Comptroller General

United States Government Accountability Office

Washington, DC 20548 

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: Kellogg Brown & Root Services, Inc. 

File: B-400614.3 

Date: February 10, 2009 

Thomas C. Papson, Esq., David Kasanow, Esq., Jason A. Carey, Esq., and Matthew T. 

Crosby, Esq., McKenna Long & Aldridge LLP, for the protester. 

David P. Metzger, Esq., and Kara L. Daniels, Esq., Arnold & Porter, LLP, for DynCorp 

International, the intervenor. 

Bridget A. Stengel, Esq., and Vera Meza, Esq., Department of the Army, for the 

agency. 

John L. Formica, Esq., and James A. Spangenberg, Esq., Office of the General 

Counsel, GAO, participated in the preparation of the decision. 

DIGEST 

Agency reasonably determined that the protester’s proposal, submitted in response 

to a competitive solicitation for a task order for combat support services issued 

under an indefinite-delivery/indefinite-quantity contract, was unacceptable, and 

reasonably excluded the proposal from the task order competition, where the 

proposal included an assumption regarding the agency’s provision of force 

protection to contractor employees that, considered most favorably to the protester, 

rendered the proposal ambiguous with regard to its acceptance of the solicitation’s 

material provisions regarding force protection. 

DECISION 

Kellogg Brown & Root Services, Inc. (KBR) protests the rejection of its proposal as 

unacceptable under request for proposals (RFP) No. W52P1J-08-R-0130, issued by 

the Department of the Army, for the award of a task order for the Kuwait Area of 

Responsibility (AOR) under the Logistics Civil Augmentation Program (LOGCAP) IV 

contracts. 

We deny the protest. 

The Army awarded three indefinite-delivery/indefinite-quantity contracts under the 

LOGCAP IV solicitation for LOGCAP Combat Support and Combat Support Services 

augmentation on a global basis to Fluor Intercontinental, Inc., DynCorp 

International, and KBR. The LOGCAP IV solicitation advised offerors that multiple 
task orders would be issued, and that solicitations for these task orders would be 

competed among the LOGCAP IV contractors, which would be required to submit a 

proposal for every task order solicitation issued. 

On August 27, 2008, the agency issued to the three LOGCAP IV contractors this task 

order RFP for LOGCAP services for the Kuwait AOR. RFP at 1. The RFP stated that 

the agency expected “to make one task order award” on a cost-plus-award-fee basis 

to the offeror whose proposal was determined to provide the best value to the 

Government, based upon the evaluation factors, listed in descending order of 

importance, of technical/management approach, past performance, and cost/price. 

RFP at 4, 23-24. The solicitation added that “[t]his is a best value competition under 

the provisions of FAR [Federal Acquisition Regulation §] 16.505,” which pertains to 

the placement and award of task orders. RFP at 23. The RFP included a detailed 

performance work statement (PWS) as well as detailed instructions for the 

preparation of proposals. The RFP advised the contractors that the agency intended 

to award a contract under the RFP without conducting discussions, and that the 

offerors’ initial proposals should therefore contain the offerors’ best terms from a 

management, technical, past performance, and cost/price standpoint. RFP, 

amend. 5, at 15. 

The RFP PWS (at 5) addressed contractor security as follows: 

Contractor Security. The government will provide U.S. Military force 

protection and security for contractor personnel on site [in accordance 

with] Chapter 6, Field Manual (FM) 3-100.21, applicable Theater 

Anti-Terrorism/Force Protection guidelines, Defense Federal 

Acquisition Regulation Supplement (DFARS) [§] 252.225-7040(c)(1)(i), 

and section H19 of the basic contract. 

In turn, chapter 6 of Army Field Manual 3-100.21 provides detailed guidance 

regarding “force protection” to be provided to contractors.1

 Specifically, chapter 6 of 

the manual defines “force protection” in part as “actions taken to prevent or mitigate 

hostile actions against [Department of Defense] personnel, resources, facilities and 

critical information.” AR, Tab 4, Army Field Manual 3-100.21, ch. 6, at 6-1. Chapter 6 

continues by explaining that while the “character” of force protection “may change 

in different situations . . . the process remains the same: an understanding of the 

threat and the development of a system of indications and warnings that will 

facilitate a proactive, predictive response to enemy and terrorist action.” Id. 

Chapter 6 of the manual adds that “the Army’s policy has become that when 

contractors are deployed in support of Army operations/weapon systems, they will 

be provided force protection commensurate with that provided [Army civilian] 

 

1

 Army Field Manual 3-100.21 is entitled “Contractors on the Battlefield,” and 

chapter 6 of this manual is entitled “Force Protection.” 

Page 2 B-400614.3 
personnel.” Id. It further provides that decisions regarding appropriate force 

protection to be provided participating contractors are made by the combatant 

commander.2 Id. at 6-2. 

The agency received proposals from Fluor, DynCorp, and KBR. The agency found 

during its evaluation of KBR’s proposal that KBR included a “Proposal Assumptions” 

section, setting forth a list of 17 “ground-rules and assumptions [KBR used] to 

develop the cost proposal.”3 AR, Tab 13, KBR Proposal, Proposal Narrative, at 3. 

One of the “ground-rules and assumptions” concerned “force protection,” and stated 

as follows: 

The U.S. Government will provide necessary force protection and 

security for KBR personnel. This includes, but is not limited to, the 

security at the KBR work site and movement throughout the Area of 

Operations, to include between work sites, living/messing areas and 

ingress/egress to the Area of Operation. It is assumed soldiers will be 

positioned in over watch of the site and where KBR personnel 

encounter a hostile threat, it is further assumed U.S. Army personnel 

will intervene without delay. 

Id. at 4. 

After reviewing KBR’s proposal, the agency determined that “[t]he terms of KBR’s 

assumption impose specific force protection requirements on the military, the 

determination of which rests solely with the Government.” AR, Tab 9, Decision by 

Task Order Determining Official to Remove KBR from Consideration for Award 

(Oct. 29, 2008), at 2. The agency concluded that because KBR’s force protection 

assumption was inconsistent with the force protection terms set forth in the RFP, 

 

2

 As set forth above, the RFP also incorporated section H19 of the basic LOGCAP IV 

contracts, and DFARS § 252.225-7040(c)(1)(i). In this regard, section H19 states that 

“[w]hile performing duties [in accordance with] the terms and conditions of the 

contract, the Service Theater Commander will provide force protection to contractor 

employees commensurate with that given to Service/Agency . . . civilians in the 

operations area unless otherwise stated in each task order.” AR, Tab 9, Decision by 

Task Order Determining Official to Remove KBR from Consideration for Award 

(Oct. 29, 2008), at 2. Section 252.225-040(c)(1) of the DFARS, entitled “Contractor 

Personnel Authorized to Accompany U.S. Armed Forces Deployed Outside the 

United States,” requires that the combatant commander develop a security plan for 

the protection of contractor personnel, and for the contracting officer to include in 

the contract the level of protection to be provided to contractor personnel. 

3

 The RFP did not solicit such ground-rules and assumptions by the contractors 

beyond those established in the RFP. RFP at 16. 

Page 3 B-400614.3 
KBR’s proposal was “unacceptable” and “has been removed from consideration for 

award of the subject task order.” Id. This protest followed. 

KBR argues that the agency’s determination that its proposal was unacceptable was 

unreasonable. The protester first argues that its force protection “assumption is 

consistent with the terms of the RFP,” and “merely describes certain circumstances 

KBR anticipates may occur during the course of performance and states KBR’s 

understanding of the manner in which the Army would respond.” Protest at 10. The 

protester continues here by providing a lengthy explanation as to why, in its view, 

the force protection assumption set forth in its proposal “was nothing more than a 

brief encapsulation of those solicitation provisions” pertaining to force protection. 

Protester’s Comments at 14. The protester argues that “[n]owhere does the 

Assumption state or suggest that KBR would determine what constitutes ‘necessary 

force protection,’” and that “[i]t is clear to KBR . . . that a contractor cannot issue 

orders to the military regarding the deployment of military forces for force 

protection.” Protester’s Comments at 3, 17. 

The protester further argues that the Army’s determination that KBR’s force 

protection assumption rendered its proposal unacceptable was unreasonable 

because “[n]owhere in KBR’s proposal is there any explicit or implicit statement by 

KBR that its performance is contingent upon the [force protection assumption],” and 

that the “assumption can have no effect on the cost that KBR would ultimately 

charge to the Army” because of other RFP provisions that require Army approval 

under “stringently defined conditions” before the contractor can incur force 

protection costs. Protest at 11. The protester also points out that it “included a 

nearly identical assumption in its proposal for this same work under the LOGCAP III 

proposal, and the solicitation and task order for this work under the LOGCAP III 

contract contains similar force protection provisions.” Id. at 11 n.1. 

The evaluation of proposals is a matter within the discretion of the contracting 

agency, and in reviewing protests against allegedly improper evaluations, it is not our 

role to reevaluate proposals. Rather, our Office examines the record to determine 

whether the agency’s judgment was reasonable, in accord with the evaluation factors 

set forth in the solicitation, and whether the agency treated offerors equally in its 

evaluation of their respective proposals and did not disparately evaluate proposals 

with respect to the same requirements. Contingency Mgmt. Group, LLC; IAP 

Worldwide Servs., Inc., B-309752 et al., Oct. 5, 2007, 2008 CPD ¶ 83 at 10. A 

protester’s mere disagreement with the agency’s judgment does not render the 

evaluation unreasonable. Landoll Corp., B-291381 et al., Dec. 23, 2002, 2003 CPD 

¶ 40 at 8. 

The agency explains that “there is perhaps no more crucial issue in a contract for the 

provision of services on the battlefield, than the level of force protection to be 

provided by the military to the contractor.” Contracting Officer’s Statement at 7. 

The agency’s overriding concern with KBR’s force protection assumption was that 

Page 4 B-400614.3 
“the entire assumption implies that KBR will be the one determining what ‘necessary 

force protection’ it will require.” AR at 4; see Contracting Officer’s Statement at 4; 

AR, Tab 9, Decision by Task Order Determining Official to Remove KBR from 

Consideration for Award (Oct. 29, 2008), at 2. The agency explains that this is in 

direct conflict with the provisions of the applicable contract clauses, and, as 

incorporated by reference, chapter 6 of Army Field Manual 3-100.21 and the 

“Applicable Theater Anti-Terrorism/Force Protection Guidelines,” which provide that 

determinations as to whether force protection is needed and at what level rest with 

the combatant commander and are to be made in accordance with those 

publications. AR at 4-5; Contracting Officer’s Statement at 4-5; 

The agency also points to several specific clauses in KBR’s assumption that cause 

the agency concern. For example, the second sentence of KBR’s force protection 

assumption states that the provision of “necessary” force protection “includes, but is 

not limited to, the security at the KBR work site and movement throughout the Area 

of Operations, to include between work sites, living/messing areas and ingress/egress 

to the Area of Operation.” See AR, Tab 13, KBR Proposal, Proposal Narrative, at 3. 

The agency argues that the requirement that force protection be provided to KBR 

personnel “between work sites, living/messing areas and ingress/egress to the Area 

of Operation” is “an overt augmentation of the solicitation provisions.” Contracting 

Officer’s Statement at 5. The agency adds that, in its view, KBR’s force protection 

assumption, through the use of the phrase “includes, but is not limited to,” in 

describing the force protection to be provided, “establishes a minimum level of force 

protection to be provided by the military, and then goes on to subject the 

Government to indeterminate responsibility for the provision of force protection.” 

Id.

The agency also argues that the last sentence of KBR’s force protection assumption, 

which states that “[i]t is assumed soldiers will be positioned in over watch of the site 

and where KBR personnel encounter a hostile threat, it is further assumed that U.S. 

Army personnel will intervene without delay,” constitutes an “augmentation of the 

force protection provisions of the solicitation.” Contracting Officer’s Statement at 6; 

see AR, Tab 13, KBR Proposal, Proposal Narrative, at 3. In this regard, the agency 

contends that KBR’s assumption that “‘soldiers will intervene without delay’ imposes 

a requirement that impinges upon the combatant commander’s latitude in 

determining the appropriate course of action in hostile circumstances.” Id. at 6. 

Finally, with regard to KBR’s argument that its force protection assumption should 

not cause the agency concern because “KBR included a nearly identical assumption 

in its proposal for this same work under the LOGCAP III proposal, and the 

solicitation and task order for this work under the LOGCAP III contract contains 

similar force protection provisions,” see Protest at 11 n.1., the agency notes that 

“force protection has been a contentious issue” under that contract. Contracting 

Officer’s Statement at 8; see AR at 7. The agency specifically states here, and the 

protester does not argue otherwise, that KBR has requested “reimbursement for 

Page 5 B-400614.3 
costs of force protection, and when denied KBR submitted a claim of $19 [million].” 

AR at 7. 

The agency concluded that the acceptance of KBR’s proposal would subject “the 

Government to increased risk of a contractor claim, or refusal to perform in the 

event of a dispute concerning what constitutes the appropriate level of force 

protection,” and thus the agency rejected KBR’s proposal as unacceptable. 

Contracting Officer’s Statement at 8. 

Our review of the record provides no basis to find the agency’s evaluation and 

rejection of KBR’s proposal unreasonable or otherwise objectionable. As explained 

by the parties and set forth in chapter 6 of Army Field Manual 3-100.21, “[p]rotecting 

contractors and their employees on the battlefield is the commander’s 

responsibility,” and “[t]he mission, threat, and location of contractor operations 

determine the degree of force protection needed.” AR, Tab 4, Army Field Manual 

3-100.21, ch. 6, at 6-2. With regard to the agency’s primary concern, we believe that 

KBR’s force protection assumption is, considered most favorably to the protester, 

unclear as to who determines what force protection is necessary. That is, although 

KBR’s assumption does not specifically state that KBR assumes that it will be able to 

determine or be required to have input in determinations concerning force 

protection, it nevertheless provides no guidance in this regard, and is thus 

ambiguous as to whether the assumption is consistent with, or is taking exception to, 

the RFP’s force protection provisions.4

 Given that the solicitation provided that 

force protection would be provided in accordance with, among other things, 

chapter 6 of Army Field Manual 3-100.21, which provides that the combatant 

commander determines, based upon the terms of the manual, the force protection 

needed for contractor personnel, we find the agency’s rejection of KBR’s proposal 

because of the ambiguity introduced by KBR’s assumption to be unobjectionable.5 

Nu-Way, Inc., B-296435.5; B-296435.10, Sept. 28, 2005, 2005 CPD ¶ 195 at 5; Rel-Tek 

Sys. & Design, Inc., B-280463.3, Nov. 25, 1998, 99-1 CPD ¶ 2 at 4. 

 

4

 The fact that KBR introduced this ambiguity in its cost proposal does not affect the 

propriety of the agency’s consideration of the assumption as affecting the proposal’s 

acceptability. See Contingency Mgmt. Group, LLC; IAP Worldwide Servs., Inc., 

supra. 

5

 In light of our finding that the agency’s rejection of KBR’s proposal because of the 

agency’s more general concern that KBR’s assumption was unclear with regard to 

who determines the necessary level of force protection required, we need not 

resolve the agency’s more specific concerns that certain clauses in KBR’s 

assumption constituted the “overt augmentation of the solicitation provisions” 

regarding force protection. See Contracting Officer’s Statement at 5. 

Page 6 B-400614.3 
Page 7 B-400614.3 

The protester argues that the agency should have allowed KBR to clarify its proposal 

with regard to KBR’s force protection assumption. Where a solicitation notifies 

offerors that contract award may be made without discussions, an agency may 

engage in clarifications that provide offerors with the opportunity to clarify certain 

aspects of proposals or to resolve minor clerical errors. Discussions, on the other 

hand, occur when an agency indicates to an offeror significant weaknesses, 

deficiencies, and other aspects of its proposal that could be altered or explained to 

enhance materially the proposals potential for award. When an agency conducts 

discussions with one offeror, it must conduct discussions with all offerors in the 

competitive range. The “acid test” for determining whether discussions have been 

held is whether it can be said that an offeror was provided the opportunity to revise 

or modify its proposal. When an offeror is given the opportunity to remove an 

ambiguity from its proposal, especially where the information provided by the 

offeror is essential for determining the proposal’s acceptability, such an exchange 

constitutes discussions. Nu-Way, Inc. supra, at 6-7.6

 

Here, had the agency communicated with KBR to resolve, considered most favorably 

to the protester, the ambiguity created by KBR’s force protection assumption, such 

an exchange would have constituted discussions. As there is generally no obligation 

that a contracting agency conduct discussions where, as here, the RFP specifically 

instructs offerors of the agency’s intent to award a contract on the basis of initial 

proposals, and given that the protester has not argued and we see nothing in the 

record to suggest that the agency’s decision not to hold discussions with offerors 

was improper, we find no basis to object to agency’s determination here. Id. at 7. 

The protest is denied. 

Gary L. Kepplinger 

General Counsel 

 

6

 For this task order competition, the agency indicated in the solicitation that 

exchanges would be in accordance with FAR part 15, RFP at 15, and the agency 

relied upon decisions interpreting FAR part 15 in defending the protest. Thus, in 

analyzing the issues relating to the conduct of exchanges here, we have looked to 

FAR part 15 and the cases interpreting that part.