Comptroller General

of the United States

United States Government Accountability Office

Washington, DC 20548 

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: New Breed, Inc. 

File: B-400554; B-400554.2; B-400554.3 

Date: December 5, 2008 

Ronald A. Schechter, Esq., Jeffrey L. Handwerker, Esq., Dominique L. Castro, Esq., 

and Caitlin K. Cloonan, Esq., Arnold & Porter LLP, for the protester. 

Gary L. Rigney, Esq., for Taos Industries, Inc., an intervenor. 

Johnny L. Littman, Esq., U.S. Marine Corps, for the agency. 

Mary G. Curcio, Esq., and John M. Melody, Esq., Office of the General Counsel, GAO, 

participated in the preparation of the decision. 

DIGEST 

1. Protest challenging agency’s evaluation of protester’s and awardee’s proposals is

denied where record demonstrates that evaluation was reasonable and consistent 

with stated evaluation criteria. 

2. Protest that agency failed to hold meaningful discussions with protester is denied 

where record shows that discussions either were adequate to lead protester into 

areas of its proposal with which agency was concerned, or allegations concern 

minor weaknesses that agency was not required to discuss. 

DECISION 

New Breed, Inc., of High Point, North Carolina, protests the award of a contract to

Taos Industries, Inc., of Madison, Alabama, under request for proposals (RFP) 

No. M67004-07-R-0013, issued by the U.S. Marine Corps for a consolidated storage 

program. New Breed principally complains that the Corps improperly evaluated its 

technical proposal, as well as Taos’s past performance and price, and improperly 

failed to provide New Breed with meaningful discussions. 

We deny the protest.

The RFP called for a contractor to provide a consolidated storage program under 

which it would create and implement an enterprise-wide system to manage five 

equipment families of infantry combat equipment (ICE); chemical biological, 

radiological and nuclear defense equipment (CBRNDE); special training allowance 
pool (STAP); soft walled shelters and camouflage netting; and other class II items for 

marines, sailors and designated civilians. 

The RFP provided for the award of a fixed-price contract on a “best value” 

evaluation under the following factors: performance work statement (PWS) (with 

subfactors for facilities operation and program management support); performance 

capabilities (asset visibility, integration, and start up); corporate program 

management (management plan, quality control plan/risk mitigation plan, and 

corporate experience); past performance; small business participation; and price.1

Price was to be evaluated for reasonableness, realism and balance. Initial offers 

were evaluated2

 and the results were presented to the SSAB, which established a 

competitive range of four that included the proposals of New Breed and Taos.

3

 The 

offerors whose proposals were in the competitive range participated in multiple 

rounds of written and oral discussions, provided an oral presentation to the 

technical evaluation board (TEB) and the chairman of the SSAB, and submitted final 

proposal revisions (FPR). 

Following evaluation of the FPRs, Taos’s proposal was ranked first under the 

non-price factors, with ratings of exceptional for PWS and small business

participation, and acceptable for performance capabilities, management, and past 

performance. Taos’s proposed price was $133 million. Agency Report (AR) at 7. 

New Breed’s proposal was ranked fourth under the non-price factors, with ratings of

acceptable for PWS and past performance, marginal for performance capabilities 

and management, and exceptional for small business participation. New Breed’s 

proposed price was $152 million. Id. The agency determined that Taos’s proposal 

was the best value, and made award to that firm. This protest followed.

New Breed raises numerous challenges to the evaluation of its proposal under the 

non-price factors, and the evaluation of Taos’s past performance and price. In

reviewing a protest against an agency’s proposal evaluation, our role is limited to 

ensuring that the evaluation was reasonable and consistent with the terms of the 

solicitation and applicable statutes and regulations. Phillips Med. Sys. Of N. Am., 

 1

 The first three factors were approximately equal in weight, the fourth was more 

important than the fifth, and the fourth and fifth were significantly less important

than the first three. Price was less important than the sum of the technical factors. 

2

Technical proposals were evaluated by a technical evaluation board (TEB), price 

proposals were evaluated by a price advisory team (PAT), and past performance was 

evaluated by the source selection advisory board (SSAB). 

3

 Proposals were to be assigned a rating of exceptional, acceptable, marginal, or 

unacceptable under each non-price factor, and could also receive the additional 

rating of neutral under the past performance factor. 

Page 2 B-400554 et al. 
B-293945.2, June 17, 2004, 2004 CPD ¶ 129 at 2. We have reviewed the record and 

find that New Breed’s arguments are without merit. We discuss several of those 

arguments below. 

PWS--TRANSPORTATION PLAN 

New Breed asserts that the agency unreasonably assigned its proposal a weakness 

under the transportation plan subfactor (under the PWS factor) for offering 

[DELETED] for day-to-day operations. New Breed claims that the agency ignored its 

plan to [DELETED] to transport assets, and overlooked its proposal to [DELETED]. 

Protest at 22-23. 

The evaluation in this area was reasonable. The agency reports that it did not

require offerors to propose a specific number or type of vehicles to perform the 

contract but, rather, expected offerors to propose the number required to perform

the contract based on their particular approach. Supplemental Agency Report (SAR) 

at 3. The agency found that New Breed’s proposal [DELETED] to transport gear. 

While the agency concedes that this is acceptable in some circumstance--for 

example, when the agency directs inventory movement--it does not consider this

reliance acceptable for the majority of the work to be performed--for example, 

where the contractor (not the agency) must decide to move inventory, or where the 

contractor centralizes repair and laundry services in a region and, as a result, must 

move inventory. Id. at 4. The agency found that [DELETED] vehicles would be 

insufficient because New Breed’s proposed approach was a [DELETED] for 

[DELETED], which would require [DELETED] equipment, an operation for which 

eight vehicles currently are used. Id. The agency found that New Breed’s plan 

[DELETED] would be acceptable, but was concerned that this approach could be 

problematic because there are constant unexpected operational demands that

require transportation assets to be readily available.4

 The agency’s conclusions 

appear reasonable on their face, and while New Breed disagrees with the agency’s 

judgment, it has not shown that the evaluation was unreasonable or inconsistent 

with the RFP. 

PERFORMANCE CAPABILITY--START-UP 

Under the start-up subfactor (under the performance capabilities factor) offerors

were required to provide a transition plan to ensure a seamless provision of services 

from the incumbent to the awardee. RFP at 86, 94. The RFP further provided as

follows: 

 4

New Breed asserts that Taos also offered [DELETED], but was not downgraded for 

this. The record shows, however, that Taos proposed [DELETED] vehicles. Taos

FPR. 

Page 3 B-400554 et al. 
...Based on the Government’s preliminary planning, the transition 

period is anticipated to be approximately 150 calendar days. The 

successful offeror, in collaboration with the outgoing incumbents, is 

encouraged to accelerate the timeline to the greatest extent practical.... 

RFP, Statement of Operating Objectives (SOO), at 27. 

New Breed’s initial proposal was rated unacceptable under start-up because it 

offered a transition plan longer than 150 days. During discussions, the agency 

advised New Breed by e-mail that this was a significant weakness that should be 

addressed in the firm’s FPR. AR at 19, E-mail to New Breed, Mar. 10, 2008. In its 

FPR, in response to the agency’s concern, New Breed adjusted [DELETED]. 

However, its FPR also included a timeline showing a [DELETED]. Post Negotiation 

Business Clearance Memorandum (BCM) at 14. As a result, the agency did not

change New Breed’s unacceptable rating under the start-up subfactor. 

New Breed maintains that the unacceptable rating resulted from an ambiguous

solicitation, and therefore was unwarranted. In this regard, New Breed explains 

that, while the SOO requested a transition of approximately 150 days, it also included 

a timeline showing the complete transition taking place in 180 days. New Breed 

states that it thus interpreted the SOO to require full transition of the work within

[DELETED]. New Breed asserts that its proposal met this target. 

Regardless of whether the solicitation suggested that the overall transition could be 

completed within [DELETED], during discussions the agency specifically informed 

New Breed that its proposed schedule, which was [DELETED], was a significant 

weakness that needed to be addressed. It thus is disingenuous for New Breed to

assert that it only included a proposal with a transition timeline [DELETED] because

the RFP was confusing.

5

 Since New Breed’s technical proposal [DELETED] a 

transition plan that would be completed in 150 days, there is no basis to conclude 

that the agency unreasonably evaluated the plan as unacceptable. 

 5

 In any case, New Breed’s assertion that the RFP was ambiguous is untimely, since 

both the requirement for the transition to be completed within approximately 

150 days and the timeline allegedly indicating that the transition could be completed 

within 180 days were clear from the face of the RFP, but New Breed did not raise the 

issue until after the closing time for receipt of proposals. See Singleton Enters., 

B-298576, Oct. 30, 2006, 2006 CPD ¶ 157 at 5. Moreover, we consider New Breed’s 

argument that it offered a transition plan [DELETED] as a result of an ambiguous 

solicitation somewhat suspect given that New Breed also argues in its protest that, in 

response to the March 10 e-mail, it informed the agency that it intended to

[DELETED]. This statement indicates that New Breed was fully aware that the 

transition was to be competed in 150 days, and that New Breed merely failed to 

modify its technical proposal to comply with the requirement.

Page 4 B-400554 et al. 
CORPORATE PROGRAM MANAGEMENT--MANAGEMENT PLAN 

The RFP instructed offerors to identify key positions essential to the success of the 

contract, including their qualifications and other management positions deemed 

necessary. RFP at 87. New Breed’s proposal named [DELETED]and [DELETED],

and noted that the [DELETED] for the facilities within their regions. Proposal at 1-7. 

The agency assigned New Breed’s proposal a significant weakness under the 

management plan subfactor (under the corporate program management factor) 

based on its proposal to have [DELETED]. The agency was concerned that since 

region I was in California and region III was in Okinawa, the geographic distance 

would create a significant risk that proper management oversight would not be 

provided. Similarly, the agency found management risk in the fact that the manager 

for [DELETED] MARFORRES equipment would be located in Barstow, California. 

Agency Report at 28. 

New Breed maintains that the evaluation was unreasonable because, while its 

proposed [DELETED], it also proposed to provide a [DELETED] for each geographic 

location. 

The evaluation in this area was reasonable. While New Breed’s proposal indeed

provided that each site would be staffed by a [DELETED] who would, in essence, 

[DELETED], it also provided that those [DELETED], and that the [DELETED] for the 

activities at the facilities. Proposal at 1-7, 1-12. Specifically, the proposal explained 

that the [DELETED] were [DELETED] activities of the regional staff in, among other 

things, warehousing and storage, laundry and repair, and inventory management, and 

in directing warehouses and storage sites, and coordinating transportation activities. 

Id. Given that the [DELETED] were [DELETED] under New Breed’s proposal, we 

fail to see how the presence of [DELETED] renders the agency’s concerns 

unreasonable. Rather, we think it clearly was reasonable for the agency to be 

concerned that [DELETED] to a [DELETED] manager could result in problems with 

respect to the [DELETED] availability and ability to effectively manage the facilities. 

PAST PERFORMANCE

New Breed 

The RFP required offerors to submit a list of relevant prior contracts and provided

that the agency would evaluate past performance for demonstrated success in 

meeting project objectives of similar size and complexity. RFP at 96. New Breed, 

the incumbent contractor for one class of equipment (CBRNDE) that will be 

managed under the contract to be awarded, asserts that the Corps unreasonably 

Page 5 B-400554 et al. 
rated its past performance only acceptable, rather than exceptional.6

 According to 

New Breed, the agency was pleased with its performance under its current contract, 

and since the RFP indicated that past performance in similar contexts would be most

relevant, it should have received an exceptional rating. 

This argument is without merit. The agency reports that the work required under the 

current solicitation is significantly more extensive than that under New Breed’s

incumbent contract--it covers three additional families of equipment, and requires

more contact with individual users, and a significant laundry, repair and disposal 

effort, different from the protester’s current contract. Other differences between 

New Breed’s contract and the RFP include the cost structure, the greater number of 

facilities under the RFP (34 vs. 17), and the annual cost ($24 million vs. $10 million). 

Id. The agency also notes that no contractor, including New Breed, has any direct 

management experience. AR at 22-23. The agency concludes that, contrary to New 

Breed’s position, its performance on the incumbent contract does not translate into 

past performance relevant in a meaningful way to this solicitation. We think the 

bases on which the agency distinguished the two contracts are reasonable. It 

follows that there is no basis for us to take issue with the agency’s rating New Breed 

acceptable, rather than exceptional, for past performance based on relevance. 

Taos 

New Breed asserts that assigning Taos the same acceptable rating it assigned New 

Breed was unreasonable because it fails to account for Taos’s lack of experience 

with inventory maintenance and the difference in the relative experience levels of 

the two firms with respect to direct customer service. 

 

We find the evaluation unobjectionable. In this regard, the agency did not compare 

the offerors’ past performance on different aspects of the solicitation. Rather, the 

agency evaluated each offeror’s past performance based on relevance to the 

solicitation. The agency explains that Taos was rated acceptable based on its past 

performance of contracts of a type, scale, and dollar value similar to the RFP, and 

contracts demonstrating its ability in the areas of warehouse management, shelf life 

management, and operation of IT systems, all of which are relevant to the 

solicitation. While New Breed considers its own past performance more relevant, 

due to Taos’s lesser experience with direct customer service and inventory 

maintenance, this is no more than disagreement with the agency’s judgment that the 

considerations outlined above were sufficient to warrant an acceptable rating. 

PRICE ANALYSIS

 6

 Prior to this procurement, each equipment family was managed separately by either 

the Corps or a contractor. 

Page 6 B-400554 et al. 
New Breed argues that the agency failed to perform an adequate price realism 

analysis. More specifically, New Breed complains that the agency analyzed 

uncertified cost and pricing data, which resulted in an inadequate analysis because 

the offerors did not use a uniform pricing format. 

Where a fixed-price contract--including a fixed-rate contract such as the one here--is

to be awarded, a solicitation may provide for a price realism analysis for such 

purposes as measuring an offeror’s understanding of the solicitation requirements

and assessing the risk inherent in an offeror’s proposal. Star Mountain, Inc., 

B-285883, Oct. 25, 2000, 2000 CPD ¶ 189 at 4. The Federal Acquisition Regulation 

(FAR) identifies a number of price analysis techniques that may be used to 

determine whether prices are reasonable and realistic, including analysis of pricing 

information provided by the offeror. FAR § 15.404-1(b)(2). The nature and extent of 

a realism analysis ultimately are matters within the sound exercise of the agency’s 

discretion, which we will review only to determine whether it was reasonable and 

consistent with the solicitation requirements. Id.

Here, the agency compared offerors’ total prices and analyzed Taos’s cost data, 

estimates, and overhead rates and, on this basis, found that Taos’s price was realistic 

and consistent with its technical approach. SAR at 9; Response to Questions

(Nov. 12, 2008), at 9. This approach was consistent with the above standard. 

Further, since the agency did not base its realism determination on a comparison of 

offerors’ rates, but instead analyzed each offeror’s cost and pricing information to 

ensure that it was consistent with the proposed technical approach, the fact that 

offerors did not use a uniform pricing format is of no import. In this regard, there is 

no requirement in the FAR that a price analysis performed to determine price realism

be based on certified cost or pricing data or, more generally, on a uniform pricing 

format. See FAR § 15.404-1(b)(2). In the final analysis, while New Breed disagrees 

with the agency’s approach, it has pointed to nothing that provides a basis for 

questioning the price evaluation. 

DISCUSSIONS

New Breed asserts that the agency failed to provide it with meaningful discussions 

regarding its technical proposal. In this regard, discussions, when conducted, must 

be meaningful; that is, they may not mislead offerors and must identify proposal 

deficiencies and significant weaknesses that could reasonably be addressed in a 

manner to materially enhance the offeror’s potential for receiving award. 

Lockheed Martin Corp., B-293679 et al., May 27, 2004, 2004 CPD ¶ 115 at 7. However, 

agencies satisfy this requirement where they lead offerors into the areas of their 

proposals that require amplification, Professional Perf. Dev. Group, Inc., B-279561.2 

et al., July 6, 1998, 99-2 CPD ¶ 29 at 5; agencies are not required to afford offerors all 

Page 7 B-400554 et al. 
encompassing discussions or to discuss every aspect of a proposal that receives less

than the maximum score, and are not required to advise an offeror of a minor 

weakness that is not considered significant, even where the weakness subsequently 

becomes a determinative factor in choosing between two closely ranked proposals.

MarLaw-Arco MFPD Mgmt., B-291875, Apr. 23, 2003, 2003 CPD ¶ 85 at 4. Agencies 

also need not afford offerors additional opportunities to cure a weakness that 

remains in its proposal after it was brought to the offeror’s attention during previous

discussions. Portfolio Disposition Mgmt. Group, LLC, B-293105.7, Nov. 12, 2004, 

2004 CPD ¶ 232 at 2. 

We find no basis to question the adequacy of the discussions provided to New Breed. 

For example, New Breed argues that the agency did not adequately raise its concern 

that New Breed’s proposed [DELETED] was too [DELETED]. As discussed above, 

however, the agency advised New Breed by e-mail that its [DELETED], and was a 

significant weakness that should be addressed in New Breed’s FPR. E-mail to New 

Breed, Mar. 10, 2008. New Breed also asserts that the agency did not adequately 

raise its concerns regarding the firm’s quality control and risk management plan. 

During the oral discussions, however, the agency specifically advised New Breed 

that its risk management and quality control plans were weak. AR at 25. While New 

Breed believes the agency should have been more specific in identifying proposal 

weaknesses, the agency was only required to lead New Breed into the areas of its 

proposal that it considered weak. Professional Perf. Dev. Group, Inc., supra, at 5. 

The record shows that the agency met its obligation in this regard. 

The protest is denied. 

Gary L. Kepplinger 

General Counsel 

Page 8 B-400554 et al.