United States Government Accountability Office

Washington, DC 20548

Comptroller General

of the United States

 

Decision

Matter of: Short & Associates

File: B-406799; B-406799.4

Date: August 31, 2012

Robert J. Symon, Esq., and Lewis P. Rhodes, Esq., Bradley Arant Boult Cummings 

LLP, for the protester.

Douglas W. Desmarais, Esq., and Kerstin M. Miller, Esq., Smith & Downey, P.A., for 

Syneren Technologies Corporation, an intervenor.

Richard S. Brown, Esq., Mark Langstein, Esq., Florence N. Bridges, Esq., and Erin 

Frazee, Esq., Department of Commerce, National Oceanic and Atmospheric 

Administration, for the agency.

Susan K. McAuliffe, Esq., and Edward Goldstein, Esq., Office of the General 

Counsel, GAO, participated in the preparation of the decision.

DIGEST

1. Agency’s use of price evaluation formula, which assigned different weights to 

labor rates based on historical usage of labor categories, was consistent with terms 

of the solicitation which provided that price would be evaluated by applying 

estimated quantities of use to offerors’ proposed labor rates.

2. Protest of past performance evaluation is denied where record shows evaluation 

was reasonable and consistent with solicitation terms. 

DECISION

Short & Associates protests the award of contracts to Innovim LLC and Syneren 

Technologies Corporation under request for proposals (RFP) 

No. DG133W-11-RP-0126 issued by the Department of Commerce, National 

Oceanic and Atmospheric Administration (NOAA) for technical support services. 

The protester contends that the agency’s price evaluation was inconsistent with the 

terms of the solicitation, and challenges the reasonableness of the agency’s 

evaluation of its past performance.

We deny the protest.

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-406799, B-406799.4 

The RFP, issued on August 24, 2011, requested proposals for the award of multiple 

indefinite-delivery, indefinite-quantity contracts for engineering, scientific, financial 

and administrative technical support services for the operational offices of the 

National Weather Service; the RFP contemplated the issuance of task orders, 

valued at up to $140 million over the 5-year contract term, on a fixed-price or 

time-and-materials/labor hour basis. RFP at 52-69, 87 and 95. The awards were to 

be made to those offerors found to have submitted the proposals that offered the 

best value to the agency considering non-price (technical approach and past 

performance) and price factors. Id. at 98. The technical approach factor was 

slightly more important than past performance; combined, the two non-price factors 

were approximately equal to price. Id. Offerors were informed that the more equal 

proposals were under the non-price factors, the more important price would become 

to the award determination. Id. The RFP advised that the agency did not anticipate 

holding discussions and offerors were to provide their best technical and price terms 

in their initial proposal. Id. at 90. 

As it relates to the protest, under the past performance factor, the RFP established 

that the agency would assess performance risk, considering relevant work 

performed within the past 3 years by each offeror, its key personnel and 

subcontractors. The agency would assess successful performance of contract 

requirements, quality and timeliness of delivery, effective management of 

subcontractors, cost management, level of communication between the contracting 

parties, proactive management and customer satisfaction. Id. at 99-100.

With regard to price, offerors were required to provide fully burdened (1-hour) labor 

rates, for all 5 years of the contract, for 169 labor categories. The RFP advised that 

price would be evaluated by applying “estimated quantities of use” to offerors’

proposed labor rates. Id. at 5, 98. The RFP also indicated that the agency would 

evaluate proposed prices to confirm that they were realistic, complete and 

reasonable. Id. at 100. 

The agency received 19 proposals in response to the RFP. One was rejected as 

incomplete, and the remaining 18 proposals were evaluated. Short & Associates’ 

proposal was rated excellent under the technical approach factor, as were Innovim’s 

and Syneren’s proposals. The protester’s proposal was rated satisfactory for past 

performance; Innovim’s was rated excellent and Syneren’s was rated satisfactory. 

The agency calculated an evaluated price for each offeror using a weighting formula 

based on historical data reflecting prior use of the 169 labor categories for similar 

work. Contracting Officer’s (CO) Statement, at 5. Specifically, the agency 

calculated a total labor weighted value (TLWV) per labor category as follows: rates 

for labor categories expected to be used more than 90 percent of the time for 

performance (based on historical usage) were multiplied by a factor of 9, rates for 

labor categories expected to be used 70-90 percent of the time were multiplied by a 

factor of 6, rates for labor categories expected to be used 50-70 percent of the time 
Page 3 B-406799, B-406799.4 

were multiplied by a factor of 3, and rates for labor categories expected to be used 

less than 50 percent of the time were multiplied by a factor of 1. The TLWVs for all 

169 labor categories were added to determine each offeror’s evaluated price for the 

5-year contract period. Based on this methodology, Innovim’s evaluated price was 

$169,314; Syneren’s was $177,344, and the protester’s was $179,494. 

After completing the evaluation, the source selection evaluation board (SSEB) 

ranked offerors from one to eighteen (the protester was ranked fourth), and 

ultimately recommended awards to the top two firms (Innovim and Syneren). The 

source selection official (SSO) adopted these recommendations, having determined 

that the price premium associated with the protester’s higher-priced proposal 

(similarly rated to the Syneren proposal and lower-rated to the Innovim proposal) 

did not offer any additional capability or value not already provided by the two lowerpriced proposals. Awards were made to these firms on May 16. After receiving a 

debriefing, the protester filed this protest.

Short & Associates first challenges the methodology used by the agency to evaluate 

the price proposals. Noting that the solicitation required the agency to apply 

“estimated quantities of use” when evaluating pricing, the protester contends that 

the weighting formula used by the agency was improper because it is not based on 

a quantity estimate for the labor categories. The protester further argues that 

grouping many labor categories together, such as for those for which the agency 

assigned no additional weight (i.e., anticipated to be used less than 50 percent of 

the time), was meaningless as it, according to the protester, inadequately 

distinguishes the labor categories within the grouping. In this regard, the protester 

asserts that there may be some actual variance in the historical levels of usage of 

some of the labor categories included in the group that could possibly affect the 

accuracy of the evaluated price calculations. To be reasonable, the protester 

suggests that the agency needed to apply its historical data of the specific hours 

worked by personnel for each of the 169 labor categories to the rates proposed for 

each category.

As an initial matter, we disagree with the protester’s contention that the agency’s 

weighting formula used by the agency was inconsistent with the RFP’s general, and 

unchallenged, provision that estimated quantities of use would be applied to 

labor-hour rates. As explained by the agency, the weights assigned for each group 

of labor categories were derived from historical data as to the quantity of labor 

hours previously used, per labor category, to perform similar work--as such, the 

weighting formula is, essentially, a quantity estimate formula. See RMS Info. Sys., 

Inc., B-280521.3, Oct. 21, 1998, 98-2 CPD ¶ 113 at 7. Moreover, the protester’s 

suggestion that the weighting formula did not adequately take into account the 

estimated usage of the labor categories provides no basis to sustain the protest. 

Using historical data, the agency grouped labor categories by estimated usage, and 

in so doing, reasonably distinguished labor categories for the price evaluation. The 

protester has not provided any evidence to show that the agency’s methodology 
Page 4 B-406799, B-406799.4 

was inaccurate, or that more exact historical values, as it contends, were required to 

reasonably evaluate the offerors’ prices.

Next, the protester challenges the agency’s evaluation of its past performance as 

satisfactory, contending that its past performance references’ favorable comments 

instead deserve a rating of excellent. The evaluation of an offeror’s past 

performance is a matter of agency discretion, which we will not find improper unless 

unreasonable or inconsistent with the solicitation’s evaluation criteria. Concepts & 

Strategies, Inc., B-405930, Jan. 12, 2012, 2012 CPD ¶ 47 at 7. The evaluation of 

past performance, by its very nature, is subjective, and we will not substitute our 

judgment for reasonably based evaluation ratings; an offeror’s mere disagreement 

with an agency’s evaluation judgments does not demonstrate that those judgments 

are unreasonable. FN Mfg., LLC, B-402059.4, B-402059.5, Mar. 22, 2010, 

2010 CPD ¶ 104 at 7. Our review of the record provides no basis to question the 

reasonableness of the satisfactory past performance rating assigned to the 

protester’s proposal.

As indicated above, the RFP set out several criteria to be considered in the past 

performance evaluation, including the contractor’s and subcontractors’ record of 

performance of contract requirements, quality and timeliness of deliveries, effective 

management of costs, and customer satisfaction.1

 

The record reflects that the agency received several past performance reports for 

the protester and its subcontractors, providing favorable general comments 

 1 While the solicitation did not specify the use of a particular adjectival rating 

scheme for the evaluation of past performance, the record reflects that the 

evaluators based their evaluations on definitions set forth in a source selection plan 

(SSP). See CO Statement at 4. The SSP defined the relevant past performance 

evaluation ratings as follows:

Excellent: Offeror’s performance met contractual requirements and 

exceeded many to the customer’s benefit. Performance was 

accomplished with no to a few minor problems for which any 

required corrective actions taken were highly effective. Past 

performance indicates a very low risk of successful performance to 

the Government.

Satisfactory: Offeror’s performance met contractual requirements. 

Performance was accomplished with some minor problems for 

which any required corrective actions taken were satisfactory. Past 

performance indicates a moderate to low risk of successful 

performance to the Government.

SSP at 20.
Page 5 B-406799, B-406799.4 

(regarding, for instance, the protester’s excellent performance of contract work, 

personnel’s understanding of agency missions, good quality products, cost controls, 

and on-schedule performance, for which the firm was rated highly in terms of 

customer satisfaction). In assigning the protester a satisfactory past performance 

rating, the agency assessed these comments as indicating that the firm met 

contract requirements well, but noted that no reference identified specific instances 

of the firm exceeding contractual requirements. 

The agency also reports, and our review of the record confirms, that some of the 

positive past performance references also included some less favorable comments. 

Specifically, a reference noted that the protester was “[u]sually on schedule” 

indicating that there were “[a] few glitches,” while also indicating that the protester 

was quick to get back on schedule. Agency Report, Exh. 13, Past Performance 

Evaluation Report, Tab B, References for Short & Associates at 8. Another 

reference noted the firm’s use of “[r]ather antiquated techniques” in a program 

review. Id. at 6. Two other past performance reports for the firm included ratings of 

satisfactory. Id. at 1, 4. 

Additionally, while the protester’s subcontractors’ references generally reflected 

positive ratings (e.g., noting that they followed industry best practices, met user 

needs, and made timely deliveries within budget), no specific mention was made of 

those firms having exceeded contract requirements, and a reference for one of the 

protester’s subcontractors raised concerns regarding cost control. Specifically, the 

reference stated that the subcontractor’s accounting was “not clean,’’ that “the 

accounting people were not so good” and, as to overall satisfaction, the reference 

indicated that it “[m]ight use [the subcontractor] again but advised to keep control of 

numbers and watch the management.” Id. at 16.
Page 6 B-406799, B-406799.4 

While the protester expresses disagreement with the satisfactory rating it received 

for past performance, we have no basis to find the agency’s evaluation 

unreasonable. 2

The protest is denied.

Lynn H. Gibson

General Counsel

 

2 The protester filed a supplemental protest arguing that the agency should have 

made three awards. We dismiss the protester’s allegation in this regard since the 

protester, ranked fourth in line for award, was not prejudiced by the agency’s 

decision in this regard. Moreover, the record reflects that the agency exercised its 

sound business judgment in determining that two, rather than three, awards should 

be made, and this judgment was consistent with the terms of the solicitation which 

indicated that the agency intended to make multiple awards, but did not require a 

minimum number of awards. See Cybermedia Techs., Inc., B-405511.3, Sept. 22, 

2011, 2011 CPD ¶ 180 (dismissing protest challenging number of awards made by 

agency). The protester also argued that all proposals should have been 

reevaluated for performance risk where the record indicated that the SSEB had 

reconsidered performance risk of the third-ranked offeror when recommending 

awards to only the top two firms. Because the protester has not explained how the 

agency’s consideration of risk associated with the third-ranked offeror bears on the 

evaluation of any other offeror, to include the protester, we find this allegation to be 

without merit.