United States Government Accountability Office

Washington, DC 20548

Comptroller General

of the United States

 

Decision

Matter of: Millennium Space Systems, Inc.

File: B-406771

Date: August 17, 2012

James F. Nagle, Esq., Jonathan A. DeMella, Esq., and Meredith L. Thielbahr, Esq.,

Oles Morrison Rinker & Baker LLP, for the protester.

Scott M. McCaleb, Esq., Benjamin J. Kohr, Esq., Jon W. Burd, Esq., and Nicole J. 

Owren-Wiest, Esq., Wiley Rein LLP, for the intervenor.

Maj. Troy D. Hammon, Department of the Air Force, for the agency.

Eric M. Ransom, Esq., and Edward Goldstein, Esq., Office of the General Counsel, 

GAO, participated in the preparation of the decision.

DIGEST

1. A debriefing provided in a procurement conducted as a Broad Agency 

Announcement pursuant to Federal Acquisition Regulation (FAR) § 6.102(d)(2) and 

FAR § 35.016 does not fall within the exception to our general timeliness rules at 

4 C.F.R. § 21.2(a)(2) (2012), because such a procurement is not a procurement 

conducted on the basis of competitive proposals, under which a debriefing is 

requested and, when requested, is required.

2. Protest that agency applied unstated criteria in its evaluation of protester's 

proposal is denied where the record reflects that the agency's evaluation was 

consistent with terms of solicitation.

DECISION

Millennium Space Systems, Inc., of Torrance, California, protests the award of a 

contract to Orbital Sciences Corp., of Dulles, Virginia, by the Department of the Air 

Force under Broad Agency Announcement (BAA) No. BAA-RV-12-4, seeking 

proposals to advance the state-of-the-art and scientific knowledge in space 

technology, with the primary objective of developing and delivering an “ESPA 

Augmented Geostationary Laboratory Experiment (EAGLE) Platform” spacecraft 

bus. Agency Report at 1. 

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

DOCUMENT FOR PUBLIC RELEASE

The decision issued on the date below was subject to 

a GAO Protective Order. This version has been 

approved for public release.
Page 2 B-406771 

BACKGROUND

The Air Force issued the BAA on October 24, 2011, under the provisions of Federal 

Acquisition Regulation (FAR) § 6.102(d)(2) and FAR § 35.016, relating to the 

competitive selection of research proposals. The BAA provided direction to 

potential offerors concerning the required content of their proposals, including 

direction that the following be included in their technical proposals: 

Executive Summary: Describe the proposed program, objectives, 

and approach. A description of the innovation and benefits of the 

proposed approach and relationship to previous efforts should be 

discussed. It should summarize the technical issues addressed by 

the offeror’s proposal without repeating the requirements. This 

should provide a vision of what will ultimately be achieved and 

what solution this effort will produce.

Program Description: Describe the techniques, methods, 

materials, or ideas that will be addressed in this proposal, their 

innovation, and to what degree they advance the state-of-the-art.

Program Plan: Describe in detail the planned approach and how 

the plan will be executed. This section should include all technical 

aspects of the approach. Provide technical detail and analysis 

necessary to support the technical approach proposed. Clearly 

identify the core of the intended approach. The “new and creative”

solution to the problem(s) should be developed and analyzed in 

this section. Include a risk assessment of key technical, schedule 

or cost areas and their potential impact on the program. Identify 

why proposed subcontractors were selected and what tasks they 

are to perform.

BAA at 8-9. 

The BAA also established a proposal evaluation process consisting of a peer or 

scientific review under three factors, listed in descending order of importance: 

technical, cost/price, and proposal risk. Id. at 10. The technical factor had three 

subfactors: overall scientific and technical merits of the proposal, importance to the 

agency’s programs, and affordability. Id. 

The BAA provided that based on the evaluation factors, proposals would be 

categorized as category I, category II, or category III. Id. Category I was the 

highest rating for proposals, and such proposals were recommended for 

acceptance. Category II described proposals that were “scientifically or technically 
Page 3 B-406771 

sound,” but required further development. Id. Category II proposals were also 

recommended for acceptance, but at a lower priority than category I proposals. 

Category III described proposals that were not technically sound or did not meet the 

agency’s needs. The BAA advised that the agency anticipated awarding one 

cost-plus fixed-fee contract, with a total period of performance, including options, of 

60 months. Id. at 1, 2, 5. 

Millennium submitted a timely proposal in response to the BAA on January 3, 2012. 

On April 17, the agency notified Millennium that its proposal had not been selected 

for the award. The notification letter explained that while it was not selected, 

Millennium “provided a strong proposal” that was rated category II, because “it is 

scientifically and technically sound and could be recommended for acceptance with 

minor developmental and moderate programmatic changes.” April 17 notice at 1. 

The notification letter also explained the developmental and programmatic changes 

that the agency determined were required, and outlined the technical and cost/price 

evaluation results for Millennium’s proposal. Millennium requested a debriefing 

from the agency on April 18, and a debriefing was held on May 9. During the 

debriefing the agency provided a presentation that further set forth the reasons for 

Millennium’s non-selection. 

Millennium filed this protest on May 18. In the protest, Millennium argues that the 

agency’s evaluation improperly considered an option price in evaluating the 

baseline cost of Millennium’s proposal, improperly increased Millennium’s labor 

hours and upwardly adjusted its cost proposal, failed to consider the full content of 

the proposal, and improperly considered an unstated evaluation criteria related to 

“innovativeness.”

TIMELINESS

Subsequent to the filing of the protest, Orbital Sciences filed a notice of intervention 

and submitted a request for the dismissal of the protest, later joined by the agency, 

arguing that the protest was untimely. As relevant here, our Bid Protest Regulations 

require that protests not based upon alleged improprieties in a solicitation:

shall be filed not later than 10 days after the basis of protest is 

known or should have been known (whichever is earlier) with the 

exception of protests challenging a procurement conducted on the 

basis of competitive proposals under which a debriefing is 

requested and, when requested, is required. In such cases, with 

respect to any protest ground basis which is known or should 

have been known either before or as a result of the debriefing, the 

initial protest shall not be filed before the debriefing date offered 

to the protester, but shall be filed no later than 10 days after the 

date on which the debriefing is held. 
Page 4 B-406771 

4 C.F.R. § 21.2(a)(2) (2010). Orbital Sciences argues that the protest is untimely 

because Millennium knew or should have known the basis for the majority of its 

protest grounds at the time it received its notice of non-selection on April 17, and 

because the debriefing exception to our timeliness rules does not apply to BAA 

procurements, which are not procurements “conducted on the basis of competitive 

proposals under which a debriefing is requested and, when requested, is required.”1 

In support of the latter argument, Orbital Sciences cites McKissack-URS Partners, 

JV, B-406489.2, May 22, 2012, 2012 CPD ¶ 162, in which our Office concluded that 

the debriefing exception to our rules does not apply in architect-engineer (A/E) 

procurements conducted pursuant to the Brooks Act because those procurements 

are not “conducted on the basis of competitive proposals.” 

In its response to the request for dismissal, Millennium does not argue for the 

application of the debriefing exception to our timeliness rules in this procurement. 

Rather, Millennium argues that its protest was timely filed because it could not have 

known the specific basis of its protest allegations until the time of its May 9 

debriefing, and properly filed its protest within 10 calendar days of that time. We 

disagree, and conclude that with the exception of its challenge to the agency’s 

consideration of “innovativeness,” Millennium knew the basis of its protest grounds 

prior to its debriefing, and did not file its protest within the required time. 

First, although Millennium’s response does not rely on the debriefing exception to 

our timeliness rules, we nonetheless analyze whether the exception properly 

applies. The answer to this question turns on whether the procurement at issue 

was conducted on the basis of “competitive proposals.” 

Our Office has previously considered this question in various contexts. Most 

recently, in McKissack-URS Partners, JV, supra, our Office concluded that the 

debriefing exception to our rules does not apply in architect-engineer (A/E) 

procurements conducted pursuant to the Brooks Act because those procurements 

are not “conducted on the basis of competitive proposals.” In this regard, we noted 

that the use of negotiated procedures in accordance with FAR Part 15--as 

evidenced by the issuance of a request for proposals--is the hallmark of a 

procurement conducted on the basis of competitive proposals,2

 

 1 Orbital Sciences did not argue that Millennium’s challenge to the agency’s 

consideration of innovativeness was untimely, but that it failed to state a valid basis 

of protest. We disagreed, and we discuss the merits of that protest challenge in this 

decision. 

McKissack-URS 

2 Consistent with our understanding in this regard, we have noted that FAR 

§ 6.401(b), “Competitive Proposals” begins with a reference, “See Part 15 for 

procedures.” See The MIL Corp., B-297508, B-297508.2, Jan. 26, 2006, 2006 

CPD ¶ 34 at 6 n.4. 
Page 5 B-406771 

Partners, JV, supra, at 5, and that Brooks Act procurements are not conducted 

under FAR Part 15, but under FAR Subpart 36.6. We have also previously 

addressed this question in The MIL Corp., supra, where we held that a procurement 

conducted pursuant to FAR Subpart 8.4, rather than FAR Part 15, was not 

conducted on the basis of competitive proposals, and that the debriefing exception 

to our timeliness rules does not apply to such procurements. See The MIL Corp., 

supra, at 6.

In McKissack, we also found FAR § 6.102 instructive in its separation of Brooks 

Act’s procedures from “competitive proposals.” In this regard, FAR § 6.102 

describes various types of competitive procedures available to fulfill the requirement 

for full and open competition mandated by the Competition in Contracting Act of 

1984, 10 U.S.C. § 2304(a)(1)(A) (2006). FAR § 6.102(b) is entitled “[c]ompetitive 

proposals,” while FAR § 6.102(d) is entitled “[o]ther competitive procedures.” Read 

together, these sections expressly carve out procurements conducted pursuant to 

the Brooks Act under FAR Subpart 36.6 from the category of competitions based on 

“competitive proposals” by listing them under the category of “other competitive 

procedures.”3 See § 6.102(d)(1). Similarly, and consistent with our holding in The 

MIL Corp., supra, FAR § 6.102(d)(3) defines procurements conducted pursuant to 

FAR Subpart 8.4, as “other competitive procedures,” as opposed to procurements 

conducted using competitive proposals. 

With regard to the present protest we conclude that, as with Brooks Act 

procurements conducted under FAR Subpart 36.6 discussed in McKissack, and 

procurements conducted under FAR Subpart 8.4 discussed in The MIL Corp., 

procurements conducted using BAAs are not procurements “conducted on the basis 

of competitive proposals.” Like Subpart 36.6 and Subpart 8.4 procurements, FAR 

§ 6.102(d) carves out BAA procurements from those conducted using “competitive 

proposals” and defines them as “other competitive procedures.” See

 3 FAR Part 15 also draws a distinction between the procedures to be used for 

“competitive proposals” versus the procedures to be used for “other competitive 

procedures.” Specifically, FAR § 15.502 states in full: 

§ 6.102(d)(2)(ii). Moreover, like A/E procurements and Subpart 8.4 procurements, 

BAA procurements are not conducted under FAR Part 15; rather, they are 

This subpart applies to competitive proposals, as described in 

6.102(b), and a combination of competitive procedures, as 

described in 6.102(c). The procedures in 15.504, 15.506, 15.507, 

15.508, and 15.509, with reasonable modification, should be 

followed for sole source acquisitions and acquisitions described in 

6.102(d)(1) and (2).
Page 6 B-406771 

conducted using procedures established by FAR § 35.016.4 Therefore, we 

conclude that the debriefing exception to our timeliness rules does not apply, and 

Millennium was required to file its protest within 10 days of when it knew, or should 

have known, the basis for its protest. 

Next, concerning Millennium’s argument that its protest was timely filed because it 

could not have known the basis for its protest challenges prior to the time of its 

debriefing on May 9, the record here reflects that Millennium’s April 17 notice of 

non-selection was sufficiently detailed to inform Millennium of three of its four 

protest grounds. Specifically, the April 17 notification demonstrated that the agency 

considered an option price in evaluating the baseline cost of Millennium’s proposal 

and conducted a price realism analysis that increased Millennium’s labor hours and 

upwardly adjusted its cost proposal. With regard to Millennium’s third protest 

ground--that the agency failed to consider the entirety of the proposal--Millennium 

specifically argues that if the agency had reviewed the entire proposal it would not 

have assessed Millennium a weakness for failure to simultaneously support certain 

spacecraft payloads. However, this weakness was clearly set forth in the April 17 

notice. Finally, that Millennium had sufficient knowledge to formulate these protest 

grounds on April 17 is confirmed by the fact that each challenge is presented in 

Millennium’s April 18 request for a debriefing, in which Millennium asked detailed 

questions about the weaknesses assessed against its proposal and argued that 

they were unreasonable. Accordingly, Millennium had knowledge of, and was 

required to raise these grounds of protest within 10 days of April 17. Where the 

protest was not filed until May 18, these protest grounds are untimely and are 

dismissed. 

DISCUSSION

Concerning its timely protest ground, Millennium states that while its April 17 notice 

of non-selection did not mention “innovativeness” or provide any indication that 

innovation was considered, the agency announced during the debriefing that 

innovativeness was evaluated. According to declarations provided by Millennium 

personnel, the agency stated during the debriefing that the government utilized a 

BAA because it was “looking for someone to come up with an innovative solution,” 

that Millennium’s “[b]aseline design was good, but [there was] more innovation in 

another proposal,” and that “[i]nnovation was the highest priority.” M.M. Declaration 

 4 We note that under FAR § 35.016 is materially different from a FAR Part 15 

procurement. When an agency uses the BAA process proposals need not be 

evaluated against each other since they are not submitted in accordance with a 

common statement of work. See FAR § 35.016(d). This is distinct from a FAR Part 

15 procurement where the evaluation and selection process is premised on making 

meaningful comparisons between and among competing proposals submitted in 

response to a common set of requirements. 
Page 7 B-406771 

at 4. Based on these statements in the debriefing, Millennium alleges that the 

agency’s consideration of innovation constituted an improper unstated evaluation 

criteria. 

We disagree. While procuring agencies are required to identify significant 

evaluation factors and subfactors in a solicitation, they are not required to identify 

every aspect of each factor that might be taken into account; rather, agencies 

reasonably may take into account considerations, even if unstated, that are 

reasonably related to or encompassed by the stated evaluation criteria. Client 

Network Servs., Inc., B-297994, Apr. 28, 2006, 2006 CPD ¶ 79 at 6. Further, an 

element considered in an evaluation need not be stated in a solicitation where it is 

intrinsic to the criteria that are stated in the RFP. See Sturm, Ruger & Co., Inc., 

B-250193, Jan. 14, 1993, 93-1 CPD ¶ 42 at 5-6 n.7

In this case, the agency issued the procurement as a BAA, indicating that the 

agency had a requirement for “scientific study and experimentation directed toward 

advancing the state-of-the-art.” FAR § 35.016(a). The BAA also explicitly 

instructed that responses should discuss “the innovation and benefits of the 

proposed approach,” the degree to which the contents of the proposal “advance the 

state-of-the-art,” and development of “new and creative” solutions. BAA at 8-9. In 

the context of such a BAA, we conclude that consideration of the level of 

innovativeness in a proposal was intrinsic to the agency’s technical evaluation of the 

“overall scientific and technical merits of the proposal,” and was not improper.5

 

Accordingly, we see no error in the agency’s evaluation. 

The protest is denied. 

Lynn H. Gibson

General Counsel

 5 The agency also points out that Millennium apparently understood the importance 

of innovation under the BAA, as demonstrated by its proposal’s inclusion of a 

section titled “Innovation,” in which Millennium describes 12 “key innovations” in its 

approach. Technical Proposal at 6. Moreover, the debriefing demonstrates that 

innovation was considered within the context of the “overall scientific and technical 

merits of the proposal.” For example the agency awarded Millennium’s proposal 

with a strength for its “almost 200% margin on propulsion requirement for 600 kg/4 

slot payloads” because “this innovative approach provides the EAGLE Platform with 

additional momentum management and orbit maneuvering capabilities.” Debriefing 

at 20.