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: Master Lock Company, LLC 

File: B-309982.2 

Date: June 24, 2008 

William M. Weisberg, Esq., Beth L. Jacobson, Esq., and Joyce L. Tong, Esq., Sullivan 

& Worcester LLP, for the protester. 

Matthew O. Geary, Esq., Defense Logistics Agency, for the agency. 

Jonathan L. Kang, Esq., and Ralph O. White, Esq., Office of the General Counsel, 

GAO, participated in the preparation of the decision. 

DIGEST 

1. Protest is sustained where agency’s evaluation of awardee’s proposal as “neutral” 

under two evaluation factors resulted in those factors not being considered in the 

tradeoff determination, which was inconsistent with solicitation’s award criteria. 

2. Protest is denied where agency reasonably relied on awardee’s representations 

regarding compliance with the Trade Agreements Act. 

DECISION 

Master Lock Company, LLC protests the award of a contract to Evergreen Specialty 

Services under request for proposals (RFP) SPM5L5-07-R-0056, issued by the 

Defense Logistics Agency (DLA) for low security padlocks. Master Lock contends

that the agency improperly evaluated the offerors’ technical proposals and the 

awardee’s representations regarding compliance with the Trade Agreements Act 

(TAA), and that the award determination was inconsistent with the stated evaluation 

criteria. 

We sustain the protest.

BACKGROUND 

The RFP was issued on February 5, 2007, and sought proposals to provide 35 types 

of low-security padlocks. The RFP anticipated the award of one or more fixed-price, 

indefinite-quantity contracts, subject to an economic price adjustment clause, with a 

1-year base performance period and four 1-year option periods. 
The RFP stated that proposals would be evaluated on the basis of the following nonprice factors, in descending order of importance: past performance, socio-economic 

considerations, and Javits-Wagner-O’Day (JWOD) Act considerations.

1

 RFP at 64-65. 

The past performance evaluation factor had three equally-weighted subfactors: 

delivery, business relations/customer satisfaction, and quality. Id. The non-price 

factors were of equal important to price. Id. at 66. 

Under the socio-economic and JWOD considerations evaluation factors, offerors 

were instructed to describe the efforts they would take to ensure that small, small 

disadvantaged, women-owned, veteran-owned and service-disabled veteran-owned 

small business concerns and JWOD concerns “will have an equitable opportunity to 

compete for subcontracts in this acquisition.” RFP at 59. Under each of these 

factors, offerors were required to provide the following information: 

Describe any future plans your company has for developing additional 

subcontracting possibilities for [small business and JWOD concerns]. 

. . . Specify what proportion of your proposal, as a percentage of 

dollars, will be subcontracted to [small business and JWOD concerns].

Id.

With regard to both evaluation factors, the RFP stated that “[a]n offeror who 

proposes a higher percentage, complexity level, and variety of participation by” 

small business and JWOD concerns, “will receive a higher rating.” RFP at 67-68. 

The solicitation incorporated the clause at Defense Federal Acquisition Regulation 

Supplement (DFARS) § 252.225-7021(a)(12), which implements provisions of the 

Trade Agreements Act (TAA), 19 U.S.C. § 2501 et seq. The TAA clause requires 

offerors to provide only “U.S.-made, qualifying country, or designated country end 

products,” absent circumstances not relevant here. DFARS § 252.225-7021(c). 

DLA received proposals from four offerors: Master Lock, Evergreen, Pacific Lock 

Co. (PLC), and a fourth offeror. Agency Report

2

 (AR) at 3. During the initial 

 

(continued...) 

1

 The JWOD Act establishes the Committee for Purchase From People Who Are Blind 

or Severely Disabled, and authorizes it to establish and maintain a list of 

commodities and services provided by qualified nonprofit agencies for the blind or 

severely handicapped that it has determined are suitable for procurement by the 

government. 41 U.S.C. §§ 46(a), 47(a) (2000). 

2

 DLA submitted a document titled “Report of the Contracting Officer” which was

signed by the source selection authority (SSA), instead of the contracting officer 

(CO). This document comprised the initial agency’s report on the protest and is

referred to herein as the Agency Report. The agency also submitted a document 

titled “Supplemental Report of the Contracting Officer” which was signed by both 

Page 2 B-309982.2
evaluation of proposals by the technical evaluation team (TET), DLA determined 

that the fourth offeror’s proposal was technically unacceptable, and eliminated it

from award consideration. AR at 3. The agency also determined PLC’s proposal 

indicated that the offeror would not comply with the TAA requirements, and 

eliminated that offeror’s proposal from award consideration.3

 

With respect to Evergreen’s TAA certification, DLA concluded that an additional 

inquiry was required. AR at 8. Evergreen left the TAA certificate blank in its 

proposal, thereby taking no exception to the blanket statement that none of the 

products it would supply would fail to meet the requirements of the TAA. AR, Tab 6, 

Evergreen Proposal, at 79. The agency was aware, however, that in July 2007 

Evergreen declined to accept an order from DLA for locks under a different 

indefinite-delivery/indefinite-quantity (ID/IQ) contract, and did so under 

circumstances which indicated that the company was doing business with a supplier 

that had manufacturing facilities in China. AR at 8. Specifically, when the agency 

issued delivery order No. SPM5L207M2745 (order No. 2745) to Evergreen, the 

company declined to accept the order because it could not provide a timely sample 

from its supplier, [deleted], explaining that the supplier’s “factory in China is new 

and is not yet 100% operational.” AR, Tab 13, Email from Evergreen to DLA, July 12, 

2007. 

Because China is not a qualifying or designated country under the TAA, and because 

Evergreen’s proposal for the current solicitation also stated that it would supply 

locks manufactured by [deleted], DLA requested that Evergreen confirm that the 

locks supplied in response to the instant solicitation would comply with the TAA. 

AR at 8. Evergreen responded by email that “[t]he factory where the laminated locks 

 

(...continued) 

the SSA and CO. This document comprised the agency’s response to supplemental 

protest grounds filed by Master Lock and additional questions from our Office, and is

referred to herein as the Supplemental Agency Report. 

3

 PLC filed a bid protest with our Office, arguing that the agency had not applied the 

correct standards in evaluating its proposal’s compliance with the TAA. We denied 

the protest, concluding that the agency had reasonably determined that PLC’s 

proposal, which called for the assembly in the United States of parts manufactured 

in China, did not meet the TAA “substantial transformation” test. See Pacific Lock 

Co., B-309982, Oct. 25, 2007, 2007 CPD ¶ 191. 

Page 3 B-309982.2
are made is located in the city of [deleted],” and stated that [deleted] would allow 

tours of its facility to demonstrate compliance. AR, Tab 6, Email from Evergreen to 

DLA, Aug. 2, 2007. 

After receiving the additional information from Evergreen, the TET accepted as 

adequate both offerors’ representations that they would comply with the TAA. 

Specifically, the agency concluded that both proposed to supply locks manufactured 

in “designated countries,” see DFARS § 252.225-7021(a)(3)(i), with Master Lock 

proposing to manufacture its locks in Mexico, and Evergreen proposing to supply 

locks manufactured by [deleted] in [deleted]. AR, Tab 9, Pre-Negotiation Briefing 

Memorandum (PBM), at 5. 

The TET also determined that Evergreen’s initial proposal did not address the socioeconomic or JWOD considerations evaluation factors, and rated the proposal as

“poor” under these factors, the lowest rating under the agency’s source selection 

plan (SSP).4

 AR, Tab 9, PBM, at 2. The agency requested that Evergreen submit a 

revised proposal that addressed these factors. Although Evergreen submitted a 

proposal revision detailing its approach, the TET concluded that the proposal still 

merited a rating of “poor” under those evaluation factors. AR, Tab 11, Price 

Negotiation Memorandum (PNM), at 2. 

The contracting officer (CO) determined, however, that Evergreen’s proposal should 

instead be rated “neutral” under the socio-economic and JWOD evaluation factors

because, as a small business, “Evergreen has fewer opportunities to subcontract to 

meet the socio-economic and JWOD factors.” Id. at 4. In the selection decision, the 

source selection authority (SSA) concurred with the CO’s view that Evergreen 

should be rated “neutral” for these factors. AR, Tab 12, Source Selection Decision 

(SSD), at 1. The SSA noted that “Evergreen is a small business that has agreed to 

identify woman-owned and veteran-owned small businesses they work with during

contract performance.” Id. at 2. 

The final ratings for the offerors were as follows: 

 4

 For the past performance evaluation, the agency used an evaluation scheme of 

outstanding, good, no record, fair and poor. AR, Tab 8, SSP at 4. For the socioeconomic and JWOD considerations evaluations, the agency used an evaluation 

scheme of outstanding, good, fair and poor. Id. at 6-7. 

Page 4 B-309982.2
MASTER LOCK EVERGREEN 

PAST PERFORMANCE OUTSTANDING GOOD 

Delivery Good Good

Business relations/

customer satisfaction

Outstanding Outstanding

Quality Outstanding Good

SOCIO-ECONOMIC 

CONSIDERATIONS 

GOOD NEUTRAL

JWOD CONSIDERATIONS GOOD NEUTRAL 

OVERALL RATING OUTSTANDING GOOD 

AR, Tab 11, PNM, at 2; Tab 12, SSD, at 1-2. 

In the tradeoff determination, the SSA stated that the “evaluation of offerors was 

completed using price and past performance as evaluation factors, weighted 

equally.” AR, Tab 12, SSD, at 1. The SSA noted that Master Lock and Evergreen 

proposed prices that ranged in difference from 1% to 17%, with “the majority of items 

averaging an 8% or less (+/-) difference.” Id. Based on Master Lock’s higher rating 

for past performance, the SSA selected Master Lock for award of the 22 lock types 

where Master Lock’s price was either lower than Evergreen’s, or no more than 

8% higher. Id. The SSA selected Evergreen for the award of the remaining 13 lock

types, stating that Evergreen “is the lowest priced offeror, and their past 

performance is rated as overall good.” Id. 

DLA advised each offeror of the award decisions, and provided Master Lock a 

debriefing regarding the portion of the requirements it was not awarded. This 

protest followed. 

DISCUSSION 

The protester challenges the award of 13 lock types to Evergreen. The protester 

argues that the agency unreasonably determined that Evergreen’s proposal met the 

requirements of the TAA, that the agency’s evaluation of the offerors’ proposals

under the socio-economic and JWOD considerations evaluation factors was

unreasonable, and that the agency’s evaluation of Master Lock’s past performance 

was unreasonable. As discussed below, we find no merit to these arguments. The 

protester also argues that the agency failed to consider the socio-economic and 

JWOD considerations evaluation factors in the selection decision. We agree with the 

protester regarding this argument, and sustain the protest on this basis. 

Page 5 B-309982.2
TAA Compliance Evaluation 

Master Lock contends that the agency unreasonably ignored evidence that Evergreen 

would not perform the contract in compliance with the TAA. Specifically, the 

protester argues that the agency did not reasonably consider Evergreen’s inability to 

provide locks under a different contract under circumstances that suggested 

non-compliance with the TAA. We disagree. 

When a bidder or offeror represents that it will furnish end products of designated or 

qualifying countries (including domestic end products) in accordance with the TAA, 

it is obligated under the contract to comply with that representation. That is, where 

a bidder or offeror leaves the certificate blank and does not exclude any end product

from the certificate, and does not otherwise indicate that it is offering anything other 

than a TAA-compliant end product, acceptance of the offer will result in an 

obligation on the offeror’s or bidder’s part to furnish a TAA-compliant end product.

Wyse Tech., Inc., B-297454, Jan. 24, 2006, 2006 CPD ¶ 23 at 6. If prior to award an 

agency has reason to believe that a firm will not provide compliant products, the 

agency should go beyond the firm’s representation of compliance with the Act;

however, where the agency has no information prior to award that would lead to 

such a conclusion, the agency may properly rely upon an offeror’s representation 

without further investigation. Leisure-Lift, Inc., B-291878.3; B-292448.2, Sept. 25, 

2003, 2003 CPD ¶ 189 at 8. Where an agency is required to investigate further, we 

will review the evaluation and resulting determination regarding compliance with the 

requirements of the Act to ensure that they were reasonable. Pacific Lock Co., 

B-309982, Oct. 25, 2007, 2007 CPD ¶ 191 at 4. 

In its proposal, Evergreen left the TAA certificate blank, thereby indicating that it

would provide locks that complied with the TAA. AR, Tab 6, Evergreen Proposal, at 

79. As discussed above, however, DLA determined that additional inquiry regarding 

Evergreen’s representation was required, based on the company’s prior contracting 

history. AR at 11. As also explained above, DLA inquired because, in response to an 

earlier order issued by the agency, Evergreen advised DLA that its supplier, 

[deleted], could not provide a sample that met the specifications of the order 

because “[t]heir factory in China is new and is not yet 100% operational,” and

“[t]herefore, they cannot provide a sample at this time.” AR, Tab 13, Email from

Evergreen to DLA, July 12, 2007. Evergreen stated that “[a]s we cannot provide a 

sample that would meet the specifications in the solicitation we have to withdraw 

our offer.” Id. 

During DLA’s evaluation here, the agency contacted Evergreen by telephone to 

confirm the site of manufacture for the locks. AR at 11. Evergreen confirmed via 

email that its supplier was [deleted], and that the “factory where the . . . locks are 

made is located in the city of [deleted].” AR, Tab 6, Email from Evergreen to DLA, 

Aug. 2, 2007. Evergreen also stated that “[deleted] would be happy to give a full tour 

of their production facility in [deleted] to show the fabrication process from start to

Page 6 B-309982.2
finish.” Id. Based on this information, the agency concluded that there was no 

reason to question Evergreen’s representations concerning TAA compliance. 

We think the record shows that the agency considered the available information 

concerning Evergreen’s supplier, contacted Evergreen to confirm details regarding 

the TAA representation for this solicitation, and reasonably relied on Evergreen’s

confirmation that the locks would manufactured in [deleted], a TAA-designated 

country. Further, the record shows that the locks to be provided under the canceled 

order were not the same models as those to be provided under the award challenged 

here. AR at 8. On this record, we conclude that DLA reasonably addressed any 

concerns regarding Evergreen’s representation that it would comply with the 

requirements of the TAA.5

Socio-Economic and JWOD Considerations Evaluation 

Next, Master Lock contends that Evergreen’s proposal should have been rejected as

unacceptable for failing to address the socio-economic and JWOD evaluation factors

in its proposal. We disagree because the record shows that the agency reasonably 

concluded that Evergreen’s proposal merited a rating of “poor” under these factors,

but was not unacceptable. 

The evaluation of an offeror’s proposal, including past performance, is a matter 

within the agency’s discretion. IPlus, Inc., B-298020, B-298020.2, June 5, 2006, 2006 

CPD ¶ 90 at 7, 13. In reviewing a protest against an agency’s evaluation of proposals, 

our Office will examine the record to determine whether the agency’s judgment was

reasonable and consistent with the stated evaluation criteria and applicable 

procurement statutes and regulations. See Shumaker Trucking & Excavating 

Contractors, Inc., B-290732, Sept. 25, 2002, 2002 CPD ¶ 169 at 3. A protester’s mere 

disagreement with the agency’s judgment in its determination of the relative merit of 

competing proposals does not establish that the evaluation was unreasonable. 

C. Lawrence Constr. Co., Inc., B-287066, Mar. 30, 2001, 2001 CPD ¶ 70 at 4. 

As discussed above, Evergreen did not address either factor in its initial proposal, 

and the agency rated Evergreen’s proposal as “poor” under these factors. AR, Tab 9, 

PBM, at 5. The agency conducted discussions with Evergreen and requested that the 

offeror revise its proposal to address these factors. The TET evaluated Evergreen’s 

revised proposal, but concluded that it still merited a “poor” rating under the factors

 5

 Master Lock also argues that the agency should have questioned Evergreen’s 

compliance with the TAA because its proposal indicated a 15-20 day gap between the 

date that an order is sent to its supplier, [deleted], and the date the lock enters 

production. The protester contends that the delay suggests that [deleted] might be 

obtaining parts from a non-TAA compliant source. This argument is merely 

speculative, and does not provide a basis to sustain the protest.

Page 7 B-309982.2
because “the information submitted did not justify a change in [the company’s] initial 

rating.” AR, Tab 11, PNM, at 2. 

Master Lock argues that the revised proposal did not meet the RFP requirement that 

offerors identify the “portion of your proposal, as a percentage of dollars, [that] will 

be subcontracted” to small business and JWOD concerns, and should therefore have 

been rejected as technically unacceptable. RFP at 59. On this issue, Evergreen’s 

proposal stated that [deleted]% of the company’s current subcontracted work is with

small, woman-owned, or veteran-owned businesses, and that the company’s goal for 

the future is to increase this amount to [deleted]%. Supplemental Agency Report

(SAR), attach. 9, Evergreen Revised Proposal, at 1. Evergreen did not, however, 

address what percentage of work or dollar value it proposed to subcontract to small 

businesses for this contract. See id. With respect to the JWOD considerations 

evaluation factor, Evergreen stated that it has been in contact with the JWOD 

program and states that the company and its supplier [deleted] “have expressed 

interest” in partnering with JWOD concerns in the future. Id. Again, however, 

Evergreen did not address what percentage of work or dollar value it proposed to 

subcontract to JWOD concerns for this contract. See id. 

We conclude that the agency’s evaluation was reasonable. The RFP did not require 

offerors to propose a minimum level of subcontract participation for small business 

or JWOD concerns. See RFP at 59. Rather, the RFP merely required offerors to 

identify the efforts offerors would make to encourage subcontracting opportunities. 

The record here indicates that the agency considered Evergreen’s proposal to merit a 

“poor” rating under both subfactors. The SSP states that a “poor” rating indicates

that the offeror “either does not address [socio-economic or JWOD subcontracting]

plans or states that it has no plans to subcontract” with either small business or 

JWOD concerns. AR, Tab 8, SSP, at 6. The “poor” rating appears to show that the 

agency concluded that Evergreen did not make a specific commitment for 

subcontracting--a conclusion we think is consistent with Evergreen’s proposal. In

effect, we think the record shows that the agency rated Evergreen as proposing $0 

for small business and JWOD concern subcontracts. As discussed above, the RFP 

did not prohibit offerors from proposing a $0 level of subcontracting participation. 

On this record, we find no basis to sustain the protest. As discussed below, however,

we conclude that the SSA’s subsequent consideration of Evergreen’s evaluation 

under these factors in the selection decision was not reasonable. 

Past Performance Evaluation 

The protester argues that the agency unreasonably evaluated its past performance 

under the delivery subfactor as “good,” rather than applying the higher rating of

“outstanding.” We disagree. 

The agency received seven past performance references for Master Lock. AR, Tab 8, 

Master Lock Past Performance References. Four references rated Master Lock’s

Page 8 B-309982.2
delivery as “outstanding,” two as “good,” and one did not provide a rating. Id. Three 

of the references stated that they had never experienced any delivery problems with 

Master Lock, with the other four stating that while deliveries were generally on time, 

problems were always addressed to the customers’ satisfaction. Id. The agency also 

considered Master Lock’s score on the Automated Best Value System (ABVS), which 

indicated an on-time delivery rate of 93.5%.6

 AR, Tab 12, SSD, at 1. The agency 

determined that Master Lock “has provided DLA with almost seamless on-time 

delivery through a previous Long-Term contract,” and that “[c]ommercial and other 

government agencies have reported the same responsiveness to the few problems

which arose in meeting contractual commitments.” AR, Tab 8, Evergreen Past 

Performance Delivery Evaluation, at 1. On this basis, DLA rated Master Lock’s past

performance under the delivery subfactor as “good.” Id.

Master Lock argues that the survey forms all state that the company had no delays in 

delivery, and that the agency’s evaluation of the company’s performance as having 

problems with delivery was unreasonable. We agree that the survey forms all state 

“yes” in response to the question “Was/were deliveries on time?” AR, Tab 8, Master 

Lock Past Performance Evaluations. However, for four of those references, the 

surveys stated the delivery was on time, but also that delays were adequately 

addressed. Furthermore, those four references each described some degree of delay 

or error with delivery, but stated that Master Lock had always adequately addressed 

the problems. Id.

To the extent there is a contradiction between the references stating on the survey 

form that Master Lock’s deliveries were on time, but also that delays were 

adequately addressed, we think that the agency reasonably interpreted these 

responses as indicating less than perfect delivery at all times. Additionally, the 

agency’s assessment of Master Lock’s delivery record is consistent with the ABVS 

rating, which does not show 100% on-time delivery. On this record, we conclude that 

the agency’s evaluation of Master Lock’s past performance was reasonable and 

consistent with the evaluation criteria. 

Tradeoff and Selection Decision 

Master Lock argues that the selection decision was flawed for two reasons: (1) the 

selection decision relied on a mechanical comparison of offerors’ proposed prices, 

and (2) the selection decision excluded consideration of Evergreen’s evaluation 

under the socio-economic and JWOD considerations evaluation factors. We disagree 

with the first argument, but agree with the second one. 

 6

 The ABVS is an automated system which collects and analyzes vendors’ past 

performance history for a specific period and translates it into a numeric score; it is

based on considerations of delivery and quality. 

Page 9 B-309982.2
First, the protester argues that the selection decision was based solely on a 

mechanical comparison of the offerors’ proposed price, rather than a tradeoff 

between price and non-price factors, as required by the solicitation. Specifically, the 

protester contends that the selection decision was made based on an arbitrary price 

evaluation that “split the difference” between the offerors’ prices. 

Where a price/technical tradeoff is made, the selection decision must be 

documented, and the documentation must include the rationale for any tradeoffs 

made, including the benefits associated with additional costs. Federal Acquisition 

Regulation (FAR) § 15.308. It is improper for an agency to rely on a purely 

mathematical price/technical tradeoff methodology. Opti-Lite Optical, B-281693, 

Mar. 22, 1999, 99-1 CPD ¶ 61 at 4-5. 

Here, the record shows that the SSA used the average of the offerors’ prices as a 

starting point for the tradeoff determination, but also considered the non-price 

factors. The SSA noted that offerors prices ranged in difference from 1% to 17% from

each other, with the average difference being approximately 8%. AR, Tab 12, SSD, at 

1. The SSA determined that, based on Master Lock’s superior past performance, 

award would be made to Master Lock for all lock types where that offeror’s price 

was either lower, or was no more than 8% higher than Evergreen’s price. Id. The 

SSA determined that, based on Evergreen’s lower-rated past performance, award 

would be made to Evergreen for the balance of the lock types, i.e., where that 

offeror’s price represented a greater than 8% price savings as compared to Master 

Lock. Id. 

We think this evaluation was reasonable because the non-price evaluation for each 

offeror was to be based on factors that did not depend on which lock was being 

offered--i.e., past performance, socio-economic considerations, and JWOD

considerations. Consequently, price was the only difference between the offerors

regarding each of the distinct lock types offered. The SSA’s determination was for 

each lock type, in essence, that an 8% difference represented a reasonable price 

premium for Master Lock’s advantage on the non-price evaluation. In sum, we 

conclude that this tradeoff decision was not merely a mechanical comparison of 

price, but instead represented a reasonable exercise of business judgment by the 

SSA. 

Finally, Master Lock argues that the SSA’s decision to rate Evergreen’s proposal 

“neutral” under the socio-economic and JWOD evaluation factors was inconsistent 

with the solicitation. DLA contends that its selection decision did take these factors 

into consideration, and that the “neutral” ratings were consistent with the 

solicitation. We agree with the protester that the agency’s assignment of “neutral” 

evaluation ratings was unreasonable, and further conclude that the evaluation was 

inconsistent with the solicitation’s stated award scheme because it resulted in a 

selection decision that ignored the socio-economic and JWOD evaluation factors. 

Page 10 B-309982.2
The record here shows that the tradeoff decision considered only one of the 

non-price evaluation factors, past performance. For the 22 lock types awarded to

Master Lock, the SSA concluded that the protester’s “outstanding rating for past

performance demonstrated the best overall value to the government, with price and 

past performance weighted equally.” AR, Tab 12, SSD, at 1. For the 13 lock types 

awarded to Evergreen and challenged by the protester, the record also shows that 

the agency did not consider the socio-economic or JWOD considerations evaluation

factors. The SSA concluded that “[f]or the remaining 13 items . . . award is 

recommended to Evergreen,” because “Evergreen is the lowest priced offeror, and 

their past performance is rated overall as good.” Id.

Thus, the record shows, the tradeoff decision did not consider the socio-economic or 

JWOD considerations evaluation factors. The solicitation stated, however, that price 

would be considered along with three non-price factors: past performance, socioeconomic considerations, and JWOD considerations. RFP at 66. Furthermore, the 

RFP specifically advised offerors that “[a]n offeror who proposes a higher 

percentage, complexity level, and variety of participation by” small business and 

JWOD concerns, “will receive a higher rating.” RFP at 67-68. On this record, we 

conclude that the selection decision was inconsistent with the solicitation’s award 

scheme. 

DLA contends that, notwithstanding the solicitation’s identification of three nonprice factors, the agency had a reasonable basis for rating Evergreen’s proposal as 

“neutral” under these factors, and thus not factoring them into the award 

determination.7

 The agency contends that the “neutral” ratings were reasonable 

because Evergreen was itself a small business offeror, and thus “has fewer 

opportunities to subcontract to meet the socio-economic and JWOD factors.” AR, 

Tab 11, PNM, at 4; Tab 12, SSD, at 1. The agency also argues that a “neutral” rating 

for a small business was reasonable because it furthered the agency’s goal of 

promoting opportunities for small businesses. SAR at 13.8

 

 7

 In the supplemental AR, DLA states that the SSA rated Evergreen’s proposal as

“neutral” under the socio-economic evaluation factor, but did not change the “poor” 

rating for the JWOD evaluation factor. SAR at 11. We do not think the record 

supports this view. The selection decision states “Evergreen was rated as poor in

two factors--socio-economic and JWOD. . . . The contracting officer considers these 

factors to be neutral, since they are a small business themselves.” AR, Tab 12, SSD, 

at 1 (emphasis added). Thus, the selection decision was based on an evaluation of 

Evergreen’s proposal as “neutral” under both evaluation factors. 

8

 The FAR states that small business offerors without a record of relevant past

performance “may not be evaluated favorably or unfavorably on past performance.” 

FAR § 15.305(a)(2)(iv). The socio-economic and JWOD consideration evaluation

factors did not, however, address past performance; rather they addressed offerors’

(continued...) 

Page 11 B-309982.2
The clear effect of these neutral ratings, as discussed above, was that the agency 

only considered one non-price factor: past performance. Nothing in the RFP stated 

that small business offerors were exempt from evaluation under these factors, or 

that an offeror’s status as a small business could offset an otherwise negative rating 

under these factors. For the same reason, we think the agency unreasonably 

concluded that Evergreen’s status as a small business and its “poor” ratings made 

that offeror equal to Master Lock’s “good” ratings for these evaluation factors. 

Furthermore, DLA’s rationale for rating Evergreen as “neutral” under the socioeconomic considerations factor because the offeror was itself a small business has

no rational relevance to the evaluation of the offeror under the JWOD considerations 

factor. 

In sum, we conclude that DLA’s tradeoff decision for the 13 lock types awarded to 

Evergreen relied on a tradeoff that only considered past performance and price, 

based on the agency’s unreasonable determination that Evergreen’s proposal should 

be rated “neutral” under the socio-economic and JWOD considerations evaluation 

factors. We further conclude that because Master Lock had a higher rating than 

Evergreen for these factors, the protester was prejudiced by this error, and sustain 

the protest because of the flawed tradeoff decision. See McDonald Bradley, 

B-270126, Feb. 8, 1996, 96-1 CPD ¶ 54 at 3; Statistica, Inc. v. Christopher, 102 F.3d 

1577, 1581 (Fed. Cir. 1996). 

Additional Past Performance Evaluation Concern 

During the course of this protest, Master Lock also argued that the agency’s 

evaluation of Evergreen’s past performance was unreasonable. As discussed above, 

Evergreen declined to accept order No. 2745, which was issued under a different

contract. DLA acknowledges that it did not consider these events in its evaluation of 

Evergreen’s past performance. AR at 8. The agency contends, however, that it was 

not required to do so because the submission of a quote by a vendor under an ID/IQ 

contract does not result in a binding obligation.9

 Thus, the agency argues, because 

Evergreen did not accept the order, there was no contract performance for the 

agency to evaluate. 

The agency is correct that neither the submission of a quote by a vendor nor the 

issuance of an order by an agency results in a binding contractual obligation. Rather, 

 

(...continued) 

proposals to subcontract to small business and JWOD concerns during contract

performance. 

9

 “Vendor” is the common term for a contractor who has received an ID/IQ contract, 

and to whom task and delivery orders are “issued” under such a contract. 

Page 12 B-309982.2
the government’s order represents an offer that the vendor may accept either 

through performance or by a formal acceptance document. M. Braun, Inc., 

B-298935.2, May 21, 2007, 2007 CPD ¶ 96 at 3. 

We disagree, however, with DLA’s view as to the relevance of a vendor’s rejection of 

an order to a past performance evaluation. A vendor who has been awarded an 

ID/IQ contract has a contractual relationship with the agency that awarded the 

underlying contract. Although the work required under any task or delivery order 

will only become a binding obligation on the parties if the vendor accepts the order, 

the underlying ID/IQ contract may itself have obligations. For example, a contract

may require a vendor to accept orders placed by the agency within certain 

parameters. If a vendor were required to accept certain orders placed against the 

contract, but was unable to do so, this could be a matter relevant to the evaluation of 

that vendor’s past performance. 

Our Office requested that the agency address “whether under the terms of the 

contract against which orders could be placed with Evergreen, vendors were 

required to fill orders, or whether [Evergreen] was free to decline to accept the order 

based on an inability to fill the order.” GAO Request for SAR, Apr. 29, 2008, at 3. The 

agency did not address our question, but instead argued that the matter was not 

appropriate for review under the past performance evaluation factor. SAR at 6. On 

this record, we are unable to determine whether the agency’s conclusion regarding 

the relevance of order No. 2745 to Evergreen’s past performance was reasonable. 

RECOMMENDATION 

We recommend that the agency conduct a new selection decision for the 13 lock 

types awarded to Evergreen that follows the award scheme identified in the 

solicitation, consistent with this decision. As part of this new selection decision, the 

agency should reevaluate Evergreen’s past performance, consistent with this

decision. If Evergreen’s proposal is not found to offer the best value to the 

government for any of these lock types, the agency should terminate or modify

Evergreen’s contract for the convenience of the government consistent with the new 

selection decision. 

We also recommend that Master Lock be reimbursed the costs of filing and pursuing 

this protest, including reasonable attorney fees. Bid Protest Regulations, 4 C.F.R. 

§ 21.8(d)(1) (2008). Master Lock should submit its certified claim for costs, detailing 

the time expended and cost incurred, directly to the contracting agency within 

60 days after receipt of this decision. 4 C.F.R. § 21.8(f)(1). 

The protest is sustained. 

Gary L. Kepplinger 

General Counsel 

Page 13 B-309982.2