United States Government Accountability Office

Washington, DC 20548

Comptroller General

of the United States

 

Decision

Matter of: Walden Security

File: B-407022; B-407022.2

Date: October 10, 2012

John S. Pachter, Esq., Jonathan D. Shaffer, Esq., Mary Pat Buckenmeyer, Esq., 

Armani Vadiee, Esq., and Rhina M. Cardenal, Esq., Smith Pachter McWhorter PLC, 

for the protester.

Jeffrey E. Weinstein, Esq., The Weinstein Law Group, PLLC, for Millennium 

Security Service, Inc., an intervenor.

Elise Harris, Esq., Department of Health and Human Services, Centers for Disease 

Control and Prevention, for the agency.

Tania Calhoun, Esq., and Edward Goldstein, Esq., Office of the General Counsel, 

GAO, participated in the preparation of the decision.

DIGEST

Protest challenging an agency’s decision to set aside a procurement for small 

businesses is denied where the record shows that the contracting officer reasonably 

expected that at least two responsible small business concerns would compete for 

the award and that award would be made at a fair market price.

DECISION

Metropolitan Security Services, Inc. d/b/a Walden Security, of Chattanooga, 

Tennessee, protests the decision of the Department of Health and Human Services, 

Centers for Disease Control and Prevention (CDC), to issue request for quotations 

(RFQ) No. 2012-Q-14617, for security guard services at various locations in the

metropolitan Atlanta, Georgia, area, as a small business set-aside.

We deny the protest.

BACKGROUND

The CDC operates facilities at four federally-owned campuses, and utilizes multiple 

leased office facilities, in the metropolitan Atlanta area. Security must be provided 

at all of these facilities. Contracting Officer’s (CO) Statement at 1. Walden, a large 

DOCUMENT FOR PUBLIC RELEASE

The decision issued on the date below was subject to 

a GAO Protective Order. This version with no 

redactions has been approved for public release.
Page 2 B-407022, B-407022.2 

business, is the incumbent contractor.1

 At issue here is the follow-on procurement 

to Walden’s expiring contract.

In preparation for the procurement, the CO consulted with the CDC’s small business 

officer and sent e-mails to small businesses with relevant General Services 

Administration schedule contracts requesting statements of their capabilities. CO 

Statement at 5 n.3. On February 9, 2012, the CDC published an initial sources 

sought notice for its security requirements and received capability statements from 

numerous firms. The CO states that an analysis of the responses indicated that at 

least two small businesses could meet the requirements, and the agency issued 

RFQ No. 2012-Q-14257 as a small business set-aside. Id. at 2 n.1. Walden filed a 

protest in our Office challenging this decision. After the CDC canceled the 

solicitation to add requirements, we dismissed Walden’s protest as academic.

On June 8, the CDC posted a new sources sought notice to determine the 

availability of small businesses that could meet the agency’s requirements. The 

notice summarized the requirement and attached the performance work statement 

(PWS). The notice explained that contractors must be certified and licensed to 

provide security guard services in the State of Georgia, and that all applicable 

licenses and certifications for armed guards were required. Prospective contractors 

were asked to respond to questions concerning their capabilities, and, where 

teaming arrangements were contemplated, to provide information for each teaming 

entity. AR, Exh. J, June 8, 2012, Sources Sought Notice, at BATES No. 0000199.

The CDC received 19 capability statements by the June 13 deadline. The contract 

specialist verified the small business status of the responding firms, and a program 

analyst determined that four firms met the RFQ’s requirements. Supp. AR, 

Declaration of Contract Specialist at ¶¶ 4-6; CO Statement at 3. The only 

contemporaneous evidence of analysis underlying this determination is an e-mail to 

the contract specialist from the program analyst assigned to evaluate the capability 

statements. The e-mail states, “[h]ere are the results of the most recent sources 

sought,” and lists the names of the firms that responded to the notice with a “yes” or 

“no” notation next to each name. AR, Exh. S, June 13, 2012 E-mail from Program 

Analyst to Contract Specialist, at BATES No. 0001362. The CO decided to set 

aside the procurement for small businesses based on the program analyst’s 

evaluation, as well as market research and discussions with the Small Business 

Administration. AR, Exh. W, CO Declaration at ¶ 7. 

The RFQ anticipates the award of a fixed-price contract, with separate labor hour 

line items for surge, emergency, and overtime requirements. RFQ at 2-7. The 

 1 According to the CO, Walden became the incumbent contractor when it was still a 

small business by receiving an award under a solicitation set aside for small 

business concerns. CO Statement at 4 n.2. 
Page 3 B-407022, B-407022.2 

services are to be provided over one base year, with up to four 1-year option 

periods. The solicitation includes a 120-day transition period. Id. Award is to be 

made on a best value basis, considering technical factors and price.

Of relevance to the protest, contractors are required to have a business or 

corporate license to operate as a commercial security service on or before the date 

of award, and to ensure that each security guard/officer has obtained all licenses 

and certifications that are required by federal, state, and/or local laws 120 days after 

award. PWS ¶¶ 4.2.2, 4.1.8, 4.1.3. The PWS includes experience requirements; 

this experience could be met by either the prime contractor or a subcontractor. AR, 

Exh. E, July 11 E-mail from Contract Specialist to Vendors. In this regard, the RFQ 

allows for partnering agreements with non-qualifying entities provided that the prime 

contractor performs at least 51 percent of the labor costs. PWS ¶ 4.3.1. 

Walden filed this protest prior to the RFQ’s July 16 closing date. The CDC received 

eight quotations in response to the solicitation. 

DISCUSSION

Walden argues that the decision to set aside the procurement for small business 

participation was unreasonable, improper, and an abuse of the contracting officer’s 

discretion. Walden asserts that the CDC did not contemporaneously evaluate 

whether there were two capable and qualified small business concerns that met the 

RFQ’s requirements at a fair market price. Alternatively, Walden contends that the 

CDC’s set-aside determination was unreasonable since no small business is 

capable of meeting the RFQ’s licensing requirements, or providing the services at a 

fair market price. 

Under Federal Acquisition Regulation (FAR) § 19.502-2(b), a procurement with an 

anticipated dollar value of more than $150,000, such as the one here, must be set 

aside for exclusive small business participation when there is a reasonable 

expectation that: (1) offers will be received from at least two responsible small 

business concerns, and (2) that award will be made at a fair market price. The use 

of any particular method of assessing the availability of small businesses is not 

required so long as the agency undertakes reasonable efforts to locate responsible 

small business competitors. Med-South, Inc., B-401214, May 20, 2009, 2009 CPD 

¶ 112 at 2; National Linen Serv., B-285458, Aug. 22, 2000, 2000 CPD ¶ 138 at 2. 

The decision whether to set aside a procurement may be based on an analysis of 

factors such as the prior procurement history, the recommendations of appropriate 

small business specialists, and market surveys that include responses to sources 

sought announcements. Commonwealth Home Health Care, Inc., B-400163, July 

24, 2008, 2008 CPD ¶ 140 at 3. In making set-aside decisions, agencies need not 

make actual determinations of responsibility or decisions tantamount to 

determinations of responsibility; rather, they need only make an informed business 
Page 4 B-407022, B-407022.2 

judgment that there is a reasonable expectation of receiving acceptably priced 

offers from small business concerns that are capable of performing the contract. 

Ceradyne, Inc., B-402281, Feb. 17, 2010, 2010 CPD ¶ 70 at 4. Because a decision 

whether to set aside a procurement is a matter of business judgment within the 

contracting officer’s discretion, our review is limited to determining whether that 

official abused his or her discretion. KNAPP Logistics Automation, Inc., B-406303, 

Mar. 23, 2012, 2012 CPD ¶ 101 at 2. We will not question a small business set 

aside determination where the record shows that the evidence before the 

contracting officer was adequate to support the reasonableness of the conclusion 

that small business competition reasonably could be expected. Commonwealth 

Home Health Care, Inc., supra, at 3.

We first address Walden’s argument that the CDC failed to conduct, or document, 

any contemporaneous analysis or evaluation to support its decision to issue the 

solicitation as a small business set-aside, and its companion argument that we 

should give the agency’s post-protest analysis little or no weight.

The only contemporaneous evidence of the set-aside analysis is the e-mail from the 

program analyst to the contract specialist discussed above, with “yes” or “no” 

notations beside the names of firms responding to the sources sought notice. 

Walden challenged the agency’s documentation in its comments on the agency 

report, and GAO asked the agency to respond. The CDC provided a declaration, 

and a supplemental declaration, from the program analyst.2 The program analyst 

states that, after she received the capability statements, she read and evaluated 

each against a set of questions and responses established to ascertain a firm’s 

capability to perform. She states that, during the course of this protest, she 

refreshed her memory of that evaluation by re-reading the capability statements of 

the firms found capable and recollected the reasons for her findings. AR, Exh. X, 

Supp. Program Analyst Declaration, at ¶¶ 3-10. She provided her documented 

recollections for each firm.3

 2 In response to GAO’s initial request for CDC’s response, the program analyst’s 

declaration stated that she evaluated the capability statements against a list of 

questions to which the answer had to be “yes” in order to consider the firm capable; 

based on her review, four firms were found capable. AR, Exh. W, Program 

Analyst’s Declaration, at ¶¶ 3-7. Since the declaration did not explain why the firms 

were found to be capable, GAO sought an additional response from the CDC. This 

request elicited a supplemental declaration from the program analyst.

 

3 The program analyst also attached her analysis of the capability statements 

submitted in response to the sources sought notice for the prior procurement. In its 

supplemental comments, Walden cites statements from that analysis of the prior 

capability statements to challenge the analysis conducted for the present 

procurement. As we ruled early in the protest, the prior capability statements, and 

analysis of those statements, are not relevant. The prior sources sought notice 

(continued...)
Page 5 B-407022, B-407022.2 

Walden argues that the agency’s post-protest analysis should be accorded no 

weight, as it was prepared during the adversarial protest process and does more 

than fill in limited gaps in the contemporaneous record. We do not agree.

As Walden acknowledges, GAO will not limit its review to contemporaneous 

evidence, but considers all the information provided, including a party’s arguments

and explanations. See Serco, Inc., B-406683, B-406683.2, Aug. 3, 2012, 2012

CPD ¶ 216 at 7. While we generally give little or no weight to reevaluations and 

judgments prepared in the heat of the adversarial process, Boeing Sikorsky Aircraft 

Support, B-277263.2, B-277263.3, Sept. 29, 1997, 97-2 CPD ¶ 91 at 15, 

post-protest explanations that provide a detailed rationale for contemporaneous 

conclusions, and simply fill in previously unrecorded details, will generally be 

considered in our review as long as those explanations are credible and consistent 

with the contemporaneous record. NWT, Inc.; PharmChem Labs., Inc., B-280988, 

B-280988.2, Dec. 17, 1998, 98-2 CPD ¶ 158 at 16.

Here, the contemporaneous conclusions were the “yes” notations in the program

analyst’s e-mail to the contract specialist. The program analyst’s post-protest 

explanations provide detailed and credible rationales for those conclusions, and fill 

in the details she did not previously record. As a result, we consider these 

explanations in our review of the propriety of the agency’s set-aside determination.4

 

(...continued)

concerned a different procurement, and each procurement stands on its own. See

Advanced Constr. Techniques, Inc., B-404847.6, Jan. 25, 2012, 2012 CPD ¶ 54 at 

9. There is no evidence that the first set of capability statements were the same as 

those submitted here, and no indication that the program analyst relied on her prior 

analysis to conduct her present analysis. As a consequence, we need not address 

Walden’s arguments stemming from the analysis for the prior procurement.

4 The agency report included the capability statements received in response to the 

instant sources sought notice. In its comments on the agency report, Walden 

argued that its review of those submissions raised “numerous red flags” calling their 

capabilities into question, Comments at 18, but did not identify those “red flags.” In 

its supplemental comments, Walden revisits its metaphor with more detail, arguing 

that certain firms are not eligible small businesses. Walden cites as its support 

comments made in the program analyst’s analysis of the capability statements 

submitted in response to the previous sources sought notice. To the extent that 

Walden’s arguments are premised on the content of the capability statements at 

issue here, the arguments are untimely. Our Bid Protest Regulations do not 

contemplate the unwarranted piecemeal presentation or development of protest 

issues. 4 C.F.R. § 21.2(a) (2012); AINS, Inc., B-405902.3, May 31, 2012, 2012 

CPD ¶ 180 at 6 n.12. To the extent that the arguments rely on the analysis of the 

(continued...)
Page 6 B-407022, B-407022.2 

Walden alternatively argues that the CDC’s post-protest analysis does not show 

that there were two capable and qualified small business concerns that met the 

RFQ’s requirements at a fair market price. Walden’s principal argument is that 

there is no reasonable expectation that two or more small businesses can meet the 

solicitation’s armed guard license requirements under Georgia law.

As noted above, the PWS requires the contractor to ensure that each security guard 

has obtained all licenses, permits and certificates required by federal, state and 

local laws 120 days after award. PWS ¶¶ 4.1.3, 4.1.8. The CDC does not dispute 

that armed security guards must be licensed under Georgia law. The CDC also 

does not dispute Walden’s characterization of Georgia law as requiring that the 

security company, as the employer, must apply for and obtain the license on behalf 

of its employee. After properly registering its employees, the security company 

retains the license of its armed security guards. Georgia does not permit the 

transfer of such licenses between employers. Protest at 6.

Walden argues that no small business can meet this requirement because the 

120-day transition period does not allow enough time to re-certify the security 

guards now working for Walden or a sufficient number of other security guards to 

perform the requirements. Walden argues that, to apply for a license, the 

employees must be employed by the contractor, and obtaining the licenses takes 

between 5 and 7 months, longer than the transition period. Walden’s estimate is 

drawn from an October 2011 e-mail from a CDC supervisory contracting officer to 

the contract specialist. Protest, Tab C, at 43-45. In this e-mail, which concerned a 

planning meeting for the recompetition of these requirements, the supervisory 

contracting officer refers to the licenses at issue and states that “[i]t takes about 5 to 

7 months to obtain the licenses from the State of Georgia . . . ” Id. 

The CDC counters that this e-mail is not dispositive because it does not reflect the 

time estimate of the State of Georgia, the licensing entity. The CO states that her 

independent investigation of timetables for obtaining licenses showed that the 

state’s estimates for processing an application coincided with the transition period in 

the solicitation. CO Statement at 7. In this regard, the contract specialist states that 

she contacted the Georgia Secretary of State, Professional Licensing Board 

Division, to find out the timeframe for security guard companies to obtain guard 

licenses for their employees, so the CDC could set reasonable timeframes for 

contract transition. She states that on three occasions, including February and July 

of 2012, she contacted the state and was given the affirmative timeframe of 25 to 30 

 

(...continued)

capability statements submitted in response to a different procurement, as indicated 

above, that analysis is not relevant here. See note 3, supra. 
Page 7 B-407022, B-407022.2 

days for a company to obtain licenses for employees to work under their company 

as security guards. AR, Att. 1, Declaration of Contract Specialist, at ¶¶ 3-5.

We agree with the CDC that the e-mail proffered by Walden is, at best, the 

supervisory contracting officer’s estimate, and that the CDC reasonably relied on 

information obtained from the state of Georgia itself. Walden’s argument that the 

contract specialist’s declaration is not accompanied by more specific documentation 

affords us no basis to question its contents. Walden argues that the estimate of 25-

30 days does not account for delays in filing applications or post-application delays 

due to incorrectly completed applications. However, Walden has not shown that 

any of these potential delays undercut the agency’s determination that offers from 

two or more responsible small businesses can reasonably be expected. 

Finally, Walden asserts that the agency did not analyze whether small businesses 

could offer fair market prices. Walden argues that, because of the licensing and 

other technical requirements, any small business would have to add a premium to 

its proposed pricing, thereby resulting in prices higher than fair market. 

A contracting officer may reasonably rely on an expectation that there will be 

adequate price competition to conclude that the competition will result in a fair 

market price. KNAPP Logistics Automation, Inc., B-406303, Mar. 23, 2012, 2012 

CPD ¶ 137 at 5. The FAR provides that adequate price competition exists where 

two or more responsible offerors submit proposals that satisfy the government’s 

requirements, award is based on a best value determination where price is a 

substantial factor, and the price of the successful offeror is not unreasonable. FAR 

§§ 15.403-1(c)(1); 15.404-1(b)(2)(i). Here, the CDC concluded that four of 19 firms 

responding to the notice were small businesses capable of meeting the solicitation’s 

requirements. Walden’s speculation that small businesses would propose prices 

higher than fair market is just that. Under the circumstances, we conclude that it 

was reasonable for the CDC to anticipate adequate price competition, and that, as a 

result of that price competition, award would be made at a fair market price under 

the set-aside procurement.5

 National Linen Serv., supra, at 3-4.

The protest is denied.

Lynn H. Gibson

General Counsel

 5 The CDC’s conclusions regarding the potential for obtaining competitive proposals 

from small businesses appear to have been validated by the fact that it received 

offers from eight small businesses. Commonwealth, supra, at 3 n.2.