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

Government Accountability Office (by date)

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.

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.

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.

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.

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.

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.

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.

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.

Doug Boyd Enterprises, LLC, B-298237.2, August 6, 2007.
DIGEST: Protest challenging the issuance of a task order under a multiple-award indefinite-delivery, indefinite-quantity contract is dismissed as the award of such task orders are not subject to GAO's bid protest jurisdiction, and the order here cannot be termed a “downselection.”

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.

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.