United States Government Accountability Office

Washington, DC 20548

Comptroller General

of the United States

 

Decision

Matter of: Clark/Foulger-Pratt JV

File: B-406627; B-406627.2

Date: July 23, 2012

William W. Goodrich, Esq., Richard J. Webber, Esq., Patrick R. Quigley, Esq., and 

Judith B. Kassel, Esq., Arent Fox LLP, for the protester.

Douglas L. Patin, Esq., Robert J. Symon, Esq., Aron Beezley, Esq., Joel E. Brown, 

Esq., and Steven A. Pozefsky, Esq., Bradley Arant Boult Cummings LLP, for B.L. 

Harbert International, LLC, the intervenor.

Kathleen D. Martin, Esq., Department of State, for the agency.

Paula J. Haurilesko, Esq., and Guy R. Pietrovito, Esq., Office of the General 

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

DIGEST

1. In a negotiated procurement which provided for award on a best value basis, a 

source selection official’s (SSA) selection of a lower-priced proposal over a higherrated proposal on the basis that the two offers are essentially technically equal is 

not reasonable, where the SSA’s judgment as to why the two offers are essentially 

equal is not adequately explained in the record and otherwise appears inconsistent 

with the contemporaneous evaluation record.

2. Protest challenging the awardee’s increased evaluation ratings is sustained, 

where there is inadequate documentation to establish why the awardee’s ratings 

were increased.

DECISION

Clark/Foulger-Pratt Joint Venture (Clark/F-P), of Bethesda, Maryland, protests the 

award of a contract to B.L. Harbert International, LLC, of Birmingham, Alabama, 

under request for proposals (RFP) No. SAQMMA-11-R-0018, issued by the 

Department of State for pre-construction services and construction of a new 

embassy in London, England. 

We sustain the protest.

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.
Page 2 B-406627; B-406627.2 

BACKGROUND

On March 18, 2011, the State Department posted a FedBizOpps notice inviting 

submissions for the pre-qualification of firms to provide pre-construction services 

and construct a new embassy in London, England. FedBizOpps Notice, Mar. 18, 

2011, www.fbo.gov; Agency Report (AR), Tab 2, Request for Pre-qualification 

Submissions, at 1. The notice informed interested parties that the competition 

would be conducted in two phases. Phase I involved the pre-qualification of firms; 

only pre-qualified firms would receive the RFP and be invited to submit proposals 

under Phase II. AR, Tab 2, Request for Pre-qualification Submissions, at 1. 

Phase I: Pre-qualification

Pre-qualification packages were evaluated under the following factors:

Factor 1: Specialized project considerations

Factor 2: Prime firm management considerations

Factor 3: Contractor/joint venture team capability

Factor 4: Contractor/joint venture team technical capabilities

Factor 5: Construction management personnel qualifications

Factor 6: Past and present performance

See AR, Tab 2, Request for Pre-qualification Submissions, at 3-7. As relevant here, 

under Factor 1, firms were required to demonstrate experience with projects of 

similar cost and complexity, and with pre-construction Early Contractor Involvement 

(ECI) services.1

 Id. at 3. The notice advised that the State Department would 

consider the extent to which a firm had specialized experience necessary to provide 

ECI services and constructability guidance throughout the project. Id. at 4. Under 

Factor 4, firms were required to submit five project examples that demonstrated the 

technical capabilities necessary to perform the project, as follows: 

a. At least one project shall be substantially complete.

b. At least one project shall be similar in scope to The Project.

c. At least one project shall be similar in complexity to The Project.

d. At least one project shall be similar in dollar value to The 

Project.

e. At least three project [sic] shall demonstrate successful early 

contractor involvement for a design-bid-build project of similar 

magnitude.

 1 ECI services are a contractor’s pre-construction activities assisting the 

government and the design team during the design and construction documentation 

phases of the work. See RFP at C-9.
Page 3 B-406627; B-406627.2 

Id. at 4-5. Under the past and present performance factor, firms were required to 

provide two projects for pre-construction services and three projects for construction 

services that were similar in scope, complexity, and dollar value. Id. at 6.

The State Department received pre-qualification packages from six firms, including 

Clark/F-P and Harbert. The agency determined that all six firms met the 

qualification requirements. Contracting Officer’s (CO) Statement at 3. These firms 

were identified on the FedBizOpps web site on June 30, 2011, and in an email on 

the same day. Id.; FedBizOpps Notice, June 30, 2011, www.fbo.gov.

Phase II: Request for Proposals

The State Department issued the RFP to the pre-qualified firms. The solicitation 

provided for award of what the agency calls a “fixed-price, incentive-successive 

targets” contract. RFP at 7. Offerors were informed that the contract would be 

awarded on a best value basis, considering price and the management/technical 

factors identified in the RFP. The RFP stated that price was less important than the 

management/technical factors. Id. at 136. In this regard, the RFP stated that award 

could be made to a higher-rated, higher-priced offeror “where it is deemed by the 

Government that the technical superiority, overall business approach, and/or the 

past performance of the higher priced offer outweighs the benefits of any price 

difference.” Id. at 137.

The following management/technical factors were identified:

1. Technical scope and risk

2. Organization & management

3. Safety program

4. Compliance with Department of State criteria

5. Housing plan

Id. at 138-140.

Offerors were informed that the management/technical factors would be considered 

under the following areas, which were stated in descending order of importance:2

Area 1 – Risk management

Area 2 – Organization & management

Area 5 – Sustainable design & construction project experience

Area 3 – Cost management and value engineering

Area 6 – Staffing approach and key resumes

 2 The RFP did not describe how the management/technical factors would be 

evaluated under these areas.
Page 4 B-406627; B-406627.2 

Area 4 – Quality control

Area 7 – Safety program

Area 8 – Security requirements

Id. at 140-141.

The RFP also provided for oral presentations by the offerors to highlight significant 

aspects of their written technical proposals. Id. at 137. In this regard, the offerors 

were encouraged to focus on demonstrating their ability to perform large, technically 

complex projects, as well as pre-construction services related to design 

development, requirements integration, budget, cost control, value engineering, and 

scheduling. Id.

The RFP also informed offerors that the agency would “evaluate the extent to which 

the past and present performance of the offeror demonstrates conformance to 

specifications and compliance with contract terms and conditions.” Id. at 140. 

Offerors were not instructed to provide any additional past and present performance 

information in their proposals--beyond what was requested for the pre-qualification 

package--and the RFP did not state what weight past and present performance 

would receive in the evaluation of proposals.

With regard to price, offerors were instructed to provide a fixed price for the 

pre-construction services portion of the contract, and to provide an initial target 

price, initial target cost, initial target profit, and initial ceiling price for construction 

services. See id. at 127. Offerors were informed that the price evaluation would be 

based on the sum of the target and ceiling price and the proposed target profit. Id.

at 137. The RFP also stated that price would be evaluated for accuracy, realism, 

and reasonableness. Id.

Evaluation of Proposals

The State Department received five Phase II proposals, including Clark/F-P’s and 

Harbert’s. Initial technical proposals were evaluated by the agency’s technical 

evaluation panel (TEP), which also received oral presentations from the offerors.3

 3 The TEP consisted of five voting members and a non-voting chair. AR, Tab 8, 

TEP Initial Consensus Evaluation Report, at 2.

 

AR, Tab 8, TEP Initial Consensus Evaluation Report, at 5. The TEP incorporated 

the results of the oral presentations into their initial evaluations. Clark/F-P’s 

proposal was ranked first as the highest-rated offer, and Harbert’s proposal was 
Page 5 B-406627; B-406627.2 

ranked third. Id. at 62. Clark/F-P’s and Harbert’s initial proposals were evaluated 

as follows:4

Clark/F-P Harbert

Area 1 – Risk management Excellent Good

Factor 1: Technical scope and risk Excellent Good

Subfactor 1: Schedule Good Good

Area 2 – Organization & management Excellent Good

Factor 2: Organization & management Excellent Good

Subfactor 1: Changes in organization since 

pre-qualification Good Good

Subfactor 2: Interaction and communication plan Good Good

Subfactor 4: Subcontractor management 

program Good Good

Area 5 – Sustainable design & construction project 

experience Excellent Good

Factor 3: Experience with sustainability requirements Excellent Good

Area 3 – Cost management and value engineering Good Good

Factor 2, Subfactor 6: Cost estimating approach Good Good

Area 6 – Staffing approach and key resumes Excellent Good

Factor 2, Subfactor 3: Organization and staffing 

plan and executive/supervisory personnel Excellent Good

Area 4 – Quality control Excellent Good

Factor 2, Subfactor 5: Construction plan Excellent Good

Area 7 – Safety program Good Poor

Factor 4 Safety program Good Poor

Area 8 – Security requirements Good Good

Factor 5: Compliance with State Department criteria n/a5 Good

 4 Proposals were evaluated as excellent, good, fair, or poor. An excellent rating 

reflected exceptional strengths demonstrating a superior technical solution and low 

risk of unsuccessful performance. A good rating reflected a proposal that met or 

exceeded the requirements and the approach indicated that the risk of unsuccessful 

performance was acceptable. A fair rating reflected a proposal that satisfied the 

requirement but the technical approach was only adequate or contained risks that 

increased the likelihood of unsuccessful performance. A poor rating indicated that 

aspects of the proposal were only minimally adequate or contained risks that 

significantly increased the likelihood of unsuccessful performance. See AR, Tab 8, 

TEP Initial Consensus Evaluation Report, at 4. 

5 Clark/F-P’s proposal was not evaluated under this factor because it had no prior 

experience with State Department Industrial Security and Construction Security 

(continued...)
Page 6 B-406627; B-406627.2 

Clark/F-P Harbert

Factor 6: Housing plan Good Good

See AR, Tab 8, TEP Initial Consensus Evaluation Report, at 9-18, 28-38.6 In 

addition to the adjectival ratings, the TEP identified exceptional strengths, strengths, 

weaknesses, and significant weaknesses in the proposals. Id. For example, under 

Area 1, risk management, for which Clark/F-P’s proposal was rated excellent, the 

TEP identified numerous exceptional strengths and strengths in Clark/F-P’s 

proposal and a few weaknesses. In contrast, the TEP identified fewer exceptional 

strengths and strengths and more weaknesses in Harbert’s proposal, which was 

rated good under this area. See id. at 9-11, 29-32. Similarly, under Area 3, cost 

management and value engineering, under which both firms’ proposals were rated 

good, the TEP identified a number of exceptional strengths and strengths and no 

weaknesses in Clark/F-P’s proposal, and several exceptional strengths and one 

weakness in Harbert’s proposal. Id. at 15, 35-36. 

After reviewing the TEP’s consensus evaluation report, the contracting officer, who 

is the source selection authority (SSA) for this procurement, decided to conduct 

discussions. CO’s Statement at 7. Written and oral discussions were conducted 

and revised proposals requested. Id.

Clark/F-P’s and Harbert’s revised proposals were evaluated as follows:

Clark/F-P Harbert

Area 1 – Risk management Excellent Excellent

Factor 1: Technical scope and risk Excellent Excellent

Subfactor 1: Schedule Good Good

Area 2 – Organization & management Excellent Good

Factor 2: Organization & management Excellent Good

Subfactor 1: Changes in organization since 

pre-qualification Good Good

Subfactor 2: Interaction and communication plan Good Good

Subfactor 4: Subcontractor management 

program Good Excellent

 

(...continued)

Requirements. See AR, Tab 8, TEP Initial Consensus Evaluation Report, at 38; see 

also Tab 7, Clark/F-P Individual Evaluation Sheets, Area 8, at 1.

6 The subfactors identified by the TEP were not specifically described as subfactors 

by the RFP but were identified as things that would be considered under each 

respective evaluation factor.
Page 7 B-406627; B-406627.2 

Clark/F-P Harbert

Area 5 – Sustainable design & construction project 

experience Excellent Good

Factor 3: Experience with sustainability requirements Excellent Good

Area 3 – Cost management and value engineering Good Excellent

Factor 2, Subfactor 6: Cost estimating approach Good Excellent

Area 6 – Staffing approach and key resumes Excellent Excellent

Factor 2, Subfactor 3: Organization and staffing 

plan and executive/supervisory personnel Excellent Excellent

Area 4 – Quality control Excellent Excellent

Factor 2, Subfactor 5: Construction plan Excellent Excellent

Area 7 – Safety program Good Good

Factor 4 : Safety program Good Good

Area 8 – Security requirements Good Good

Factor 5: Compliance with State Department criteria n/a Good

Factor 6: Housing plan Good Good

See AR, Tab 11, Minority Best Value Recommendation, at 11. 

As the table above shows, the TEP increased Harbert’s ratings from good to 

excellent under Areas 1, 3, 4, and 6, and from poor to good under Area 7. The TEP 

identified no further strengths in Harbert’s proposal under these areas, but merely 

stated that Harbert had corrected the weaknesses identified. AR, Tab 9, TEP Final 

Consensus Evaluation Report, at 1-4. The TEP did not explain how the 

weaknesses were addressed or otherwise identify any bases for increasing 

Harbert’s ratings beyond the elimination of weaknesses. See Hearing Transcript 

(Tr.) at 19, 81, 139, 146.7

 In the areas under which the TEP had assigned 

weaknesses to Clark/F-P’s proposal, the TEP also found, without explanation, that 

Clark/F-P had corrected its weaknesses. None of Clark/F-P’s ratings changed. AR, 

Tab 9, TEP Final Consensus Evaluation Report, at 5. 

The SSA asked the TEP to consider the offerors’ proposed prices and provide an 

award recommendation. CO’s Statement at 8. Clark/F-P proposed a final 

evaluated price of $452,558,000; Harbert proposed a final evaluated price of 

$446,826,543. Protest at 11. The TEP was unable to reach a consensus judgment 

concerning which offeror to recommend for award. The SSA met with the TEP on 

March 8 to discuss the evaluators’ differing opinions and to attempt to help the TEP 

 7 We conducted a hearing on July 11, 2012, at which we received testimony from 

the SSA concerning the basis for his award decision. 
Page 8 B-406627; B-406627.2 

reach a consensus decision as to which firm to recommend.8 CO’s Statement at 8. 

When the TEP members could not agree, the SSA instructed the TEP members to 

prepare separate best value recommendations. Id.

Two best value recommendations were prepared by the TEP. A majority of the TEP 

(three voting members as well as the non-voting chair) recommended that the 

higher-rated, higher-priced proposal of Clark/F-P be selected for award as reflecting 

the best value to the government.9 AR, Tab 10, TEP Majority Recommendation, 

at 8. In this regard, these evaluators noted that Clark/F-P’s proposal had been 

rated excellent in the three most heavily weighted areas--Area 1, risk management; 

Area 2, organization & management; and Area 5, sustainable design & construction 

project experience--and the evaluators enumerated many of the strengths identified 

by the TEP in its consensus evaluation of Clark/F-P’s proposal. Id. For example, 

the evaluators noted that Clark/F-P proposed to use [Deleted], which would reduce 

risk. Id. at 6. The evaluators also noted that Clark/F-P was the only offeror with 

demonstrated success in [Deleted]. Id. at 7. These evaluators concluded that, 

although Clark/F-P’s proposed price was 1.2 percent higher than Harbert’s, 

Clark/F-P’s technical superiority and overall business approach represented the 

best value for the government despite the firm’s slightly higher price. Id. at 5, 8.

A minority of the TEP (two voting members) recommended Harbert’s proposal be 

selected for award. AR, Tab 11, Minority Best Value Recommendation, at 9. These 

evaluators noted and contrasted strengths identified in both firms’ proposals.10 For 

example, where Clark/F-P was credited with proposing [Deleted] work to reduce 

coordination difficulties between activities [Deleted], the minority evaluators noted 

that Harbert was reducing risk by [Deleted]. Id. at 6. Similarly, where Clark/F-P 

was credited with demonstrating experience with cutting-edge [Deleted] on two 

recent projects, the minority evaluators noted that Harbert emphasized the use of 

[Deleted] as a major risk factor requiring early coordination. Id.

 8 There is no documentation of the TEP’s deliberation or discussion at the March 8 

meeting.

at 5-7. The minority 

evaluators concluded that, based on both offerors having received overall excellent 

9 The State Department contends that the TEP chair signature on the majority 

recommendation did not indicate his agreement with these evaluators’ view that 

Clark/F-P should be selected as the best value offeror. AR at 7 n.1, n.2. This 

contention appears to be contradicted by the record, given that the TEP chair did 

not sign the minority recommendation even though a space was provided for his 

signature. See AR, Tab 11, TEP Minority Recommendation, at 10.

10 A number of strengths cited by the two minority evaluators are not otherwise 

contained in any of the other contemporaneous evaluation documents, such as the 

TEP’s initial and final consensus evaluation reports.
Page 9 B-406627; B-406627.2 

evaluations and Harbert’s $5.7 million (1.2 percent) lower price, Harbert offered “an 

equal degree of best value at a lower cost.” Id. at 5.

Source Selection Decision

The TEP’s two best value recommendations were provided to the SSA, who had no 

further discussions with any of the TEP members. Tr. at 145. The SSA reviewed 

the initial and final consensus evaluation reports, the two best value 

recommendations, and considered the March 8 meeting discussions, in making his 

award decision.11 CO’s Statement at 11; Tr. at 29. The SSA concluded that the 

minority best value recommendation indicated that the proposals of Clark/F-P and 

Harbert were “essentially technically equal.”12 CO’s Statement at 11. In this regard, 

the SSA found that Clark/F-P’s and Harbert’s proposals were essentially technically 

equal under every one of the eight evaluation areas, although the minority 

recommendation only discussed Harbert’s evaluation under four of the areas. 

Tr. at 55. For example, although Clark/F-P’s proposal was rated excellent and 

Harbert’s proposal rated good under Area 5, sustainable design and construction 

project experience, the SSA concluded that the two proposals were technically 

equal in that area. Tr. at 144-45. Given his conclusion that the two proposals were 

essentially technically equal, the SSA selected Harbert’s proposal for award on the 

basis of its lowest price. AR, Tab 14, SSA Award Determination, at 3; Tr. at 12, 

59-60.

Following a debriefing, Clark/F-P protested to our Office. The agency has 

authorized performance of this contract, notwithstanding this protest, on the basis 

that continued contract performance is in the best interests of the United States.

DISCUSSION

Source Selection Decision

Clark/F-P objects to the SSA’s determination that the protester’s and awardee’s 

final revised proposals were essentially equal, complaining that this determination is 

inadequately documented and is inconsistent with the evaluation record. 

Protester’s Supp. Comments at 10. The State Department responds that the SSA’s 

selection decision is based upon his independent assessment of the evaluated 

strengths and weaknesses in each firm’s proposal and is adequately documented 

by his 4-page selection decision. Supp. AR at 19; Agency’s Post-Hearing 

 11 The SSA testified that he did not independently evaluate or read the proposals. 

Tr. at 60.

12 In his testimony, the SSA admitted that the second best value recommendation 

did not state that the two proposals were technically equal. Tr. at 95.
Page 10 B-406627; B-406627.2 

Comments at 21. The agency also contends that the SSA’s testimony at our 

July 11 bid protest hearing, which included his discussion of an undocumented 

March 8 meeting with the TEP, persuasively supports the reasonableness of his 

decision. Agency’s Post-Hearing Comments at 22-23.

We find, as explained below, that the basis of the SSA’s determination that the two 

firms’ proposals were essentially technically equal is inadequately documented in 

the record. That is, despite our Office conducting a bid protest hearing to receive 

further explanation from the SSA with respect to how he determined that the two 

firms’ proposals were essentially equal, the record does not explain why the 

strengths identified in Clark/F-P’s higher rated proposal did not reflect technical 

superiority that should be considered in a cost/technical tradeoff analysis, where the 

RFP provided that technical merit was more important than price. 

In reviewing an agency’s evaluation of proposals and source selection decision, we 

will examine the supporting record to determine whether the decision was 

reasonable, consistent with the stated evaluation criteria, and adequately 

documented. Johnson Controls World Servs., Inc., B-289942, B-289942.2, May 24, 

2002, 2002 CPD ¶ 88 at 6. In this regard, an agency’s evaluation of proposals and 

source selection decision should be documented in sufficient detail to allow for the 

review of the merits of a protest. See Southwest Marine, Inc.; American Sys. Eng’g 

Corp., B-265865.3, B-265865.4, Jan. 23, 1996, 96-1 CPD ¶ 56. An agency which 

fails to adequately document its evaluation of proposals or source selection decision 

bears the risk that its determinations will be considered unsupported, and absent 

such support, our Office may be unable to determine whether the agency had a 

reasonable basis for its determinations. Engineering and Computation, Inc., 

B-261658, Oct. 16, 1995, 95-2 CPD ¶ 176; U.S. Defense Sys., Inc., B-245563, 

Jan. 17, 1992, 92-1 CPD ¶ 89; American President Lines, Ltd., B-236834.3, July 20, 

1990, 90-2 CPD ¶ 53. 

Here, the record contains significant documentation of the TEP’s consideration of 

the technical merit of the protester’s and awardee’s proposals. All of the 

contemporaneous evaluation documentation, including the minority best value 

recommendation, reflects that Clark/F-P’s initial and final revised proposals were 

the highest technically rated of all offers received. In this regard, the TEP 

documented numerous strengths in both Clark/F-P’s and Harbert’s proposals, 

reflecting the two firms’ differing approaches to performing the contract. Although 

the TEP could not agree on a consensus best value recommendation as to which 

firm should be selected to receive award, there is no documentation in the record 

that any member of the TEP believed that Clark/F-P’s and Harbert’s proposals were 

technically equal. In this regard, the SSA acknowledged at our hearing that none of 

the evaluators ever stated that the two proposals were essentially technically equal. 

Tr. at 85-86, 139-40.
Page 11 B-406627; B-406627.2 

Despite the evidence in the contemporaneous record to the contrary, the SSA 

concluded that the two proposals were essentially technically equal. Specifically, 

the SSA concluded that the two firms’ technical proposals were “similar in that no 

weakness or deficiencies are noted and each offeror has clearly demonstrated the 

capability to perform the required construction.” AR, Tab 14, Source Selection 

Decision, at 3. This conclusion, however, was unsupported by any discussion of 

the respective strengths or weaknesses evaluated in the firms’ proposals or any 

analysis supporting why he viewed the proposals to be essentially equal. Rather, 

the SSA appeared to base his judgment about the equality of the two firms’ 

proposals upon the minority best value recommendation, which the SSA described 

as having found the firms’ proposals essentially technically equal. See id.; see also

Tr. at 100.

The minority best value recommendation, however, does not state that these two 

evaluators found Clark/F-P’s and Harbert’s proposals to be essentially technically 

equal.13 In this regard, the State Department has not provided statements from 

these two evaluators, or any other evaluator, stating that the two firms’ proposals 

had essentially equal technical merit. Contrary to the SSA’s statement in his 

selection decision, the minority best value recommendation actually states that 

these two evaluators recommended award to Harbert as “offer[ing] an equal degree 

of best value at a lower cost.”14 AR, Tab 11, Minority Best Value Recommendation, 

at 5.

Moreover, the minority recommendation attributed a number of strengths to 

Harbert’s proposal that do not appear in the TEP initial or final consensus 

evaluation reports or elsewhere in the contemporaneous evaluation record. For 

example, with regard to Area 1, Risk Management, the minority recommendation 

stated that Harbert presented an excellent [Deleted] in their interview presentation. 

AR, Tab 11, Minority Best Value Recommendation, at 6. However, this attributed 

strength was not recorded as either a strength or exceptional strength in the initial 

 13 After receiving the minority best value recommendation, the SSA did not ask the 

evaluators whether they viewed the two firms’ proposals as being essentially 

technically equal. Tr. at 145.

14 At the July 11 hearing, the SSA admitted that the phrase “equal degree of best 

value” was not a statement of technical equality, but indicated the evaluators’ 

consideration of both technical merit and price. See Tr. at 93-95. Although the 

State Department argues that the minority best value recommendation did not 

reflect a cost/technical tradeoff, see Agency’s Post-Hearing Comments at 31, this is 

not consistent with either the express words of the recommendation or the SSA’s 

testimony that reflects that these evaluators’ judgment was based on their 

consideration of both technical merit and price. 
Page 12 B-406627; B-406627.2 

TEP consensus evaluation report,15 which included strengths identified from oral 

presentations.16 See AR, Tab 8, TEP Initial Consensus Evaluation Report, at 5. 

Given the lack of support in the contemporaneous record for the SSA’s conclusion 

about the technical equality of the two firms’ proposals, we conducted a hearing to 

obtain the SSA’s testimony. The SSA, however, provided little detail or 

substantiation in this testimony to support his conclusion that the two proposals 

were essentially technically equal. The SSA acknowledged that he did not read the 

proposals, explaining that he did not want to “circumvent the findings” of the TEP 

given his lack of technical expertise. Tr. at 52. The SSA also testified that, based 

on his review of the TEP’s consensus evaluation reports, the two best value 

recommendations, and the March 8 meeting, he decided that the two proposals 

were equal under all eight evaluation areas. This judgment is not supported by the 

record, however. For example, in two of the three most heavily weighted areas--

Area 2, organization and management, and Area 5, sustainable design and 

construction project experience--the TEP rated Clark/F-P’s proposal as excellent 

and Harbert’s proposal as good. See

 15 We note that the initial consensus evaluation report mentioned Harbert’s 

[Deleted] in its overview of what Harbert proposed, but did not identify it as a 

strength or exceptional strength under Area 1, or any other area. See AR, Tab 8, 

TEP Initial Consensus Evaluation Report, at 8.

AR, Tab 9, TEP Final Consensus Evaluation 

Report, at 7. Despite having testified to his limited technical expertise, the SSA did 

not ask any TEP member why the two proposals were not rated the same in these 

areas, and the record does not show that any TEP member believed the two firms’ 

proposals were essentially technically equal under these areas. Instead, the SSA 

testified that he relied on the written documents and his recollections from the 

March 8 meeting. Tr. at 53, 144-45. Given the lack of any substantiating detail or 

explanation to support the SSA’s conclusion that the firms’ proposals were 

essentially technically equal under every one of the evaluation areas, we have no 

basis to find reasonable this conclusion.

16 Although the State Department acknowledges that this strength was not recorded 

in the consensus evaluation documentation, it nevertheless argues that it was 

recognized by the TEP. Not only is there no support for this argument in the 

contemporaneous evaluation record, but it is also unsupported by the SSA’s 

testimony, wherein the SSA merely stated that these asserted strengths “could have 

been identified based on the proposal revisions.” Tr. at 146. As with other 

strengths identified for Harbert’s proposal in the minority best value 

recommendation that were not otherwise identified in the consensus evaluation 

reports, the State Department’s arguments do not address how a “strength” that 

was not significant enough to be recorded by the TEP should be considered to be of 

equal merit to those that were agreed upon and documented by the TEP in its 

consensus evaluation report.
Page 13 B-406627; B-406627.2 

The record also shows that the SSA’s equality determination is based in part upon a 

misinterpretation of one of the strengths the minority best value recommendation 

attributed to Harbert’s proposal. At the hearing, the SSA testified that the minority 

recommendation identified as a proposal strength Harbert’s intention to [Deleted]. 

Tr. at 111; see AR, Tab 11, Minority Best Value Recommendation, at 6. This 

strength was viewed as offsetting the exceptional strength that was identified by the 

TEP in Clark/F-P’s proposal for its use of [Deleted] to reduce risk. Tr. at 108-11. 

Not only was this offsetting strength for Harbert not identified in the consensus 

evaluation reports, but it appears inconsistent with what Harbert actually offered. 

Instead of [Deleted], the record shows that Harbert actually proposed to [Deleted]. 

See AR, Tab 4, Harbert Revised Proposal, Section L.23.2.2.2, Risk Management, 

at 9.

We are also unable to reconcile the contemporaneous evaluation documentation 

with the SSA’s testimony about the undocumented March 8 meeting, which the SSA 

apparently believed established that some TEP members changed their earlier 

views and agreed that the Harbert and Clark/F-P proposals were technically 

equal.17 Although, in determining the reasonableness of an agency’s evaluation 

and award decision, we will consider all information provided to our Office for 

consideration during the protest, including the parties’ arguments and explanations, 

and testimony elicited at a hearing, see Southwest Marine, Inc.; American Sys. 

Eng’g Corp., supra, we accord greater weight to contemporaneous evaluation and 

source selection material than to the parties’ later explanations, arguments, and 

testimony. Matrix Int’l Logistics, Inc., B-272388.2, Dec. 9, 1996, 97-2, CPD ¶ 89 

at 6. Here, the SSA testified that neither he nor any member of the TEP took notes 

during the March 8 meeting. Tr. at 28, 139. Additionally, the SSA could not testify 

with any specificity as to the content of the meetings--beyond stating that “there was 

a lot of back and forth” between members of the TEP. See Tr. at 27, 89, 142. 

Moreover, the State Department has not provided any declarations from TEP 

members as to the content of the meeting or otherwise supporting the SSA’s 

contention that his conclusions were supported by discussion at this meeting.

We recognize that while agency selection officials may rely on reports and analyses 

prepared by others, the ultimate selection decision reflects the selection official’s 

independent judgment. See, e.g., Puglia Eng’g of California, Inc., B-297413 et al., 

Jan. 20, 2006, 2006 CPD ¶ 33. However, the independence granted selection 

officials does not equate to a grant of authority to ignore, without explanation, those 

who advise them on selection decisions. University Research Co., LLC, B-294358, 

et al.

 17 As noted above, however, the SSA also testified that no evaluator stated to him 

that the two proposals were essentially technically equal. See Tr. at 85-86, 139-40.

, Oct. 28, 2004, 2004 CPD ¶ 217 at 8. Furthermore, although source selection 

officials may reasonably disagree with the ratings and recommendations of 
Page 14 B-406627; B-406627.2 

evaluators, their independent judgments must be reasonable, consistent with the 

stated evaluation scheme, and adequately documented. Earl Indus., LLC, 

B-309996, B-309996.4, Nov. 5, 2007, 2007 CPD ¶ 203 at 7. 

Here, the record provides no evidence of any meaningful consideration by the SSA 

of the evaluated differences in the firms’ offers. Where a solicitation provides for 

award on a best value basis, the decision as to the relative technical merit of the 

offers must be based upon a comparative consideration of the technical differences 

of the proposals. See Systems Research & Applications, Corp.; Booz Allen 

Hamilton, Inc., B-299818 et al., Sept. 6, 2007, 2008 CPD ¶ 28 at 24.

Evaluation of Harbert’s Final Revised Proposal

Clark/F-P also challenges the State Department’s evaluation of Harbert’s final 

revised proposal, where the agency increased Harbert’s proposal ratings from good 

to excellent under Areas 1, 3, 4, and 6. The protester complains that there is no 

documentation in the record explaining how Harbert’s revisions adequately 

addressed the weaknesses the TEP had identified in Harbert’s initial proposal and 

why Harbert’s revised proposal merited an excellent rating under these areas. 

Supp. Protest at 4. 

For example, in Area 3, cost management and value engineering, the TEP initially 

assessed Harbert’s proposal as having 2 exceptional strengths and 1 weakness, 

and assessed Clark/F-P’s proposal as having 5 exceptional strengths and 

3 strengths. See AR, Tab 8, TEP Initial Consensus Evaluation Report, at 15, 35-36. 

Based on these assessments, both Harbert’s and Clark/F-P’s proposals were rated 

as good under Area 3. Id. After receiving revised proposals, the TEP increased 

Harbert’s rating to excellent, without explanation, other than the statement that the 

“TEP accepted that the Offeror corrected the weakness and the ranking was 

changed to Excellent.” See AR, Tab 9, TEP Final Consensus Evaluation Report, 

at 3. In this regard, Clark/F-P notes that the TEP did not identify any further 

strengths in Harbert’s proposal as a result of the firm’s proposal revisions. 

The State Department responds that Harbert provided comprehensive explanations 

in its revised proposal that corresponded to each of the identified weaknesses, and 

that the TEP reasonably increased Harbert’s proposal ratings to reflect that there 

were no weaknesses in its revised proposal. Supp. AR at 11, 16. 

As the State Department correctly notes, the evaluation of proposals and 

assignment of adjectival ratings should generally not be based upon a simple count 

of strengths and weaknesses, but on a qualitative assessment of the proposals 

consistent with the evaluation scheme. Supp. AR at 10 (citing Command Mgmt. 

Servs., Inc., B-310261, B-310261.2, Dec. 14, 2007, 2008 CPD ¶ 29 at 4). Adjectival 

ratings are merely a guide for intelligent decisionmaking. One Largo Metro LLC; 

Metroview Dev. Holdings, LLC; King Farm Assocs., LLC, B-404896 et al., June 20, 
Page 15 B-406627; B-406627.2 

2011, 2011 CPD ¶ 128 at 14. However, evaluators and selection officials should 

reasonably consider the underlying bases for ratings, including the advantages and 

disadvantages associated with the specific content of competing proposals, in a 

manner that is fair and equitable and consistent with the terms of the solicitation. 

See MD Helicopters, Inc.; AgustaWestland, Inc., B-298502 et al., Oct. 23, 2006, 

2006 CPD ¶ 164 at 15. Indeed, the Federal Acquisition Regulation (FAR) requires 

that agencies sufficiently document their judgments, including documenting the 

relative strengths, deficiencies, significant weakness, and risks supporting their 

proposal evaluations. See FAR §§ 4.801(b), 15.305(a), 15.308; Century Envtl. 

Hygiene, Inc., B-279378, June 5, 1998, 98-1 CPD ¶ 164 at 4. 

Here, the record does not provide the underlying bases for the TEP’s decision to 

increase the ratings of Harbert’s proposal to excellent after revised proposals. As 

noted above, the TEP final consensus evaluation report merely states that the “TEP 

accepted that the offeror corrected the weakness and the ranking was changed to 

Excellent” without providing additional explanation. AR, Tab 9, TEP Final 

Consensus Evaluation Report, at 2-3. The SSA also testified that he had seen no 

written explanation for why the TEP increased Harbert’s proposal rating from good 

to excellent in these areas, nor did he engage in discussion on this matter. 

Tr. at 80, 81. Given the lack of documentation and support for the increased ratings 

in Harbert’s proposal, we find no basis to conclude that the TEP reasonably raised 

Harbert’s rating based on the firm’s revised proposal.

RECOMMENDATION

Because the agency exercised its authority to override the statutory stay on contract 

performance on the basis of the best interests of the United States, in accordance 

with the Competition in Contracting Act of 1984, we are required to make our 

recommendation without regard to the cost or disruption from terminating, 

recompeting, or reawarding the contract. See 31 U.S.C. § 3554(b)(2). We 

recommend that the State Department reevaluate Harbert’s proposal and make a 

new selection decision. If Harbert’s proposal is not found to reflect the best value to 

the government, the agency should terminate its contract and award the contract to 

the offeror whose proposal is determined to be the best value to the government. 

We also recommend that the protester be reimbursed its reasonable costs of filing 

and pursuing the protest, including attorneys’ fees. Bid Protest Regulations, 

4 C.F.R. § 21.8(d)(1). The protesters’ certified claims for such costs, detailing the 
Page 16 B-406627; B-406627.2 

time expended and costs incurred, must be submitted directly to the agency within 

60 days after receipt of this decision. 4 C.F.R. § 21.8(f)(1).

The protest is sustained.18

Lynn H. Gibson

General Counsel

 18 Clark/F-P also complains that the State Department failed to qualitatively 

consider past and present performance in making its Phase II award determination. 

We find from our review that the RFP was patently ambiguous with respect to how 

past and present performance would be considered in the evaluation of proposals 

under Phase II. Since Clark/F-P did not timely challenge this patent ambiguity prior 

to the closing time, it may not now complain that the agency failed to qualitatively 

assess the merits of the firms’ respective past and present performance. See

Marine Group Boat Works, LLC, B-404277, B-404277.2, Jan. 19, 2011, 2011 CPD 

¶ 23 at 4.