United States Government Accountability Office

Washington, DC 20548

Comptroller General

of the United States

Decision

Matter of: Monument Title Insurance, Inc.

File: B-406279.2; B-406279.3; B-406279.4

Date: October 15, 2012

Andrew J. Mohr, Esq., John J. O’Brien, Esq., and Gabriel E. Kennon, Esq., Cohen 

Mohr LLP, for the protester.

Eric G. Goodrich, Esq., and Jeremy C. Reutzel, Esq., Bennett Tueller Johnson & 

Deere, PC, for Cornerstone Title Insurance Agency, LLC, the intervenor.

Jay Lauer, Esq., Elizabeth S. Cypers, Esq., and Gabriel G. Lopez, Esq., 

Department of Housing and Urban Development, for the agency.

Paula A. Williams, Esq., and Edward Goldstein, Esq., Office of the General 

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

DIGEST

Protest challenging the agency’s evaluation of proposals is denied where the record 

establishes that the agency’s evaluation was reasonable and consistent with 

solicitation terms.

DECISION

Monument Title Insurance, Inc. of Cottonwood Heights, Utah, protests the award of 

a contract to Cornerstone Title Insurance Agency, LLC of Murray, Utah, under 

request for proposals (RFP) No. R-DEN-02542 issued by the Department of 

Housing and Urban Development (HUD) for closing agent services in the state of 

Utah. Monument challenges the evaluation of proposals and the resulting award 

decision.

We deny the protest.

BACKGROUND

On September 20, 2011, HUD issued the RFP as a small business set-aside for the 

award of a contract to provide closing agent services for sales of HUD’s inventory of 

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-406279.2 et al.

single-family homes in Utah.1 As amended, the RFP provided for award of a 

fixed-price requirements contract with a 1-year base period and four 1-year option 

periods. RFP at 1. The RFP advised that award would be made to the firm 

submitting the lowest-priced, technically acceptable proposal. Technical proposals 

were to be evaluated for acceptability under the following factors: (1) licensing 

requirement; (2) key personnel; and (3) past performance. Id. at 11. A proposal 

evaluated as unacceptable under any non-price factor was to be deemed 

unacceptable overall, and not considered further. Id.

The RFP’s proposal preparation instructions for each evaluation factor emphasized 

the need for each offeror to submit a comprehensive, detailed technical proposal so 

that the agency could evaluate the firm’s ability to perform the requirements 

identified in the performance work statement (PWS).2 Id. at 8. The RFP added that 

the agency intended to evaluate proposals and make award without conducting 

discussions. Id. 

Under the past performance factor, the evaluation of which is challenged by the 

protester, offerors were required to demonstrate that they had successfully provided 

a specified volume of transactions for services the same as, or substantially similar 

to, those contemplated by the RFP. Specifically, the RFP provided as follows:

Factor 3: Past Performance

The Offeror shall provide past performance information sufficient to 

demonstrate the offeror has successfully provided services the same as, or 

substantially similar to, those required under the solicitation, both in terms of 

type of service and scope of the requirements. The information shall show 

the offeror has, at a minimum, provided . . . the following volume of 

transactions: 

 1 HUD, through the Federal Housing Administration (FHA), administers the Single 

Family Mortgage Insurance Program. Upon default and foreclosure of an 

FHA-insured loan, the mortgage lender files a claim for insurance benefits with 

HUD. In exchange for payment of the claim, the mortgage lender conveys the 

foreclosed property to HUD. As a consequence of this program, HUD manages and 

sells a sizeable inventory of single family homes.

2 The RFP required each proposal to consist of two parts--a technical/management 

proposal, and a business proposal. RFP at 8-9. The instructions for the business 

proposal required, in relevant part, that the offeror identify “proposed consultants by 

name” or other description, and provide the “hourly rates and number of hours 

proposed” for each consultant. RFP attach. E, Contract Pricing Proposal Format, 

at 3.
Page 3 B-406279.2 et al.

A. Monthly average of 100 during the period from 

September 1, 2010 through August 31, 2011; 

B. Monthly average of 75 during the period from 

September 1, 2009, through August 31, 2010; and,

C. Monthly average of 50 during the period from 

September 1, 2009, through August 31, 2008.

Id. at 8-9.3

The agency received three proposals, including those from Monument (the 

incumbent contractor) and Cornerstone, by the solicitation’s closing date. As 

reflected in Monument’s technical/management proposal, the firm provided the 

following performance references for the period September 1, 2009 through 

August 31, 2008:

Client Name Average Monthly 

Volume

Period of 

Performance

1. HUD [DELETED] 4/1/09 thru 8/31/09

2. Community Development

Corporation of Utah [DELETED] 9/1/08 thru 8/31/09

3. Utah Department of Transportation [DELETED] 9/1/08 thru 8/31/09

4. Utah Housing Corporation [DELETED] 9/1/08 thru 8/31/09

5. Prudential Utah Real Estate [DELETED] 8/1/08 thru 8/31/09

6. Titanium Real Estate [DELETED] 9/1/08 thru 8/31/09

7. Utah’s Best Realty [DELETED] 9/1/08 thru 8/31/09

8. USAA relocation through Coldwell [DELETED] 9/1/08 thru 8/31/09

Total 55

Agency Report (AR) exh. N, Monument’s Technical/Management Proposal, 

at 16-18. 

In its technical/management proposal, Cornerstone stated that while the firm has no 

prior history in handling any HUD contracts, the firm does have an extensive record 

of performing refinancing and second mortgage transactions. Cornerstone 

explained how the refinancing and second mortgage transactions it had performed 

were substantially similar to the solicited HUD closing services. Cornerstone also 

 3 The RFP also included a past performance information form, identified as 

Attachment C, on which offerors were to furnish the client name, contact 

information, type of services provided, contract number and value of the contract, 

date services were provided, and the principal partners or key personnel. The form 

indicated that an offeror could use additional pages as necessary. RFP attach. C, 

Past Performance Information. We note that both the protester and the awardee 

submitted a completed Attachment C form with their proposals.
Page 4 B-406279.2 et al.

provided the required information to show that it had performed the average 

monthly volume of transactions for each of the three years. AR exh. M, 

Cornerstone’s Technical/Management Proposal, at 16-18. 

The agency convened a technical evaluation panel (TEP) to evaluate the proposals 

received. The proposals submitted by Cornerstone and a third offeror (Metro 

National Title Company) were evaluated as technically acceptable under the 

non-price factors. The TEP, however, rated Monument’s proposal as unacceptable 

overall based on an unacceptable rating under the past performance factor. The 

TEP found that Monument’s average monthly volume for its HUD contract pertained 

to only a 5-month period. When this was considered, it was evident that Monument 

had failed to demonstrate its performance of an average of 50 closings per month 

for the full 12-month period of September 1, 2009 through August 31, 2008, as 

required by the solicitation. Contracting Officer Statement at 1-2 (July 27, 2012). 

Upon completion of the evaluation, the contracting officer, who served as the source 

selection authority, reviewed the evaluation findings and made award to Metro 

National, the offeror that submitted the lowest-priced technically acceptable 

proposal. Id. 

After learning of the award decision, Monument filed a size protest with the 

contracting officer challenging the size status of Metro National, which was referred 

to the Small Business Administration (SBA). The SBA made a formal size status 

determination that Metro National was other than small, which was affirmed on 

appeal to the SBA’s Office of Hearings and Appeals. Id. at 2. 

Monument also filed a protest with our Office on December 22, 2011, alleging that 

the agency misevaluated its proposal under the past performance factor. 

Monument argued that even though it only submitted 5-months of HUD closing 

information for the performance period September 1, 2009 through 

August 31, 2008, HUD was obligated to supply the missing information from its own 

records. 

In response to the earlier protest, the agency advised that it would take corrective 

action by canceling the award to Metro National, reevaluating proposals, to include 

considering the performance information for the closing services performed by 

Monument under its contract with the agency from September 1, 2009 back to 

August 31, 2008, and making a new award determination. HUD’s Letter to GAO 

(Jan. 31, 2012). Accordingly, we dismissed Monument’s protest as academic. 

Monument Title Insurance, Inc., B-406279, Feb. 2, 2012.

To implement the promised corrective action, HUD established a new TEP and 

reevaluated all proposals. As part of its reevaluation, the TEP considered 

information in the agency’s contract files to determine “the number of closings” 

Monument had performed under its incumbent contract with HUD from 

March 30, 2009 back through August 31, 2008, the 7-month performance period 
Page 5 B-406279.2 et al.

omitted from Monument’s proposal. AR exh. K, HUD Final TEP Consensus Report, 

at 8-9. Based on its calculation for the entire period (September 1, 2009 through 

August 31, 2008), the evaluators found that Monument had performed a monthly 

average of 25 closings under its HUD contract. Id. at 9. Using the additional past 

performance references listed in Monument’s proposal (which totaled an average of 

14 closings per month), together with the monthly average calculated by the 

evaluators (an average of 25 closings per month), the TEP determined that 

Monument had performed an average of 39 closings per month for the performance 

year in question, less than the 50 per month average closings required by the 

solicitation. As a result, Monument’s proposal was again assigned an unacceptable 

rating under the past performance factor.4

 Id. at 10. The TEP rated the proposal 

submitted by Cornerstone as technically acceptable.5

 Id.

Award was made to Cornerstone and following a debriefing, Monument filed its 

protest with our Office on July 6, 2012. The protester then filed supplemental 

protests on August 1, and on August 20. 

DISCUSSION

Monument principally challenges the agency’s evaluation of proposals under the 

past performance factor. In this regard, the protester argues that Cornerstone 

should have been found technically unacceptable because its past performance 

information did not meet the “stringent relevancy standard” set forth in the 

solicitation. Protest at 8, 12-15 (July 6, 2012); Protester’s Comments at 2-3 

(Aug. 23, 2012). More specifically, Monument contends that “HUD failed to account 

for Cornerstone’s blatant admission that it had no experience conducting HUD real

estate owned” closings. Suppl. Protest at 6 (Aug. 1, 2012). For example, 

Monument notes that the solicitation identified a number of HUD-specific 

requirements such as, requiring the contractor to utilize HUD’s P260 system for 

uploading title search reports; communicating with the Asset Manager;6

 4 The agency reports that even assuming that the protester had performed an 

average of 41 closings per month during the 5-month period listed in Monument’s 

proposal, when combined with the TEP’s calculation of 25 monthly closings for the 

remaining 7-months of the performance period at issue, the protester still fails to 

meet the required average of 50 closings per month during the 12-month period. 

Agency Memorandum of Law at 5.

uploading 

pre-closing package; completing the closing data in P260; and uploading the

5 Although the TEP found Metro National’s proposal to be technically acceptable, it 

was not eligible for award since SBA had found the firm to be other than small.

6 An asset manager is a HUD contractor responsible for the marketing of 

HUD-owned properties. RFP, PWS at 4. 
Page 6 B-406279.2 et al.

post-closing package into the P260 system--none of which Cornerstone had ever 

performed. Protester’s Comments at 5, 14 (Aug. 23, 2012). 

The evaluation of past performance, including the agency’s assessments with 

regard to the relevance, scope, and significance of an offeror’s performance history, 

is a matter of agency discretion, which we will not disturb unless those assessments 

are unreasonable or inconsistent with the solicitation’s evaluation criteria. Yang 

Enters., Inc.; Santa Barbara Applied Research, Inc., B-294605.4 et al., Apr. 1, 2005, 

2005 CPD ¶ 65 at 5; Acepex Mgmt. Corp., B-283080 et al., Oct. 4, 1999, 99-2 CPD 

¶ 77 at 3, 5. As discussed below, we have no basis to find the agency’s evaluation 

of Cornerstone’s proposal unreasonable. 

The RFP stated that past performance would be evaluated based on an offeror’s 

record of performing the same, or substantially similar services as those solicited. 

The RFP did not limit the agency’s evaluation of past performance only to firms with 

a record of performing HUD closings or those for the sale of single-family homes. 

As the agency explains, when the solicitation is “distilled to its core functions” the 

refinance and second mortgage transactions relied upon by Cornerstone to 

establish its past performance are, in the agency’s view, substantially similar to the 

closing services for the types of single-family sale transactions contemplated by the 

solicitation. In this regard, the agency notes that all of these types of transactions 

involve functions such as title searches, preparing items to clear title issues, 

preparation of HUD-1 settlement statements, scheduling and conducting the 

closing, obtaining necessary signatures, recording documents, and distributing 

funds. Agency Memorandum of Law at 7 (July 27, 2012). Although the protester

fundamentally disagrees with the agency’s determination that the transactions are 

substantially similar, arguing that the buy/sell nature of the HUD-specific 

transactions make them substantially different from refinance or second mortgage 

closings, see, Protester’s Comments at 4-5 (Aug. 23, 2012), it is well-settled that a 

protester’s mere disagreement with the agency’s judgment is insufficient to 

establish that an evaluation was unreasonable.7

 See, e.g., Clean Harbors Envtl. 

Servs., Inc., B-296176.2, Dec. 9, 2005, 2005 CPD ¶ 222 at 3; Birdwell Bros. 

Painting & Refinishing, B-285035, July 5, 2000, 2000 CPD ¶ 129 at 5. 

 7 Monument also provided performance data for Cornerstone to illustrate that the 

awardee had not performed the monthly average of 100 closings during the period 

September 1, 2010 through August 31, 2011. Protest at 16 (July 6, 2012). Even if 

we were to consider this performance data, apparently obtained by the protester 

from an unidentified party, as constituting objective, credible evidence regarding the 

volume of transactions performed by Cornerstone for the period in question--which 

we do not--Monument has not shown that any of the purported information was 

reasonably available to the TEP when they performed the past performance 

evaluation.
Page 7 B-406279.2 et al.

Alternatively, Monument argues that HUD “failed to amend the RFP to allow 

Monument Title to use refinancing and second mortgage transactions in its past 

performance references.” Protest at 18 (July 6, 2012). According to Monument, 

had it known that such information would be considered relevant, it would have 

provided additional information to meet the solicitation’s average monthly closing 

requirements. Protester’s Comments at 29-32 (Aug. 23, 2012); see also, Decl. of 

Ron Motzkus (Aug. 23, 2012). This argument, however, is based on the premise 

that the solicitation was inherently defective due to an ambiguity regarding the types 

of transactions that the agency considered to be relevant. We do not consider the 

solicitation’s use of the term “substantially similar” to be unreasonably ambiguous, 

and, in any event, the assertion is untimely as it constitutes an alleged solicitation 

impropriety apparent from the face of the RFP that was not timely raised by the 

closing time for receipt of proposals.8

 4 C.F.R. § 21.2(a)(1) (2012); Bevilacqua 

Research Corp., B-293051, Jan. 12, 2004, 2004 CPD ¶ 15 at 6 n.6. 

Monument also alleges that Cornerstone’s proposal should have been rejected as 

unacceptable because the firm violated the limitation on the solicitation’s 

subcontracting clause, Federal Acquisition Regulation (FAR) § 52.219-14 

(incorporated by reference), by proposing to use subcontractors to perform the 

solicited services. Suppl. Protest at 9 (Aug. 1, 2012); Suppl. Protest at 1-5 

(Aug. 20, 2012). As support, the protester points to Cornerstone’s proposed use of 

a consultant and her assistants in performing a significant amount of the contract 

services, arguing that HUD unreasonably failed to consider the amount of work and 

costs that would be incurred by Cornerstone’s subcontractor.9

 8 The protester also asserts that the agency unequally evaluated Monument’s 

record of performance by limiting its evaluation to transactions that were fully closed 

and failing to consider instances where Monument may have performed many of the 

closing activities before “a deal falls through.” Suppl. Protest at 8 (Aug. 1, 2012). 

This allegation does not provide a basis to sustain the protest where Monument’s 

proposal did not identify other than fully closed transactions, it does not identify with 

particularity the transactions the agency allegedly should have considered, and 

does not identify specific instances where the agency considered other than fully 

closed transactions in its evaluation of Cornerstone’s past performance information. 

 Protester’s 

Comments at 33-35 (Aug. 23, 2012).

9 There is much dispute among the parties concerning the characterization of 

Cornerstone’s consultant. In this regard, the solicitation defined a subcontractor as 

a “supplier, distributor, vendor, or firm that furnishes supplies or services to or for 

the Contractor, or another of Contractor’s subcontractors, in the performance of the 

contract.” RFP, PWS at 5. Based on this definition, it would appear that the 

services to be performed by Cornerstone’s consultant could reasonably be 

considered those of a subcontractor to the extent the services are provided in 

performance of the contract. 
Page 8 B-406279.2 et al.

As a general matter, an agency’s judgment as to whether a small business offeror 

will be able to comply with a subcontracting limitation presents a question of 

responsibility not subject to our review. See Spectrum Sec. Servs., Inc., 

B-297320.2, B-297320.3, Dec. 29, 2005, 2005 CPD ¶ 227 at 6. However, where a 

proposal, on its face, should lead an agency to the conclusion that an offeror has 

not agreed to comply with the subcontracting limitation, the matter is one of the 

proposal’s acceptability. TYBRIN Corp., B-298364.6, B-298364.7, Mar. 13, 2007, 

2007 CPD ¶ 51 at 5. 

Here, based on our review of the record, nothing on the face of Cornerstone’s 

proposal should have led the agency to reasonably conclude that Cornerstone 

could not, or would not, comply with the limitation on subcontracting requirement. 

Specifically, FAR § 52.219-14 requires the contractor to use its own employees to 

perform at least 50 percent of the cost of contract performance. In addition, there is 

no evidence that in determining Cornerstone to be responsible, the contracting 

officer failed to consider the information in Cornerstone’s proposal regarding its use 

of the services of a consultant.10

The protest is denied. 

Lynn H. Gibson

General Counsel

 10 Monument also contends that the agency should have found Cornerstone’s 

proposal “nonresponsive” and “unacceptable” because Cornerstone proposed to 

perform the contract using a consultant, yet failed to comply with the solicitation’s 

subcontracting requirements concerning the agency’s approval of the contractor’s 

use of subcontractors during performance. This argument is misplaced since it is 

based on Cornerstone’s failure to comply with post-award contract requirements 

and thus concerns a matter of contract administration, which is not for consideration 

by our Office. 4 C.F.R. § 21.5(a).