United States Government Accountability Office

Washington, DC 20548

Comptroller General

of the United States

 

Decision

Matter of: Colt Defense, LLC

File: B-406696

Date: July 24, 2012

Michael A. Hordell, Esq., Stanley R. Soya, Esq., Michael R. Golden, Esq., Heather 

Kilgore Weiner, Esq., and Samuel Jack, Esq., Pepper Hamilton LLP, for the 

protester.

Holly Emrick Svetz, Esq., James K. Kearney, Esq., and Steven W. Cave, Esq., 

Womble Carlyle Sandridge & Rice, LLP, for Remington Arms Company, LLC, the 

intervenor.

Wade L. Brown, Esq., Kandis C. Gaines, Esq., Department of the Army, for the 

agency.

Nora K. Adkins, Esq., and Jonathan L. Kang, Esq., Office of the General Counsel, 

GAO, participated in the preparation of the decision.

DIGEST

1. Protest challenging the evaluation of offerors’ prices is sustained where the 

agency failed to follow the solicitation criteria with regard to the application of a 

5-percent royalty adjustment to the offerors’ total evaluated prices.

2. Protest challenging the evaluation of the awardee’s past performance is denied 

where the source selection authority’s decision to change the lower-level source 

selection evaluation board’s initial rating from neutral to satisfactory was 

reasonable.

3. Protest challenging the evaluation of the awardee’s production capability is 

denied where the solicitation did not require the agency to assess a higher risk 

rating for proposals that did not have existing facilities and equipment.

DECISION

Colt Defense, LLC, of West Hartford, Connecticut, protests the award of a contract 

to Remington Arms Company, LLC, of Ilion, New York, under request for proposals 

No. W56HZV-10-R-0593 issued by the Department of the Army for standard M4 

carbines and standard M4A1 carbines.

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-406696 

We sustain the protest in part and deny it in part.

BACKGROUND

The solicitation was issued on August 19, 2011, and anticipated the award of a 

fixed-price 5-year indefinite-delivery/indefinite-quantity contract. The RFP sought 

proposals for the production of a minimum of 10,000 carbines and a maximum of 

120,000 carbines in any combination of multiple M4/M4A1 configurations. 

RFP at 3. 

The RFP advised that award would be made to the offeror whose proposal offered 

the best value based upon the evaluation of four factors: (1) production capability, 

(2) price, (3) past performance, and (3) small business participation. RFP at 87. 

The production capability factor was broken into four considerations: 

(1) manufacturing facilities, (2) key tooling and equipment, (3) production approach, 

and (4) quality management system. Id. at 88. 

The RFP also explained that the factors of production capability, price, and past 

performance were approximately equal in importance and each was significantly 

more important than the small business participation factor. Id. In addition, the 

RFP stated that the non-price factors, when combined, were significantly more 

important than price. Id.

As relevant here, the production capability factor stated as follows:

M.5.1 Production Capability Factor (Factor 1)

The information submitted in response to the Production Capability 

Factor, Section L.4.2. (a-d), will be evaluated to assess the technical 

merit and risk that the offeror will timely deliver quality supplies 

meeting the solicitation requirements.

Failure to provide a detailed analysis, rationale, and supporting 

documentation that satisfies the requirements of Section L and 

incorporates assumptions may be reflected in the Government[’]s risk 

assessment. Incomplete and unclear proposals may add risk.

Id.

For past performance, the solicitation stated as follows: 

M.5.3.1 The Past Performance Factor will assess the risk the offeror 

will meet contract technical and schedule requirements based on the 

recent and relevant contract performance as it relates to the offerors 

proposed solution to meet M4/M4A1 Carbine contract requirements.
Page 3 B-406696 

M.5.3.2 In evaluating performance history, the Government may 

review the offerors current and prior performance record of complying 

with all aspects of its contractual agreement: conformance to 

technical requirements; timeliness of deliveries/performance; quality 

of performance.

Id.

For the price evaluation factor, the solicitation notified offerors that the technical 

data package for the M4/M4A1 carbines includes licensed technology for which the 

Government is obligated to pay a royalty amount pursuant to a license agreement 

with Colt Defense, LLC. RFP at 3, 74. The RFP explained that offerors who did not 

own or have a license for the Colt technology would be evaluated as follows:

M.5.2 Price Factor (Factor 2)

* * * * *

M.5.2.3 The royalty rate is 5%. If the offeror does not indicate that it 

is the owner or a licensee of the technology/technical data, its offer 

will be evaluated by adding an amount equal to the royalty to its 

proposed prices.

Id. at 88.

The Army received five proposals by the closing date of November 10. The Army 

conducted discussions with three of the offerors, including Colt and Remington. On 

March 26, the agency received final proposal revisions from the three competitive 

range offerors.

The Army’s evaluation of offers began with the assessment of a source selection 

evaluation board (SSEB). As relevant here, the SSEB’s review of production 

capability analyzed the proposed manufacturing facilities, key tooling and 

equipment, production approach and quality plan. Agency Report (AR), Tab 11-2, 

SSEB Production Capability Evaluation--Remington, at 1-10. With respect to past 

performance, the SSEB evaluated the relevance of the past performance 

references, as well as the offeror’s performance on the referenced contracts, to 

arrive at an overall confidence rating. AR, Tab 11-3, SSEB Past Performance 

Evaluation--Remington, at 1-10. With respect to price, the SSEB calculated a 

weighted average unit price to arrive at a total price for each ordering period per 

contract line item (CLIN). As explained in detail below, the agency’s price 

evaluation also included a royalty calculation for any offeror that did not designate 

itself as the owner or licensee of Colt’s technology/ technical data. AR, Tab 11-1-1, 

SSEB Price Evaluation, at 1-14.
Page 4 B-406696 

The results of the SSEB evaluation were then presented to the Source Selection 

Advisory Council (SSAC) for review. The SSAC agreed with the SSEB’s results, 

except for the SSEB’s assignment of an “unknown confidence” rating to 

Remington’s past performance. AR, Tab 12, SSAC Award Recommendation, at 10. 

In this regard, the SSAC agreed with the SSEB that Remington had two “somewhat 

relevant” contracts, but disagreed with the SSEB’s assessment that “the 

Government could not base a meaningful performance risk prediction (for 

Remington) upon these references.” Id.; AR, Tab 11-3, SSEB Past Performance 

Evaluation--Remington, at 9-10. Instead, the SSAC concluded that Remington’s 

performance for these somewhat relevant contracts has been excellent and--

balancing the excellent performance against the limited relevance of the 

performance--changed Remington’s rating from “unknown confidence” to 

“satisfactory confidence.” AR, Tab 12, SSAC Award Recommendation, at 10, 12.

The final ratings for Colt and Remington, as recommended by the SSAC to the SSA 

were as follows:

Production

Capability

Past

Performance

Small Business

Participation

Total Evaluated

Price

Colt Outstanding/

Very low risk

Substantial

Confidence

Acceptable/

Moderate risk $86,936,476

Remington Outstanding/

Very low risk

Satisfactory

Confidence

Outstanding/

Very low risk $85,443,084

AR, Tab 13, Source Selection Decision, at 1.1

On April 19, the SSEB chair and the SSAC presented the results of their reviews to 

the Source Selection Authority (SSA). AR, Tab 13, Source Selection Decision, at 1. 

The SSAC recommended to the SSA that Remington receive the award as the best 

value offeror concluding that: 

 1 The possible ratings for the production capability and small business participation 

factors were: outstanding/very low risk, good/low risk, acceptable/moderate risk, 

marginal/high risk, and unacceptable. The possible ratings for the past 

performance factor were: substantial confidence, satisfactory confidence, limited 

confidence, no confidence, and unknown confidence. AR, Tab 3-1, Source 

Selection Plan, at 24-26. 
Page 5 B-406696 

Remington’s offer with its best Production Capability approach and 

Small Business Participation, along with its Satisfactory Past 

Performance rating and the lowest evaluated price is the best value 

to the government. . . . The price premium of awarding to either Colt 

or [ ] is not worth the difference.

AR, Tab 12, SSAC Award Recommendation, at 14. 

The SSA reviewed the SSEB’s and SSAC’s findings and recommendations, and 

reached the following conclusions: (1) for the production capability factor, 

“Remington’s proposal is slightly better than Colt’s”; (2) for the past performance 

factor, Remington should be rated satisfactory confidence; (3) for the small 

business participation factor, “Remington is clearly the best”; and (4) for price, 

“Remington’s total evaluated price of $85.4M inclusive of royalty is the lowest of the 

three.” AR, Tab 13, Source Selection Decision, at 2-3. Thus, the SSA selected 

Remington as the best value for contract award. Id. at 4. On April 20, award was 

made to Remington. On April 26, Colt filed the current protest with our Office after 

receiving its debriefing.

DISCUSSION

Colt argues that the Army’s evaluation was flawed in three respects: (1) the agency 

failed to apply the solicitation’s 5-percent royalty adjustment to offerors’ prices; 

(2) the agency failed to reasonably evaluate Remington’s past performance; and 

(3) the agency failed to reasonably evaluate Remington’s proposal under the 

production capability evaluation factor. Colt contends that if the agency had 

conducted a proper evaluation, it would have determined that Colt’s proposal 

offered the lowest price and the best value to the government.

As a general matter, in reviewing protests challenging an agency's evaluation of 

proposals, our Office will not reevaluate proposals; rather, we will examine the 

record to determine whether the agency's evaluation conclusions were reasonable 

and consistent with the terms of the solicitation and applicable procurement laws 

and regulations. James Constr., B-402429, Apr. 21, 2010, 2010 CPD ¶ 98 at 3. A 

protester's mere disagreement with a procuring agency's judgment is insufficient to 

establish that the agency acted unreasonably. Id.

As discussed below, we agree with Colt that the Army failed to apply the 5-percent 

royalty adjustment to offerors’ prices in accordance with the solicitation’s price 

evaluation instructions, and sustain the protest on this basis. With regard to Colt’s 
Page 6 B-406696 

challenges to the agency’s evaluation of Remington’s past performance and 

production capability, we disagree with Colt and deny those bases of protest.2

Price Evaluation

Colt argues that the Army did not apply the 5-percent royalty adjustment in the 

solicitation to the other offerors’ total evaluated prices. Instead, Colt contends that 

the agency improperly applied the royalty adjustment only to certain portions of the 

proposed prices, based on an undisclosed interpretation of the license agreement 

between the government and Colt.

In response, the Army argues that the terms of the license agreement mandate the 

application of the royalty only to the portions of the M4/M4A1 carbine that are 

proprietary to Colt. Additionally, the agency alleges that Colt’s interpretation of the 

solicitation is unreasonable, and is inconsistent with the license agreement the 

solicitation provision is implementing. 

As shown by the Army’s response, this dispute requires a review of the license 

agreement between the government and Colt--which was not a part of this 

solicitation. During the course of this protest, the Army provided a copy of the 

license agreement,3 which provides as follows: 

[DELETED]

AR, Tab 19, M4 Carbine Addendum to Technical Data Sales and Patent License 

Agreement, Article VII Royalties, at 13-14. 

Our review of the record shows that the Army did not apply a 5-percent royalty 

adjustment to the total proposed prices for the non-Colt offerors. Instead, as Colt 

has argued, the agency interpreted the solicitation in conjunction with the license 

agreement, quoted above. AR, Tab 11-1-1, SSEB Price Evaluation, at 4. 

In general terms, the agency identified those parts of the M4/M4A1 carbine that 

were proprietary to Colt, and applied the 5-percent royalty adjustment only to the 

costs associated with those parts. Id. Specifically, the agency concluded that 

[DELETED] of the carbine’s parts were proprietary to Colt, or partially proprietary to 

Colt, and that only the portion of the price related to those parts was therefore 

 2 Colt has raised other collateral arguments concerning the agency’s evaluation. 

We have reviewed all of these issues and find that none provides a basis to sustain 

the protest.

3 The license agreement is not a publicly available document.
Page 7 B-406696 

subject to the 5-percent royalty adjustment.4 Id. The agency then referenced 

historical data from a unit price database to assign a price to each M4/M4A1 

component.5

 Using these prices, the agency calculated a royalty base expressed 

as a percentage of the historical price of the carbine that is proprietary to Colt. Id.

at 5. For example, CLIN 0003 was assigned a proprietary percentage of 49.41 

percent, meaning 49.41 percent of the carbine’s historical price for CLIN 0003 was 

determined to be for parts that were proprietary to Colt. Id. at 5. As a result of this 

calculation, the agency multiplied the prices of the other offerors by 49.41 percent, 

and applied the 5-percent royalty to the result. It was this number that was added to 

the non-proprietary portion of the other offerors’ prices to calculate a total price for 

each CLIN. Each CLIN, inclusive of royalty, was then added together to arrive at a 

total evaluated price for each offeror.

In essence, this dispute arises from a blurring of two distinct concepts--a price 

adjustment provision set out in a solicitation, and a royalty payment provision 

between the government and Colt designed to compensate Colt for the use of its 

proprietary technology. While the Army’s calculation may (or may not) accurately 

represent the amount due Colt under the license agreement, the solicitation’s price 

adjustment provision provided no notice to Colt--or other offerors--that the provision 

would be applied in this way.

In cases where a dispute exists between the parties as to the actual meaning of a 

particular solicitation provision, our Office will resolve the matter by reading the 

solicitation as a whole and in a manner that gives effect to all its provisions; to be 

reasonable, an interpretation of a solicitation must be consistent with such a 

reading. The Boeing Co., B–311344 et al., June 18, 2008, 2008 CPD ¶ 114 at 34.

The plain language of the RFP stated that “[t]he royalty rate is 5%” and that, for 

offerors who do not own or have licenses for the Colt technology, their proposed 

prices “will be evaluated by adding an amount equal to the royalty to [their] 

proposed prices.” RFP at 88. We agree with Colt that the only reasonable 

interpretation of the RFP would be to apply the 5-percent royalty to an offeror’s total 

evaluated price. The agency’s interpretation is simply at odds with the plain 

meaning of the solicitation language and, as such, is unreasonable. See Raytheon 

Co., B-404998, July 25, 2011, 2011 CPD ¶ 232 at 17.

The RFP here did not indicate that the agency would perform an analysis of the 

proprietary and non-proprietary parts, nor did it provide notice to the offerors that 

 4 All other M4/M4A1 parts were deemed not to be proprietary by the agency, and 

not subject to the 5-percent royalty.

5 A majority of the referenced historical prices came from [DELETED]. AR, 

Tab 15-3, Royalty Base Calculation, at 1.
Page 8 B-406696 

the agency would calculate a royalty base expressed as proprietary percentage for 

each CLIN. Thus, the agency departed from the RFP’s price evaluation criteria 

when it created its own undisclosed formula to apply the 5-percent royalty to only 

those portions of the M4/M4A1 carbine which it had independently determined were 

proprietary to Colt. As stated above, we find that the solicitation’s price evaluation 

clause provided no notice that the evaluation would be conducted in such a manner.

To the extent the Army contends that Colt’s protest is an untimely challenge to the 

terms of the solicitation, we disagree. Specifically, the agency contends that Colt 

was aware that the license agreement between the Army and Colt contained 

language that was inconsistent with Colt’s interpretation of the RFP. In effect, the 

agency argues that Colt’s special knowledge of the license agreement created an 

ambiguity that obligated the protester to challenge this solicitation prior to the time 

for submitting proposals. See Bid Protest Regulations, 4 C.F.R. § 21.2(a)(1) (2012). 

An ambiguity exists where two or more reasonable interpretations of the terms or 

specifications of the solicitation are possible. DynCorp International LLC, 

B-289863, B-289863.2, May 13, 2002, 2002 CPD ¶ 83. A patent ambiguity exists 

where the solicitation contains an obvious, gross, or glaring error (e.g., where the 

solicitation provisions appear inconsistent on their face), while a latent ambiguity is 

more subtle. Ashe Facility Servs., Inc., B-292218.3, B-292218.4, Mar. 31, 2004, 

2004 CPD ¶ 80 at 11. Where there is a latent ambiguity, both parties’ interpretation 

of the provision may be reasonable, the appropriate course of action is to clarify the 

requirement and afford offerors an opportunity to submit proposals based on the 

clarified requirement. Allied Signal, Inc., Elec. Sys., B- 275032, B-275032.2, 

Jan. 17, 1997, 97-1 CPD ¶ 136 at 11. Although, as noted above, we conclude that 

a solicitation’s price adjustment clause and the appropriate calculation of a royalty 

payment are two distinct concepts, if there is any ambiguity here, it was latent, 

rather than patent. As a result, we find that this protest is timely. 

To the extent that the Army argues that Colt’s interpretation of the RFP would 

render ineffective a portion of the license agreement, we again disagree. Clearly 

Colt was aware of the terms of the license agreement--as the Army argues--and 

Colt was aware that the agreement stated that the royalty amount due to Colt would 

be based on parts or components that are produced from the proprietary portions of 

the carbine. However, the terms of the license agreement are not at issue here. 

Put differently, the RFP and license agreement need not be read in a manner that 

puts either in conflict.6

 See The Boeing Co., supra, at 35.

 6 Moreover, as the CO concedes, the terms of the license agreement do not 

preclude the agency from applying a 5-percent royalty to an offeror’s total evaluated 

price in the evaluation of proposals. Supp. CO Statement ¶ 10.
Page 9 B-406696 

We also find no merit to the Army’s contention that Colt should have known that the 

agency would evaluate the other offerors’ prices in the manner employed by the 

SSEB. As discussed above, the agency unilaterally identified the portions of the 

carbine that are proprietary to Colt, used historical prices to assign a price to these 

portions, calculated a percentage of the price that could be considered tied to the 

proprietary items, and applied that percentage to the offerors’ evaluated prices. 

There is no dispute that the Army and Colt have yet to reach an agreement on a 

per-weapon value of the non-proprietary portion of the technical data package to be 

utilized to reduce the royalty base. See Protester’s Response to Agency’s 

Dismissal Request, at 6. Thus, Colt could not have known that the agency would 

apply the 5-percent royalty as it did. We therefore sustain the protest based upon 

the Army’s decision to evaluate prices in a manner different from the approach 

established in the solicitation.

Past Performance

Next, Colt challenges the agency’s evaluation of Remington’s past performance, 

asserting that there was no rational basis for the SSA’s decision to accept the 

SSAC’s change in Remington’s past performance rating from unknown confidence 

to satisfactory confidence since the satisfactory confidence rating is unreasonable 

and unsupported.

The evaluation of an offeror's past performance is within the discretion of the 

contracting agency, and we will not substitute our judgment for reasonably based 

past performance ratings. MFM Lamey Group, LLC, B-402377, Mar. 25, 2010, 

2010 CPD ¶ 81 at 10. Where a solicitation calls for the evaluation of past 

performance, we will examine the record to ensure that the evaluation was 

reasonable and consistent with the solicitation’s evaluation criteria and procurement 

statutes and regulations. Divakar Techs., Inc., B-402026, Dec. 2, 2009, 

2009 CPD ¶ 247 at 5. An offeror’s mere disagreement with the agency’s evaluation 

judgments does not demonstrate that those judgments are unreasonable. 

SDV Telecomms., B-279919, July 29, 1998, 98-2 CPD ¶ 34 at 2.

Remington submitted four past performance ratings for the agency’s evaluation. 

The SSEB determined that two references were not relevant, and that two were 

somewhat relevant. AR, Tab 11-3, SSEB Past Performance Evaluation--

Remington, at 9-10. The SSEB assigned an unknown confidence rating because it 

found the information provided was “so sparse that no meaningful confidence 

assessment rating can be reasonably assigned.” Id.

The SSAC disagreed with the SSEB’s assessment of unknown confidence for 

Remington. AR, Tab 12, SSAC Award Recommendation, at 10. While the SSAC 

concurred with the SSEB’s evaluation that only two of Remington’s references were 

“somewhat relevant,” the SSAC did not agree that the performance information for 

these references was too sparse as to preclude a confidence assessment. Id. 
Page 10 B-406696 

Instead, the SSAC determined that Remington’s performance on its somewhat 

relevant contracts--which met all of the technical and delivery requirements of those 

contracts with few quality issues and positive comments from the customers--

demonstrated “excellent performance.” Id. at 12. Based on these findings, the 

SSAC concluded that there was a reasonable expectation that Remington will 

successfully perform the required effort, and assigned a satisfactory confidence 

rating to Remington’s past performance. Id. 

When the SSEB chair and SSAC presented their evaluations to the SSA, the SSA 

agreed that Remington’s two somewhat relevant references demonstrated a 

reasonable expectation that it would successfully perform the required effort. Id.

at 2-3. Therefore, the SSA concluded that Remington’s past performance should 

receive a Satisfactory Confidence rating. Id. at 3.

We first note that an agency’s evaluation is not unreasonable simply because an

SSA disagrees with the evaluation ratings and conclusions of lower-level 

evaluators. Sig Sauer, Inc., B-402339.3, July 23, 2010, 2010 ¶ 184 at 6. Based 

upon our review, we find nothing unreasonable about the agency’s assignment of a 

satisfactory confidence rating to Remington’s past performance and we find that the 

conclusion is supported by the underlying record. In this case, the SSA reviewed 

the SSEB’s evaluation, the SSAC’s analysis and recommendation, as well as the 

past performance record, and agreed with the SSAC’s satisfactory confidence 

rating; nothing about this review, or the SSA’s resolution of this area of conflict 

between the SSEB and SSAC, was unreasonable. Accordingly, we deny this 

portion of the protest.7

Production Capability

Finally, Colt challenges the agency’s evaluation of Remington’s production 

capability, asserting that Remington’s rating of outstanding/very low risk was 

unreasonable. The protester contends that the RFP required the agency to assign 

more favorable ratings to offerors, such as Colt, who have existing facilities and 

equipment, and less favorable ratings to offerors, such as Remington, who do not. 

The solicitation’s production capability section required offerors to identify their 

proposed plan and schedule to obtain the required manufacturing facilities, and 

explained that offerors “must distinguish between existing facilities and proposed 

 7 We note for the record that the SSA also conducted a contemporaneouslydocumented alternative assessment to determine whether the award decision would 

be different if Remington’s past performance rating remained unknown confidence. 

At the conclusion of this additional exercise, the SSA determined that the superiority 

of Remington’s proposal under the other evaluation criteria would support the same 

award decision. AR, Tab 13, Source Selection Decision, at 3.
Page 11 B-406696 

plans to obtain facilities.” RFP at 73. The RFP additionally required offerors to 

identify the key tooling and equipment required in the production of the M4/M4A1 

carbines, and once again explained that offerors “must distinguish between existing 

tooling and equipment and proposed plans to obtain tooling and equipment.” Id.

at 74. The solicitation specified that the information submitted under the production 

capability section will be evaluated to assess the technical merit and risk that the 

offeror will timely deliver quality supplies meeting the solicitation requirements. 

RFP at 88. The solicitation informed offerors that failure to provide a detailed 

analysis, rationale, and supporting documentation that satisfies the requirements of 

the solicitation and incorporates assumptions may be reflected in the Government’s 

risk assessment. Id. The solicitation also cautioned that “[i]ncomplete and unclear 

proposals may add risk.” Id.

The agency’s evaluation of Remington’s production capability proposal concluded 

that both Remington (and its critical subcontractor) have:

more than ample facilities to meet the requirement with no additional 

facilities required. . . . Remington has some, but not all the required 

key tooling and equipment in place, but its proposal provided a very 

detailed plan for key tooling and equipment with scheduled 

completion well before the requirement for [first article test] and 

subsequent delivery requirements and is considered a very low risk. 

. . . Remington’s proposed plan for meeting the [first article test] 

Schedule is specifically tailored to the M4/M4A1 Carbine and the 

requirements of the current solicitation. Remington’s plan is 

supported with a comprehensive schedule.

AR, Tab 12, SSAC Award Recommendation, at 8. As a result, the agency assigned 

an outstanding/very low risk to Remington’s production capability. AR, Tab 13, 

Source Selection Decision, at 1.

Here, the record shows that the agency reasonably evaluated Remington’s 

production capability. While we agree with the protester that the manufacturing 

facilities and key tooling and equipment criteria of the production capability factor 

required offerors to distinguish between existing facilities/equipment and proposed 

plans to acquire facilities/equipment, we do not agree that the solicitation mandated

a higher risk assessment for offerors without all of the facilities and equipment that 

will eventually be required. Unlike the case cited by Colt, Navistar Defense, LLC; 

BAE Sys., Tactical Vehicle Sys. LP, B-401865, et al., Dec. 14, 2009, 2009 

CPD ¶ 258 at 7, where the solicitation specifically stated that an offeror “will be 

considered a lower risk” if it had existing production capacities, the solicitation here 

simply provided that incomplete and unclear proposals may add risk. In this regard, 

the RFP here did not expressly state that the agency would necessarily assign 
Page 12 B-406696 

higher ratings for offerors who have existing facilities as compared to offerors who 

had plans to obtain the required facilities and equipment.8 Instead, the agency 

reasonably determined that Remington’s very detailed plan merited an 

outstanding/very low risk rating. Accordingly, this portion of the protest is denied. 

RECOMMENDATION

We recommend that the Army either reevaluate offerors’ proposals in accordance 

with the plain meaning of the solicitation, as discussed above, or amend the 

solicitation to clearly set forth its intended criteria for the evaluation of price with 

regard to the 5-percent royalty. In the event the agency revises the solicitation, it 

should request revised price proposals and reevaluate the proposals in accordance 

with the amended price evaluation criteria. Following its reevaluation of offerors’ 

price proposals, the agency should make a new selection decision. If Remington is 

not found to offer the best value to the government, the agency should terminate 

Remington’s contract for the convenience of the government.

We also recommend that Colt be reimbursed the costs of filing and pursuing its 

successful ground of protest related to its challenge of the agency’s price 

evaluation, including reasonable attorney fees. 4 C.F.R. § 21.8(d)(1). Colt should 

submit its certified claim for costs, detailing the time expended and cost incurred, 

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

4 C.F.R. § 21.8(f)(1).

Lynn H. Gibson

General Counsel

 8 If Colt believed that the solicitation should have provided for a higher risk rating for 

those offerors without existing facilities/equipment, Colt was required to submit a 

protest against the terms of the solicitation before the closing date for receipt of 

proposals. 4 C.F.R. § 21.2(a)(1).