United States Government Accountability Office

Washington, DC 20548

Comptroller General

of the United States

 

Decision

Matter of: NCS Technologies, Inc. 

File: B-406306.3

Date: September 17, 2012

Thomas K. David, Esq., and Kenneth D. Brody, Esq., David, Brody & Dondershine, 

LLP, for the protester.

David S. Cohen, Esq., and John J. O’Brien, Esq., Cohen Mohr LLP, for Intelligent 

Decisions, Inc., the intervenor.

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

Kenneth Kilgour, Esq., and David A. Ashen, Esq., Office of the General Counsel, 

GAO, participated in the preparation of the decision.

DIGEST

Protest that agency improperly evaluated proposed prices is denied where the 

agency’s evaluation conformed to the terms of the solicitation; in any case, any 

ambiguity in the price evaluation method announced in the solicitation was patent, 

and protester was required to file before the closing time for receipt of proposals.

DECISION

NCS Technologies, Inc., of Gainesville, Virginia, protests the United States Marine 

Corps’ award of a contract to Intelligent Decisions, Inc., of Ashburn, Virginia, and 

CDW-Government, of Vernon Hills, Illinois, under request for proposals (RFP) 

No. M67854-11-R-4051, for hardware and logistics support. NCS asserts that the 

agency unreasonably evaluated its price proposal.

We deny the protest.

BACKGROUND

The Marine Corps Common Hardware Suite (MCHS) program seeks to obtain

commercial-off-the-shelf (COTS) servers, desktops, laptops, storage solutions, and 

rugged computing equipment for the Marine Corps. The COTS hardware will 

deploy with Marines worldwide and will be required to operate in varying conditions. 

MCHS is charged with ensuring that the procured equipment is provided with 

sufficient logistical support to meet the Marine Corps’ demanding requirements.
Page 2 B-406306.3 

The MCHS uses Logistic Support Requirements (LSR) to provide a detailed 

description of the warranty and warranty services required of its vendors. An LSR 

has two parts. Part I contains mandatory support provisions that are not individually 

offered or priced and are applicable to all assets procured under a contract. Marine 

Corps Common Hardware Suite Logistics Support Requirements for Commercial 

Off-the-Shelf Computer Platforms, May 1, 2011 at 5. Part II provides support 

enhancements to the standard warranty, which are itemized in the contract by 

Contract Line Item Number (CLIN) and individually priced.1 These optional CLINs 

may be selected by the customer at the time of purchase. Vendors must offer these 

options, although the customer may or may not select any of the Part II CLINs. Id.

at 16.

The current RFP contained 24 submodules. Offerors could propose hardware that 

met the requirements for one or more of those submodules. Each award was to 

include a base period and an option period. The RFP contemplated that for 22 of 

the submodules the agency would issue multiple award, indefinite-delivery, 

indefinite-quantity (ID/IQ) contracts, and for two submodules (1(a) and 4(b)) the 

agency would issue single award requirements contracts. RFP, Amend. 8 at 5-6. 

The hardware component of both single award requirements submodules was

laptops. Id. at 5.

Award was to be made to the offeror or offerors whose proposal or proposals 

represented the best value to the government considering four evaluation factors: 

technical, management plan, past performance, and price. With respect to price, 

the RFP provided as follows:

The Government will evaluate offers for award purposes by adding the 

base configuration for the base year period and the option period. 

The quantities listed in Attachment 1 are the notational quantities in 

which the Government will calculate the total evaluated price. In 

addition the Government will evaluate the pricing for the base 

configuration option items and LSR Part I and LSR Part II pricing and 

may determine that an offer is unacceptable if the option prices are 

significantly unbalanced. Evaluation of the options shall not obligate 

the Government to exercise the option(s).

RFP, Amend. 9, § M.1.1. Price. The only estimated quantities in the RFP were the 

“notational quantities” for laptops referenced above.

 1 LSR Part II services included, for example, faster assistance response times, 

quicker shipment, and an extension of the base warranty period.
Page 3 B-406306.3 

During the evaluation, the agency deleted two of the ID/IQ submodules. Of the 

remaining 20 ID/IQ submodlues, NCS was an awardee for 19. The agency 

awarded the two requirements contract submodules, 1(a) and 4(b), to 

CDW-Government and Intelligent Decisions, respectively. NCS’ protest of the 

award of submodules 1(a) and 4(b) followed.

DISCUSSION

The protester challenges the agency’s price evaluation, asserting that it was 

unreasonable for the agency’s total evaluated price to include the price for LSR 

Parts I and II.2 According to the protester, “nowhere in the solicitation does the 

Agency state or even imply that an offeror’s proposed LSR prices will be part of 

their total evaluated price.” Protest at 8. 

The Marine Corps disagrees. According to the agency, because it was required by 

the terms of the RFP to purchase LSR Part I support for each laptop purchased 

under the contracts,

3 see RFP, Amend. 8 at 9 (noting that “[t]he LSR Part I is 

mandatory”), and because RFP § M.1.1 discussed together the evaluation of LSR 

Parts I and II, the only reasonable interpretation of the RFP was that the total 

evaluated price would include both LSR Parts I and II prices. For that same reason, 

the agency argues, the protester’s contention that neither LSR Part price should be 

included in the price evaluation is unreasonable. As explained below, we agree 

with the agency that it was reasonable to include LSR Parts I and II prices in the 

total evaluated price.

Where a protester and agency disagree over the meaning of solicitation language, 

we will resolve the matter by reading the solicitation as a whole and in a manner 

that gives effect to all of its provisions; to be reasonable, and therefore valid, an 

interpretation must be consistent with the solicitation when read as a whole and in a 

reasonable manner. Alluviam LLC, B-297280, Dec. 15, 2005, 2005 CPD ¶ 223 at 2. 

An ambiguity exists if a specification is susceptible to more than one reasonable 

 2 NCS also asserts that the RFP failed to inform offerors of threshold requirements 

for two pieces of hardware. However, the agency evaluated the protester’s 

proposal as meeting those requirements, and there is no basis upon which to 

conclude that the protester was in any way prejudiced by this alleged RFP defect. 

See McDonald-Bradley, B-270126, Feb. 8, 1996, 96-1 CPD ¶ 54 at 3; see

Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed. Cir. 1996) (competitive 

prejudice is a necessary element of any viable bid protest). 

3 The RFP implements the MCHS requirement that information technology vendors 

“perform all tasks identified in [LSR] Part 1.” Marine Corps Common Hardware 

Suite Logistics Support Requirements for Commercial Off-the-Shelf Computer 

Platforms, May 1, 2011, at 5.
Page 4 B-406306.3 

interpretation that is consistent with the solicitation, when read as a whole. 

Poly-Pacific Techs., Inc., B-293925.3, May 16, 2005, 2005 CPD ¶ 100 at 3. A 

patent ambiguity exists where the solicitation contains an obvious, gross, or glaring 

error (e.g., where solicitation provisions appear inconsistent on their face), while a 

latent ambiguity is more subtle (e.g., where the ambiguity is first identified in the 

context of an evaluation). Ashe Facility Servs., Inc., B-292218.3, B-292218.4, 

Mar. 31, 2004, 2004 CPD ¶ 80 at 11. Where a patent ambiguity is not challenged 

prior to the submission of proposals, we will dismiss as untimely any subsequent 

protest assertion that is based on an alternative interpretation. Bid Protest 

Regulations, 4 C.F.R. § 21.2(a)(1) (2012); U.S. Facilities, Inc., B-293029, 

B-293029.2, Jan. 16, 2004, 2004 CPD ¶ 17 at 10.

The solicitation clearly provides that for each laptop purchased under either 

contract, the customer will be required to purchase LSR Part I support. RFP, 

Amend. 8 at 9 (noting that “[t]he LSR Part I is mandatory”). As noted above, the 

protester’s interpretation of the disputed RFP language nevertheless would 

preclude the agency’s evaluation of the price that the customer will pay for the 

required LSR Part I. According to the protester, given the absence of a specific 

solicitation provision including the price of the LSR Part I in the total evaluated price, 

the agency’s price evaluation was to be restricted to only the price of the computers 

themselves. In our view, however, an interpretation of the RFP that precludes 

consideration of the price of a required item would be inconsistent with the RFP 

read as a whole, which required purchase of LSR Part I support with each laptop. 

In this regard, agencies are required to use a method to evaluate cost or price that, 

to the extent possible, accurately measures the cost to be incurred under competing 

proposals. See Eurest Support Servs., B-285813.3 et al., July 3, 2001, 2003 CPD 

¶ 139 at 7; Lockheed, IMS, B-248686, Sept.15, 1992, 92-2 CPD ¶ 180 at 6. Were 

the solicitation interpreted as asserted by NCS to preclude consideration of the 

price of a required item, LSR Part I support, the solicitation would be defective for 

failure to accurately measure the cost to be incurred by the government under 

competing proposals. Id.

Furthermore, even if we were to assume that section M language--that “the 

Government will evaluate offers for award purposes by adding the base 

configuration for the base year period and the option period,” RFP, Amend. 9, 

§ M.1.1 Price--could reasonably be read to set forth an evaluation scheme that 

considered only the price of the laptops and precluded the consideration of the LSR 

Part I price, the contradiction between that paragraph and the rest of the RFP would 

create a patent ambiguity. An RFP term that provided for the evaluation of total 

price, without regard to the price of LSR Part I, would conflict on its face with the 

requirement that LSR Part I be procured with every laptop. A protest of such a 

patent ambiguity in the RFP would be timely only if filed prior to the next closing 

date for receipt of proposals. 4 C.F.R. § 21.2(a)(1).
Page 5 B-406306.3 

As noted above, the agency asserts that, because it was required by the terms of 

the RFP to purchase LSR Part I support for each laptop purchased under the 

contracts, and because RFP § M.1.1 discussed together the evaluation of LSR 

Parts I and II, the only reasonable interpretation of the RFP was that the total 

evaluated price would include both LSR Parts I and II prices. We agree. 

The protester argues that including the LSR Part II prices in the total evaluated price 

unreasonably included duplicative LSR Part II options in the total price, including, 

for example, LSR Part II task number 5, field service support, and task number 6, 

enhanced field service support, which includes all of the support available under 

task number 5, plus upgraded services. The basis for this allegation was known at 

the time the protester received its debriefing. Comments on AR at 10 (noting that 

“[i]t was not until the debriefing that NCS was aware that the Agency had 

implemented [§] M.1.1 in a manner that was . . . opposite” to the protester’s 

interpretation of the RFP). Because this allegation was not raised with 10 days of 

when the basis of protest was known, it is untimely. 4 C.F.R. § 21.2(a)(2). 

In addition, the protester asserts that the price evaluation was unreasonable 

because the RFP failed to include the agency’s best available estimate of the 

quantity of LSR Part II services that would be ordered. See InfraMap Corp., 

B-405167.6, Feb. 6, 2012, 2012 CPD ¶ 66 at 3 (when an agency solicits offers for a 

requirements contract on the basis of estimated quantities, the agency must base 

its estimates on the best information available). Where a protester fails to 

challenge an obviously flawed evaluation scheme prior to the time for receipt of 

initial quotations, we will dismiss a post-award challenge to the scheme as untimely. 

Ball Aerospace & Techs. Corp., B-402148, Jan. 25, 2010, 2010 CPD ¶ 37 at 5; 

4 C.F.R. § 21.2(a)(1). 

The protest is denied.

Lynn H. Gibson

General Counsel