Comptroller General

United States Government Accountability Office

Washington, DC 20548 

of the United States

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. 

Decision 

Matter of: Contrack International, Inc.-Costs 

File: B-401871.3 

Date: February 17, 2010 

Kevin P. Connelly, Esq., Joshua C. Drewitz, Esq., and Amanda B. Weinder, Esq., 

Seyfarth Shaw LLP, for the protester. 

Sam Z. Gdanski, Esq., Gdanski & Gdanski, LLP, for Zafer Construction Company, an 

intervenor. 

Patrick D. Bowman, Esq., Department of the Army, Corps of Engineers, for the 

agency. 

Linda C. Glass, Esq., and Ralph O. White, Esq., Office of the General Counsel, GAO, 

participated in the preparation of the decision. 

DIGEST 

Request for recommendation that agency reimburse protester for the costs incurred 

in filing and pursuing initial and supplemental protests is denied where the record 

does not establish that the protests, which concerned the agency’s evaluation of 

proposals, and its best value decision, were clearly meritorious. 

DECISION 

Contrack International, Inc., of McLean, Virginia, requests that we recommend that 

the Department of the Army reimburse Contrack for the costs incurred in filing and 

pursuing its protest and supplemental protest challenging the agency’s evaluation of 

proposals submitted in response to request for proposals (RFP) No. W917PM-09-R0075, issued by the Army for the design and construction of an Ammunition Supply 

Point at Bagram Airfield in Afghanistan. We dismissed both protests after the agency 

advised our Office that it would be amending the RFP to allow all competitive range 

offerors to submit revised proposals. Contrack argues that its initial protest was 

clearly meritorious, and that the agency unduly delayed taking corrective action until 

after the due date for the agency report and after the protester had filed both 

comments on the agency report and a supplemental protest. 

We deny the request. 

The RFP was issued on May 25, 2009, and provided for the evaluation of proposals 

on a “best value” basis using the following factors, listed in descending order of 
importance: experience, past performance, project management plan and price. All 

evaluation factors combined were equal to price. RFP at 22-24. With respect to the 

past performance evaluation factor, the RFP provided that the agency would 

evaluate past performance information to assess the level of performance risk 

associated with the offeror’s likelihood of success in performing the requirements. 

Id. 

Timely proposals were received from 15 offerors, including Contrack. The proposals 

were evaluated by the source selection evaluation board (SSEB) with the following 

results for the highest rated proposals: 

Contrack Zafer Offeror A Offeror B 

Experience Excellent Good [DELETED] [DELETED] 

Past Performance Marginal Excellent [DELETED] [DELETED] 

Project 

Management Plan Satisfactory Good [DELETED] [DELETED] 

Overall Rating Satisfactory Good [DELETED] [DELETED] 

Acceptability 

Rating Acceptable Acceptable [DELETED] [DELETED] 

Risk Rating Marginal Low [DELETED] [DELETED] 

Price $42,852,719 $42,752,382 [DELETED] [DELETED] 

Agency Report, Tab 8, Source Selection Evaluation Report, at 3. 

The source selection authority (SSA) determined that Zafer represented the best 

value, and award was made to Zafer on August 26. Contrack was notified of the 

selection decision and, thereafter, requested a debriefing; the debriefing was 

provided by the agency on August 29. 

On September 4, Contrack filed its initial protest; in that protest, Contrack 

challenged the agency’s evaluation and selection decision. As relevant here, 

Contrack specifically challenged the agency’s evaluation of its proposal as 

“satisfactory” under the project management plan evaluation factor. Contrack 

argued that the agency’s evaluation of the project management plan was 

unreasonable and inconsistent with the RFP criteria in that the agency unfairly 

assessed weaknesses against Contrack’s plan for failing to provide a sufficient level 

of detail in two areas: design phase management procedures, and how quality would 

be checked during design management. Contrack argued that it provided the same 

level of detail as it did when addressing every other element of the evaluation, and 

did so within the solicitation’s page limitation. Contrack also argued that if the 

agency had treated it and Zafer equally, it would have found that elements of Zafer’s 

project management plan were also lacking in detail. Contrack’s initial protest also 

challenged the agency’s evaluation of Contrack’s and Zafer’s proposals under the 

past performance evaluation factor. 

Page 2 B-401871.3 
On October 5, the agency submitted a report responding to Contrack’s initial protest; 

in that report, the agency maintained that its evaluation was reasonable and 

consistent with the stated evaluation criteria. Specifically with respect to the 

agency’s evaluation of Contrack’s project management plan, the agency stated that it 

reasonably questioned Contrack’s ability to manage the project because of 

insufficient detail in Contrack’s management procedures for the design phase of the 

project. 

With regard to Contrack’s past performance, the agency explained that the SSEB 

recognized that Contrack had extensive experience constructing munitions storage 

facilities and many years of experience working in Afghanistan including at Bagram 

Airfield. AR, Tab 8, SSEB Evaluation Report, at 13. The SSEB, however, found that 

Contrack’s record of past performance revealed some deficiencies that placed the 

company at a significant disadvantage regarding future performance and increased 

the risk of contract performance to a marginal level. 

Specifically, the SSEB found unsatisfactory and marginal ratings in several of the 

underlying elements of Contrack’s performance ratings memorialized in the 

Construction Contractor Appraisal Support System (CCASS). For example, in some 

cases--despite receiving an overall rating of satisfactory--Contrack received ratings of 

marginal or unsatisfactory for elements like adherence to schedule or resolution of 

delays. The SSEB recognized that Contrack’s overall rating for these contracts was 

satisfactory but felt that the ratings for these underlying elements warranted a 

marginal past performance rating. Id. at 11. Additionally, the SSEB determined that 

Contrack had submitted frequent requests for equitable adjustments, for 

unreasonable amounts, raising concerns within the agency that Contrack was 

abusing the contract disputes process. 

The agency report also addressed Zafer’s past performance ratings. Specifically, the 

SSEB reviewed CCASS reports for Zafer which included two “outstanding” ratings 

for performance of projects in Afghanistan, which led the SSEB to assign a rating of 

excellent to the company for past performance. In his statement submitted with the 

agency’s report, the contracting officer (CO) noted that past performance ratings of 

outstanding are rare in Afghanistan construction projects, and the agency adopted 

the SSEB’s rating in this area. CO’s Statement, Oct. 2, 2009, at 2. 

On October 16, Contrack filed a supplemental protest; in the protest, Contrack 

argued that the agency’s evaluation of the awardee’s and protester’s project 

management plans was unreasonable because, despite the solicitation’s 6-page limit 

for project management plans, Zafer submitted a 20-page plan which was improperly 

Page 3 B-401871.3 
accepted and rewarded in the evaluation for its comparatively greater level of detail.1

 

Before submitting a supplemental agency report, the agency took corrective action. 

Specifically, the agency stated that it had reviewed the issues raised in the 

supplemental protest and decided to terminate the awarded contract, issue an 

amendment, and seek revised proposals from all offerors in the competitive range. 

We dismissed Contrack’s protests based on the agency’s pending corrective actions. 

On November 16, Contrack submitted this request that we recommend 

reimbursement of its costs related to filing and pursuing its various protests. The 

agency opposes the requested recommendation, maintaining that the issues raised in 

the initial protest were not clearly meritorious, and that the page limitation issue, 

which triggered the corrective action, was not raised until the supplemental protest. 

The agency therefore argues that its corrective action was promptly taken prior to 

submitting a report in response to the supplemental protest. 

Pursuant to the Competition in Contracting Act of 1984 (CICA), our Office may 

recommend that protest costs be reimbursed where we find that an agency’s action 

violated a procurement statute or regulation, 31 U.S.C. § 3554(c)(1) (2000). Our Bid 

Protest Regulations provide that where a contracting agency decides to take 

corrective action in response to a protest, we may recommend that the protester be 

reimbursed for its protest costs. 4 C.F.R. § 21.8(e) (2009). 

This authority does not mean that we will recommend reimbursement of protest 

costs in every case in which an agency decides to take corrective action; rather, we 

will recommend reimbursement only where an agency unduly delayed its decision to 

take corrective action in the face of a clearly meritorious protest. CSL Birmingham 

Assocs.; IRS Partners-Birmingham-Entitlement to Costs, B-251931.4, B-251931.5, 

Aug. 29, 1994, 94-2 CPD ¶ 82 at 3. Thus, as a prerequisite to our recommending the 

reimbursement of costs where a protest has been settled by corrective action, not 

only must the protest have been meritorious, but it also must have been clearly 

meritorious, i.e., not a close question. PADCO, Inc. – Costs, B-289096.3, May 3, 2002, 

2002 CPD ¶ 135 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. First Fed. Corp. –Costs, B-293373.2, Apr. 21, 2004, 2004 

CPD ¶ 94 at 2. The mere fact that an agency decides to take corrective action does 

not establish that a statute or regulation clearly has been violated. Spar Applied Sys. 

–Declaration of Entitlement, B-276030.2, Sept. 12, 1997, 97-2 CPD ¶ 70 at 5. 

As a preliminary matter, the agency maintains that it promptly took corrective action 

in response to the protester’s supplemental protest in which the protester asserted 

that the agency unreasonably evaluated Zafer as “good” under the project 

 

1

 Contrack also raised additional allegations concerning the agency’s price evaluation 

and past performance evaluation. 

Page 4 B-401871.3 
management plan evaluation factor, and improperly credited Zafer with submitting a 

detailed plan despite the solicitation’s page limitation. We disagree. 

Based on our review of the record, we believe the agency should have recognized the 

page limitation issue when it responded to the initial protest alleging unequal 

treatment under the project management plan evaluation factor. A thorough review 

of the RFP requirements, and of the evaluation of these plans, should have revealed 

the page limitation discrepancy. 

That said, given the results of the evaluation here, our analysis of whether the initial 

protest was clearly meritorious cannot end with the page limitation issue. In short, 

we cannot agree that, on this record, a change in Contrack’s rating under this one 

factor would have changed the outcome here. Specifically, even if Contrack 

received the same rating as Zafer under this factor, the record suggests it would 

remain a higher-risk, higher-priced offeror. Hence, it appears that Contrack needs to 

prevail on an additional issue before we could conclude that its protest, as a whole, 

was clearly meritorious. 

Throughout this protest, the agency has also defended its evaluation of the 

protester’s and awardee’s proposals under the past performance evaluation factor 

and maintains that it properly made award to a higher-rated and lower-priced 

offeror. With respect to the evaluation of Contrack’s past performance, the agency 

maintains that its rating of “marginal” was reasonable given Contrack’s past 

performance record, together with its record of non-cooperation, lack of 

responsiveness and frequent use of the contract disputes process. The agency also 

contends that its evaluation of Zafer as “excellent” under the past performance 

evaluation factor was reasonably based on Zafer’s outstanding performance of two 

recent contracts in Afghanistan. 

Contrack argues that the agency unfairly focused on the most negative aspects of its 

performance history. Contrack also contends that despite Zafer’s favorable past 

performance reviews, the agency overlooked Zafer’s poor performance of other 

projects in Afghanistan. 

Our Office reviews challenges to an agency’s evaluation of proposals only to 

determine whether the agency acted reasonably and in accord with the solicitation’s 

evaluation criteria and applicable procurement statutes and regulations. Marine 

Animal Prods. Int’l, Inc., B-247150.2, July 13, 1992, 92-2 CPD ¶ 16 at 5. A protester’s 

mere disagreement with the agency’s judgment is not sufficient to establish that an 

agency acted unreasonably. Entz Aerodyne, Inc., B-293531, Mar. 9, 2004, 2004 CPD 

¶ 70 at 3. 

While the protester disagrees with the agency’s assessments, we cannot say that the 

agency’s evaluation of the proposals under the past performance evaluation factor 

was unreasonable, or that the agency should have viewed this argument as clearly 

Page 5 B-401871.3 
Page 6 B-401871.3 

meritorious when responding to the initial protest. The agency based its evaluation 

on information contained in the CCASS that showed that while Contrack received an 

overall rating of satisfactory on several contracts, there were numerous instances 

where Contrack was rated marginal or unsatisfactory for several of the underlying 

elements of performance. The record also confirms that the CCASS showed that 

Zafer had outstanding performance on several contracts. 

While we agree that the agency’s evaluation of the project management plan was 

unreasonable–and agree that the agency should have noticed that it ignored the 

solicitation’s page limitation for such plans when preparing its report on the initial 

protest--we conclude that reimbursement is not appropriate in this case since 

Contrack’s protest overall cannot be termed clearly meritorious. In addition, we 

note for the record that Contrack is getting an opportunity to submit a revised 

proposal, and is receiving this opportunity over Zafer’s objections--which were the 

subject of another protest decision involving this procurement. See ZAFER Constr. 

Co., B-401871.4, Feb. 1, 2010, 2010 CPD ¶ ___. 

In conclusion, Contrack’s request that we recommend that it be reimbursed its 

protest costs is denied. 

Lynn H. Gibson 

Acting General Counsel