United States Government Accountability Office

Washington, DC 20548

Comptroller General

of the United States

 

Decision

Matter of: Environmental Restoration, LLC 

File: B-406917

Date: September 28, 2012

Russ Gulledge for the protester.

Stanley R. Soya, Esq., Michael R. Golden, Esq., Heather Kilgore Weiner, Esq., and 

Samuel W. Jack, Esq., Pepper Hamilton LLP, for Environmental Quality 

Management, Inc., an intervenor.

Jonathan S. Baker, Esq., Environmental Protection Agency, for the agency.

Pedro E. Briones, Esq., and Guy R. Pietrovito, Esq., Office of the General Counsel, 

GAO, participated in the preparation of the decision.

DIGEST

Protest of an agency’s technical and price evaluations and source selection 

decision is denied where the agency reasonably evaluated proposals consistent 

with the solicitation’s evaluation criteria.

DECISION

Environmental Restoration, LLC, (ER) of St. Louis, Missouri, protests the award 

of a contract to Environmental Quality Management, Inc., (EQM) of Cincinnati, 

Ohio, under request for proposals (RFP) No. SOL-R9-11-00003, issued by the 

Environmental Protection Agency (EPA) for emergency and rapid response services

(ERRS).

We deny the protest.1

BACKGROUND

The RFP provided for the award of a fixed-rate, indefinite-delivery/indefinite-quantity 

contract, with a cost-reimbursable element, for a 2-year base period with two 2-year 

 1 Because a protective order was not issued in connection with this protest, our 

discussion is necessarily general.
Page 2 B-406917 

option periods and one 1-year option period. RFP at 5. A detailed performance 

work statement (PWS) was provided that described the required emergency 

environmental response cleanup services and technical services supporting

government enforcement proceedings for EPA Region 9.2 PWS at 1, 7, 16.

Offerors were informed that award would be made on a best value basis 

considering price, technical, and past performance factors. See RFP at 142. The 

RFP stated that the technical factor was significantly more important than the past 

performance and price factors combined, which were of equal value. Id. at 142-43. 

The RFP also identified the following subfactors under the technical factor: 

technical ability, pop quiz response, personnel, corporate experience, and contract 

management. Id. at 143. Offerors were informed that the technical ability subfactor 

was significantly more important than all other technical subfactors combined, which 

were of equal value. Id.

As relevant here, the RFP required offerors to propose, for each performance 

period, fixed hourly and overtime rates for 10 contract line items (CLINs) for 

specified labor categories, and fixed daily and weekly rates for 59 CLINs for various 

types of trucks, trailers, heavy equipment, and field and safety equipment.

3

 RFP, 

Schedule, at 5-25, 132. Offerors were also required to complete a hypothetical 

pricing scenario for cost/price evaluation purposes. Id. at 132. This scenario 

identified five labor categories and associated estimated hours for each category,

and requested offerors’ fully burdened, fixed hourly rates for each category. Id. 

The scenario also provided dollar amounts for specified subcontracts and ODCs, 

for which the scenario requested offerors’ G&A rates.

4

 Id. The RFP informed 

offerors that the agency would evaluate their prices for reasonableness and realism. 

Id. at 135-36, 147.

The agency received proposals from four offerors, including EQM and ER, which 

were evaluated by the agency’s technical evaluation panel (TEP). Contracting 

 2 EPA Region 9 includes California, Nevada, Arizona, Hawaii, Guam, and American 

Samoa.

3 The offerors’ fixed hourly and overtime labor rates were required to include all 

indirect costs and profit. RFP at 5. Offerors were also required to propose

percentages for the general and administrative (G&A) expense to be applied to 

RFP-identified “plug numbers” for travel, subcontracts, and other direct costs 

(ODC). Id. at 25. 

4 Due to the uncertain nature of the requirements, the agency used the hypothetical 

pricing scenario to objectively compare each offeror’s proposed rates for a routine 

removal or emergency response task order that includes the most common labor 

categories, subcontracts costs, and ODCs. See Agency Report (AR), Tab 6, 

Source Selection Decision, at 26.
Page 3 B-406917 

Officer’s (CO) Statement at 2. EQM’s and ER’s proposals were evaluated as 

follows:5

EQM ER

Technical Outstanding Fair

Technical Ability Outstanding Excellent

Pop Quiz Response Outstanding Fair

Personnel Outstanding Fair

Corporate Experience Outstanding Good

Contract Management Outstanding Fair

Past Performance Excellent Excellent

Scenario Price6 $38,502 $39,194

AR, Tab 5, TEP Report, at 2-3; Tab 6, Source Selection Decision, at 22, 24, 39.

EQM’s outstanding overall technical rating reflected the TEP’s assessment that the 

firm proposed a broad range of experienced personnel, technical knowledge and 

skills, and training capability, which exceeded the PWS requirements. See AR, 

Tab 6, Source Selection Decision, at 38. ER’s fair overall rating reflected the 

TEP’s assessment that ER’s proposal presented some strengths and a number of 

weaknesses under the technical subfactors. See id. Among the weaknesses 

identified in ER’s proposal was its deficient approach to staffing and emergency 

response personnel, unclear management structure (including how subcontractors 

would be managed), and failure to describe how the firm would provide required 

personnel. See

Price proposals were evaluated by the contracting officer. 

id.

See id.

 5 An outstanding rating reflected a proposal that was superior in most features; an 

excellent rating reflected a proposal that was good with some superior features and 

provided generally clear information and an acceptable approach with the possibility 

of more than adequate performance; a good rating reflected an adequate proposal 

that met the specifications and requirements overall, such that the offeror could 

meet the minimum requirements; and a fair rating reflected a proposal that was

incomplete, unclear, or indicated an inadequate approach or understanding, such 

that there was a question as to whether the offeror would be able to perform 

satisfactorily. See RFP at 142-43.

at 39. With 

respect to the hypothetical pricing scenario, EQM proposed the lowest total 

price ($38,502) and ER proposed the second lowest total price ($39,194). The 

6 The RFP advised offerors that, while their fully burdened fixed rates would be 

considered confidential business information and would not be released, their 

proposed total scenario price would be provided to unsuccessful offerors. RFP 

at 132.
Page 4 B-406917 

contracting officer compared the offerors’ labor and equipment rates for all CLINs, 

and compared the rates to those in the current contract, the independent 

government cost estimate (IGCE), ERRS contracts for other EPA regions, and 

General Service Administration Federal Supply Schedule (FSS) contracts.

7

 See id.

at 25-40. The contracting officer concluded that EQM proposed the lowest daily 

equipment rates for most equipment, as well as the lowest rate for various labor 

categories compared to the current contract and the lowest G&A rates for two 

of the most commonly used subcontracted activities.

8

 Id. at 32, 38, 40. The 

contracting officer determined that EQM’s proposed rates were realistic, and fair 

and reasonable. See id. at 25-26, 32-34; CO’s Statement at 5.

Award was made to EQM, and this protest followed.

DISCUSSION

Environmental Restoration raises a number of challenges to the agency’s technical 

and price evaluations, and to its selection decision. We have considered all of ER’s 

arguments, although we discuss only the primary ones, and we find no basis to 

sustain the protest.

Technical Evaluation

ER complains that the agency deviated from the stated evaluation criteria by failing 

to give significantly more weight to the technical ability subfactor, as required by the 

RFP. See Protest at 3-4. The protester contends that its proposal should have 

received a higher overall technical rating, based upon its excellent rating under 

the technical ability subfactor. See id. at 3. ER states that it does not dispute the 

ratings or assessed strengths and weaknesses identified under the technical 

subfactors, but argues that it was entitled to an overall higher rating under this 

factor. See Protester’s Comments at 3-4. The protester also contends that the 

agency failed to evaluate properly any of the proposals, and urges that the agency 

start over. See id. at 5-6.

 7 Because the RFP requested rates for 27 new pieces of equipment, offerors’ 

equipment rates were compared to the current contract rates for only 32 of the 59 

required pieces of equipment. AR, Tab 6, Source Selection Decision, at 37.

8 The agency states that equipment rates will be a major cost component under 

the new contract and that daily rates are most commonly used because most 

emergency environmental responses last a week or less. See AR, Tab 6, Source 

Selection Decision, at 34, 40. In this respect, the agency concluded that it would 

benefit EPA to award a contract to an offeror with lower overall equipment rates. Id.

at 37.
Page 5 B-406917 

The agency responds that it reasonably evaluated proposals and argues that the 

protester provides no substantive basis to support its contention that its overall 

technical rating should change. AR at 4-5. In this respect, the agency maintains 

that ER’s overall technical rating was based upon an evaluation of ER’s technical

proposal as a whole and that, even if the agency increased ER’s overall technical 

rating, EQM’s proposal would still be considered technically superior to ER’s.

9 See

id. at 5-6.

The essence of an agency’s evaluation is reflected in the evaluation record itself, 

not the adjectival ratings. Stateside Assocs., Inc., B-400670.2, B-400670.3, 

May 28, 2009, 2009 CPD ¶ 120 at 8. It is well established that ratings, be they 

numerical, adjectival, or color, are merely guides for intelligent decision making in 

the procurement process. Burchick Constr. Co., B-400342.3, April 20, 2009, 2009 

CPD ¶ 102 at 4-5. There is no legal requirement that an agency must award the 

highest possible rating, or the maximum point score, under an evaluation factor 

simply because the proposal contains strengths and/or is not evaluated as having 

any weaknesses. See Applied Tech. Sys., Inc., B-404267, B-404267.2, Jan. 25, 

2011, 2011 CPD ¶ 36 at 9. Thus, in reviewing protests challenging the evaluation 

of proposals, we do not conduct a new evaluation or substitute our judgment for that 

of the agency but examine the record to determine whether the agency’s judgment 

was reasonable and in accord with the RFP evaluation criteria. Abt Assocs. Inc., 

B-237060.2, Feb. 26, 1990, 90-1 CPD ¶ 223 at 4.

Here, the record shows that the agency gave ample consideration to the qualitative 

differences between offerors’ proposals. See AR, Tab 5, TEP Report, at 3-23; 

Tab 6, Source Selection Decision, at 6-22; see also QinetiQ North America, Inc., 

B-405163.2, et al., Jan. 25, 2012, 2012 CPD ¶ 53 at 15 (protest of agency’s 

technical evaluations denied where record shows that agency reasonably evaluated 

proposals consistent with evaluation criteria, extensively documenting qualitative 

differences between the protester’s and awardee’s proposals). Moreover, contrary 

to the protester’s assertion, the record reflects that the agency devoted considerably 

more analysis to the evaluation of proposals under the technical ability subfactor 

than under the other technical subfactors, consistent with the relative importance of 

the subfactor as stated in the RFP. Compare AR, Tab 5, TEP Report, at 3-6 and

Tab 6, Source Selection Decision, at 9-12 (evaluation of ER’s proposal under 

technical ability subfactor) with TEP Report at 7-12 and Source Selection Decision 

at 16-17, 19-21 (evaluation of ER’s proposal under remaining subfactors); see also

 9 The protester also argues that assigning an overall technical rating is contrary to 

the RFP, which, according to the protester, required the agency to separately 

evaluate each subfactor. See Protester’s Comments at 4.

TEP Report at 3-6; Source Selection Decision at 3, 6, 37 (restating significant 

importance of technical ability subfactor relative to other technical subfactors). The 

record further shows that the agency’s consideration of offerors’ technical proposals 
Page 6 B-406917 

“as a whole” reflected its consideration of the proposals under all of the subfactors 

to determine the respective technical merit of the competing proposals. See id.

Apart from disagreeing with the technical rating assigned to its proposal, the 

protester identifies no aspect of its proposal that it alleges should have been viewed 

as superior to EQM’s. Thus, ER’s arguments reflect only disagreement with the 

agency’s evaluation ratings and selection decision, which does not demonstrate that 

the agency’s judgment was unreasonable. See Citywide Managing Servs. of Port 

Washington, Inc., B-281287.12, B-281287.13, Nov. 15, 2000, 2001 CPD ¶ 6 

at 10-11; Impregilo Edilizia S.p.A., B-292468.4, Nov. 25, 2003, 2003 CPD ¶ 216 

at 5 n.5.

Price Evaluation

The protester also contends that EPA did not evaluate or compare CLIN prices, but 

only relied on the pricing scenario to conclude that ERQ submitted the lowest-priced 

offer. Protester’s Comments at 9-11; see Protest at 4-5. In this respect, ER 

complains that the pricing scenario did not provide for evaluation of equipment 

pricing. Protester’s Comments at 12.

The depth of an agency’s price analysis is a matter within the sound exercise of 

the agency’s discretion. Computer Sys. Int’l, Inc., B-276955, B-276955.2, Aug. 13, 

1997, 97-2 CPD ¶ 49 at 3. It is up to the agency to decide upon the appropriate 

method for evaluation of cost or price in a given procurement, although the agency 

must use an evaluation method that provides a basis for a reasonable assessment 

of the cost of performance under the competing proposals. S. J. Thomas Co., Inc., 

B-283192, Oct. 20, 1999, 99-2 CPD ¶ 73 at 3. Among the price analysis techniques 

that may be used are comparison with other prices received under the solicitation 

and comparison of proposed prices with IGEs. See FAR § 15.404-1(b)(2).

The record here simply does not support any of the protester’s challenges to the 

agency’s price evaluations. With respect to the agency’s use of the hypothetical 

pricing scenario, offerors were specifically informed that the agency would consider 

offerors’ pricing scenario prices in evaluating proposals, see RFP at 132, and the 

protester cannot now timely object that EPA has used the scenario pricing in its 

evaluation and selection decision. Furthermore, as discussed above, the record 

shows that the agency performed a detailed comparison of offerors’ labor and 

equipment rates--for all CLINs--to each other’s rates, and to rates contained in 

the current contract, the IGCE, other ERRS regional contracts, and FSS contracts. 

Moreover, the record shows that the agency evaluated offerors’ G&A rates and 

ODCs, including for subcontracted activities. AR, Tab 6, Source Selection Decision, 
Page 7 B-406917 

at 38-40. Contrary to ER’s allegations, EPA’s price evaluation was not solely based 

upon the offerors’ pricing scenarios.10

Source Selection Decision

Finally, ER challenges the agency selection decision, asserting that it was flawed 

because it was based on technical and price evaluations that, according to the 

protester’s arguments described above, were inconsistent with the RFP. Protest 6; 

Protester’s Comments at 14. As discussed above, we find no merit in ER’s 

objection to the agency’s technical and price evaluations. Thus, there is no basis 

to question the agency’s source selection decision.

The protest is denied.

Lynn H. Gibson

General Counsel

 10 To the extent that ER complains that the agency did not consider whether EQM 

submitted unbalanced prices or rates, see Protester’s Comments at 13, the 

protester has not identified any prices or rates that it asserts are unbalanced. In 

any event, we do not find from our review of EQM’s cost/price proposal that EQM 

proposed unbalanced pricing or rates. See AR, Tab 4, EQM’s Proposal, at 5-56.