United States Government Accountability Office

Washington, DC 20548

Comptroller General

of the United States

 

Decision

Matter of: Naval Systems, Inc. 

File: B-407090.3

Date: November 20, 2012

Jeb T. Branham, Esq., Deem Branham, Attorneys at Law, for the protester.

Kevin P. Mullen, Esq., and Kristen M. Rogers, Esq., Jenner & Block LLP, for 

Precise Systems, Inc., an intervenor.

Theresa M. Francis, Esq., Department of the Navy, for the agency.

Scott H. Riback, Esq., and James A. Spangenberg, Esq., Office of the General 

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

DIGEST

Protest challenging agency’s proposed corrective action in response to an earlier 

protest is denied where the record shows that the agency’s corrective action--

revising the solicitation, obtaining revised proposals and making a new source 

selection decision--is necessary in order for the agency to make award for its actual 

requirements.

DECISION

Naval Systems, Inc. (NSI) protests proposed corrective action contemplated by the 

Department of the Navy, Naval Air Warfare Center, Aircraft Division, in connection 

with the agency’s acquisition of various program and life cycle management and 

support services for the presidential helicopters program office under request for 

proposals (RFP) No. N00024-10-R-3435. NSI maintains that the agency’s 

proposed corrective action is unnecessary and prejudices the protester.

We deny the protest.

The RFP contemplates the issuance of a cost-plus-fixed-fee task order for a base 

year with two 1-year options to the contractor submitting the proposal deemed to 
Page 2 B-407090.3 

offer the government the “best value” for the requirement.1

 The agency previously 

completed its competition for this requirement and issued a task order to NSI on 

July 16, 2012. After learning of the agency’s source selection decision and 

receiving debriefings, two other vendors, Precise Systems, Inc. and AVIAN 

Engineering, LLC, filed protests with our Office alleging various improprieties with 

the agency’s issuance of the task order to NSI. 

In response to those protests, the agency advised our Office, by letter dated 

August 3, that it intended to take corrective action. Specifically, the agency advised 

that it would amend the solicitation, obtain and evaluate revised proposals and 

make a new source selection decision. After receipt of the agency’s letter, we 

dismissed Precise’s protest as academic on August 13, and AVIAN withdrew its 

protest on that same date. NSI’s current protest takes issue with the agency’s 

proposed corrective action in two areas. 

The first area concerns a significant decrease in the estimated level of effort from 

that contemplated by the solicitation.2

 The record shows that the solicitation 

included an estimate of the level of effort the agency anticipated would be required 

in performing the contract. The RFP provided not only the total estimate of the 

anticipated level of effort (63.5 full time equivalents (FTEs)), but also provided the 

offerors detailed information regarding the number of personnel, by labor category,

that the agency anticipated would be necessary to meet the RFP’s requirements. 

RFP at 58-60. The record shows, however, that, shortly before the agency’s 

issuance of the task order to NSI (but after the agency had made its source 

selection decision), it was advised that the number of contractor personnel for which 

the agency could anticipate receiving funding was only 41.5 FTEs, or a level of 

effort approximately 35 percent lower than the level of effort the agency had advised 

offerors could be anticipated.3

 1 Competition for the requirement was limited to service-disabled veteran-owned 

small businesses holding Basic Seaport-e indefinite-delivery/indefinite-quantity 

contracts.

 Contracting Officer’s Statement at 3. As part of its 

2 Precise’s original protest specifically objected to the agency’s issuance of the task 

order to NSI at a level of effort substantially below the level of effort specified in the 

RFP.

3 We note that the original total evaluated value of the task order awarded to NSI 

was approximately $20.8 million. Agency Report (AR), exh. 25. A 35 percent 

reduction in that amount would result in a total evaluated value of approximately 

$13.5 million, which is greater than $10 million. The agency has not argued, and 

there is no basis on this record for our Office to find, that the value of this task order 

will be less than $10 million, the minimum value of a task order award that is subject 

to our jurisdiction. Serco, Inc., B-406061, B-406061.2, Feb. 1, 2012, 2012 CPD 

¶ 61 at 6-8.
Page 3 B-407090.3 

corrective action, the agency intends to advise offerors of the change in the 

anticipated level of effort, and to afford them an opportunity to prepare revised 

proposals on that basis. 

NSI objects to the agency’s proposed corrective action. NSI maintains that all of the 

offerors competed for the requirement based on the same assumption relating to 

the anticipated level of effort, so there was no prejudice to any offeror occasioned 

by the agency’s change in the level of effort for actual performance of the task 

order. NSI also maintains that the RFP contemplated that the agency would specify 

the actual level of effort at the time the task order was issued, and advised that the 

anticipated estimate of the level of effort included in the RFP was for informational 

purposes only. Consequently, according to the protester, the agency’s identifying a 

level of effort different than that specified during the competition was not improper. 

NSI contends that it has been prejudiced because the other offerors know its 

proposed price and the technical ratings.

We have no basis to object to this aspect of the agency’s proposed corrective 

action. As a general rule where, as here, an agency discovers that its requirements 

have materially changed, such that the solicitation no longer reflects the agency’s 

actual requirements, the appropriate course of action is for the agency to cancel the 

original solicitation and issue a new one (or amend the original solicitation) to reflect 

the agency’s actual requirements, and make a new selection decision; agencies 

may not properly solicit proposals on one basis with the intent of materially altering 

the contract or task order at, or shortly after, award. Business Computers 

Applications, Inc., B-406230.3, May 16, 2012, 2012 CPD ¶ 159 at 3. Simply stated, 

we think that a 35-percent change in the level of effort for the requirement provides 

an adequate basis for the agency’s proposed corrective action here of amending 

the RFP and obtaining revised quotations based on the agency’s actual 

requirements. Compare id. (agency had a reasonable basis to cancel task order 

solicitation based upon a 43 percent decrease in the solicitation’s contemplated 

level of effort).

Although NSI is correct that the RFP provided the anticipated level of effort for 

informational purposes and contemplated establishing the actual level of effort at 

the time of award, we cannot conclude either that the agency’s award on a basis 

materially different than contemplated by the RFP was proper, or that the offerors 

were not prejudiced by the agency’s actions. In this regard, the RFP contemplates 

the award of a cost-reimbursement type contract under which the offerors were to 

provide the agency detailed information relating to their proposed technical 

approach, including details relating to their proposed workforce configuration and 

staffing approach. RFP at 50-51. The RFP contemplates a technical evaluation of 

the adequacy of the offerors’ respective proposed personnel and labor mix, as well 

as a detailed cost realism evaluation of their proposed man hours and labor mix for 

the requirement. RFP at 64-65. Thus, although the anticipated level of effort may 

only have been provided for informational purposes, the record shows that the 
Page 4 B-407090.3 

estimate was used by the offerors in formulating their proposals, and was used by 

the agency as a baseline or benchmark against which proposals were evaluated. 

AR, exh. 25. It follows that, during the original competition, the offerors were 

prejudiced because proposals were not prepared based on an accurate estimate of 

the agency’s actual requirements, and the offerors therefore were led to formulate 

their proposed staffing approaches and costs in a manner that did not actually meet 

the agency’s needs. 

The agency also took corrective action to make another change in the RFP relating 

to the security clearances and access required by contractor personnel.4 In this 

connection, the RFP contemplates that the contractor will provide, among other 

things, various security and facility management services. Included in this aspect of 

the task order is a requirement to provide a security response team that will be 

responsible for protection of the Presidential Helicopter Support Facility Complex, 

which includes the presidential helicopter hangar. RFP at 8. Because of the 

sensitive nature of the facility, the eventual contractor will be required to provide 

personnel that have been granted “Yankee White” access approval.5 However, in 

preparing the solicitation, the record shows that the agency erroneously omitted any 

requirement for contractor personnel to obtain Yankee White access. 

The agency proposes to amend the RFP to include a requirement that appropriate 

contractor personnel be required to obtain Yankee White access within a certain 

period after issuance of the task order. The protester maintains that it is 

unnecessary to amend the RFP and obtain revised proposals simply because the 

requirement was not included in the original solicitation because the offerors knew 

from other provisions of the solicitation--principally those relating to required 

security clearances--that Yankee White access would be required for certain 

personnel. 

The Yankee White access requirement relates to a matter of national security, 

specifically, the safety of the President and Vice President. Nothing in the original 

RFP specifically required the successful contractor to obtain Yankee White access 

for its personnel, and, as explained by the agency, this is an essential requirement 

for those personnel that will have access to the Presidential Helicopter Support 

Facility Complex. Notwithstanding the protester’s position that the offerors knew 

from other solicitation provisions that Yankee White access would be required for 

 4 This also was a subject of Precise’s protest.

5 “Yankee White” is a short-hand term used to describe a level of access approval 

granted in accordance with DoD Directive No. 5210.55 and DoD Instruction 

No. 5210.87. The contractor employees requiring Yankee White access are those 

that will provide recurring services or who require unescorted access to Presidential 

support areas, activities or equipment. AR at 2-3; exh. 33.
Page 5 B-407090.3 

certain personnel, the simple fact of the matter is that, absent an amendment of the 

RFP, there would be no enforceable contractual requirement for the successful 

contractor to obtain Yankee White access for its personnel. In the final analysis, the 

agency expressly--albeit erroneously--eliminated the Yankee White access 

requirement from the solicitation, and, under the circumstances, we find it

appropriate for the agency to add this important provision back into the RFP to 

ensure that it is included in the resulting task order, thereby making certain that the 

successful contractor will meet this essential requirement.6

The protest is denied.

Lynn H. Gibson

General Counsel

 6 NSI asserts that no corrective action should have been taken because Precise’s 

protest was untimely. However, it is within the agency’s discretion to take corrective 

action in connection with a procurement regardless of whether a timely protest was 

filed or not; all that is required is that the agency have reasonable concerns that 

errors in the procurement occurred. Optimum Mgmt. Sys., LLC, B-299322.3, 

May 23, 2007, 2007 CPD ¶ 106 at 3.