United States Government Accountability Office 

Washington, DC 20548 

Comptroller General

of the United States

DOCUMENT FOR PUBLIC RELEASE 

The decision issued on the date below was subject to a 

GAO Protective Order. This redacted version has been 

approved for public release. 

Decision 

Matter of: The McConnell Group, Inc. 

File: B-405377 

Date: October 21, 2011 

Pamela J. Mazza, Esq., Isaias Alba, IV, Esq., Ryan C. Bradel, Esq., and Kathryn V. 

Flood, Esq., PilieroMazza PLLC, for the protester. 

Scott A. Ford, Esq., for the intervenor. 

Major Andrew J. Smith, Department of the Army, for the agency. 

Tania Calhoun, Esq., and Edward Goldstein, Esq., Office of the General Counsel, 

GAO, participated in the preparation of the decision. 

DIGEST 

1. Agency’s evaluation of offeror’s past performance is reasonable where the 

evaluation of relevant past performance is consistent with the evaluation criteria and 

supported by the evaluation record. 

2. Protest that the agency conducted unequal discussions is denied where the record 

shows that the agency’s discussion questions reasonably advised offerors of the 

areas of their proposals considered weaknesses, and that the offerors were treated in 

an equal manner. 

DECISION 

The McConnell Group, Inc. (TMG), of Rockville, Maryland, protests the award of a 

contract to SoBran, Inc., of Burtonsville, Maryland, under request for proposals 

(RFP) No. W81XWH-11-R-0001, issued by the Department of the Army for animal 

husbandry and associated animal support services. TMG, the incumbent contractor, 

argues that the agency improperly evaluated proposals with respect to past 

performance and conducted unequal discussions. 

We deny the protest. 

The solicitation, issued December 7, 2010, sought proposals to provide animal 

husbandry and associated animal support services, including standard laboratory 

animal veterinary technical procedures, to support the Veterinary Medicine and 
Surgery Branch, Research Support Division, for two facilities, the U.S. Army Medical 

Research Institute of Chemical Defense (USAMRICD) and the U.S. Army Public 

Health Command (USAPHC). RFP, Performance Work Statement (PWS) ¶ 1. The 

solicitation also specified optional biological science laboratory technician, 

laboratory animal medicine veterinarian, veterinarian pathologist, research scientist, 

and/or administrative support services for these institutes that might be added by 

contract modification as these services are required. Id. The solicitation 

contemplated award of a combination fixed-price and cost reimbursement, 

performance-based, service contract to the successful offeror for a 1-year base 

period and up to four 1-year option periods. RFP at 88, RFP § B. 

Potential offerors were advised that the animal care and research support services 

were to be performed by both government employees and contractor personnel; the 

solicitation estimated the respective level of effort as 70% contractor personnel/30% 

government employees at the USAMRICD facility, and 30% contractor personnel/70% 

government employees at the USAPHC facility. RFP at 3. The PWS advised offerors 

they were expected to propose personnel who were cross-trained in a variety of 

functional disciplines to provide services covering multiple functional areas 

described in the PWS. PWS ¶ 4.1 

Award was to be made to the best overall (i.e., best value) proposal that was 

determined to be the most beneficial to the government, considering four evaluation 

factors: technical approach, management approach, past performance, and price. 

RFP § M.A. The three non-price factors were of equal importance and, when 

combined, were significantly more important than price; however, the RFP advised 

that price might become the deciding factor if proposals were evaluated and 

determined to be technically equivalent. Id. 

Under both the technical approach and management approach factors, proposals 

were to be rated as excellent, good, acceptable, or unacceptable. RFP 

§§ M.A.2, B. Under the past performance factor, the solicitation stated that the Army 

would assess the following: the degree of relevancy and success in past 

performance efforts in the past 3 years of a similar scope, size, complexity, and 

subject matter in accordance with the solicitation; the performance risk associated 

with an offeror’s likelihood of success in performing the solicitation’s requirements 

and quality as indicated by that offeror’s record of current or past performance with 

the same or similar requirements; and each offeror’s general corporate background 

and recent success in managing similar or related work, as well as each offeror’s 

problems encountered in the performance of similar services and the description of 

how the problems were resolved. RFP § M.A.2.c. In addition, each offeror was 

required to have its past performance references return past performance 

questionnaires to the agency for an assessment of relevancy of performance risk. Id. 

Proposals were to be rated as low, moderate, high, or unknown risk; as relevant 

here, low risk would mean that little doubt existed that, based on the offeror’s 

performance record, the offeror could perform the proposed effort. RFP § M.B. 

Page 2 B-405377 
The Army received proposals from 5 firms by the February 9, 2011, closing date, 

including those of TMG and SoBran. The source selection evaluation board (SSEB), 

which included the source selection authority (SSA), evaluated initial proposals and 

conducted written discussions, reevaluated proposals based on discussion 

responses, and conducted additional written discussions. After it reconvened in 

June for a final reevaluation, the SSEB prepared the following consensus evaluation: 

Technical 

Approach 

Management 

Approach 

Past 

Performance 

Price 

SoBran Excellent Excellent Low Risk $9,262,129 

TMG Excellent Excellent Low Risk $9,674,390 

Offeror A Excellent Good Low Risk $8,776,061 

Offeror B Excellent Good Low Risk $10,109,902 

Offeror C Acceptable Good Moderate Risk $12,349,040 

Agency Report (AR), Tab 21, Post-Negotiation Memorandum, June 22, 2011, at 2. 

In her source selection decision document (SSDD), the SSA summarized the 

evaluation results. With respect to the technical approach factor, the SSA noted the 

experience of both TMG and SoBran in providing animal care services on the 

installation and with other military agencies. AR, Tab 22, SSDD, at 3. With respect 

to management approach, the SSA noted that both firms proposed staffing models 

that demonstrated an understanding of the expected levels of effort by government 

and contractor personnel at each facility, and that demonstrated the most 

advantageous strategies to promote successful performance by allocating 

appropriate labor mixes. Id. at 4. Finally, the SSA summarized the results of the 

SSEB’s past performance evaluation for each firm. Id. at 5. 

The SSA stated that all of the offers were determined to be technically acceptable, 

but that the offer from SoBran represented the best value solution considering all of 

the evaluation factors. Id. She stated that, although the proposal from Offeror A 

represented the lowest priced, technically acceptable offer, the proposals from 

SoBran and TMG were superior when considering the strengths and weaknesses of 

each proposal. Id. The SSA weighed their respective price premiums, and 

determined that the price premium for the TMG proposal was not justified because 

SoBran’s proposal was technically equivalent to TMG’s proposal. Id. 

TMG was notified of the award decision on July 7, and filed its initial protest after its 

debriefing. The firm argued, among other things, that the Army improperly 

evaluated proposals with respect to past performance.1

 After the agency filed its 

 

(continued...) 

1

 In its initial protest, TMG argued that SoBran performed a “bait and switch” of its 

proposed personnel and challenged the agency’s evaluation of SoBran’s price 

proposal. Because the agency substantively responded to each of these bases of 

Page 3 B-405377 
report on TMG’s initial protest, TMG filed a supplemental protest challenging the 

agency’s conduct of discussions. 

Past Performance Evaluation 

TMG first argues that the Army unreasonably rated SoBran’s proposal as low risk 

under the past performance factor because, TMG alleges, SoBran’s past performance 

record shows that it does not have experience in efforts “of a similar scope, size, 

complexity and subject matter” as required by the solicitation. 

As noted above, the RFP stated that this requirement was for animal husbandry and 

associated animal support services, including standard laboratory animal veterinary 

technical procedures. PWS ¶ 1. The RFP also specified optional laboratory 

technician and veterinary services that might be added by contract modification.2

 Id. 

TMG argues that while SoBran’s past performance reflects experience with the 

solicitation’s animal husbandry and animal services requirements, its past 

performance references do not show that it has experience performing the 

laboratory technician and veterinarian requirements in the optional portions of the 

solicitation. TMG argues that, as a result, SoBran has no relevant experience in a 

major aspect of the contract and that it was unreasonable to assign the firm a low 

risk rating. 

An agency’s evaluation of past performance, which includes its consideration of the 

relevance, scope, and significance of an offeror’s performance history, is a matter of 

discretion which we will not disturb unless the agency’s assessments are 

unreasonable, inconsistent with the solicitation criteria, or undocumented. L-3 Sys.

Co., B-404671.2, B-404671.4, Apr. 8, 2011, 2011 CPD ¶ 93 at 4; Family Entertainment 

Servs., Inc., d/b/a IMC, B-291997.4, June 10, 2004, 2004 CPD ¶ 128 at 5. A protester’s 

mere disagreement with such judgment does not provide a basis to sustain a protest. 

Birdwell Bros. Painting & Refinishing, B-285035, July 5, 2000, 2000 CPD ¶ 129 at 5. 

Here, there was no requirement that an offeror’s past performance efforts be the 

same as required under the contract, and no requirement that an offeror have past 

performance experience with respect to each PWS requirement. Instead, the 

solicitation advised that past performance efforts would be assessed for their 

“degree of relevancy and success,” for efforts of “similar scope, size, complexity and 

subject matter.” RFP § M.A.2.c.(i). In addition, the agency would make other past 

 

(...continued) 

protest, and the protester did not further address these issues in its comments on the 

agency report, we consider the protester to have abandoned these issues and will not 

further consider them. CM Mfg., Inc., B-293370, Mar. 2, 2004, 2004 CPD ¶ 69 at 3. 

2

 The RFP stated that these optional areas were not being performed by the 

incumbent contractor, TMG. RFP at 2. 

Page 4 B-405377 
performance assessments based on an offeror’s record with the “same or similar 

requirements” and “similar or related work.” Id. 

In its proposal, SoBran submitted information concerning four contracts for such 

things as animal care and research support, animal husbandry services, and animal 

care facilities maintenance and operation at various federal facilities. For each 

contract, SoBran provided detailed information concerning the scope and types of 

work provided, including the management and supervision of operational services 

provided for veterinary care, technical support, intensive care unit support, biosafety 

level support, cage wash operations, animal husbandry, research support services, 

and logistical and administrative support. SoBran also provided information 

concerning the relevance of its past work to the instant requirement, as well as major 

differences between its past contracts and the instant requirement. As relevant here, 

SoBran noted that the scope of three of its past contracts was larger than the instant 

requirement; the record shows that two of its contracts were of significantly higher 

dollar value and involved significantly more contractor personnel than the instant 

requirement. Finally, as required by the solicitation, SoBran described problems 

encountered on its contracts as well as corrective actions and resolutions. AR, 

Tab 7, SoBran Technical Proposal, at 100-110 

The SSEB rated both offerors as low risk under the past performance factor, 

identifying no weaknesses or deficiencies. Among the strengths identified with the 

SoBran proposal were its experience with various sizes and complexities of 

contracts. AR, Tab 10, SSEB Minutes, Mar. 28, 2011, at 4-5. Among the strengths 

identified with the TMG proposal were that its reviews represented multiple sized 

contracts. Id. at 16. 

In her source selection decision document, the SSA summarized the SSEB’s 

evaluation results. In summarizing the results of the technical approach evaluation, 

she noted that SoBran’s proposal described several years of experience providing 

animal care services involving a broad variety of species, a history of work on the 

installation and with other military agencies, and experience with chemical agent 

work. AR, Tab 22, SSDD at 3. For TMG’s proposal, she noted its demonstrated 

broad experience providing animal care services involving a variety of species, 

history of working on the installation and other military agencies, and experience 

providing technical research support as required by the optional services included in 

the PWS. Id. In summarizing the results of the past performance evaluation, the SSA 

noted the positive aspects identified by the SSEB for both firms. Id. at 5. 

Nonetheless, as noted above, in making her trade-off decision, the SSA determined 

that the offers were technically equivalent. 

Giving due deference to the agency’s broad discretion to determine whether 

particular contracts are relevant to the evaluation of an offeror’s past performance, 

we have no basis to question the agency’s consideration of SoBran’s past 

performance efforts of varying sizes and scopes as relevant to the work defined in 

the PWS. See Family Entertainment Servs., Inc., d/b/a IMC, supra. While TMG may 

Page 5 B-405377 
be correct in asserting that SoBran has no past performance involving the laboratory 

technician and veterinarian requirements in the optional portion of the solicitation, 

that does not render unreasonable the agency’s low risk past performance rating of 

the proposal. TMG provides no evidence that SoBran’s past performance efforts are 

so dissimilar from the optional services that the Army should have discounted their 

relevance, nor has TMG provided support for its assertion that the optional services 

were a major part of the contract, such that SoBran’s alleged lack of past 

performance in this area should have changed the evaluation results. 

The SSA acknowledged TMG’s experience with the optional work as a benefit, 

implicitly recognizing that SoBran did not have this experience. Nonetheless, the 

SSA ultimately determined that the firms’ differing strengths under the past 

performance factor and other factors rendered them technically equivalent. Given 

all of the aspects of past performance considered by the Army here, we have no 

basis to question the agency’s ratings of low risk for both firms. 

Improper Receipt of Information 

TMG next argues that SoBran improperly received and used information about the 

Army’s future staffing to reduce the number of proposed employees within its 

proposal. In support of this allegation, TMG provides an affidavit from one of its 

employees who states that, on August 11, 2011, a SoBran employee told her that, 

during proposal preparation, SoBran had information that the Army would be hiring 

additional veterinary technicians to perform work under the contract, thereby 

reducing the need for contractor personnel. This allegation, first raised in TMG’s 

August 29 comments on the agency report, is untimely. 

Under our Bid Protest Regulations, a protest based on other than solicitation 

improprieties must be filed not later than 10 calendar after the basis of protest is 

known or should have been known, whichever is earlier. 4 C.F.R. § 21.2(a)(2) 

(2011). When a protester initially files a timely protest, and later supplements it with 

independent protest grounds, the later-raised allegations must independently satisfy 

the timeliness requirements, since our Regulations do not contemplate the 

unwarranted piecemeal presentation or development of protest issues. Maybank 

Industries, LLC, B-403327, B-403327.2, Oct. 21, 2010, 2010 CPD ¶ 249 at 4. 

The record shows that, by August 11, TMG knew that the approximately $400,000 

price difference between its proposal and SoBran’s was the deciding factor in the 

award decision. By this time, TMG had also concluded, as it stated in its July 19 

initial protest, that it was unclear how SoBran could propose a price $400,000 less 

than TMG’s and still offer the same number of quality personnel at marketable labor 

rates. Initial Protest at 5. When TMG allegedly heard, on August 11, that SoBran had 

learned, during the preparation of its proposal, that the need for contractor 

personnel would be reduced, information not provided to the protester, it had all the 

information it needed to raise this allegation. While the record of discussions TMG 

received in the agency report may have provided additional support for this 

Page 6 B-405377 
allegation, this information was not necessary to raise this allegation.3

 As a result, 

TMG’s allegation, first raised more than 10 days after the protester knew or should 

have known the basis of protest, is untimely and will not be considered. 

Unequal Discussions 

Finally, TMG argues that the Army improperly engaged in unequal discussions with 

SoBran. The firm asserts that the Army impermissibly advised SoBran during 

discussions that the firm did not need all the individuals proposed in its original 

staffing plan but did not afford TMG a similar opportunity despite the “nearidentical” nature of the two firms’ proposed staffing. 

In negotiated procurements, if an agency conducts discussions, the discussions must 

be meaningful. The Communities Group, B-283147, Oct. 12, 1999, 99-2 CPD ¶ 101 

at 4. That is, agencies must lead offerors into the areas of their proposals that 

contain significant weaknesses or deficiencies, and may not mislead offerors. Metro 

Mach. Corp., B-281872, et al., Apr. 22, 1999, 99-1 CPD ¶ 101 at 6-7. While offerors 

must be given an equal opportunity to revise their proposals, and the Federal 

Acquisition Regulation (FAR) prohibits favoring one offeror over another, 

discussions need not be identical; rather, discussions must be tailored to each 

offeror’s proposal. FAR §§ 15.306(d)(1), (e)(1); WorldTravelService, B-284155.3, 

Mar. 26, 2001, 2001 CPD ¶ 68 at 5-6. The record does not support TMG’s allegation. 

The RFP required the successful contractor to furnish all personnel necessary to 

accomplish the required work at both the USAMRICD and USAPHC facilities. As 

discussed above, these services were to be performed by both government 

employees and contractor personnel, and the solicitation informed offerors of the 

respective levels of effort for both facilities – 70% contractor personnel/30% 

government employees (70/30) at the USAMRICD facility, and 30% contractor 

personnel/70% government employees (30/70) at the USAPHC facility. 

In its initial proposal, SoBran proposed to perform the services with [DELETED] 

personnel, [DELETED] of whom would be assigned to the USAPHC facility. AR, Tab 

7, SoBran Technical Proposal, at 68-74. In evaluating the proposal, the SSEB 

identified as a weakness that the proposal did not appear to reflect USAPHC staffing 

 

3

 In any event, the record of discussions does not show that the agency provided this 

information to the awardee. See AR, Tab 12, Discussions Letter to SoBran, April 5, 

2011; Tab 17, Discussions to SoBran Letter, May 12, 2011. Moreover, the intervenor 

has provided affidavits from the SoBran employee who allegedly made these 

statements, as well as from a witness, which contradict TMG’s affidavit. SoBran 

Comments on the Agency Report, Sept. 22, 2011, Exhibits A, B. The contracting 

officer (CO) also categorically denies releasing any information regarding staffing to 

SoBran. CO’s Supplemental Statement, Sept. 12, 2011, ¶ 11. 

Page 7 B-405377 
needs at the specified 30/70 workload distribution. AR, Tab 10, SSEB Minutes, Mar. 

28, 2011, at 4. In this regard, the contracting officer states that there were 

[DELETED] USAPHC government employees, so having [DELETED] contractor 

personnel would be a [DELETED] level of effort, not a 30/70 level of effort. CO’s 

Supp. Statement, Sept. 12, 2011, ¶ 8.a. The SSEB advised SoBran of this weakness 

during discussions. AR, Tab 12, SoBran Discussions Letter, April 5, 2011. In 

response to the discussions questions, SoBran stated that it had reevaluated its 

proposed staffing plan and organization chart and decided to remove [DELETED] 

from its proposed personnel for USAPHC. AR, Tab 18, SoBran Response to 

Discussions Letter, Apr. 15, 2011, at 1. The firm said it believed having [DELETED], 

whose functions it specified, would better suit the workload distribution. Id. The 

SSEB determined that SoBran’s revisions made its excellent proposal better, and 

asked for a revised price proposal. AR, Tab 15, SSEB Minutes, May 6, 2011, at 2; AR 

Tab 17 at 1. Based on its proposed staffing reduction, SoBran submitted a price that 

was lower than its initial price. 

Turning to TMG, in its initial proposal, the firm proposed to perform the services 

with [DELETED] personnel, [DELETED] of whom would be assigned to the 

USAPHC facility. AR Tab 4, TMG Technical Proposal, at 69-78. As the contracting 

officer explains, TMG’s proposal met the solicitation’s 30/70 level of effort, and the 

SSEB did not consider the firm’s proposed staffing level to be a weakness. CO’s 

Supp. Statement, Sept. 12, 2011, ¶ 8.c.; AR Tab 22, SSDD, at 4. The contracting 

officer states that since the staffing level at the USAPHC facility was appropriate and 

consistent with the needs of the facility, there was no need to raise the issue during 

discussions. CO’s Supp. Statement, Sept. 12, 2011, ¶ 8.c. 

TMG complains that the Army did not alert it that it could have reduced its staffing 

for the USARICD facility below the [DELETED] personnel it proposed, since the 

Army found that SoBran’s proposed staffing level of [DELETED] for the USARICD 

facility was acceptable. TMG alleges that while the Army helped SoBran adjust its 

staffing for the USAPHC facility, it did not help TMG adjust its staffing for the 

USARICD facility. 

The record shows, however, that the Army discussed SoBran’s staffing for the 

USAPHC facility with the firm because it considered the ratio of government to 

contractor personnel a weakness, but did not conduct discussions with either firm 

concerning their staffing levels for the USARICD facility because both ratios were 

found to be acceptable, with no weaknesses. AR Tab 22, SSDD, at 4. As the 

contracting officer explains, contractors had the opportunity to propose their most 

advantageous staffing models and labor mixes to accomplish the requirements. CO’s 

Supp. Statement, Sept. 12, 2011, ¶ 8.e. She states that there are four government 

employees assigned to the facility, so the agency thought a staffing plan proposing as 

few as ten or as many as fourteen contractor personnel would not constitute a 

significant deviation from the expected contractor workforce given the level of 

effort. Id. The contracting officer states that each offeror proposed a unique staffing 

model for the facility, and both offerors’ staffing plans represented reasonable 

Page 8 B-405377 
Page 9 B-405377 

contractor levels of effort and were not considered weaknesses. Id. On this record, 

we find no support for TMG’s allegation that the Army thought it proposed too many 

staff, or that it was required to advise the firm that it could propose fewer staff for 

the USARICD facility since it identified no weakness or deficiency with its staffing 

approach. As a result, TMG provides no basis to question the reasonableness of the 

Army’s conduct of discussions. 

The protest is denied. 

Lynn H. Gibson 

General Counsel