest challenging consolidation of requirements as a violation of the Competition in Contracting Act is denied where agency demonstrates that the consolidation is reasonable.

Earl Industries, LLC, B-309996; B-309996.4, November 5, 2007.
DIGEST: 1. Protest is sustained in a negotiated procurement for award on a “best value” basis where the source selection authority (SSA) did not reasonably assess the protester's evaluated superior technical merit in the SSA's cost/technical tradeoff assessment.
2. Protest is sustained in a negotiated procurement for the award of a cost-reimbursement contract, where the agency in its cost realism assessment accepted the awardee's work allocation in its cost proposal, but that allocation was inconsistent with the firm's allocation of work in its technical proposal.
3. Protest is sustained in a negotiated procurement for the award of a cost-reimbursement contract, where the agency in its cost realism assessment applied the protester's historic division-wide composite labor rate rather than the protester's proposed labor rate to perform the solicitation's notional work package and the agency did not consider the protester's explanation during discussions that the firm's division-wide rate included labor categories that the protester would not use in performing in accordance with its proposed technical approach to meeting the notional work package.

Gonzales-McCaulley Investment Group, Inc., B-299936.2, November 5, 2007.
DIGEST: 1. Agency's decision to cancel a solicitation, after a protest was filed, due to a lack of valid delegated procurement authority, was essentially pretextual when no other solicitations issued under the invalid delegation were cancelled.
2. Agency did not have a reasonable basis to rescind the selection of a vendor for providing training classes under the Government Employees Training Act based on its belief that the vendor plagiarized certain material from another vendor and included this material in its quotation, which the agency found indicated a lack of independent knowledge of the course material that rendered the quotation unacceptable, where the agency did not reasonably investigate its concerns, the record contains evidence that the vendor properly obtained this material from the agency and reasonably used it in its quotation, and the vendor's quotation contained information that was not plagiarized that was relevant to its knowledge of the course material.

FitNet Purchasing Alliance, B-309911, November 2, 2007.
DIGEST: Protest challenging an agency's decision not to set aside for small businesses an order under the Federal Supply Schedule (FSS) program valued at approximately $12,000 is dismissed where the protester does not hold an FSS contract, and therefore is not an interested party to pursue this matter.

VRC, Inc., B-310100, November 2, 2007.
DIGEST: Protest that contracting agency should not have disqualified the protester because of an organizational conflict of interest (OCI) is denied where the agency reasonably found that an OCI existed based on the fact that an individual employed by a company with ownership ties to the protester was assigned to work in the agency’s contracting office in connection with the procurement at issue.

Executive Protective Security Service, Inc., B-299954.3, October 22, 2007.
DIGEST: Protest challenging agency's determination under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. § 5150, regarding eligibility of firm selected to receive task order is sustained where the agency unreasonably concluded that the firm was doing business primarily in the designated set-aside location.

CAMSS Shelters, B-309784; B-309784.2, October 19, 2007.
DIGEST: 1. Protest challenging the rejection of a quotation as unacceptable is denied where the quotation submitted in response to a solicitation for shelters on brand-name-or-equal basis was properly found not to meet the solicitation’s salient characteristics.
2. Protest alleging that the awardee’s brand name product does not meet the salient characteristics in the solicitation is dismissed as untimely; any alleged inconsistency between a brand name item and the salient characteristics used to define an “or equal” product must be protested prior to the closing time for receipt of offers, or in this case, quotations.

Al Long Ford--Costs, B-297807.2, October 18, 2007.
DIGEST: Protester's request for recommendation that it be reimbursed its proposal preparation and protest costs is denied where protester failed to submit an adequately documented claim in a timely manner and failed to make a reasonable attempt to reach an agreement with the agency prior to filing at Government Accountability Office.

Integrated Concepts & Research Corporation, B-309803, October 15, 2007.
DIGEST: 1. Agency was not required to advise protester during discussions that its total proposed cost was not competitive since the protester’s evaluated cost was not so high as to be unreasonable or unacceptable for award.
2. Protest that award was tainted by organizational conflicts of interest is denied where the record does not support allegations that the awardee participated in the drafting of the statement of work or had access to non-public information that would have provided a competitive advantage.

Central Texas College, B-309947, October 12, 2007.
DIGEST: 1. Agency properly could make award on basis of initial proposals where solicitation advised offerors of this possibility and contracting officer's decision not to engage in discussions was reasonable.
2. Protest challenging agency's rejection of protester's proposal because the protester submitted an unacceptable subcontracting plan is denied where the solicitation specifically stated that the quality and completeness of the subcontracting plan would be evaluated, and advised that no award would be made to an offeror whose proposal did not include an acceptable subcontracting plan.

GlassLock, Inc., B-299931; B-299931.2, October 10, 2007.
DIGEST: 1. Under a solicitation for competitive quotations issued under the Federal Supply Schedule program that only provided for vendors to submit prior experience/past performance references for the past 5 years, an agency improperly considered and awarded strengths, based on information provided by the successful vendor with its quotation, for projects that were completed more than 5 years ago.
2. Agency failed to evaluate quotations reasonably or in accordance with the solicitation where strengths relating to the successful vendor’s experience and past performance were assigned under the project plan/schedule technical factor, which did not encompass evaluation of the vendor’s experience and past performance, and where the solicitation contained a separate evaluation factor for experience/past performance under which the successful vendor received consideration for its experience/past performance.
3. Under solicitation for competitive quotations issued under the Federal Supply Schedule program that provided for a tradeoff analysis with technical factors being more important than price, agency improperly based issuance of an order on the lowest-priced, technically acceptable quotation.

AlliedBarton Security Services LLC, B-299978; B-299978.3; B-299978.4, October 9, 2007.
DIGEST: 1. Protest challenging agency's eligibility determination under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. § 5150, is denied where the agency reasonably concluded that the protester was not a firm residing or doing business primarily in the designated set-aside location.
2. Protester is not an interested party for purposes of challenging the successful vendor's eligibility for receipt of a task order where the record shows that, even if the protest were sustained on this ground, an intervening vendor would be next in line for selection.

Contingency Management Group, LLC; IAP Worldwide Services, Inc., B-309752; B-309752.2; B-309752.3; B-309752.4; B-309752.5; B-309752.6; B-309752.7 October 5, 2007.
DIGEST: 1. Agency’s favorable evaluation of an awardee’s proposal, submitted in response to a solicitation for logistics support on a global basis, was unreasonable and evidenced unequal treatment, where the proposal stated that it was predicated upon assumptions that expressly differed from the assumptions set forth in the solicitation’s scenario on which proposals were to be based, and there is nothing in the contemporaneous evaluation record indicating that the agency considered, or was even aware of, the proposal’s stated assumptions.
2. Agency’s favorable evaluation of an awardee’s proposal was unreasonable and evidenced unequal treatment, where the agency misunderstood an aspect of the proposed technical approach, and the agency had criticized and assessed a weakness in evaluating another offeror’s proposal because it included a similar technical approach.
3. Agency’s evaluation of an awardee’s business systems under a management evaluation factor as “outstanding” is of concern, where the agency’s evaluation does not adequately account for negative comments by the Defense Contract Audit Agency that were provided to the procuring agency as part of the proposal evaluation.
4. Agency’s evaluation of proposals under the technical factor that considered the percentages set forth in the offerors’ proposals of host country nationals, third country nationals, and U.S. citizens/expatriates proposed to perform the work was unreasonable, where the record provides unsupported, or inconsistent and alternative, explanations regarding what percentages should be considered acceptable or as weaknesses or strengths.

Chenega Federal Systems, LLC, B-299310.2, September 28, 2007.
DIGEST: 1. Protest that agency conducted misleading cost discussions is denied where record shows that agency provided protester with detailed information during discussions relating to evaluation of its cost proposal, and protester's response to that information shows that it independently analyzed the information and formed its own business judgments regarding how to respond to the agency's information.
2. Protest that awardee had an impermissible organizational conflict of interest (OCI) is denied where protester previously raised the same assertion, agency conducted a detailed investigation and concluded that no OCI existed, and protester offers no evidence in support of its position; protester's mere suspicion of an OCI in light of agency's detailed investigation, without more, is inadequate to establish that OCI exists.

Navarro Research and Engineering, Inc., B-299981; B-299981.3, September 28, 2007.
DIGEST: 1. Where solicitation contemplated award of fixed-price contract, price realism analysis was reasonable where agency compared proposed prices to government estimate and other proposed prices, and ensured that prices reflected specified labor categories and hours specified by RFP.
2. Protest that awardee's proposal unreasonably received evaluation credit for exceeding solicitation requirements is denied; where solicitation provides for award on best value basis, agency reasonably may assess as a proposal advantage degree to which proposal exceeds minimum solicitation requirements.
3. Protest that awardee received improper competitive advantage due to status as incumbent contractor is denied; agency is not required to discount competitive advantage gained by virtue of performance as incumbent contractor.

Raytheon Company, Space and Airborne Systems, B-298626.2, B-298626.3, September 27, 2007.
DIGEST: 1. Solicitation reasonably put protester on notice that performance of the solicitation's aircraft “service ceiling” threshold capabilities would be considered in evaluation of proposals.
2. Agency was reasonably concerned with protester's proposed approach to performing “service ceiling” aircraft threshold capabilities in that the approach involved protester's application of a “new operational mode” relying on [deleted].
3. Agency reasonably evaluated protester's proposal as “marginal” under the air vehicle subfactor, and as creating “high performance risk,” where protester failed to provide data from engine manufacturer addressing the impact of protester's “new operational mode.”
4. Protester's assertion that awardee's proposal contemplated use of [deleted] similar to that of the protester's is without merit where record shows that awardee's aircraft was able to perform threshold capabilities without [deleted], that use of [deleted] was relied on by awardee to expedite task performance, and that awardee's proposed use of [deleted] was consistent with the existing manufacturer documentation for the aircraft engines.
5. Agency properly assigned only adjectival ratings to offerors' life cycle costs where solicitation expressly advised offerors that comparison of numerical cost values associated with life cycle costs would not be a “driver” in the source selection decision.

KIC Development, LLC, B-309869, September 26, 2007.
DIGEST: Allegation that awardee's prior contracts were not sufficiently similar in dollar value to work being solicited to be deemed relevant under past performance evaluation factor is denied where solicitation did not contain dollar threshold for relevance and past performance evaluation was otherwise reasonable and consistent with solicitation.

Bighorn Lumber Company, Inc., B-299906, September 25, 2007.
DIGEST: An agency may not correct an obvious mistake if the bidder's intended bid amount is neither ascertainable from the face of the bid nor supported by clear and convincing evidence.

FitNet Purchasing Alliance, B-310031, September 21, 2007.
DIGEST: Protest challenging the cancellation of a reverse auction solicitation, and the decision to reissue the solicitation limited to Federal Supply Schedule vendors is dismissed in part, and denied in part, where the record shows that the protester was not in line for award of the canceled solicitation, and is therefore not an interested party to challenge the cancellation decision, and where the agency acted properly in reissuing the solicitation limited to Federal Supply Schedule vendors.

General Dynamics Information Technology, B-299873, September 19, 2007.
DIGEST: Protest that agency misevaluated cost proposals is sustained where agency failed to use higher of numerous inconsistent proposed rates in calculating awardee’s proposed total evaluated price, as expressly provided by solicitation, such that source selection decision was based on consideration of materially understated differential between protester’s and awardee’s evaluated prices.

Zolon Tech, Inc., B-299904.2, September 18, 2007.
DIGEST: 1. Agency reasonably assessed weaknesses in evaluation of protester's experience as to core technology, where firm intended to rely on experienced consultant instead of contractor personnel, and as to management system, where firm's initial quotation did not address the system and oral presentation/revised quotation included only limited reference to it.
2. Price evaluation that determined protester's prices to be unrealistic was unobjectionable where based on both firm's low revised draft task order price, as compared to government estimate, and sample of firm's loaded labor rates, which were significantly lower than those of incumbent contractors.
3. Agency determination that small business's unrealistically low price represented high risk, and decision to make award to vendor with technically superior, higher-priced quotation were part of a comparative best value evaluation, not a responsibility determination requiring referral to the Small Business Administration.

National Labor Relations BoardÑFunding of Subscription Contracts, B-309530, September 17, 2007.
DIGEST: The National Labor Relations Board (NLRB) did not violate the bona fide needs rule when, in September 2006, it obligated fiscal year (FY) 2006 funds for five Web site database subscription renewals that it needed to have in place on October 1, 2006, the first day of FY 2007. Even though delivery of the renewed subscriptions would occur entirely in FY 2007, to ensure continued receipt of the subscriptions, NLRB reasonably determined that the renewal orders needed to be placed in FY 2006, before the expiration of the existing subscriptions on September 30, 2006. However, NLRB violated the bona fide needs rule when it obligated FY 2006 funds to renew two Web site database subscriptions that were not due to expire until October 31, 2006. These subscription renewals were a bona fide need of FY 2007, and NLRB should have purchased these subscriptions using its FY 2007 appropriation.

Harris Corporation, B-299864; B-299864.2 B-299864.3, September 14, 2007.
DIGEST: Protest of award of contract under downselect competition for naval satellite communications terminal is denied where agency reasonably determined that testing of awardee's prototype demonstrated that it met nearly all of the hardware and software specification requirements, while protester's prototype failed to satisfy many specification requirements, such that a significant amount of work that had been scheduled for completion in initial development phase had not been accomplished by protester, resulting in a medium to high risk in event of award to protester.

Synergetics, Inc., B-299904, September 14, 2007.
DIGEST: 1. Where solicitation allowed for consideration of past performance of services the same or similar to those being procured, agency reasonably gave approximately equal evaluation credit to protester for its incumbent performance as subcontractor and to non-incumbent awardee based on contracts of similar size with procuring agency and other federal agencies, and proposal of key personnel with relevant technical expertise and knowledge.
2. In unrestricted competition under Federal Supply Schedule (FSS), vendor considered to be small disadvantaged business (SDB) at time of its FSS contract award did not misrepresent itself as SDB—even though it had since exited from SDB program and had an application pending for recertification—where solicitation only contemplated consideration of SDB status at the time of award of its FSS contract.
3. Price evaluation was unobjectionable where agency did not consider protester's proposal of additional, but undefined, discounts that were not in accordance with solicitation pricing requirements.
4. Where underlying evaluation record confirms agency's finding of no significant difference in technical quality between protester's and awardee's equally-rated quotations, source selection authority reasonably concluded that awardee's lower-priced quotation represented “best value” to the government.

Accent Service Company, Inc., B-299888 September 14, 2007.
DIGEST: Protest is denied where agency properly concluded that agency employee had not violated procurement integrity provisions by escorting representatives of a potential competitor on a site visit, which included a brief stop at the office of the protester's on-site manager, and a limited disclosure to the visitors about the firm's incumbent contract staffing.

Alpha Genesis, Inc., B-299859, September 12, 2007.
DIGEST: 1. Protest challenging agency's technical evaluations is denied where the record supports the reasonableness of the evaluations and does not support the protester's allegation regarding inadequate discussions.
2. Protest that awardee's proposal contains material contingencies that make it improper for the agency to accept it is denied, where the record shows that the alleged contingencies concern a lease that the contractor was to obtain post-contract award and the acquisition of leased property for which the awardee had obtained a letter of commitment.

MASAI Technologies Corporation, B-298880.3, B-298880.4, September 10, 2007.
DIGEST: 1. Agency reasonably determined that protester's proposal failed to comply with solicitation requirements regarding personnel qualifications, properly evaluating protester's proposal as [deleted] under that evaluation factor.
2. Agency's review of protester's and awardee's prior activities to assess whether potential conflicts of interest existed reasonably supports agency's conclusion that awardee did not have an unfair competitive advantage.

Kemron Environmental Services, Inc., B-299880, September 7, 2007.
DIGEST: Protest that agency's inadvertent disclosure of protester's price information, which was limited in scope, resulted in unfair competition is denied where record does not demonstrate that protester was competitively harmed.

Systems Research and Applications Corporation; Booz Allen Hamilton, Inc. File: B-299818; B-299818.2; B-299818.3; B-299818.4 Date: September 6, 2007.
DIGEST: 1. Admission of a consultant to a GAO protective order was appropriate, over the objection that the consultant once held a position with the protester and that the consultant’s daughter was currently employed by the protester, where the record shows that the consultant had no continuing interest in the protester and the consultant’s daughter held a relatively low-level position with the protester in a division that was unrelated to the work to be performed under the protested contract.
2. Protest is sustained in a negotiated procurement for award on a “best value” basis, which provided for evaluation of the degree to which offerors’ proposals met or exceeded requirements, where the agency failed to qualitatively assess the merits of the offerors’ differing approaches.

Lockheed Martin Systems Integration-Owego; Sikorsky Aircraft Company, B-299145.5; B-299145.6, August 30, 2007.
DIGEST: Protest is sustained where agency amended solicitation after prior sustained protest to eliminate consideration of the unique aspects of the proposed helicopters (including maintenance requirements) in calculating certain aspects of the evaluated Most Probable Life Cycle Cost, substituting a subjective consideration of potential maintenance efficiencies for the prior direct impact upon evaluated cost, but nevertheless precluded offerors from generally revising their proposals; it is fundamental that, where an agency revises the criteria against which offers are to be evaluated or otherwise materially changes the solicitation's evaluation scheme, offerors must be given a reasonable opportunity to respond to the revised criteria or evaluation scheme.

The Salvation Army Community Corrections Program--Costs, B-298866.3, August 29, 2007.
DIGEST: 1. Government Accountability Office (GAO) recommends that protester be reimbursed the costs of filing and pursuing a protest where the agency unduly delayed taking corrective action in response to clearly meritorious protest.
2. In determining whether claimed protest costs should be severed, GAO generally considers all issues concerning the evaluation of proposals to be intertwined--and thus not severable--and therefore generally will recommend reimbursement of the costs associated with both successful and unsuccessful evaluation challenges.

Council for Adult & Experiential Learning, B-299798.2, August 28, 2007.
DIGEST: Post-award challenges to solicitation terms are dismissed as untimely and challenges to agency's evaluation of proposals are denied because they are based on untimely allegations and fail to specifically identify flaws with the agency's evaluation.

National Park Service-Special Park Use Fees, B-307319 Date: August 23, 2007 .
DIGEST: The National Park Service (NPS) may set special park use fees based on market value when it is acting under business-type conditions, but it may not double charge for costs by setting a two-part fee in which one part is based on market value and the other based on costs. Both the Independent Offices Appropriations Act (IOAA) of 1952, codified at 31 U.S.C. § 9701, and section 3a of title 16 of the United States Code authorize NPS to charge a user fee. When providing commercial goods, services, or resources, NPS may charge a fee based on market value under the IOAA and, under section 3a, calculate its actual costs, deduct that amount from the fee collected, and credit that amount to the current NPS appropriation. Any fees collected in excess of costs must be deposited into the miscellaneous receipts of the Treasury. Alternatively, NPS may choose to set special park use fees to recover only its actual costs and retain those under section 3a

S4, Inc., B-299817; B-299817.2, August 23, 2007.
DIGEST: 1. Protest is denied where agency evaluation of past performance, and ultimate selection of awardee's lower-priced proposal was reasonable, and consistent with stated evaluation criteria.
2. Protest is denied where agency properly proceeded with award notwithstanding absence of applicable North American Industry Classification System (NAICS) code from awardee's entries in the Online Representations and Certifications Application (ORCA) system because other information posted there confirmed that awardee represented itself to be small under applicable size standard.

Interagency Agreements-Use of an Interagency Agreement between the Counterintelligence Field Activity, Department of Defense, and GovWorks to Obtain Office Space, B-309181, August 17, 2007.
DIGEST: Without a delegation from the General Services Administration or independent statutory authority to enter into a lease, neither GovWorks (a Department of the Interior franchise fund) nor the Counterintelligence Field Activity (CIFA) of the Department of Defense (DOD) had authority to obtain office space through a third-party lease. Unless ratified by an appropriate government official, the agreement for office space is unenforceable against the government. GovWorks and CIFA cannot circumvent federal statutory and regulatory requirements on leasing by bundling the lease agreement in a contract for services. Without ratification, all payments made under this third-party lease are improper payments, and DOD and GovWorks should take appropriate action to resolve them.
     There is no evidence to suggest that CIFA violated the Antideficiency Act. Although CIFA and GovWorks entered into an agreement to obtain office space through a third-party lease without requisite authority, CIFA does have an appropriation that is otherwise available for the purpose of leasing office space-the Operation and Maintenance, Defense-wide appropriation. CIFA recorded these costs as obligations of this appropriation and transferred funds to GovWorks to pay for them. There is no indication, however, that CIFA recorded or transferred amounts in excess of or in advance of the appropriation. The conclusion that neither CIFA nor GovWorks violated the Antideficiency Act does not diminish or excuse CIFA's and GovWorks's disregard of federal statutes and policy, involving the government in an unauthorized transaction and millions of dollars of improper payments.

PWC Logistics Services, Inc., B-299820; B-299820.3, August 14, .
DIGEST: 1. Protest that agency applied unstated environmental risk management plan factor in its evaluation of management proposals is denied where record shows that agency provided all offerors identical information during discussions that effectively amended the evaluation criteria of the solicitation.
2. Protest that agency failed to provide protester discussions relating to the adequacy of its environmental risk management plan is denied where record shows (1) agency only assigned protester's proposal a minor weakness in the area--and therefore was not required to discuss the matter--and (2) agency, in fact, afforded protester discussions relating to this aspect of its proposal.
3. Protest relating to reasonableness of the agency's evaluation of protester's and awardee's proposals in the area of environmental risk management plan is denied where record supports agency's conclusions that there were qualitative distinctions between the proposals in this area.
4. Protest relating to the agency's finding that awardee's proposal offered superior past performance is denied where record shows that agency had a reasonable basis for finding the awardee's past performance more relevant than that of other offerors', and the protester's assertions relating to awardee's past performance are based on factually incorrect assumptions.
5. Protest relating to the reasonableness of agency's price evaluation is denied where record shows that agency's evaluation was reasonable and consistent with the terms of the solicitation.

Lockheed Martin Maritime Systems & Sensors, B-299766; B-299766.2, August 10, 2007.
DIGEST: Protest is sustained where solicitation provided for tow-off testing of prototype arrays according to a procedure in which each offeror was explicitly permitted to participate in installation and check-out of its prototype, and then granted a single opportunity to repair any failure of its prototype immediately prior to towed testing, but the agency did not notify the protester that its prototype had already failed before arrival at the testing site, and did not allow the protester to repair its prototype, and as a result, the agency was unable to evaluate significant aspects of the performance of the protester’s array.

XTec, Inc., B-299744.2; B-299744.3, August 6, 2007.
DIGEST: Even assuming that protester's interpretation of solicitation issued under the Federal Supply Schedule program for a contractor managed “end-to-end” solution meeting government-wide federal identification card requirements is reasonable and required all products and services within a vendor's end-to-end solution to be listed on the agency's Approved Product List at the time price submissions were due, protester failed to establish that it was prejudiced by the agency's alleged waiver of this requirement where the protester's proposal was lower-rated technically and higher priced and the protester only generally asserted that had it known of the agency's interpretation, it could have substituted products and reduced its price.

K9 Operations, Inc., B-299923, August 6, 2007.
DIGEST: Where solicitation did not impose specific requirement that proposed facility have overnight parking approved by city, agency properly made award without regard to whether awardee's facility had such approval.

Hawkeye Glove Manufacturing, Inc., B-299741, August 2, 2007.
DIGEST: Where solicitation divided requirement for gloves into two portions—one set aside for small business and the other unrestricted—and stated that agency intended to make multiple awards, agency nevertheless was not required to make multiple awards; agency properly awarded both portions of requirement to offeror whose proposal received highest technical score and offered lowest total price.

Business Consulting Associates, LLC, B-299758.2, August 1, 2007.
DIGEST: 1. Agency reasonably concluded that the protester's and awardee's proposals were “technically equivalent,” such that price became the discriminator in the award selection. 2. Protest that agency unreasonably accepted the awardee's mitigation plan for a potential “impaired objectivity” organizational conflict of interest (OCI) is denied, where only one of the team members (a subcontractor) had a potential OCI, only a small portion of the work was affected, and the agency reasonably determined that awardee's plan to transfer the affected work to the other team member (the prime contractor awardee), which was fully capable of performing the work independently of the team member with an OCI, was acceptable.

Carson Helicopter Services, Inc., B-299720; B-299720.2, July 30, 2007.
DIGEST: On a solicitation for aerial wildland fire suppression services to be awarded to the offeror submitting the low-priced, technically acceptable proposal under which technical proposals showing compliance with specifications were required, the agency unreasonably determined that the awardee's proposed helicopter met the payload requirements, based upon statements in the proposal indicating compliance, where the proposal also contained information that should reasonably have created doubt to an evaluator familiar with helicopters whether the helicopter in fact satisfied the requirements.

Panacea Consulting, Inc., B-299307.4; B-299308.4, July 27, 2007.
DIGEST: Protest that agency's evaluation and source selection decisions are unreasonable is sustained where record lacks any meaningful explanation for evaluation scores and source selection decisions.

OfficeMax, Inc., B-299340.2, July 19, 2007.
DIGEST: 1. Agency reasonably determined that vendor's quotation was technically unacceptable where it failed to comply with a mandatory solicitation requirement.
2. Protest that agency failed to provide meaningful discussions is denied where protester cannot establish prejudice because the record shows that protester's ordering systems for office supplies did not comply with a mandatory solicitation requirement, and shows that the protester did not plan to become compliant.

Outdoor Venture Corporation; Applied Companies, B-299675; B-299676, July 19, 2007.
DIGEST: 1. Contention that a consolidated procurement violates the bundling provisions of the Small Business Act, 15 U.S.C. § 631(j)(3) (2000), is denied where the record shows that all of the requirements covered by the solicitation were already being procured as a single system.
2. Protest that agency's bundling of requirements violated the Competition in Contracting Act of 1984, 10 U.S.C. § 2305(a)(1) (2000), as amended, is denied where the agency has established in the record that its consolidated approach is needed to satisfy its needs, and the protester has not shown that the approach will not provide the benefits claimed, or is unreasonable.

Expired Funds and Interagency Agreements between GovWorks and the Department of Defense, B-308944, July 17, 2007.
DIGEST: GovWorks, a Department of the Interior franchise fund, entered into four contracts on behalf of the Department of Defense (DOD). With one exception, the Military Interdepartmental Purchase Requests (MIPRs) used to finance these contracts did not identify the specific items or services that DOD wanted GovWorks to acquire on its behalf. Lacking the necessary specificity as to the items or services ordered, these MIPRs did not properly obligate DOD's appropriation. Accordingly, in fiscal year 2005, when GovWorks used these funds for three of the four contracts, GovWorks improperly used prior year funds.

Axiom Resource Management, Inc., B-298870.3; B-298870.4, July 12, 2007.
DIGEST: Contracting agency reasonably determined that the issuance of a task order to a vendor to provide program management support services to the TRICARE Acquisitions Directorate did not create an impermissible organizational conflict of interest (OCI) where the agency reviewed both existing and future support requirements, and concluded that no OCI exists for current support contracts, that any potential future OCIs can be mitigated and that the awardee here will be barred from competing as a prime contractor or subcontractor on future support contracts to provide healthcare benefits directly to TRICARE benefit recipients.

Forest City Military Communities, LLC, B-299577, June 29, 2007.
DIGEST: 1. Protest challenging the agency's use of an arbitrary “plug number” in evaluating the awardee's proposed cost is denied where the protester's own calculation of the awardee's cost demonstrates that there was no likelihood of prejudice.
DIGEST: 2. Protester's supplemental challenges to the agency's evaluation of its proposal are dismissed as untimely where the protester could have, but did not, raise the arguments in its initial protest based on information made available to the protester during its debriefing.

Meeks Disposal Corporation, B-299576; B-299576.2, June 28, 2007.
DIGEST: Protest that agency unreasonably determined that protester's proposal was unacceptable under technical approach/management factor is denied where the solicitation required that the proposals include a description of the methods and procedures the offeror would use to recruit and retain experienced personnel and managers, but protester provided only a brief and general statement on the subject.

INDUS Technology, Inc., B-297800.13, June 25, 2007.
DIGEST: Agency reasonably excluded offeror's proposals from competition where the cover letters accompanying the proposals provided for an acceptance period of 180 days, and the solicitation required a minimum acceptance period of 350 days and specifically stated that proposals providing less than the minimum acceptance period would be rejected.

Kellogg Brown & Root Services, Inc., B-298694.7, June 22, 2007.
DIGEST: Protest that agency conducted an unreasonable technical evaluation of the protester's proposal is denied, where the agency provided a comprehensive, detailed record that fully supports the agency's assessment of strengths and weaknesses in the protester's proposal and demonstrates that the agency conducted the evaluation consistent with the solicitation's evaluation criteria.

HealthStar VA, PLLC, B-299737, June 22, 2007.
DIGEST: It is the offeror's burden to submit an adequately written proposal; an offeror, including an incumbent contractor, must furnish, within its proposal, all information that was requested or necessary to demonstrate its capabilities in response to the solicitation.

Camnetics Mfg. Corporation, B-299738, June 21, 2007.
DIGEST: Agency reasonably rejected protester's quotation offering surplus parts where the surplus parts had been determined by the agency to be defective, and the protester did not show that this determination was unreasonable.

Government Telecommunications, Inc., B-299542.2, June 21, 2007.
DIGEST: Protest challenging contracting agency's evaluation of protester's proposal and exclusion of proposal from competitive range is denied where agency's evaluation and competitive range determination were reasonable and in accordance with the solicitation evaluation criteria.

B-308603 June 18, 2007 The Honorable Robert C. Byrd Chairman, Committee on Appropriations United States Senate The Honorable John Conyers, Jr. Chairman, Committee on the Judiciary United States House of Representatives Subject: Presidential Signing Statements Accompanying the Fiscal Year 2006 Appropriatons Acts
This letter responds to your request that we examine the fiscal year 2006 appropriations acts and the President's accompanying signing statements to identify the provisions in the acts to which the President took exception and to determine how the President executed those provisions.

Caddell Construction Company, Inc., B-298949.2, June 15, 2007.
DIGEST: The Omnibus Diplomatic Security and Antiterrorism Act of 1986, 22 U.S.C. § 4852 (2000), established statutory qualification requirements for construction firms seeking to build a U.S. embassy, including a requirement that contractors must have achieved a total business volume equal to or greater than the value of the project being bid in 3 years of the 5-year period before the solicitation issuance date. Where the agency's determination that an awardee has met this requirement is inconsistent with the ordinary meaning of the words of the statute, has the effect of “reading out“ portions of the statute, and is inconsistent with the statute's legislative history, the awardee is not eligible for award, and the protest is sustained.

Engineered Electric Company d/b/a DRS Fermont, B-295126.4, June 14, 2007.
DIGEST: Protest that agency improperly relaxed specification for fuel efficiency in acquisition of mobile generators is denied where agency relaxed specification based on determination that no offerors were able to meet prior, more stringent requirements; fact that protester claims now to be able to meet more stringent specification does not require that agency use more stringent specification, since relaxed specification meets agency's needs and enhances competition.

Medical Matrix, LP, B-299526; B-299526.2, June 12, 2007.
DIGEST: 1. Protest challenging reasonableness of agency's past performance evaluation is denied where challenge is based on assumption that awardee had not previously performed requirements called for in solicitation, which is not supported by record.
2. Protest alleging that agency improperly failed to consider past performance in connection with its evaluation of proposals under technical evaluation criteria is denied where evaluation scheme included separate technical and past performance evaluation criteria, and did not provide for evaluation of past performance under technical criteria.
3. Protest that agency failed to recognize that awardee's proposed price was unrealistically low as compared to protester's is denied where record shows that, although protester was incumbent contractor, solicitation called for work not previously performed by protester; price disparity between protester's and awardee's proposals is attributable to this component of the requirement; and awardee has previous experience performing this aspect of the requirement, which agency recognized as basis for price disparity.

Avue Technologies Corp.; Carahsoft Technology Corp., B-298380.4, June 11, 2007.
DIGEST: Proposals submitted in response to a solicitation issued for a solution to automate the Department of Homeland Security’s personnel recruitment and hiring processes that did not include an adequate explanation, as requested by the solicitation, of the proposals’ compliance with the solicitation’s minimum mandatory requirements concerning intellectual property/data rights were reasonably found unacceptable by the agency.

Head Inc., B-299523, June 8, 2007.
DIGEST: Protest that agency failed to conduct meaningful discussions with protester by not raising concerns about what was, in essence, an alternate proposal to compress the construction schedule for this effort from 38 months to 11 months, with no supporting documentation, is denied where the protester offered the compressed construction schedule in a two-sentence response to the solicitation's call for “betterments,” which were defined as components or systems that would exceed the solicitation's stated minimums, and the agency reasonably elected to view the response as inconsistent with the kind of improvements sought by the solicitation, and did not raise the matter during otherwise appropriate discussions, or consider it further in any way.