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: ACCESS Systems, Inc. 

File: B-400623.3 

Date: March 4, 2009 

Katherine S. Nucci, Esq., and Timothy Sullivan, Esq., Thompson Coburn LLP, for the 

protester. 

Christopher M. Johnson, Esq., and Brian C. Caney, Esq., Centre Law Group, LLC, for 

Avineon, Inc., the intervenor. 

Lisa L. Baker, Esq., United States Marine Corps, for the agency. 

Christina Sklarew, Esq., and Guy R. Pietrovito, Esq., Office of the General Counsel, 

GAO, participated in the preparation of the decision. 

DIGEST 

Protest is sustained in a competition for the issuance, on a best-value basis, of a task 

order to a higher-priced vendor under 8(a) Streamlined Technology Acquisition 

Resources for Services (STARS) government-wide acquisition contract, where the 

record does not show meaningful consideration of price in the agency’s selection of 

the higher-price quotation, nor identify the superior capabilities of the awardee’s 

quotation that would justify paying the price premium associated with that 

quotation. 

DECISION 

Access Systems, Inc., of Reston, Virginia, protests the issuance of a task order to 

Avineon, Inc., of Alexandria, Virginia, under request for quotations (RFQ) No. 

M67854-08-Q-4969, issued by the U.S. Marine Corps for information technology (IT) 

services for the Office of the Command Information Officer (OCIO), Marine Corps 

Systems Command. Access challenges the Marine Corps’s technical evaluation, 

source selection decision, and conduct of discussions. 

We sustain the protest. 

The RFQ provides for the issuance of a fixed-price task order under the General 

Services Administration’s 8(a) Streamlined Technology Acquisition Resources 
(STARS) government-wide acquisition contract.1

 Vendors were informed that the 

agency sought on-going technical and management support of the IT operations of 

the Marine Corps Systems Command. RFQ amend. 1, Statement of Work (SOW), 

at 1. At the time the RFQ was issued, Access had been performing these services for 

6 years. 

The RFQ stated that the task order would be issued on a “best value” basis and that 

“overall technical merit [was considered] to be of significantly greater importance 

than evaluated price.” In this regard, the RFQ provided that 

[w]hile the evaluated price to the government is a substantial area of 

consideration in the integrated assessment of offers, the overall 

technical merit is significantly greater than evaluated price. 

Therefore, the government may select other than the lowest price, 

acceptable offer if it is determined that the superior capability is 

worth the additional price. However, the government will not make 

an award at a significantly higher price to achieve only slightly

superior performance capability. 

RFQ amend. 3, at 16-17 (emphasis in original). The following three technical 

evaluation factors and subfactors were identified:2

Understanding and Approach 

--Management Approach 

--Understanding of Requirements 

--Technical Approach 

 

1

 The 8(a) STARS contract is a multiple-award, indefinite-delivery/indefinite-quantity 

contract set aside for section 8(a) small disadvantaged business concerns. Although 

the Marine Corps has stated it issued an order to Avineon in accordance with the 

Federal Supply Schedule procedures of Federal Acquisition Regulation (FAR) Part 

8.4, orders under the 8(a) STARS contract are required to be issued in accordance 

with FAR § 16.505, which governs orders under indefinite-delivery contracts. See

8(a) STARS Contract Ordering Guide, April 2007, available online at 

www.gsa.gov/8astars. 

2

 The RFQ also identified a number of “primary elements” under the technical 

evaluation subfactors. For example, under the technical approach subfactor, the 

RFQ informed vendors that the agency would evaluate the firm’s service desk 

experience and application of that experience to the requirement. RFQ amend. 3, 

at 18. 

Page 2 B-400623.3 
Personnel 

-Key Personnel 

--Non-key Personnel Staffing Plan 

Past Performance 

--Past Performance Referenced Projects 

--Past Performance Interview Feedback 

Vendors were informed that the understanding and approach factor was more 

important than the personnel factor, which was more important than the past 

performance factor. RFQ amend. 3, at 17-19. 

The RFQ also stated that the understanding/approach and personnel factors would 

be adjectivally rated, as follows: 

Rating Definition 

Exceptional Exceeds the requirements of the solicitation and 

offers a distinct benefit to the USMC - No significant 

weaknesses. 

Acceptable Meets or exceeds the requirements of the solicitation; 

value of strengths is equal to or outweighs that of 

weaknesses. 

Marginal Meets the requirements of the solicitation; value of 

weaknesses outweigh strengths. 

Unacceptable Fails to meet all requirements of the solicitation. 

Id. at 17. The RFQ further stated that relevant past performance would be evaluated 

for low, moderate, or high risk. 

With respect to price, vendors were informed that price would not be rated but 

would be evaluated for reasonableness, realism, and completeness. Id. at 17-18. 

Quotations were received from Avineon and Access. The technical quotations were 

evaluated by the agency’s source selection evaluation board (SSEB), while the price 

quotations were evaluated by the contracting officer, who was also the source 

selection authority (SSA).3

 Following the evaluation of initial quotations, 

discussions were conducted with the firms, and revised technical and price 

quotations were obtained. 

 

3

 The SSEB members individually evaluated the technical quotations, and then met as 

a group to arrive at a consensus evaluation for each quotation. See Agency Report 

(AR), Tab E14, Avineon’s Initial Technical Evaluation; and Tab E15, Access’s Initial 

Technical Evaluation. 

Page 3 B-400623.3 
In its evaluation of Access’s and Avineon’s revised technical quotations, the SSEB 

assigned the firms identical adjectival ratings of “acceptable” under the 

understanding/approach and personnel factors, reflecting the SSEB’s conclusion that 

neither firm’s quotation had exceeded the solicitation’s requirements under any of 

the evaluation factors and subfactors, and both firms’ past performance was 

assessed as low risk. The SSEB’s adjectival ratings were supported by a narrative 

discussion of the firms’ revised quotations that identified a number of strengths for 

each firm and found that neither firm’s revised quotation had any weaknesses. For 

example, among the strengths noted under Avineon’s revised quotation was that 

Avineon’s corporate capabilities included certifications of Capability Maturity Model 

Integration (CMMI)4

 level [deleted] and ISO [deleted].

5

 The SSEB also noted that 

Avineon had proposed [deleted] and provided for [deleted] for the service desk, 

and that a majority of the firm’s proposed key personnel were “very well qualified 

(e.g. education, professional expertise).” AR, Tab 21, Avineon’s Final Technical 

Evaluation, at 2, 4-5. With respect to Access’s revised quotation, the SSEB noted, 

among other things, the firm’s achievement of CMMI level [deleted] and ISO 

[deleted] certifications, its thorough understanding of the requirements (as the 

incumbent contractor), and its low transition risk. AR, Tab 22a, Access’s Final 

Technical Evaluation, at 2, 4-5. 

The firms’ price quotations were evaluated by the SSA, assisted by two contract 

specialists. Access’s total evaluated price was [deleted], and Avineon’s total 

evaluated price was $24,554,565, approximately [deleted] (or [deleted] percent) 

higher than Access’s price. 

Although it is not completely clear as to how the agency proceeded to the source 

selection decision, the record shows that, after the SSEB completed its consensus 

evaluation of the firms’ revised technical quotations, the technical evaluators were 

provided with the firms’ price quotations. Hearing Transcript (Tr.) at 32.6

 Based 

upon their final consensus technical evaluation and the firms’ total evaluated prices, 

the evaluators decided that Avineon’s higher-priced quotation reflected the best 

 

4

 The CMMI was developed by the Carnegie-Mellon Software Engineering Institute 

and is a process improvement approach that provides organizations with the 

essential elements of effective processes. See www.sei.cum.edu. 

5

 “ISO” refers to a family of standards for quality management systems, established 

by the International Organization for Standardization, a non-governmental 

organization. The word ISO is derived from the Greek word “isos,” meaning “equal.” 

See www.iso.org. 

6

 We conducted a hearing to receive testimony from the SSA and the SSEB chair to 

explain the basis of the agency’s source selection decision and its concern with 

Access’s billing rates. As is our regular practice, these issues were identified in a 

pre-hearing conference and confirmed in our written notice of hearing. 

Page 4 B-400623.3 
value to the government and that the SSEB would recommend that the task order be 

awarded to that firm.7 The SSEB chair met with the SSA to discuss the SSEB’s 

technical evaluation and recommendation to issue a task order to Avineon.8

 Tr. 

at 169. Following the meeting with the SSEB chair, the SSA decided that Avineon’s 

quotation reflected the best value to the government and had the SSEB chair draft 

that portion of the Best Value Award Decision Memorandum (BVADM) that reflected 

the SSEB’s technical evaluation. 

The SSEB chair also drafted a section of the BVADM, entitled “SSEB Discussion,” 

which compares the various strengths of the two firms’ quotations. For example, 

this section recognizes Access’s strengths as the incumbent contractor, but 

concludes that Avineon has a superior understanding and approach to the work 

(although, as noted above, each firm’s quotation received identical adjectival ratings 

under the non-price evaluation factors). See AR, Tab E10, BVADM, at 5. This 

section also identifies, for the first time in the contemporaneous record, a concern 

that Access’s labor billing rates are lower than Avineon’s in [deleted] labor 

categories, which “may lead to even less employee retention and greater turnover, 

which could negatively impact the OCIO Network Operations Support Effort.” Id. 

This concern with Access’s billing rates was not identified in the agency’s 

discussions with Access.9

The SSA drafted the final “Determination” section of the BVADM, which reflects her 

source selection decision and states in its entirety: 

Given the criticality of the OCIO Network Operations Support effort, 

it is of the utmost importance that the offeror with the most 

comprehensive solution to our requirements be selected. To that 

 

7

 There is no contemporaneous documentation explaining the SSEB’s best value 

analysis or its recommendation to issue a task order to Avineon. 

8

 Although the SSA testified that she met with the SSEB chair “one-on-one” to discuss 

the SSEB’s evaluation, see Tr. at 185-87, the SSEB chair had no recollection of this 

meeting with the SSA. See Tr. at 58-59, 213. 

9

 Access objects that this concern is based on unsubstantiated assumptions that 

could have been refuted in discussions. In this regard, Access states that its labor 

billing rates “were carefully developed with due consideration for [deleted], and 

other benefits aimed at retaining Access’s [workforce],” and that other factors, “such 

as an [deleted], enabled Access to [deleted].” Protester’s Comments at 4; 

Protester’s Supplemental Comments at 12. We do not address this matter in our 

decision, given the SSA’s hearing testimony that she did not share the SSEB chair’s 

concern with Access’s labor billing rates and that this concern was not considered in 

her source selection. 

Page 5 B-400623.3 
end, the Marine Corps stated in the RFQ that the non-price factors 

(understanding and approach, personnel and past performance) 

when combined, were significantly more important than price. After 

full and complete consideration of the respective quotations and the 

evaluation reports, I find that the significant advantages and 

strengths of the Avineon proposal are of the greatest value to the 

Marine Corps than the lower priced proposal submitted by Access. 

Based on my review of the Offerors’ submissions and the respective 

evaluation reports, I have determined that Avineon’s quotation 

represents the best value to the U.S. Marine Corps by offering the 

most comprehensive solution, which provides the greatest degree of 

support for the OCIO effort. 

Id. at 5-6 (emphasis in original). 

A task order was issued to Avineon, and, following a debriefing, Access filed this 

protest.10 The agency has stayed performance of the task order pending our decision 

in this matter. 

Access protests that the Marine Corps failed to meaningfully consider price in its 

evaluation and source selection decision. Further, Access contends that, while the 

BVADM identifies apparent advantages in Avineon’s quotation, those advantages are 

illusory, either because Access offered comparable features, or because the 

advantages cited are not reflected in, and thus are inconsistent with, the evaluation 

criteria in the RFQ, so that they do not warrant paying the associated price premium. 

As an initial matter, the agency argues that Access’s complaint that the agency did 

not adequately document its cost/technical tradeoff analysis is untimely. However, 

Access specifically argued in its initial protest that the agency failed to meaningfully 

consider price in its decision to issue a task order to Avineon. See Protest at 7-8. We 

do not view Access’s arguments regarding the adequacy of the agency’s 

documentation of its cost/technical tradeoff to be a new basis of protest that was 

required to independently satisfy our timeliness rules; rather, the adequacy of the 

agency’s documentation of its cost/technical tradeoff concerns the quality of 

evidence in the record as to whether the agency’s judgment was reasonable. See

 

10 We dismissed Access’s initial protest on the basis of an unrebutted statement by 

the agency that we believed indicated that Access had an impermissible 

organizational conflict of interest (OCI ); on that basis, we concluded that Access 

was not an interested party. We granted the protester’s request for reconsideration 

based upon the agency’s acknowledgment that it had not, in fact, determined that 

Access had an OCI, and we informed the parties that we would decide Access’s 

protest on the merits. A number of Access’s original grounds of protest have been 

withdrawn and will not be discussed in this decision. 

Page 6 B-400623.3 
Southwest Marine, Inc.; American Sys. Eng’g Corp., B-265865.3, B-265865.4, Jan. 23, 

1996, 96-1 CPD ¶ 56 at 10 (where an agency fails to document its evaluation 

judgments, it bears the risk that its judgments may not be found reasonable). In this 

regard, Access’s arguments merely provide additional support for an earlier, timelyraised protest basis. See, e.g., Oceaneering Int’l, Inc., B-287325, June 5, 2001, 2001 

CPD ¶ 95 at 6; Litton Sys., Inc., B-256709, July 21, 1994, 94-2 CPD ¶ 60 at 8-9, n.5. 

With respect to the merits of Access’s protest, the Marine Corps contends that it gave 

due consideration to the firms’ evaluated prices in determining that Avineon’s 

quotation reflected the best value to the government. As explained below, we find 

that the record does not establish that the agency meaningfully considered Access’s 

lower evaluated price in the agency’s cost/technical tradeoff analysis and sustain 

Access’s protest on this basis. 

In reviewing protests of an agency’s evaluation and source selection decision, even 

in a task order competition as here, we do not reevaluate proposals but examine the 

record to determine whether the evaluation and source selection decision are 

reasonable and consistent with the solicitation’s evaluation criteria and applicable 

procurement laws and regulations. See Triple Canopy, Inc., B--310566.4, Oct. 30, 

2008, 2008 CPD ¶ 207 at 6-7; Abt Assocs., Inc., B-237060.2, Feb. 26, 1990, 90-1 CPD 

¶ 223 at 4. Where, as here, an agency selects a higher-priced solution that has been 

rated technically superior to a lower-priced one, the award decision must be 

supported by a rational explanation demonstrating that the higher-rated one is in fact 

superior, and explaining why its technical superiority warrants the additional cost. 

e-LYNXX Corp., B-292761, Dec. 3, 2003, 2003 CPD ¶ 219 at 7. Such judgments are by 

their nature often subjective; nevertheless, the exercise of these evaluation 

judgments must be reasonable and bear a rational relationship to the announced 

criteria upon which competing offers are to be selected. Hydraudyne Sys. and Eng’g 

B.V., B-241236; B-241236.2, Jan. 30, 1991, 91-1 CPD ¶ 88 at 4. In order for us to 

review an agency’s evaluation judgment, the agency must have adequate 

documentation to support its judgment. See Southwest Marine, Inc.; American Sys. 

Eng’g Corp., supra, at 10; see also e-LYNXX Corp., supra, at 8 (it is a fundamental 

principle of government accountability, even when using simplified acquisition 

procedures, that an agency be able to produce a sufficient record to allow for a 

meaningful review where its procurement actions are challenged). 

Here, the contemporaneous evaluation record shows that the agency qualitatively 

evaluated the firms’ technical quotations, and based upon that evaluation identified 

differing technical strengths. While the firms’ technical quotations received identical 

adjectival and risk ratings, the agency appropriately looked beyond the adjectival 

ratings to consider the significance of the firms’ differing evaluated technical 

strengths. See Citywide Managing Servs. of Port Washington, Inc., B-281287.12, 

B-281287.13, Nov. 15, 2000, 2001 CPD ¶ 6 at 11 (ratings, be they numerical, color or 

adjectival, are merely guides for intelligent decision-making in the procurement 

process). 

Page 7 B-400623.3 
Although the record shows that the agency’s evaluators considered the technical 

merit of the two firms’ respective quotations, the contemporaneous record, as 

further explained by the agency in its response to the protest, did not demonstrate 

meaningful consideration of Access’s lower evaluated price. That is, the BVADM, 

which is the only contemporaneous documentation of the agency’s cost/technical 

tradeoff analysis, does not provide an explanation of why the evaluated technical 

superiority of Avineon’s quotation warrants its additional cost. Rather, to the extent 

that Access’s lower evaluated price is addressed at all in the BVADM, the firm’s price 

advantage appears to be viewed as a technical disadvantage, based upon 

assumptions regarding the effect that Access’s lower labor billing rates would have 

on the firm’s ability to retain staff.11

Because the contemporaneous record, as explained by the agency, did not provide 

us with a basis to review the reasonableness of the agency’s cost/technical tradeoff 

analysis, we conducted a hearing to receive the testimony of the SSA and SSEB 

chair. That testimony, however, shows that neither witness accorded much weight, 

if any, to Access’s [deleted] price advantage, nor could the SSA explain what 

evaluated strengths in Avineon’s quotation justified the payment of this price 

premium. 

Specifically, at the hearing, the SSA was asked how she would characterize the 

[deleted] difference in price, to which she replied “Insignificant” and “Not 

significant.” Tr. at 176. She further explained: 

Q. What weight did you give to the price? 

A. We did not weight price. 

Q. And that would be -- 

A. Because technical was significantly more important than price 

and we weren’t looking at price realism. 

Tr. at 176-77. When asked by the hearing official whether she had credited Access 

for the firm’s price advantage in making her cost/technical tradeoff judgment, the 

SSA testified: 

 

No. We discussed whether [the SSEB chairman] wanted to keep the 

same, you know, status quo. He’s been doing it a long time with 

them and he was very comfortable with it. But again, pricing, it 

 

11 As noted above, the SSA did not share the SSEB chair’s concerns with Access’s 

billing rates and whether they would affect the firm’s ability to retain staff. See Tr. 

at 175-76, 190-91. 

Page 8 B-400623.3 
wasn’t a weight, so I didn’t really - of course, we talked about 

technically - we were doing a best value, we weren’t doing a 

technically acceptable low price. 

Tr. at 198-99. 

Similarly, the SSEB chair testified, in response to the hearing official’s inquiry as to 

what extent he considered price in preparing the SSEB’s selection recommendation, 

that “I think from our standpoint, the cost was not a big determinant. It was just 

another data point in many data points that we had,” Tr. at 55, and that “I hate to say 

it, [the price differential] did not have a very large impact on our decision . . . .” Tr. 

at 56-57. When asked whether he had considered Avineon’s price premium in 

making his recommendation, the SSEB chair replied: 

The price was discussed. Contracts, from what I remember, their 

statements were you don’t have to jump to the lowest 

price/technically acceptable proposal. This is not [lowest-price, 

technically acceptable] procurement. This is a best value 

procurement. It may look like a lot of money, that [deleted] figure, 

but it’s a five-year contract. That’s a long period of time. 

Tr. at 77-78. 

In short, the testimony of the agency’s witnesses did not demonstrate meaningful 

consideration of Access’s price advantage in the selection decision. Moreover, the 

agency in its post-hearing comments repeatedly argued that Access’s [deleted] 

lower price did not reflect a price advantage. See, e.g., Agency’s Post-Hearing 

Comments at 24 (“Protester has continually asserted that its lower price represented 

a ‘pricing advantage,’ apparently simply due to the fact that it was lower.”). 

Similarly, the agency argues as follows: 

Accordingly, while agencies must consider an offeror’s price, a 

lower price is not a price advantage if the agency does not consider 

it to result in the greatest overall benefit. While [Access] could, for 

its lower price, perform its proposal, in that its proposal was 

deemed less beneficial, no price advantage existed. 

Id. Even in a competition where price is of less importance than the non-price 

factors, an agency must meaningfully consider cost or price in making its selection 

decision. See S.J. Thomas Co., Inc., B-283192, Oct. 20, 1999, 99-2 CPD ¶ 73 at 3. 

Although the cost/technical tradeoff process allows an agency to accept other than 

the lowest-priced submission in such a competition, the perceived benefit of the 

higher-priced alternative must merit the additional price. See e-LYNXX Corp., supra, 

at 7. In other words, one firm’s technical advantage must be determined to outweigh 

the other firm’s price advantage. 

Page 9 B-400623.3 
Page 10 B-400623.3 

Here, the SSA was unable to recall with any specificity the relative technical merit of 

the firms’ quotations that would justify the payment of the price premium associated 

with Avineon’s quotation. The SSA testified that she was “not a technical person,” 

and “[knew] nothing about IT,” and had not “read a proposal from beginning to end.” 

See, e.g.,Tr. at 153, 201. When asked to explain her assertion that she had made her 

“own independent determination to accept [the SSEB’s recommendation],” the SSA 

testified, that “[w]hen we talked about this, I knew--I was very clear in what [the 

SSEB chair] was saying and what he meant. And I--once he laid it out, I saw where 

he was coming from and he was able to convince me that this was the best thing for 

the Marine Corps.” Tr. at 201-02. Despite this assertion that at the time she made the 

selection decision she understood why the SSEB chair believed that Avineon’s 

quotation was superior to Access’s, the SSA was unable at the hearing to explain 

why Avineon’s evaluated strengths indicated that firm’s technical superiority. Under 

the circumstances, we have no basis to find reasonable the SSA’s cost/technical 

tradeoff analysis (even assuming that price had been meaningfully considered). 

The protest is sustained. 

We recommend that the agency perform and document a new cost/technical tradeoff 

analysis that meaningfully considers Access’s price advantage. If Avineon’s 

quotation is not found to reflect the best value to the government, the agency should 

terminate Avineon’s task order. We also recommend that Access be reimbursed its 

costs of filing and pursuing its protest, including reasonable attorneys’ fees. 4 C.F.R. 

§ 21.8(d)(1). The protester’s certified claims for such costs, detailing the time 

expended and costs incurred, must be submitted directly to the agency within 60 

days of receiving this decision. 4 C.F.R. § 21.8(f)(1). 

Gary L. Kepplinger 

General Counsel