United States Government Accountability Office

Washington, DC 20548

Comptroller General

of the United States

 

Decision

Matter of: Orion Technology, Inc.; Chenega Integrated Mission Support, LLC

File: B-406769; B-406769.2; B-406769.5

Date: August 22, 2012

Douglas L. Patin, Esq., and Aron Beezley, Esq., Bradley Arant Boult Cummings 

LLP, for Orion Technology, Inc.; and, Kenneth A. Martin, Esq., The Martin Law Firm, 

P.L.L.C., and Kevin P. Connelly, Esq., and Kelly E. Buroker, Esq., Vedder Price 

P.C., for Chenega Integrated Mission Systems, LLC, the protesters.

J. Dale Gipson, Esq., Lanier Ford Shaver & Payne PC, for Advanced Technology 

Logistics, Inc., an intervenor.

Debra J. Talley, Esq., and David C. Sabine, Esq., Department of the Army, 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 is sustained where record shows that agency mechanically and unequally 

applied undisclosed staffing estimates in evaluating the offerors’ proposed staffing 

plans to determine whether proposals were acceptable or unacceptable.

DECISION

Orion Technology, Inc., of Huntsville, Alabama, and Chenega Integrated Mission 

Support, LLC, of Alexandria, Virginia, protest the award of a contract to Advanced 

Technology Logistics, Inc. (ATL), of Newnan, Georgia, under request for proposals 

(RFP) No. W9124P-12-R-A001, issued by the Department of the Army for 

installation support services at the U.S. Army Garrison—Redstone, Alabama. 

We sustain the protests.

BACKGROUND

The RFP contemplates the award of a combination fixed-price, time and materials 

contract for a base year with four 1-year options to provide a wide variety of 

installation support services grouped into broad categories to be managed by three 

of the installation’s directorates: the directorate of public works (DPW), the 

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-406769 et al.

directorate of logistics (DOL) and the directorate of human resources (DHR). The 

issues in these protests principally involve the requirements relating to the DPW 

area of contract performance. 

Offerors were advised that the agency would award a contract to the firm submitting 

the lowest-priced technically-acceptable proposal, and that technical acceptability 

would be evaluated considering technical/management factors and past 

performance. The technical suitability factor had two subfactors: technical 

approach and resources. The management capability factor had four subfactors: 

management structure and plan, experience, and quality control plan; transition 

phase-in and property control; human resources management; and contract 

administration. RFP at 382.

The RFP advised that the agency would rate each subfactor as either acceptable or 

unacceptable. In so doing the proposals would be evaluated for “adequacy of 

response” and “feasibility of approach” with regard to each subfactor. In order to be 

acceptable for a particular factor or subfactor, a proposal had to clearly meet the 

minimum requirements of the solicitation. Proposals which did not clearly meet

these minimum requirements would be deemed unacceptable. RFP at 383.

For price evaluation purposes, the RFP advised that, for the fixed-price line items, 

the agency would calculate the sum of the offerors’ proposed prices. For the time 

and materials line items, firms were instructed to provide fully-loaded hourly labor 

rates for all proposed labor categories; the RFP advised that the agency would 

multiply the loaded labor rates by an estimated number of hours for each labor 

category. The RFP also advised that the agency would multiply any material 

handling charges by the estimated direct cost for materials. The total fixed-price 

amount would then be added to the estimated time and materials amount to arrive 

at a total estimated price for evaluation purposes. Id.

The agency received seven proposals, including those of the protesters and the 

awardee, in response to the RFP. The agency evaluated proposals, engaged in 

discussions, and solicited and obtained final proposal revisions (FPR). After 

evaluating FPRs, the agency found the Orion and Chenega proposals technically 

unacceptable. Specifically, the agency assigned both proposals a rating of 

unacceptable under the resources subfactor of the technical suitability factor for 

failing to offer adequate staffing, largely in the [deleted] area of performance.

1

 1 The agency also noted a deficiency in the Orion proposal for failing to include a 

comprehensive list of the supplies that would be used in connection with 

performance of the contract in each functional area. Orion Agency Report (OAR), 

exh. P, encl. 2, Technical Approach, Resources, at 1. Orion has protested this 

evaluation and claims that it did not receive meaningful discussions in this area. 

We do not address this area since we otherwise sustain Orion’s protest and 

 

(continued...)
Page 3 B-406769 et al.

Thus, although both protesters had evaluated prices that were lower than the 

awardee’s, the agency nonetheless made award to ATL because it had the lowestpriced, technically acceptable proposal. After being advised of the agency’s source 

selection decision and requesting and receiving debriefings, the protesters filed the 

instant protests with our Office.

DISCUSSION

Both protesters allege that the agency, in evaluating proposals, improperly used an 

undisclosed government staffing estimate to determine whether their respective 

proposed staffing was adequate. According to the protesters whenever any of the

proposals included less than the number of full time equivalents (FTE) used to 

prepare the undisclosed staffing estimate, the agency automatically assigned a 

deficiency, which caused their proposals to be rejected as unacceptable. 

While an agency properly may rely on its own estimates of the manning levels 

necessary for satisfactory performance, absolute reliance on estimates can have 

the effect of arbitrarily and unfairly penalizing an innovative or unusually efficient 

offeror. KCA Corp., B-255115, Feb. 9, 1994, 94-1 CPD ¶ 94 at 6-7; The Jonathan 

Corp.; Metro Machine Corp., B-251698.3, B-251698.4, May 17, 1993, 93-2 CPD 

¶ 174 at 11. Thus, it is inappropriate to determine the acceptability of proposals by 

the mechanical application of undisclosed government estimates, since doing so 

fails to assess whether a firm’s proposed workforce is particularly skilled and 

efficient, or whether, because of a unique approach, a firm could satisfactorily 

perform the work with different staffing than estimated by the agency. KCA Corp., 

supra.

The record here shows that in every instance where the agency identified a 

deficiency or weakness in any offeror’s proposed staffing, it was because the 

proposed staffing was less than the level identified by the agency as necessary to 

perform the requirement in its undisclosed government estimate, even where the 

variation was seemingly de minimus in comparison to the overall requirement. For 

example, with respect to Orion’s proposal, among the deficiencies identified by the 

evaluators were:

[deleted]

High Voltage Electrician/Lineman shows a maximum of [deleted]

FTE’s when 11 FTE’s are needed. They then reduce to [deleted]

FTE’s after year 1.

 

(...continued)

recommend reopening discussions during which Orion could be accorded further 

discussions.
Page 4 B-406769 et al.

They show [deleted] FTE for Lead Maintenance Electrician when 2 

FTE’s are needed.

They show [deleted] FTE’s for Maintenance Electrician when 14 FTE’s 

are needed.

They show [deleted] FTE for Line Locator/Meter Reader when 3 FTE’s 

are needed for Line Locator.

OAR, exh. P, Source Selection Evaluation Board (SSEB) Report, encl. 2, 

Technical Approach Factor Resources Subfactor Report for Orion’s Proposal, 

at 2. The agency found similar deficiencies in three other broad areas of the 

requirement with respect to Orion’s proposed staffing by comparing it to the 

undisclosed government staffing estimate. Id. at 1-2. 

The agency made similar findings regarding the adequacy of Chenega’s

proposed staffing. For example, the agency found deficiencies in Chenega 

proposed resources as follows:

[deleted], they do not show sufficient personnel for several areas 

which together precludes an acceptable level of contract performance: 

1. Only [deleted] FTE’s are shown for Lineman High Voltage 

Electrician when 11 FTE’s are needed. 

2. [deleted] FTE for dispatchers are shown but 5 are needed.

3. They show [deleted] FTE for Lead Maintenance Electrician but 2 

FTE’s are needed.

4. They only show [deleted] FTE’s for Maintenance Electrician but 14 

FTE’s are needed.

5. [deleted] line locators are shown but 3 FTE’s are needed.

This failure constitutes a deficiency because an acceptable level of 

contract performance cannot be achieved given the lack of acceptable 

levels of manpower, equipment and material in the above listed RFP 

areas.

Chenega Agency Report (CAR), exh. P, SSEB Report, encl. 2, Technical 

Approach Factor Resources Subfactor Report for Chenega’s Proposal, at 1. As 

with Orion, the agency made similar findings of deficiencies with respect to the 

adequacy of Chenega’s proposed staffing as compared to the undisclosed 

government estimate in numerous other broad areas of the requirement. 

Id. at 1-2.
Page 5 B-406769 et al.

In evaluating the awardee’s proposal under the resources subfactor, the agency

used the same approach as above, albeit the agencies’ criticisms in this area 

were couched in terms of proposal weaknesses rather than deficiencies. For 

example, the agency’s evaluators found a weakness in CLS’s proposal under 

the resources subfactor as follows: “Per proposal by offeror, Figure ES-5 Page 

6, they do not show enough manpower. They show [deleted] FTE’s for 

Maintenance Electrician when 14 FTE’s are needed in Buildings & Structures 

(C.13, CLS 31).” OAR, exh. Q, SSEB Report, encl. 2, Technical Approach 

Factor Resources Subfactor Report for CLS’s Proposal, at 1. 

Our review of the record shows that, consistent with these examples, the 

agency used the same undisclosed staffing estimate to assess the adequacy of 

all of the offerors’ proposed staffing. These staffing figures originate in two

documents in the record provided our Office: (1) the agency’s independent 

government cost and labor estimate, OAR, exh. J; and (2) a derivative 

document referred to as the SSEB Manpower Guide. OAR, exh. K. A 

comparison of the staffing estimates included in the SSEB Manpower Guide to 

the staffing references included in the agency’s technical evaluation materials 

shows that, in every instance, the agency mechanically applied its undisclosed 

staffing estimates to the offerors’ proposed staffing to evaluate and determine 

the acceptability or unacceptability of the proposals.

2

 

The agency contends that it only used the undisclosed staffing estimate as a tool to 

assess the reasonableness of the staffing proposed by the offerors. See CAR, 

exh. V, Decl. of SSEB Chairman (June 15, 2012), at 1. However, the SSEB 

evaluation documents quoted above indicate that this estimate was more than just a 

tool to assess reasonableness of the proposed staffing; instead, it was used as a 

benchmark of the resources the agency had concluded were required to perform 

this effort.

3

 2 For example, as noted above, the record shows that all proposals were compared 

to the SSEB Manpower Guide’s estimate of staffing to determine whether or not the 

firms had proposed 14 maintenance electricians and 11 Lineman High Voltage 

Electricians.

 Contrary to the agency’s arguments, there is no evidence in the 

3 We note that the agency determined, in evaluating the offerors’ responses under 

the resources subfactor, that both protesters demonstrated a “good understanding” 

of the requirements. See OAR, exh. P, SSEB Report, encl. 2, Technical Approach 

Factor Resources Subfactor Report for Orion’s Proposal, at 2; CAR, exh. P, SSEB 

Report, encl. 2, Technical Approach Factor Resources Subfactor Report for 

Chenega’s Proposal, at 2. Despite these conclusions, the agency nonetheless 

found that neither of these offerors proposed the staffing levels the agency found 

were required.
Page 6 B-406769 et al.

contemporaneous record that the agency considered whether any approach to 

staffing other than that reflected in its undisclosed government estimate might be 

adequate.4 Instead, the evaluation documentation reflects that the agency stated 

what staffing it “needed” or “required” for each labor area, and that this staffing 

number was that reflected in the undisclosed government estimate. 

In its defense, the agency asserts that it advised the protesters during discussions 

of the areas where their staffing was considered inadequate and that these 

discussions should have been sufficient to lead the offerors into the areas where the

staffing levels were considered unacceptable. However, where the agency believed 

that the undisclosed government estimate reflected its minimum requirements, as is 

shown by this record, it was required to disclose this to the offerors during 

discussions rather than leaving the offerors to guess what staffing would satisfy the 

government’s requirements. See OneSource Energy Servs., B-283445, Nov. 19, 

1999, 2000 CPD ¶ 109 at 12.

Our review of the record also indicates that the agency subjected the protesters’

proposed staffing to a stricter level of scrutiny in its evaluation as compared to its 

evaluation of the awardee’s proposal. As noted above, the agency found 

deficiencies with the protesters’ proposals where even minor deviations from the 

undisclosed staffing estimates were found, but found weaknesses when similar 

issues were identified in the awardee’s proposal. 

For example, the agency assigned the Orion proposal a deficiency for proposing 

[deleted] plumber/pipefitter FTEs where the agency found that seven would be

needed. OAR, exh. P, SSEB Report, encl. 2, Technical Approach Factor 

Resources Subfactor Report for Orion’s Proposal, at 1. Similarly, the agency 

assigned the Chenega proposal a deficiency for offering [deleted] FTEs for elevator 

mechanics where agency found that three would be needed. CAR, exh. P, SSEB 

Report, encl. 2, Technical Approach Factor Resources Subfactor Report for 

Chenega’s Proposal, at 2. In contrast, the agency only assigned the awardee’s 

proposal a weakness rather than a deficiency when it found that ATL proposed only

[deleted] maintenance electrician FTEs where the agency thought 14 would be 

required. CAR, exh.Q, SSEB Report, encl. 2, Technical Approach Factor 

Resources Subfactor Report for ATL’s Proposal, at 1. The evaluation record 

contains no explanation regarding why the agency reached apparently inconsistent 

conclusions regarding the adequacy of the protesters’ proposed staffing on the one 

hand, and the awardee’s proposed staffing on the other, even though this 

 4 Consistent with this view, we note that the undisclosed staffing estimate was 

also used to calculate the offerors’ evaluated prices. OAR, exh. R, Source 

Selection Document, at 8; RFP at 383.
Page 7 B-406769 et al.

evaluation resulted in unacceptable ratings for the protesters’ proposals and an 

acceptable rating for the awardee. We sustain the protests on these bases.

The protesters have raised a number of other issues that based on our review do 

not provide a basis to sustain the protest.5 For example, while Chenega asserts 

that the awardee failed to provide required information pertaining to key personnel 

in its proposal, we find that Chenega was not prejudiced, even if ATL did not 

provide all of the requested information. The solicitation provision in question here 

provided that offerors were to provide the following information in their technical 

proposal:

Key Personnel. The offeror shall identify the Program Manager and 

Alternate, Logistic Program Manager and Facility Maintenance 

Program Manager

RFP at 371 (emphasis in original). ATL’s proposal provided resumes for 

individuals to fill each of these positions. In addition, ATL’s proposal

indicated that its staffing plan was to retain the incumbent personnel in these 

positions and to provide these employees the right of first refusal. CAR, 

exh. O, ATL Final Proposal Revision, Technical Proposal, at 47-48. The 

agency found a weakness in ATL’s proposal as follows:

. The offeror shall provide a job description 

indicating minimal qualifications required, levels of specific 

experience; education requirements; necessary certifications; 

registration and licensing requirements for these key employees. 

[ATL] has identified the Program Manager and Alternate, Logistic 

Program Manager and Facility Program Manager as key personnel, 

however the offeror has not provided job descriptions for the positions 

indicating minimal qualifications required, levels of specific 

experience; education requirements; necessary certifications; or 

necessary registration/licensing as required by [the] RFP. . . .

However, the Offeror has proposed the retention of key personnel 

filling the Program Manager, Alternate Program Manager, Facilities 

Program Manager, and Logistics Program Manager. 

CAR, exh. Q, SSEB Report, encl. 2, Management Capability Factor, Management 

Structure and Plan, Experience, Quality Control Plan Report, at 1. Chenega argues 

 5 Chenega raises various issues about the evaluation of price, pointing out various 

possible discrepancies and inconsistencies. Because the protesters’ proposals

were found unacceptable, the agency did not provide with its agency report relevant 

documentation regarding the evaluation of price. The agency may wish to review 

the protesters’ contentions regarding the price evaluation in implementing our 

recommended corrective action.
Page 8 B-406769 et al.

that this clear noncompliance should have been regarded as a deficiency and that 

ATL’s proposal should have been rejected as unacceptable.

In admitting that it did not require ATL’s strict adherence to the requirement that the 

proposal provide certain information pertaining to the proposed key personnel--in 

part, because the agency claimed it received other assurances of compliance from 

the proposal--we think that the agency has essentially waived this requirement. In 

cases where an agency waives a requirement, we will sustain a protest only if the 

protester is prejudiced. In such circumstances, prejudice does not mean that, had 

the agency failed to waive the requirement, the awardee would have been 

unsuccessful. Geonex Corp., B-274390.2, June 13, 1997, 97-1 CPD ¶ 225 at 5. 

Rather, the pertinent question is whether the protester would have submitted a 

different offer that would have had a reasonable possibility of being selected for 

award had it known that the requirement would be waived. Brown & Root, Inc. and 

Perini Corp., a joint venture, B-270505.2, B-270505.3, Sept. 12, 1996, 96-2 CPD 

¶ 143 at 11. Chenega does not argue that this waiver affected the submission of its 

offer, and we are not prepared to conclude that it was prejudiced by the waiver. 

Thus, we have no basis to sustain this aspect of its protest.

RECOMMENDATION

We recommend that the agency reopen discussions, as appropriate. If, in 

reopening discussions, the agency concludes that the undisclosed staffing 

estimates are an accurate reflection of its actual minimum requirements, these 

estimates should be disclosed to the offerors. The agency should then solicit and 

evaluate revised proposals, and make a new source selection decision. We also 

recommend that the agency reimburse the protesters the costs of filing and 

pursuing their respective protests, including reasonable attorneys’ fees. 4 C.F.R. 

§ 21.8(d)(1) (2012). The protesters’ certified claim for costs, detailing the time 

expanded and costs incurred, must be submitted to the agency within 60 days after 

receipt of this decision. 4 C.F.R. § 21.8(f)(1).

The protests are sustained.

Lynn H. Gibson

General Counsel