United States Government Accountability Office

Washington, DC 20548

Comptroller General

of the United States

 

Decision

Matter of: Emergint Technologies, Inc.

File: B-407006

Date: October 18, 2012

Daniel S. Herzfeld, Esq., Nicole Y. Beeler, Esq., and Clare M. Cavaliero, Esq., 

Pillsbury Winthrop Shaw Pittman LLP, for the protester.

David P. Metzger, Esq., and Caitlin K. Cloonan, Esq., Arnold & Porter LLP, for DB 

Consulting Group, Inc., an intervenor.

Scott C. Briles, Esq., Department of Health and Human Services, for the agency.

Jennifer D. Westfall-McGrail, Esq., and Edward Goldstein, Esq., Office of the 

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

DIGEST

1. Protest is sustained where solicitation for the issuance of a fixed-price 

time-and-materials task order did not provide for a price realism evaluation, yet the 

agency discounted the protester’s lower price in its best value tradeoff decision 

based on its conclusion that the protester’s low pricing posed performance risk and 

reflected a lack of understanding of the agency’s requirements. 

2. Protest of agency’s technical evaluation is sustained where the record does not 

support weaknesses identified in the protester’s proposal.

DECISION

Emergint Technologies, Inc., of Louisville, Kentucky, protests the issuance of a task 

order to DB Consulting Group, Inc., of Silver Spring, Maryland, under request for 

task order proposals (RFTOP) No. 2012-IM-0103, issued by the Centers for 

Disease Control and Prevention (CDC), Department of Health and Human Services, 

for information services support for CDC’s National Center for Chronic Disease 

Prevention and Health Promotion (NCCDPHP) in Atlanta, Georgia.1

 1 The RFTOP was issued under CDC’s information management services (CIMS) 

indefinite delivery/indefinite quantity contract No. 200-2010-37211.

 The protester 

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-407006 

argues that the evaluation of its proposal and the agency’s source selection tradeoff determination were unreasonable. 

We sustain the protest.

BACKGROUND

The RFTOP, which was issued on March 31, 2012, contemplated the issuance of a 

time-and-materials task order for a 5-year period (1 base, plus 4 option years). The 

solicitation provided for issuance of the order to the contractor whose proposal was 

considered most advantageous to the government, with technical factors to be 

considered more important than price in the selection decision. Technical factors 

were as follows: management plan (35 points); staffing plan (30); similar 

experience (15); technical approach (10); and transition/start up plan (10). RFTOP 

at 54.

The solicitation described the agency’s projection of the initial mix of labor 

categories necessary to perform the tasks (based on the incumbent contractor’s 

staffing), but advised that the number of contractor employees and the mix of labor 

categories might vary over the life of the task order and that offerors should 

“propose the solution that they determine to be most appropriate for the 

requirement.” RFTOP at 3. Offerors were to provide fully-loaded labor rates for 

their proposed labor categories.2

 The solicitation encouraged offerors “to discount 

the maximum contract rate [set out in their underlying CIMS contract] to foster 

competition and maximize government value, as appropriate.” RFTOP at 52. The 

only guidance furnished pertaining to the evaluation of price was that “[a] price 

analysis of the proposal may be conducted to determine the reasonableness of the 

offeror’s price proposal.” Id. at 57.

Three firms submitted proposals by the April 16 closing date. A technical evaluation 

panel (TEP) reviewed the proposals. The TEP compiled a consensus report, which 

assigned each proposal an overall score (derived by averaging the scores assigned 

by the individual evaluators) and summarized each proposal’s strengths and 

weaknesses. There was no indication in the consensus report as to which, if any, of 

the strengths and/or weaknesses--and there were many of both in each 

 2 The price proposals were also to include travel, incidental equipment, other direct 

costs, and tables of government-site and contractor-site rates for other information 

management labor categories that might be ordered if the labor mix changed.
Page 3 B-407006 

proposal--were considered significant.3 Point scores for DB and Emergint’s 

proposals were as follows:4

DB Emergint

Management Plan 29 26.6

Staffing Plan 29 25.3

Similar Experience 11.3 12.3

Technical Approach 9 7

Transition 10 8

Overall 87.6 79.3

Technical Panel Summary Report at 8-16.5

After the TEP completed its review of the technical proposals, the contracting officer 

forwarded the price proposals to the panel for review. The TEP calculated total 

evaluated prices of $78,992,868 for DB and [deleted] for the protester. In its 

evaluation, the TEP noted the following concern pertaining to the protester’s 

proposed labor rates:

We have some concerns that the rates for the [deleted] have been 

discounted to the point that they may have difficulty retaining 

incumbents or being able to successfully recruit highly qualified staff 

for those positions according to the skill sets required in the PWS 

[Performance Work Statement]. These categories total [deleted] of 

the level of effort which would translate to [deleted] of our staff being 

at risk for not taking positions with incumbent if the rates proposed be 

[sic] too low to maintain current staff.

Consensus Evaluation of Additional Questions--Emergint, Agency Report (AR), Tab 

9. The evaluators also observed that the protester’s total evaluated price was 

[deleted] lower than the government estimate.

After reviewing the evaluation results, the contracting officer consulted with the TEB 

chair, who furnished him with comments “regarding the variation in DB Consulting 

vs. Emergint that could justify the cost difference.” Email from TEB Chair to 

Contracting Officer, June 5, 2012, AR, Tab 8. In her response, the TEB chair 

 3 For example, the evaluators identified 19 strengths and 8 weaknesses in both the 

protester’s and the awardee’s proposals under the management plan factor.

4 The third proposal was determined to be technically unacceptable based on its 

overall point score and was not further considered.

5 We recognize that there are slight discrepancies in the agency’s calculations of 

the offerors’ overall point scores.
Page 4 B-407006 

identified the following 5 advantages to DB’s proposal and 3 disadvantages to 

Emergint’s proposal: 

• DB’s partnership with [deleted] is valuable because the need for 

[deleted] is greatly minimized. Also, because of their ability to 

capitalize on [deleted] of the explicit LOE [level of effort] for staffing, 

this also mitigates risk.

• DB’s key staff has proven track records for managing [deleted] 

mandated by HHS for IT projects.

• DB’s similar experience (#2--NASA) proves that they have 

successfully transitioned 110 incumbent staff--similar size to this task 

order without break in service.

• DB’s relationship with staffing augmentation firms specializing in IT, 

life sciences and healthcare indicate being able to recruit highly 

qualified candidates for vacancies.

• DB’s pricing proposal was comparable to [independent government 

cost estimate] indicating a realistic understanding of the specialized 

requirements outlined in the PWS.

• The panel has concerns that Emergint’s rates for the [deleted] have 

been discounted to the point that they may have difficulty retaining 

incumbents or being able to successfully recruit highly qualified staff 

for those positions according to the skill sets required in the PWS. 

These categories total [deleted] of the level of effort which would 

translate to [deleted] of our staff being at risk for not taking positions 

with incumbent if the rates proposed be [sic] too low to maintain 

current staff. If this risk plays out, the need for knowledge transfer 

also creates additional risk to the successful transition and 

continuation of work.

• Emergint’s pricing proposal is significantly lower than the [government 

estimate], indicating a lack of understanding of the specialized 

requirements outlined in the PWS.

• Emergint’s key staff member proposed has a proven track record at 

NCCDPHP for [deleted] of IT projects.

Id. The contracting officer selected DB to perform the task order, noting that “[t]he 

cost advantage held by Emergint is outweighed by DB’s technical superiority as 

shown [in the factors cited by the TEB chair] and in the consensus technical 

evaluation.” Award Decision Memorandum, June 9, 2012, at 2-3, AR, Tab 4. 
Page 5 B-407006 

The protester received notification of the agency’s decision on June 15 and, on the 

same day, requested a debriefing. The agency furnished a written debriefing on 

July 5, and Emergint protested to our Office on July 10.6

DISCUSSION

The protester argues that the agency’s evaluation of its proposal and best value 

tradeoff determination were unreasonable. Emergint first contends that the 

evaluators in effect performed a realism analysis of its proposed pricing by finding 

that some of its labor rates and its overall price were so low as to call into question 

its understanding of the solicitation’s requirements and its ability to perform 

successfully. The protester argues that this was improper since the RFTOP did not 

provide for a realism evaluation. Emergint also argues that a number of the 

weaknesses identified with respect to its proposal were without a reasonable basis. 

As explained below, we agree with the protester with regard to both arguments.

Price Realism

In response to the protester’s price realism challenge, the agency maintains that it 

did not conduct a price realism analysis here because it did not adjust offerors’ 

prices to determine the probable cost of their proposals. The agency’s defense 

reflects a fundamental misunderstanding of what a price realism analysis entails. A 

price realism evaluation does not contemplate adjusting offerors’ prices. As 

provided by regulation, and explained in our decisions, where, as here, a solicitation 

provides for the award of a fixed-price contract, the contracting agency may not 

adjust offerors’ prices for purposes of evaluation. Federal Acquisition Regulation 

§ 15.404-1(d)(3); Powersolv, Inc., B-402534, B-402534.2, June 1, 2010, 2010 CPD 

¶ 206 at 12. Rather, a price realism evaluation involves an assessment of an 

offeror’s low fixed price to determine whether the low price reflects a lack of 

understanding of contract requirements or risk inherent in its approach--precisely 

what the agency did here. Milani Constr. LLC, B-401942, Dec. 22, 2009, 2010 CPD 

¶ 87 at 4. 

While it is within an agency’s discretion to provide for a price realism analysis in 

awarding a fixed-price contract to assess understanding or risk, see FAR 

§ 15.404-1(d)(3), offerors competing for such an award must be given reasonable 

notice that a business decision to submit low pricing will be considered as reflecting 

on their understanding or the risk associated with their proposals. 

 6 By letter of August 27, the agency advised our Office that pursuant to Federal 

Acquisition Regulation (FAR) §§ 33.104(c)(2) and (3), the head of the agency 

contracting activity had made a written finding that continued contract performance, 

notwithstanding the pending protest, was in the “best interest” of the government. 

Letter from agency counsel to GAO, Aug. 27, 2012. 

Analytic 
Page 6 B-407006 

Strategies, B-404840, May 5, 2011, 2011 CPD ¶ 99 at 2-3. Where there is no 

relevant evaluation criterion pertaining to price realism, a determination that an 

offeror’s price on a fixed-price contract is too low generally concerns the offeror’s 

responsibility, i.e., the offeror’s ability and capacity to perform successfully at its 

offered price. Flight Safety Servs. Corp., B-403831, B-403831.2, Dec. 9, 2010, 

2010 CPD ¶ 294 at 5.

The RFTOP here did not furnish offerors with reasonable notice that the agency 

intended to perform a price realism analysis. The solicitation’s price evaluation 

factor provided only for analysis of the “reasonableness” of offerors’ pricing 

proposals--that is, whether the offeror’s price was too high7

--and the solicitation did 

not contain other language alerting offerors to the possibility that a decision to 

submit low pricing might be considered as reflecting on their understanding or ability 

to perform. Contrast Analytic Strategies, supra, (solicitation provided that proposed 

costs would be evaluated to determine whether they reflected a clear understanding 

of the requirements) and Flight Safety Servs. Corp., supra, (solicitation provided for 

rejection of “any proposal evaluated to be . . . unreasonably high or low in cost 

when compared to Government estimates, such that the proposal is deemed to 

reflect an inherent lack of competence or failure to comprehend the complexity and 

risks of the program”).

Although the agency suggests that its evaluation of Emergint’s price was proper in 

light of certain language in the solicitation, we disagree. Specifically, the agency 

cites to language under the staffing plan factor, instructing firms to furnish a 

description of the special benefits that they would offer incumbent staff as a 

recruiting incentive and to describe their approach for obtaining and retaining staff. 

Offerors, however, were not required to provide any pricing information in 

responding to this aspect of the solicitation or to in any way correlate it to their 

proposed pricing. Thus, we fail to see how this provision would have put offerors on 

notice of the agency’s intention to perform a realism assessment of their labor rates 

or total evaluated price.

Similarly, the agency notes that under both the technical approach and 

management plan factors, offerors were instructed to demonstrate their 

understanding of the solicitation requirements. In context, however, this reference 

to “understanding” pertains to the narrative information presented in the offerors’ 

technical proposals, and does not reasonably suggest that the agency would 

consider price realism in the source selection decision. 

 7 An agency’s concern in making a price reasonableness determination focuses 

primarily on whether the offered prices are higher than warranted. McDonnell 

Douglas Corp., B-259694.2, B-259694.3, June 16, 1995, 95-2 CPD ¶ 51 at 9.
Page 7 B-407006 

Because below cost prices are not inherently improper, when offerors are 

competing for award of a fixed-price contract, as explained above, they must be 

given reasonable notice that their business decision to submit a low-priced proposal 

can be considered in assessing their understanding or the risk associated with their 

proposal. See Milani Constr. LLC, supra, at 5. Since the agency failed to provide 

such notice, we agree with the protester that the agency improperly relied on an 

unstated evaluation factor in determining that the protester’s proposed pricing was 

so low as to call into question its understanding of the solicitation requirements and 

its ability to perform.8 Since the contracting officer’s award decision clearly relies on 

these findings in his trade-off decision, we sustain the protest on this basis.

Technical Evaluation

The protester also challenges the agency’s evaluation of its technical proposal, 

arguing that many of the weaknesses identified by the evaluators were based on an 

incomplete or incorrect reading of the proposal. As discussed below, we agree with 

the protester that a number of the disputed weaknesses lacked a reasonable 

basis.9

 

 8 The protester also disputes the agency’s conclusions pertaining to the realism of 

its labor rates and overall price. According to protester, “[t]o date, CDC has 

awarded Emergint [deleted] task orders under the CIMS contract where Emergint 

has used [deleted],” and “[n]one of the risks that CDC posits in its evaluation have 

affected Emergint’s performance, which CDC has found to be exceptional.” 

Protester’s Comments, Aug. 20, 2012, at 9 n.3. The agency did not respond to this 

argument, nor did it explain the analysis that the evaluators performed in concluding 

[deleted] difficulty retaining incumbent employees and recruiting qualified staff. 

Thus, to the extent the solicitation in fact provided for an assessment of the offerors’ 

labor rates for understanding or risk, we have no basis to conclude that the 

evaluation performed by the agency was reasonable. In this regard, we note that 

the agency did not have any insight regarding the composition of the protester’s 

fully-loaded labor rates, or those of any other offeror. Moreover, for three of the four 

labor rates identified by the agency as being too low, the difference between the 

government-estimated labor rates and the protester’s rates was only a few dollars, 

and for the fourth category, the awardee’s rates were also significantly below the 

government’s estimated labor rate. 

9 We recognize that the addressed weaknesses represent only a portion of the 

weaknesses identified by the evaluators; however, even if their correction were to 

result in an increase in Emergint’s technical score of only a few points, the record 

here suggests that those few points could have a material impact on the trade-off 

determination. 
Page 8 B-407006 

In reviewing protests challenging an agency’s evaluation, our Office will not 

reevaluate proposals; rather, we will review the record to ensure that the agency’s 

evaluation was reasonable and consistent with the terms of the solicitation. Unisys 

Corp., B-406326 et al., Apr. 18, 2012, 2012 CPD ¶ 153 at 8.

Among the weaknesses that the protester disputes are the following:

• Indicate they will provide Tech Writer/Documentation Specialist that 

can [deleted] and this is not with scope of this task order. (Technical 

approach)

• Required description of benefits to incumbent staff which was 

requirement of this section, deferred until another section. No 

statement of approach to obtain and/or replace qualified staff. 

(Management plan)

• Statement [deleted] assumes they are PMing projects on this task 

order. That indicates an erroneous assumption and lack of 

understanding. They are not responsible for project plans under this 

TO. (Management plan)

• There is no indication [if] [deleted] will be charges so not clear if 

government will be responsible. (Management plan)

• Ability to quickly obtain staff appears weak as it relies on [deleted]. (Staffing 

plan)

• Approach to conflict resolution is included only as an Appendix, not part of 

technical proposal which was requirement of PWS. (Technical approach)

• Resolution Management process not included in Technical Proposal as 

instruction indicated but instead included as an Appendix. (Technical 

approach)

• Conflict management approach is detached from technical proposal. 

(Management plan)

Technical Panel Summary Report, at 13-15.

With regard to the first weakness, one of the categories of support staff that the 

contractor was to provide was Technical Writer/Documentation Specialist. In 

describing its technical approach, the protester stated that it would provide 

experienced technical writers to help develop and maintain a variety of document 

types [deleted]. Protester’s Technical Proposal at 3. As noted above, the 

evaluators identified as a weakness the protester’s inclusion of [deleted] on the list 

of documents with which its technical writers might assist on the grounds that 

developing [deleted] plans was not within the scope of the task order. In this 

connection, the contracting officer asserts that “there are numerous pages of tasks 

listed for the Tech Writer/Documentation Specialist, and none of them are for 

[deleted].” Contracting Officer’s Statement at 5. 
Page 9 B-407006 

The protester directly rebuts the contracting officer’s assertion by pointing to several 

places in the RFTOP where [deleted] is included in the description of the duties to 

be performed by a Technical Writer/Documentation Specialist. For example, the 

RFTOP describes the duties of the above position as including [deleted]. 

(Emphasis added.) Accordingly, we agree with the protester that this assessment 

of a weakness in its proposal lacks a reasonable basis.

With regard to the second weakness, the protester points out that contrary to the 

evaluators’ assertion, the RFTOP did not require offerors to furnish a description of 

the benefits to be provided incumbent staff as part of their management plans; 

rather, that information was to be furnished as part of their staffing plans. See

RFTOP at 56 (offerors’ description of their staffing plans should include “[a] 

description of any special benefits to incumbents as recruiting incentive as well as 

overall benefits package for all employees”). Along the same lines, the RFTOP 

instructed offerors to provide a description of their approach to obtaining and/or 

replacing qualified staffing resources as part of their staffing--as opposed to their 

management--plans. To the extent the agency argues that what the evaluators 

really meant was that Emergint had not described its methodology for attracting 

incumbent staffing (which, per the RFTOP at 55, was to be included in offerors’ 

management plans), the record does not support this position either. The record 

reflects that Emergint included a description of its approach to attracting incumbent 

staffers in its management plan. See Protester’s Technical Proposal at 6 (approach 

to attracting incumbent staffing includes [deleted].) Thus, we also find this 

weakness to be unsupported.

With regard to the third weakness, the agency concedes that the finding was in 

error, but argues that the protester was not prejudiced by the finding. In this regard, 

the agency contends that the TEB chairperson, who identified the weakness, 

increased the score that she assigned the protester’s proposal under the 

management plan factor by 5 points after the consensus meeting to correct for the 

erroneous finding. Contracting Officer’s Statement at 5. This argument is not 

supported by the underlying record. While there is some indication in the record 

that one of the evaluators increased the score s/he assigned Emergint’s proposal 

under the management factor after the consensus meeting (i.e., the scores 

originally assigned by the evaluators, when averaged, do not equal the consensus 

score), there is nothing in the contemporaneous record establishing that it was the 

TEB chairperson who revised her scoring, or that any change made in scoring was 

to correct for this error. Moreover, the weakness was carried through in the final 

consensus report that was reviewed by the contracting officer. Technical Evaluation 

Summary Report at 14. In sum, we do not agree with the agency that the protester 

suffered no prejudice as a result of the erroneous finding.

With regard to the fourth weakness, Emergint’s proposal directly contradicts the 

agency’s finding that the protester did not clearly address whether the government 

would be responsible for [deleted]. Specifically, Emergint’s proposal described its 
Page 10 B-407006 

organizational structure, including [deleted], in section 2.1 of its technical proposal 

and specifically provided that [deleted]. Protester’s Technical Proposal at 5. 

Similarly, with regard to the fifth weakness, Emergint’s proposed approach to 

recruiting staff did not rely exclusively on [deleted], as the agency’s finding implies; 

rather, the protester’s proposal described its [deleted] in its proposal, and then 

stated that its [deleted]. Id. at 14. Based on this record, we agree with the protester 

that neither weakness was reasonable.

Finally, with regard to the last three weaknesses, the protester argues that it 

provided descriptions of its conflict resolution, issue resolution, and conflict 

management processes in its technical proposal, and that it provided more detailed 

diagrams of all three processes in an appendix, as permitted by the terms of the 

RFP. In response, the agency maintains that while the solicitation instructed 

offerors that they could include supporting documents, including graphics and 

tabular content, in appendices--where they would not be counted against the 

15-page limit on technical proposals--the RFP clearly stated that “the graphs and 

tables should only be used for supplemental information” and offerors “should not 

use graphs and tables as the majority of the proposal text.” RFTOP at 51. 

According to the agency, Emergint’s inclusion of the diagrams, which provided the 

majority of its description of the above processes, in an appendix rather than in the 

text of its proposal permitted the protester to exceed the limitation on the length of 

technical proposals, which was unfair to other offerors.

We are not persuaded by the agency’s argument that considering the information in 

the appendices to the protester’s proposal would have been unfair. As pointed out 

by the protester, DB also included significant information required to be provided as 

part of its technical proposal, i.e., a description of its employee benefits package, in 

an appendix, and the evaluators did not identify this as a weakness. Thus, contrary 

to the agency’s position, the evaluators acted unfairly when they considered the 

content of the appendices to DB’s proposal in their evaluation, while failing to 

consider the content of the appendices to Emergint’s proposal.10

Based on our conclusion that some of the evaluators’ technical findings, which 

provided the basis for their point scoring of the protester’s proposal, were 

unreasonable, and our conclusion that the evaluators improperly conducted a 

 10 Because we sustain Emergint’s protest of the evaluation of its technical proposal 

based on the above findings, we do not address in this decision all of the other 

weaknesses that the protester disputes, given that the record was less clear on 

these issues. Accordingly, we recommend that in performing its reevaluation of the 

protester’s proposal, the agency review all of its findings of weakness for 

reasonableness, which are not otherwise discussed in this decision. 
Page 11 B-407006 

realism analysis of the protester’s proposed pricing, which the contracting officer 

relied on in making his trade-off determination, we sustain the protest.11

RECOMMENDATION

We recommend that the agency reevaluate the protester’s proposal and make a 

new price/technical trade-off decision. If, as a result, the protester is selected for 

award, DB’s order should be terminated and an order should be issued to the 

protester. Alternatively, if the agency decides that consideration of the realism of 

offerors’ proposed prices is necessary, it should amend the RFTOP to so indicate, 

allow submission of revised proposals, reevaluate the proposals received, and 

make a new source selection decision. We also recommend that the agency 

reimburse the protester for the reasonable costs of filing and pursuing the protest, 

including reasonable attorneys’ fees. 4 C.F.R. § 21.8(d)(1) (2012). The protester’s 

certified claim for costs, detailing the time spent and the costs incurred, must be 

submitted to the agency within 60 days after receipt of this decision.

 

The protest is sustained.

Lynn H. Gibson

General Counsel

 11 The protester also raised several arguments pertaining to the evaluation of the 

performance record of its proposed project manager and of DB’s experience. While 

we do not discuss these arguments in detail, we considered them and find that they 

do not provide a basis to sustain Emergint’s protest.