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: Triple Canopy, Inc. 

File: B-310566.4 

Date: October 30, 2008 

Kelley P. Doran, Esq., G. Matthew Koehl, Esq., Sean P. Bamford, Esq., Victor G. 

Vogel, Esq., and Michael F. Scanlon, Esq., K&L Gates LLP, for the protester. 

Timothy B. Mills, Esq., Maggs & McDermott LLC, for Sabre International Security, 

an intervenor. 

Maj. William J. Nelson, Department of the Army, for the agency. 

Glenn G. Wolcott, Esq., and Ralph O. White, Esq., Office of the General Counsel, 

GAO, participated in the preparation of the decision. 

DIGEST 

1. Pursuant to the National Defense Authorization Act of 2008, which authorizes 

protests of task orders valued in excess of $10 million, this Office’s consideration of 

such protests will include an assessment of whether a procuring agency’s source 

selection decision was reasonably consistent with the terms of the underlying 

solicitation and applicable procurement laws and regulations. 

2. Where, prior to the submission of proposals, the agency expressly advised 

offerors that it would not require contractors to obtain facilities security clearances 

to perform task order requirements, protest that awardee was ineligible for task

order award on the basis that it does not hold a facilities clearance is essentially an 

untimely challenge to the terms of the solicitation. 

3. Protest that agency failed to reasonably evaluate the past performance of 

protester and awardee is denied where agency’s past performance evaluation record 

is consistent with solicitation’s definition of relevant past performance, contains 

adequate contemporaneous documentation supporting the agency’s assessments, 

and the opinions of protester’s personnel regarding the awardee’s prior performance 

provide no credible basis to question the reasonableness of the agency’s 

assessments. 

 
DECISION 

Triple Canopy, Inc. of Herndon, Virginia, protests the award of a task order by the 

Department of the Army, Joint Contracting Command -- Iraq/Afghanistan, to Sabre 

International Security of Baghdad, Iraq, for security services at forward operating 

base (FOB)1 Q-West in Iraq.2 The task order was issued pursuant to a multiple award 

indefinite-delivery/indefinite-quantity (ID/IQ) contract known as the Theater-Wide 

Internal Security Services (TWISS) contract. Triple Canopy asserts that Sabre is 

ineligible for the task order award because it does not hold a U.S. facilities security 

clearance, and that the agency erred in evaluating Sabre’s and Triple Canopy’s past 

performance. 3

 

We dismiss the protest in part and deny it in part. 

BACKGROUND 

In April 2007, the agency issued a solicitation for the TWISS ID/IQ contract, which is 

the underlying contract for the task order protested here; the TWISS solicitation

sought proposals to provide security services at U.S. military installations 

throughout Iraq.4

 The TWISS solicitation contemplated multiple awards of ID/IQ 

contracts under which ID/IQ awardees would subsequently compete for specific task 

orders. 

 1

 The protest record indicates that the terms “forward operating base” and 

“contingency operating base” were used interchangeably by the agency; our decision 

uses the term “forward operating base” or “FOB” throughout. 

2

 Q-West is the name commonly used to refer to Qayyarah Airfield West, located in 

northern Iraq approximately 30 miles south of Mosul. 

3

 Based on information provided by the agency in response to the initial protest, 

Triple Canopy filed a supplemental protest on August 28, 2008 (docketed as 

B-310566.7), asserting that Sabre’s proposal failed to comply with certain solicitation 

requirements regarding proposed manning levels and that this had an impact on

Sabre’s proposed price. We are currently developing the record in this matter and 

have advised counsel for the parties that we intend to address those issues in a 

separate decision. 

4

 The scope of services sought was described as “all labor, weapons, equipment, and 

other essential requirements to supplement and augment security operations at 

various sites throughout the Iraqi theater.” TWISS Performance Work Statement 

(PWS), May 8, 2007, ¶ 1. 

Page 2 B-310566.4 
Prior to submission of final proposals under the TWISS solicitation, the agency 

published responses to various questions posed by offerors. Among other things, in 

May 2007, the agency published the following question and response: 

QUESTION/COMMENT: Does the offeror need a facilities 

clearance? If so, will the customer consider sponsoring an offeror for a 

Limited Facilities Clearance? Does UK [United Kingdom] Secret 

suffice for the “cleared” positions? Does the offeror require a facilities 

clearance as defined in NISPOM [National Industrial Security Program 

Operating Manual]? Does a UK Secret or NATO [North Atlantic Treaty 

Organization] secret clearance suffice for coalition secret? 

 DISCUSSION: None.

ANSWER: There is no requirement for a facility requirement for this 

contract as there is no requirement for contractors to store or process 

classified information. A UK Secret clearance would be considered as 

meeting the coalition secret requirements. Any access to classified 

information would be in a government facility at an FOB. 

Agency Motion to Dismiss, Aug. 18, 2008, encl. 4, at 8-9. 

In short, prior to submission of final proposals for the TWISS ID/IQ contract, 

the agency was specifically asked whether a facilities clearance would be 

required for contract performance. The agency clearly responded that it was 

not, explaining that contractor personnel would have access to classified 

information only at a government facility and, thus, the contractor would not 

be responsible for storing or processing classified information at its own 

facility. Triple Canopy did not protest the terms of the solicitation. 

In September 2007, TWISS ID/IQ contracts were awarded to five offerors, 

including Triple Canopy and Sabre. By letter dated September 27, 2007, Triple 

Canopy was notified that it had been awarded a TWISS contract and was also 

notified as to the identity of the other four awardees.5

 

On July 3, 2008, the agency issued a task order request (TOR) to provide security 

services at FOB Q-West. The TOR identified certain minimum requirements that 

proposals were required to meet, and stated that, following a determination of 

 5

 The other four awardees were Aegis Defence Services, Ltd. of London, England; 

EOD Technology, Inc. of Lenoir City, Tennessee; SOC-SMG, Inc. of Minden, Nevada; 

and Sabre International Security of Baghdad, Iraq. Letter from Army to Triple 

Canopy (Sept. 27, 2007). 

Page 3 B-310566.4 
minimum acceptability, the agency would perform a “best value tradeoff” on the 

basis of two equally weighted factors: price and past performance.6 TOR at 12. 

With regard to price, the TOR: (1) contained a manning table that listed types of 

posts, various labor categories, and required manning levels; (2) referred offerors to 

the labor categories/CLINs (contract line item numbers) that were contained in their 

TWISS contracts; and (3) directed offerors to “furnish completed pricing for all 

CLINs based on attached CLIN structure.” Id. at 13. The TOR also stated that 

“[p]rice will be determined by adding all CLINs and subCLINs in the Pricing 

Schedule.” Id. With regard to past performance, the TOR stated: “Only Past 

Performance associated with previously awarded TWISS task orders will be 

considered relevant.” Id. at 12. 

Triple Canopy and Sabre each submitted a proposal prior to the applicable July 8 

deadline; thereafter, their proposals were evaluated.7

 With regard to past 

performance, the contracting officer concluded that Triple Canopy and Sabre were 

essentially equal;8

 accordingly, price became the determinative factor. Agency

Report, Tab 7, Source Selection Decision (SSD) at 4. Sabre’s evaluated price was 

$10,140,863; Triple Canopy’s evaluated price was [deleted]. SSD, attach. 1, at 5. 

Thus, a task order to provide security services at FOB Q-West was awarded to Sabre. 

This protest followed. 

DISCUSSION 

Triple Canopy protests that Sabre was ineligible for award because it does not hold a 

facilities security clearance, which Triple Canopy asserts is a requirement for 

contract performance, and that the agency failed to reasonably evaluate Sabre and 

Triple Canopy with regard to past performance. As discussed below, we dismiss the 

protest with regard to the alleged requirement for a facilities security clearance and 

we deny the protest with regard to the agency’s past performance evaluations. 

 6

 The Q-West TOR did not state that, in order to perform the particular requirements 

of this task order, a contractor was required to obtain a facilities clearance, and 

Triple Canopy did not protest the terms of the Q-West TOR. 

7

 A third offeror’s proposal was also submitted and evaluated. That third proposal, 

and its evaluation, is not relevant to resolution of this protest; accordingly it is not 

further discussed. 

8

 The contracting officer describes both Sabre’s and Triple Canopy’s past 

performance as “excellent.” Contracting Officer’s Statement, Aug. 28, 2008, at 4. 

Page 4 B-310566.4 
Scope of Review 

As a preliminary matter, the agency asserts that this Office is not authorized to 

consider the issues raised in Triple Canopy’s protest due to the protest limitations 

previously imposed by the Federal Acquisition Streamlining Act of 1994 (FASA), 

10 U.S.C. § 2304(c)(2000).9

 As discussed below, this Office’s consideration of the 

various issues raised by Triple Canopy is authorized by section 843 of the National 

Defense Authorization Act for Fiscal Year 2008 (NDAA), Pub. L. 110-181, 122 Stat. 3, 

236-39 (2008), which modified the prior FASA limitations regarding permissible 

protests. Specifically, the NDAA provides that, in addition to previously permitted 

task order protests, a protest is authorized with regard to “an order valued in excess 

of $10,000,000.” 122 Stat. 237. 

The agency acknowledges that the NDAA not only modifies FASA’s prior limitations 

on protests, but further, in order to meet the “fair opportunity to be considered” 

requirements, the NDAA requires that, for orders in excess of $5,000,000, procuring 

agencies must provide ID/IQ contract holders with specific information regarding the 

bases for pending task order competitions.10 The agency further acknowledges that 

the NDAA authorizes protests challenging an agency’s failure to comply with these 

“fair opportunity to be considered” requirements. Agency Legal Memorandum, Sept. 

2, 2008, at 12. 

Nonetheless, the agency maintains that, while task order contractors are “entitled to 

receive the information [regarding the bases for competitions],” and may protest the 

agency’s failure to provide such information, contractors are “not entitle[d] . . . to 

challenge the merits of the award determination.”11 Id. at 14. That is, the agency 

 9

 More specifically, although FASA provided that, generally, when placing task orders 

pursuant to multiple award ID/IQ contracts, all ID/IQ contract holders “shall be 

provided a fair opportunity to be considered,” FASA also limited protests of task 

order awards to assertions that the order increased the scope, period, or maximum 

value of the contract under which the order was issued. 10 U.S.C. § 2304c(b),(d) 

(2000). 

10 For example, the NDAA requires that an agency provide potential task order 

competitors with: a clear statement of the agency’s requirements; disclosure of the 

significant evaluation factors and subfactors, and their relative importance; and 

where, as here, award is to be made on a “best value” basis, a written statement 

documenting the basis for the task order award. 122 Stat. 237. 

11 More specifically, the agency asserts that “IDIQ holders essentially have a right to 

file a ‘pre-award’ protest to challenge the sufficiency of the task order solicitation, 

but they do not have a right to a ‘post-award’ protest to challenge the rationale of the 

award decision itself,” id. at 12, and similarly that “[o]fferors are only entitled to 

receive sufficient information to prepare their best proposal in response to the 

(continued...) 

Page 5 B-310566.4 
asserts that while the NDAA’s provisions permit a protester to challenge an agency’s 

failure to inform offerors regarding the ground rules under which a task order 

competition will be conducted--it does not authorize a protest that challenges the 

agency’s failure to actually follow those rules. 

We reject the agency’s arguments. Initially, as noted above, the NDAA authorizes “a 

protest of an order valued in excess of $10,000,000.” 122 Stat. 237. The Competition 

in Contracting Act of 1984 (CICA), as modified by FASA, specifically defines the term 

“protest,” stating: 

 The term “protest” means a written objection by an interested party to any of 

 the following: 

(A) A solicitation or other request by a Federal agency for offers for a 

 contract for the procurement of property or services. 

(B) The cancellation of such a solicitation or other request. 

(C) An award or proposed award of such a contract. 

(D) A termination or cancellation of an award of such a contract, if the 

 written objection contains an allegation that the termination or 

 cancellation is based in whole or in part on improprieties concerning the 

 award of the contract. 

31 U.S.C. § 3551(1)(2000). 

In the context of CICA and FASA, along with this Office’s well-established practices 

and procedures employed to implement the protest jurisdiction conferred by those 

statutes, we view the NDAA’s authorization to consider “a protest of an order valued 

in excess of $10,000,000” as providing the same substantive protest jurisdiction

conferred by those statutes. In this regard, we find no basis to conclude that, in 

enacting the NDAA and authorizing certain task order protests, Congress intended to 

establish a system that requires agencies to advise offerors of the bases for task

order competitions, and enforces that requirement through authorization of bid

protests--but provides no similar enforcement authority to ensure that agencies 

actually act in accordance with the guidance they are required to provide to offerors. 

Rather, consistent with this Office’s past practice, and CICA’s provisions that define 

a protest as an “objection . . . to . . . an award or proposed award,” we view the 

NDAA’s authorization to consider protests of task orders in excess of $10 million as 

extending to protests asserting that an agency’s award decision failed to reasonably 

 

(...continued) 

solicitation, and to have the award determination memorialized in writing. Those 

elements are present here, and Protester is entitled to nothing further.” Id. at 15. 

Page 6 B-310566.4 
reflect the ground rules established for the task order competition.12 Accordingly, 

our review of Triple Canopy’s protest includes consideration of whether the agency’s 

source selection decision was reasonably consistent with the terms of the underlying 

solicitation and applicable procurement laws and regulations. 

Facilities Clearance 

As noted above, Triple Canopy first challenges the task order award to Sabre on the 

basis that Sabre does not hold a facilities security clearance, asserting that a 

facilities clearance is a requirement for performance of this task order. 

 

As discussed above, prior to competing for the TWISS ID/IQ contract, the agency 

was specifically asked whether a facilities clearance was required for performance of 

this contract. The agency unambiguously advised offerors that it was not, explaining 

that, in performing subsequent task order requirements, contractor personnel would 

have access to classified information only at a government facility and, thus, the 

contractor would not be responsible for storing or processing classified information 

at its own facility. Triple Canopy did not protest the terms of the TWISS solicitation. 

Further, as noted above, the Q-West TOR did not state that, to perform the particular 

requirements of the Q-West task order, a contractor was required to obtain a 

facilities clearance, and Triple Canopy did not protest the terms of the Q-West TOR 

prior to submitting its proposal. 

Our Bid Protest Regulations require that protests challenging alleged defects or 

improprieties that are apparent from the face of the solicitation must be filed prior to 

the time established for submission of proposals. 4 C.F.R. 21.2(a)(1) (2008). Here, 

there is no credible argument that the agency’s position regarding facilities 

clearances was ambiguous. As discussed above, the agency was expressly asked 

whether a facilities clearance was required, and the agency specifically responded 

that it was not. Accordingly, Triple Canopy’s assertion that Sabre was ineligible for 

award of this task order because it does not hold a facilities clearance is, in essence, 

an untimely challenge to the terms of the solicitation and will not be considered; this 

portion of Triple Canopy’s protest is dismissed. 

 12 The agency expresses concern that our Office’s consideration of the bases for 

agencies’ source selection decisions in task order procurements will “effectively 

graft FAR [Federal Acquisition Regulation] Part 15 [requirements]” onto the task 

order process. Agency Legal Memorandum, Sept. 2, 2008, at 13. This Office 

recognizes that the ground rules established for various task order competitions may 

properly differ from the ground rules established under other procurements, 

including, for example, procurements conducted pursuant to FAR Part 15. 

Page 7 B-310566.4 
Past Performance 

Triple Canopy next protests that the agency failed to reasonably evaluate Sabre’s and 

Triple Canopy’s respective past performance. More specifically, Triple Canopy’s 

protest states, “on information and belief, [the agency] either ignored or did not 

properly weight Sabre’s poor record of performance on prior TWISS task orders, 

thus improperly rating Sabre’s past performance.” Protest at 13-14. The protest 

elaborates that, “[f]or example, on information and belief, Sabre has failed to meet 

mobilization timelines, has a poor record of customer satisfaction, and has had 

personnel shortfalls.” Id. 

As a general matter, the evaluation of an offeror’s past performance is within the 

discretion of the contracting agency, and we will not substitute our judgment for 

reasonably based past performance ratings. In determining whether a particular 

evaluation conclusion is reasonable, we examine the record to determine whether 

the judgment was reasonable, adequately documented, and in accord with the 

solicitation’s stated evaluation criteria. See, e.g., Abt Assocs., Inc., B-237060.2, 

Feb. 6, 1990, 90-1 CPD ¶ 223 at 4. 

Here, consistent with the TOR provision that, “[o]nly Past Performance associated 

with previously awarded TWISS task orders will be considered relevant,” TOR at 12, 

the record indicates that the agency considered only Sabre’s and Triple Canopy’s 

previous performance of TWISS task orders in performing its past performance 

evaluations. More specifically, the contemporaneous record shows that the agency 

considered Triple Canopy’s performance under three prior TWISS task orders: “FOB 

Delta,” “MNC-I C2,” and “FOB Endeavor.” SSD at 2-3. Similarly, the agency 

considered Sabre’s performance under five prior TWISS task orders: “FOB 

Hammer,” “FOB Husaniyhs,” “Camp Paliwoda,” “IZ working dogs,” and “FOB Kalsu.” 

Id. The agency record indicates that the contracting officer discussed each offeror’s 

prior performance of the task orders listed above with the applicable contracting 

officer’s representative, and the contemporaneous evaluation documentation lists 

specific information regarding each task order, summarizing the offerors’ past 

performance as follows: 

Because the TWISS program is relatively new the current task orders 

have only been active for 2-4 months on average. As such there is little 

past performance information available. To date however, all the 

contractors are performing services as required on their respective 

contracts. None of the three TWISS Contractors evaluated have any 

negative reports to date. All three contractors mobilized as required by 

the task order and are performing the services as required under the 

contract. There are no known performance deficiencies for any of the 

contractors. 

SSD at 4. 

Page 8 B-310566.4 
The SSD referenced additional past performance evaluation documentation showing 

that Sabre and Triple Canopy had each been criticized for errors in completing 

certain required forms, but specifically noted with regard to each contractor that the 

agency was “seeing good improvement.” SSD, attach. 2, at 7, 8. The additional 

evaluation document also noted that Sabre has “[m]issed quarterly census reporting 

requirement.” Id. at 7. However, the contracting officer states: “In the overall 

evaluation of past performance, this was considered extremely minor and was not 

considered a significant element in [Sabre’s] principal performance of security 

services.” Contracting Officer’s Statement, Aug. 28, 2008, at 3. 

Further, the agency’s past performance documentation noted: “[Sabre] is eager to 

address issues that arise. No significant quality performance faults or failures noted 

in COR assessments.” SSD, attach. 2, at 7. Similarly, the documentation noted: 

“[Triple Canopy] cultivates a professional relationship with customer. No significant 

quality performance faults or failures noted in COR assessments.” Id. at 8. Finally, 

the contracting officer summarized the evaluation of Sabre’s and Triple Canopy’s 

past performance stating: “Overall, both companies had excellent ratings with 

respect to their past performance of TWISS task orders, and I evaluated Sabre and 

Triple Canopy as effectively having equal past performance.” Contracting Officer’s 

Statement, Aug. 28, 2008, at 4. 

Triple Canopy’s protest and subsequent submissions essentially offers its own

evaluation of Sabre’s and its own past performance, concluding that its own past 

performance should have been considered superior to Sabre’s. In that context, 

Triple Canopy submitted a declaration from its vice president of protective services 

containing various allegations regarding Sabre’s prior performance.13

 

Consistent with the principle, stated above, that the relative merits of offerors’ past 

performance is properly within the discretion of the contracting agency, and that our 

Office will not substitute our judgment for that of the agency, it is similarly 

well-settled that a protester’s mere disagreement with the agency’s judgment is 

insufficient to establish that an evaluation was improper. See, e.g., Clean Harbors 

Envtl. Servs., Inc., B-296176.2, Dec. 9, 2005, 2005 CPD ¶ 222 at 3. Further, while an 

agency is obligated to consider reasonably available, relevant past performance 

 13 In response, Sabre submitted its own declaration from its TWISS program manager 

addressing each of Triple Canopy’s criticisms and stating that “Each such 

allegation is categorically false and is unsupported by any evidence.” 

Declaration of Sabre Program Manager, Sept. 22, 2008, at 1 (bold in original). 

Thereafter, Triple Canopy submitted additional declarations from Triple Canopy 

employees; these declarations consist, in large part, of allegations and criticisms of 

Sabre, allegedly made by third parties. Throughout the protest, Sabre has 

maintained that Triple Canopy’s allegations and criticisms are without basis. 

Page 9 B-310566.4 
information, a procuring agency is not required to identify each and every piece of 

past performance information that may potentially exist. See, e.g., Pemco Aeroplex, 

Inc., B-310372, Dec. 27, 2007, 2008 CPD ¶ 2 at 7-8. 

Here, we have reviewed the agency’s evaluation record and conclude that the 

agency’s consideration of Triple Canopy’s performance regarding three prior TWISS 

task orders, and Sabre’s performance regarding five prior TWISS task orders, was 

adequately documented, consistent with the TOR’s definition of relevant past 

performance, and provided a reasonable basis for the agency’s conclusion that the 

offerors’ past performance was essentially equal. Further, the declarations of Triple 

Canopy’s employees containing various criticisms and allegations regarding the prior 

performance of Sabre, their competitor, fall woefully short of establishing a basis for 

this Office to sustain the protest. 

Among other things, Triple Canopy’s declarations consist primarily of what the 

declarents themselves acknowledge is second- and third-hand hearsay from 

unidentified sources. (For example Triple Canopy’s vice president asserts that other 

unnamed Triple Canopy personnel “received information” from unidentified former 

Sabre employees and that “former [unidentified] Sabre third country national 

employees” told similarly unidentified Triple Canopy personnel about various 

alleged deficiencies in Sabre’s performance regarding generally unidentified 

contracts. Protester’s Comments, Sept. 12, 2008, attach. D.) Many of Triple 

Canopy’s criticisms are vague and reflect little more than the declarents’ judgments. 

(For example, one of the declarents identifies an Army representative with whom the 

declarent allegedly “had conversations” during which the representative allegedly 

“expressed concerns” about Sabre’s performance; with this foundation, the declarent 

asserts “it is my belief” that the Army representative “may be aware” of what the 

declarent characterizes as “poor Sabre performance.” Protester’s Reply, Oct. 1, 2008, 

attach. 3.) Finally, a substantial portion of Triple Canopy’s declarations appear to 

relate to information that the TOR expressly precluded from consideration when it 

established that only past performance of prior TWISS task orders would be 

considered in performing the past performance evaluation. 

Even if this Office viewed Triple Canopy’s vague and unsupported allegations as 

constituting objective, credible evidence regarding Sabre’s prior performance on 

relevant contracts--which we do not--Triple Canopy has not shown that any of the 

purported information was reasonably available to the contracting officer when he 

performed his past performance evaluation. On the record here, there is no merit in 

Triple Canopy’s protest challenging the agency’s past performance evaluation, and 

Page 10 B-310566.4
we find no basis to question the agency’s determination that the past performance of 

Triple Canopy and Sabre were reasonably considered to be essentially equal. 

The protest is denied.14

 

Gary L. Kepplinger 

General Counsel 

 14 Triple Canopy also asserts that the agency failed to perform a best value tradeoff. 

As discussed above, the agency reasonably concluded that the offerors’ past 

performance was essentially equal, and the TOR provided that, following a 

determination of minimum acceptability, price was the only other evaluation factor. 

Accordingly, price properly became the determinative factor. 

Page 11 B-310566.4