United States Government Accountability Office

Washington, DC 20548

Comptroller General

of the United States

 

Decision

Matter of: Cyberdata Technologies, Inc.

File: B-406692

Date: August 8, 2012

Edward J. Tolchin, Esq., Offit Kurman, for the protester.

Catherine Crow, Esq., General Services Administration, for the agency.

Frank Maguire, Esq., and David A. Ashen, Esq., Office of the General Counsel, 

GAO, participated in the preparation of the decision.

DIGEST

1. Protester’s argument that its technically acceptable quotation was excluded from 

the competition without consideration of price in a best value acquisition for the 

establishment of blanket purchase agreements (BPA) under the Federal Supply 

Schedule (FSS) is sustained where Federal Acquisition Regulation subpart 8.4 

requires that price be considered in establishing BPAs under the FSS, and where 

the record shows that the agency “downsized” the pool of vendors, by excluding 

some of them, like the protester, who were technically acceptable, without 

consideration of their lower prices.

2. Where a protest raises an untimely issue that has not been previously decided 

and is potentially of widespread interest to the procurement system, the 

Government Accountability Office (GAO) may consider the issue pursuant to the 

significant issue exception in its timeliness rules, 4 C.F.R. § 21.2(c) (2012); here, 

the GAO invokes the significant issue exception and sustains the protest, however, 

since the protester did not raise the issue in a timely manner--when it clearly could 

have done so--GAO does not recommend reimbursement of protest costs. 

DECISION

Cyberdata Technologies, Inc., of Herndon, Virginia, protests the General Services 

Administration’s (GSA) decision not to establish a blanket purchase agreement 

(BPA) with the company under request for quotations (RFQ) No. PGE-01-25-2012, 

RFQ 646760. Cyberdata asserts that its quotation improperly was excluded from 

the competition without consideration of its price.

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-406692 

BACKGROUND

The RFQ, issued under Federal Acquisition Regulation (FAR) subpart 8.4, Federal 

Supply Schedule (FSS), to support the Chief Information Officer for GSA’s Public 

Building Service, sought quotations from vendors holding contracts under GSA 

Information Technology Schedule 70, Special Item Number 132-51, Information 

Technology Professional Services. The RFQ provided for the establishment of up 

to 6 BPAs, with a 5-year term, with a total combined maximum value of $30 million 

annually for all BPA holders and $150 million over 5 years. 

The RFQ provided that the BPAs would be issued on a best value basis--“[t]he 

method to establish the BPA will be based on the best value to the government,

price and other factors considered”--considering price and four technical evaluation 

factors: technical understanding, management plans, past performance, and small 

business participation. AR, exh.1, RFQ, at 55-61. Technical was “more significant”

than price. RFQ at 55. 

The RFQ further provided that: 

The Technical Evaluation Board (TEB) shall review and downsize the 

number of quotations to no more than twelve (12) of the most 

favorably evaluated quotations. The chosen Contractors,

approximately six (6) large businesses and approximately six (6) small 

businesses, shall present oral presentations to GSA.

Id. at 61. In addition, the RFQ was amended to include the following question and 

answer regarding the methodology for “downsizing” the number of vendors that 

would be permitted to make an oral presentation:

Q6: Page 61 states: “The Technical Evaluation Board (TEB) shall 

review and downsize the number of quotations to no more than twelve 

(12) of the most favorably evaluated quotations.” Is this based on 

technical or technical and price? 

A6: The TEB will downsize the quotations to the most favorably 

evaluated quotations based on the technical quotation only.

AR, exh. 4, RFQ amend. No. 1, Questions and Answers, at 2.

The closing date was March 2, 2012. GSA received 35 responses to the 

solicitation, including 12 from large businesses and 23 from small businesses

(including Cyberdata). The TEB evaluated the technical quotations of all 

35 vendors, and prepared a narrative report describing for each vendor the 

strengths and weaknesses under each of the four technical evaluation factors, and 
Page 3 B-406692 

the overall consensus technical score for the vendor. AR, exh. 21, TEB Report; AR,

exh. 24, Best Value Determination. 

The TEB ranked the vendors by overall technical score to determine the top 

twelve most technically favorable quotations. Only those vendors were to be invited 

to deliver oral presentations. Contracting Officer’s (CO) Statement at 3; see TEB 

Report; Best Value Determination at 1. Cyberdata’s technical quotation received an 

overall adjectival rating of “good,” and was ranked 14th technically. CO’s Statement 

at 6. 

Of particular importance here, the CO’s best value determination made clear that 

“[p]ricing was not used in determining the top twelve (12) most technically favorable 

quotations.” Best Value Determination at 1. Instead, the best value determination

indicated that the twelve most technically favorable quotations “would be able to 

provide a fair and adequate pricing competition for the Best Value Determination.” 

Id.; see also CO’s Statement at 4. While the best value determination generally 

acknowledged that “some of the unselected [o]fferors may have been able to 

provide BPA services at a lower cost,” it indicated that “it would be at the reduction 

of technical quality and not worth a trade-off to that extent. GSA’s primary goal on 

this solicitation was to select technically superior [o]fferors.” Best Value 

Determination at 1. 

Vendors not selected to deliver oral presentations, including Cyberdata, were 

notified that they were excluded from further consideration for receipt of a BPA. 

GSA ultimately decided to establish BPAs with six of the Schedule 70 contract 

holders, including 2 large businesses and 4 small businesses.

DISCUSSION

In its protest to our Office, Cyberdata challenges the decision to exclude its 

quotation from the competition without consideration of price. In response to this 

protest, GSA argues that the protest should be dismissed as untimely because the 

solicitation--and its amendments, including the Questions and Answers--clearly 

communicated the agency’s intended evaluation approach. 

Significant Issue Exception to Timeliness Requirements

As an initial matter, our Bid Protest Regulations provide that protests based upon 

alleged improprieties in a solicitation which are apparent prior to closing shall be 

filed prior to closing. 4 C.F.R. § 21.2(a)(1) (2012). However, our Regulations also 

provide that GAO may consider a protest that raises issues significant to the 

procurement system. 4 C.F.R. § 21.2(c). In this regard, what constitutes a 

significant issue is to be decided on a case-by-case basis. Pyxis Corp., B-282469, 

B-282469.2, July 15, 1999, 99-2 CPD ¶ 18 at 4. We generally regard a significant 

issue as one of widespread interest to the procurement community and that has not 
Page 4 B-406692 

been previously decided. Satilla Rural Electric Membership Corp., B-238187, 

May 7, 1990, 90-1 CPD ¶ 456 at 3. 

Here, while we have previously addressed the requirement that price or cost be 

considered before a technically acceptable proposal (or quotation) can be excluded 

from consideration for award, see Kathpal Tech., Inc.; Computer & Hi-Tech Mgmt.,

Inc., B-283137.3 et al., Dec. 30, 1999, 2000 CPD ¶ 6 at 9, we have not previously 

considered this issue in the context establishing a BPA under the FSS. In addition, 

as set forth more fully below, the Federal Acquisition Regulation (FAR) imposes 

specific requirements applicable to best value decisions related to the creation of 

BPAs under the FSS. See FAR § 8.405(a). Given these requirements, and given 

the extensive reliance on BPAs in federal procurement, we think an agency’s 

decision to ignore the role of price or cost in excluding technically acceptable 

vendors from further consideration for receipt of a BPA under the FSS is too 

fundamental to ignore. Accordingly, even though this solicitation sufficiently placed 

vendors on notice that the agency would not consider price in “downsizing” the 

competition, we find that this situation is appropriate for the use of the significant 

issue exception to our bid protest timeliness rules. 

GSA’s “Downsizing” Decision Improperly Ignored Prices

As discussed above, there is little dispute in this record that Cyberdata was 

excluded from the competition without consideration of its price. Vendors were 

specifically advised that the agency “will downsize the quotations to the most 

favorably evaluated quotations based on the technical quotation only.” RFQ 

amend. No. 1, Questions and Answers, at 2. In addition, the best value 

determination, submitted as part of the agency report, indicated that in fact “[p]ricing 

was not used in determining the top twelve (12) most technically favorable 

quotations.” Best Value Determination at 1. Likewise, the contracting officer 

reports that “[t]he Government used the overall technical ranking to determine which 

twelve [v]endors would be invited to deliver oral presentations.” CO’s Statement 

at 3.

The FAR, however, requires with regard to creating BPAs under the FSS that: 

“[o]rdering activities shall establish the BPA with the schedule contractor(s) that can 

provide the supply or service that represents the best value.” FAR § 8.405-3(a)(1). 

Further, the FAR indicates with regard to establishing a BPA that “[i]n addition to 

price (see 8.404(d) and 8.405-4), when determining best value, the ordering activity 

may consider [various other enumerated factors.]” FAR § 8.405-3(a)(2). Thus, 

under the FAR, price is the one factor that, at a minimum, must always be 

considered when determining best value for purposes of establishing a BPA under 

the FSS. 

Moreover, we have previously held that a best value analysis necessarily 

encompasses consideration of an offeror’s price or cost since, to be meaningful, a 
Page 5 B-406692 

best value determination requires a weighing of the value and benefits associated 

with a firm’s approach against their associated cost to the government. See TtECTesoro, JV, B-405313, B-405313.3, Oct 7, 2011, 2012 CPD ¶ 2 at 9. In a best 

value procurement, it is the function of the source selection authority to perform a 

tradeoff between price and non-price factors, that is, to determine whether one 

proposal’s superiority under the non-price factor is worth a higher price. Even 

where, as here, price is stated to be of less importance than the non-price factors,

an agency must meaningfully consider cost or price to the government in making its 

selection decision. See e-LYNXX Corp., B-292761, Dec. 3, 2003, 2003 CPD ¶ 219 

at 7. Thus, before an agency can select a higher-priced proposal that has been 

rated technically superior to a lower-priced but acceptable one, the decision must 

be supported by a rational explanation of why the higher-rated proposal is, in fact,

superior, and explaining why its technical superiority warrants paying a price 

premium. See Coastal Environments, Inc., B-401889, Dec. 18, 2009, 2009 CPD 

¶ 261 at 4.

Here, the agency’s elimination of technically acceptable quotations, such as 

Cyberdata’s, without consideration of their price, was inconsistent with the 

requirement that price be considered in a best value analysis. See System Eng’g

Int’l, Inc., B-402754, July 20, 2010, 2010 CPD ¶ 167 at 5 (protest sustained where 

record shows that agency in best value procurement performed tradeoff between 

two higher-rated, higher-priced quotations, but did not consider the lower prices 

submitted by other lower-rated but technically acceptable vendors); Coastal 

Environments, Inc., supra (protest sustained where agency conducted a tradeoff 

between the two highest-rated, highest-priced proposals, but did not consider the 

lower prices offered by other lower-rated, but technically acceptable offerors); 

Kathpal Tech., Inc.; Computer & Hi-Tech Mgmt., Inc., supra, at 9 (agency cannot 

eliminate a technically acceptable proposal from consideration for award without 

taking into account the relative cost of that proposal to the government).1

 1 We note that GSA contends--almost as an argument in the alternative--that it did 

consider price in its decision to “downsize” the pool of vendors that responded to 

this solicitation. Specifically, GSA refers to two sentences in its Best Value 

Determination acknowledging that “some of the unselected [o]fferors may have 

been able to provide BPA services at a lower cost,” but indicating that “it would be 

at the reduction of technical quality and not worth a trade-off to that extent. GSA’s 

primary goal on this solicitation was to select technically superior [o]fferors.” Best 

Value Determination at 1. To the extent that GSA is arguing that these sentences 

constitute a consideration of cost, we think the consideration was not meaningful. 

See e-LYNXX Corp., supra. The selection of a higher-priced offer that has been 

rated technically superior to a lower-priced but acceptable one must be supported 

by a rational explanation of why the technical superiority warrants paying a price 

premium. Coastal Environments, Inc., supra. A global statement addressing all 

35 quotations, with no consideration of the value offered by any particular 

 We 

(continued...)
Page 6 B-406692 

therefore sustain the protest on the basis that GSA failed to evaluate quotations 

consistent with the FAR requirement that BPAs established with FSS contractors

must provide the supply or service that represents the best value. FAR 

§ 8.405-3(a). 

Technical Evaluation

Cyberdata also challenges certain aspects of its technical evaluation. In this regard, 

the TEB identified 16 weaknesses and risks in its evaluation of Cyberdata’s 

technical quotation. As an initial matter, we note that Cyberdata challenges only 

five of the weaknesses and risks identified by the TEB in its quotation. Absent a 

detailed rebuttal to the agency’s evaluation conclusions from the protester in these 

unchallenged areas, we will not substitute our judgment for that of the agency. 

Atmospheric Research Sys., B-240187, Oct. 26, 1990, 90-2 CPD ¶ 338 at 4. With 

respect to the five areas challenged by Cyberdata, we discuss below two of those 

challenges--one of which appears to have merit, one of which does not. 

For example, Cyberdata argues that the TEB’s evaluation of its quality control plan 

(QCP) was unreasonable. The TEB found that, although Cyberdata discussed how 

it would it respond to complaints, it did not explain “how [it would] try to ensure 

quality to avoid poor performance that would result in complaints in the first place.” 

TEB Report at 108. Our review of Cyberdata’s quotation, however, indicates that 

the TEB’s findings were not justified, since Cyberdata’s quotation includes extensive 

information regarding proactive actions it will take to prevent quality control 

problems, such as periodic inspections and audits and monitoring of the 

performance of the contract and tasks. Cyberdata Quotation at 35-39.

On the other hand, the record supports the reasonableness of the TEB’s 

assessment of a weakness with respect to Cyberdata’s management plan in that, 

although section 2.2.3 of Cyberdata’s quotation discussed training, that discussion 

included “no mention of [a] current training Program.” TEB Report at 108; see 

Cyberdata Quotation at 31. Our review of section 2.2.3 indicates that it is both brief 

and, consistent with the TEB’s findings in this regard, devoid of any discussion of a 

current, established training plan.

Given that Cyberdata has challenged only 5 of the evaluated 16 weaknesses and 

risks in its technical quotation, and given the mixed results of its challenges, we find 

no basis for sustaining the protester’s challenge to the agency’s determination that 

its proposal was not among the 12 most highly-rated technical quotations. Prejudice 

is an essential element of every viable protest and, where it is not demonstrated or 

 

(...continued)

combination of technical merit and price, does not amount to an adequate, or 

reasonable, best value determination. 
Page 7 B-406692 

otherwise evident, we will not sustain a protest allegation, even where the record 

shows that the agency's actions arguably were improper. GC Servs. Ltd. P'ship, 

B-298102, B-298102.3, June 14, 2006, 2006 CPD ¶ 96 at 7-8.

RECOMMENDATION

We recommend that the agency amend the solicitation to provide for an evaluation 

approach consistent with its obligations under the FAR, request revised quotations, 

and make a new source selection decision. Since, as discussed above, the issue 

we are sustaining was not raised by Cyberdata prior to the date set for receipt of 

quotations, we are not recommending that the company be reimbursed its costs of 

filing and pursuing its protest, including its attorneys’ fees.

The protest is sustained.

Lynn H. Gibson

General Counsel