United States Government Accountability Office

Washington, DC 20548

Comptroller General

of the United States

 

Decision

Matter of: Glevum Associates, LLC--Costs

File: B-405860.3

Date: April 23, 2012

Daniel J. Kelly, Esq., and Bonnie Vanzler, Esq., McCarter & English, LLP, for the 

protester.

Tina Marie Pixler, Esq., Department of the Army, for the agency.

Cherie J. Owen, Esq., Glenn G. Wolcott, Esq., and Sharon L. Larkin, Esq., Office of 

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

DIGEST

Request that GAO recommend reimbursement of costs for filing and pursuing a 

protest against the agency’s evaluation of offerors is granted where the protester 

raised a clearly meritorious protest and the agency did not take prompt corrective 

action.

DECISION

Glevum Associates, LLC, of Burlington, Massachusetts, requests that our Office 

recommend the reimbursement of Glevum’s costs of filing and pursuing its protest 

challenging the award of a contract by the Department of the Army, Army Materiel 

Command, to Metrica, Inc., of San Antonio, Texas, under request for quotations 

(RFQ) No. 597367, for military information support operations survey services in 

Afghanistan. 

We grant the protester’s request.

The Army issued the RFQ on August 18, 2011, seeking quotations to provide survey 

services in Afghanistan, including market and field research, development of 

enhanced target audience profiles, and conducting surveys to assist the government 

in developing messages and themes that will resonate positively with the Afghan 

population. The RFQ contemplated the award of a fixed-price contract for a base 

period of six months with four six-month options. 

Award was to be made to the best-value offeror based upon the evaluation of 

technical, past performance, and price factors. All proposals that received an 

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-405860.3

“acceptable” technical factor rating would be evaluated for past performance and 

price. RFQ at 3. The RFQ stated that the agency would conduct a tradeoff analysis 

based on a comparative assessment of the past performance and price factors, with 

past performance significantly more important than price. Id. The RFQ also stated 

that “[s]ince the Past Performance factor is an important consideration in the award 

decision, the Government reserves the right to make an award to an offeror with a 

higher priced quote that is superior in the Past Performance Factor.” RFQ at 3.

With regard to past performance, the RFQ stated that the agency would evaluate 

recent, relevant past performance as an indicator of the offeror’s ability to perform 

the contract successfully. RFQ at 10. The RFQ required that offerors submit 

documentation of three prior contracts, along with past performance questionnaires 

to demonstrate their recent, relevant past performance. The term “relevant” was 

defined as same or similar actions in terms of size, complexity, scope, and contract 

type performed under previously awarded contracts. RFQ at 10. Offerors were 

instructed to submit documentation outlining their past performance with a list of 

three similar contracts performed as prime contractors or major subcontractors 

within the past three years. Id. 

In evaluating the relevance of past performance, the evaluators were to assign 

adjectival ratings of very relevant, relevant, somewhat relevant, or not relevant. 

RFQ at 16. The solicitation stated that a rating of very relevant should be assigned to 

past performance references involving essentially the same scope, magnitude of 

effort, and complexities as this solicitation. Id. 

After determining the recency and relevance of the offerors’ past performance

references, agency evaluators were to assign past performance adjectival ratings of

substantial confidence, satisfactory confidence, limited confidence, no confidence, 

or unknown confidence (neutral). As pertinent to this protest, a rating of substantial

confidence was to be assigned when the evaluators concluded, “[b]ased on the 

Offeror’s recent/relevant performance record, that the Government has a high 

expectation that the Offeror will successfully perform the required effort.” RFQ 

at 16.

The RFQ also required that a past performance questionnaire be completed and 

submitted for each past performance reference. Id. at 11. Offerors were instructed 

to complete the first portion of the questionnaire, then email the questionnaire to the 

representative responsible for the past/current contract. The contract 

representatives were to be instructed to electronically complete the second part of 

the questionnaire and email the completed questionnaire directly to the agency. Id. 

Prior to the due date for receipt of quotations, the agency posted a number of 

questions and answers regarding the solicitation. With regard to past performance, 

the agency received a question asking whether past performance questionnaires 

could be submitted for projects that had been performed by subcontractors. AR, 

Tab 9a, RFQ Attach. 10, RFQ Questions and Answers, at 4. The agency responded 
Page 3 B-405860.3

that contractors should provide only past performance questionnaires that would

support prime contractor past performance. Id. 

The agency received two timely and responsive quotations by the response due date, 

submitted by the protester and the awardee. The agency determined that both 

proposals were technically acceptable and assigned a past performance rating of 

substantial confidence to both proposals. Since both proposals received the same 

past performance rating, the agency selected Metrica for award, noting that it offered 

a significantly lower price. AR, Tab 30, Source Selection Decision Document, at 9.

Glevum filed its initial protest with our Office on September 20, 2011. In its protest, 

Glevum challenged the agency’s evaluation of Metrica’s past performance, asserting 

that the agency failed to properly evaluate the awardee’s past performance in 

accordance with the solicitation’s stated evaluation criteria. Protest at 9-13. Glevum 

also argued that the awardee lacked the technical capability required under the RFQ. 

Protest at 13-14.

On October 31, the agency filed a report responding to the protest allegations 

defending its evaluation of Metrica. On November 10, Glevum filed a supplemental 

protest and comments on the agency report. In its supplemental protest and 

comments, Glevum enhanced its initial arguments based upon its review of the 

evaluation documentation. 

With regard to past performance, the protester argued that Metrica’s past 

performance rating of substantial confidence was wholly unsupported by the record. 

Specifically, for one reference, Metrica had submitted (and the agency had 

considered) a past performance reference for one of its subcontractors in place of its 

own past performance reference, despite the RFQ’s specific instructions to the 

contrary. Supp. Protest & Comments at 16. With regard to Metrica’s second past 

performance reference, a completed past performance questionnaire was never 

received. Id. With regard to Metrica’s final past performance reference, the 

protester noted that it was valued at only $30,000,

1

did not involve any work 

performed in Afghanistan, and had no relevance to the services to be performed 

under the contract at issue here. Id.

 1

The value of the awarded contract was approximately $9 million. AR, Tab 30, 

Source Selection Decision Document, at 9.

 Accordingly, the protester argued that the 

agency acted unreasonably in assigning Metrica a rating of substantial confidence

under the past performance evaluation factor. Rather, the protester argued, the 

awardee’s past performance should have received a rating of no confidence or, at 

best, neutral. Supp. Protest & Comments at 16-19. Glevum also refined its challenge 

to the agency’s technical evaluation in its November 10 filing, arguing that the 

awardee’s proposal was technically unacceptable for failure to meet several of the 

RFQ’s requirements. 
Page 4 B-405860.3

After reviewing the protester’s November 10 filing, GAO requested that the agency 

submit a supplemental report by close of business on November 23. On 

November 18, prior to the submission of a supplemental report, the agency notified 

our Office of its intent to take corrective action regarding Glevum’s protests. Our 

Office dismissed the protests as academic on November 29. Glevum filed this 

request for reimbursement of its protest costs on December 14. 

Where, as here, an agency takes corrective action in response to a protest, our Office 

may recommend reimbursement of protest costs, including reasonable attorneys’

fees, if, based on the circumstances of the case, we determine that the agency unduly 

delayed taking corrective action in the face of a clearly meritorious protest, thereby 

causing the protester to expend unnecessary time and resources to make further use 

of the protest process in order to obtain relief. Bid Protest Regulations, 4 C.F.R. 

§ 21.8(e)(2011); Friendship Dental Laboratories, Inc., B-404741.4, Aug. 24, 2011, 2011 

CPD ¶ 189 at 3. A protest is clearly meritorious where a reasonable agency inquiry 

into the protester’s allegations would reveal facts showing the absence of a 

defensible legal position. Id.; Yardney Tech. Prods., Inc.--Costs, B-297648.3, Mar. 28, 

2006, 2006 CPD ¶ 65 at 4. Additionally, while we consider corrective action to be 

prompt if it is taken before the due date for the agency report responding to the 

protest, we generally do not consider it to be prompt where it is taken after that date.

Basic Commerce & Indus., Inc.--Costs, B-401702.3, Feb. 22, 2010, 2010 CPD ¶ 258 at 

4; AGFA HealthCare Corp.--Costs, B-400733.6, Apr. 22, 2009, 2009 CPD ¶ 90 at 3-4.

Glevum asserts that reimbursement of its protest costs is warranted here because its 

initial protest raised issues that were clearly meritorious regarding the agency’s 

failure to evaluate Metrica’s proposal in accordance with the stated evaluation 

criteria. Further, Glevum notes that the agency failed to take corrective action until 

after the protester had been required to respond to the agency report in which the 

agency defended its procurement actions. The agency argues that it did not unduly 

delay corrective action because, according to the agency, it determined to take 

corrective action based on Glevum’s supplemental protest, not its initial protest. 

Agency’s Response to Request for Costs at 1.

We agree with the protester that the agency failed to take prompt corrective action 

in the face of a clearly meritorious protest. After the agency’s investigation into the 

protester’s initial protest grounds, the agency determined that its evaluators had 

improperly based Metrica’s past performance rating of substantial confidence on the 

past performance of Metrica’s subcontractor. After this discovery, rather than taking 

corrective action, the agency filed a report attempting to defend its actions. In its 

report, the agency asserted that Glevum was not prejudiced by the agency’s 

evaluation since Metrica would have received the same past performance rating even 

if the reference for the subcontractor had been ignored. That is, the agency argued 

that it would have assigned Metrica the highest possible past performance rating 

based on a past performance reference for a contract valued at less than one percent 
Page 5 B-405860.3

of the contract at issue here, and based on a contract that did not involve work 

performed in Afghanistan. 

We conclude that Glevum’s challenge to the agency’s evaluation of Metrica’s 

quotation raised a clearly meritorious basis of protest that the agency could have 

resolved prior to submitting its initial agency report and receiving Glevum’s 

comments; we also conclude that there was a reasonable possibility that Glevum was 

prejudiced by the errors in the agency’s evaluation. See, Friendship Dental, supra, 

at 4. We therefore recommend that Glevum be reimbursed the costs of pursuing its 

protest with our Office. Glevum should submit its certified claim, detailing the time 

spent and costs incurred directly to the agency within 60 days of its receipt of this 

decision. 4 C.F.R. § 21.8(f)(1). 

The request that we recommend reimbursement of protest costs is granted.

Lynn H. Gibson

General Counsel