United States Government Accountability Office 

Washington, DC 20548 

Comptroller General

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: NAE-TECH Remediation Services 

File: B-402158 

Date: January 25, 2010 

Brian A. Bannon, Esq., Andrew W. Dyer, Jr., Esq., Brian S. Gocial, Esq., and Albert B. 

Krachman, Esq., Blank Rome LLP; and Wayne A. Keup, Esq., for the protester. 

Ryan A. Black, Esq., Steven W. Feldman, Esq., and Kathryn R. Sommerkamp, Esq., 

Department of the Army, Corps of Engineers, for the agency. 

Cherie J. Owen, Esq., and Ralph O. White, Esq., Office of the General Counsel, GAO, 

participated in the preparation of the decision. 

DIGEST 

Protest that agency improperly excluded protester’s proposal from the competitive 

range is denied where the record shows that the agency received a large number of 

proposals and reasonably concluded that the protester’s proposal was not one of the 

most highly rated. 

DECISION 

NAE-TECH Remediation Services of Rapid City, South Dakota, protests the 

exclusion of its proposal from the competitive range under request for proposals 

(RFP) No. W912DY-08-R-0016, issued by the Department of the Army, Corps of 

Engineers for worldwide environmental remediation services for contaminated 

lands. NAE-TECH contends that the agency acted unreasonably in assigning 

deficiencies and weaknesses to its proposal and that the exclusion of its proposal 

from the competitive range was improper. 

We deny the protest. 

BACKGROUND 

The RFP, issued on January 7, 2009, anticipated the award of an indefinitedelivery/indefinite-quantity contract to a minimum of five contractors. RFP at 2. The 

RFP was restricted to small business offerors. The agency also issued a related 

solicitation that was open to all offerors (the unrestricted solicitation). Award was 

to be made on a “best value” basis, considering price and four non-price evaluation 
factors: technical capability; technical approach to sample task orders; 

organization/management; and past performance. RFP at 175. The sample task 

order factor was broken into two parts: one part concerned sample task services in 

the continental United States (CONUS), while the other part covered sample task 

services outside the continental United States (OCONUS). 

The RFP explained that the technical capability and technical approach to sample 

task orders evaluation factors were of equal importance. RFP at 175. The 

organization/management and past performance evaluation factors were of equal 

importance, but were significantly less important than technical capability and 

technical approach to sample task orders. Id. All factors, when combined, were 

significantly more important than cost/price. Id. The RFP also stated that the 

agency intended to award without discussions, RFP at 151, and that award would not 

be made to an offeror whose proposal contained a deficiency. RFP at 175. 

The agency received 15 proposals in response to the solicitation. Agency Report 

(AR), Tab 7, Competitive Range Determination, at 1. The agency evaluated the 

proposals and assigned NAE-TECH’s proposal a rating of good for the technical 

capability factor; marginal for the sample task order factor; marginal for the 

organization/management factor; and low risk for the past performance factor. AR, 

Contracting Officer’s (CO) Statement at 3. The agency found the protester’s price 

proposal to be acceptable. Id. 

With regard to the protester’s response to the CONUS sample task, the agency 

assessed 1 significant strength, 4 strengths, 4 significant weaknesses, 10 weaknesses, 

and 1 deficiency. AR, Tab 10, Debriefing Letter, at 5-8. With regard to the OCONUS 

sample task, the agency assessed four significant strengths, one significant 

weakness, and four weaknesses. Id. at 8-9. Under the organization/management 

evaluation factor, the Army assessed three significant strengths, three strengths, two 

significant weaknesses, three weaknesses, and five deficiencies. Id. at 9-11. 

After reviewing proposals, the agency established a competitive range of the most 

highly rated proposals. In making the competitive range determination, the CO 

determined that issues relating to an offeror’s understanding of sample task orders 

would not be raised during discussions, since, in the agency’s view, the purpose of 

the sample task orders was to test the offeror’s understanding of this work. AR, Tab 

7, Competitive Range Determination, at 3. Based on the above ratings, the Army 

concluded that the protester’s proposal was not among the most highly rated, and 

excluded it from the competitive range. Id. at 12. This protest followed. 

 

DISCUSSION 

The protester raises several challenges to the agency’s evaluation of its proposal. 

For example, the protester argues that the agency’s assignment of a deficiency for 

lack of detail under the CONUS sample task was unreasonable. Comments at 2-15. 

Page 2 B-402158 
The protester argues that, in fact, it did discuss some of the tasks the agency listed as 

being deficient. Comments at 3-4. 

With regard to the procedures involved in performing the sample task that the 

protester did not discuss, the protester appears to argue that its failure to discuss 

these matters is actually evidence of its “comprehensive understanding of 

remediation efforts.” Protest at 7-8. The protester also argues that the agency’s 

assignment of a deficiency was unreasonable in light of the fact that the agency 

viewed as a strength its discussion of other, more complex procedures associated 

with the sample task order. Protest at 8. Finally, the protester argues that it has 

learned that another proposal submitted in response to the unrestricted solicitation 

used similar language and was not assigned a deficiency for its lack of detail. Thus, 

in the protester’s view, the agency’s assignment of a deficiency here was 

unreasonable or resulted from unequal treatment.1

 Id. We find each of these 

arguments to be without merit.2 

The competitive range is to be comprised of the most highly rated proposals. 

Federal Acquisition Regulation (FAR) § 15.306(c)(1). The evaluation of proposals 

and resulting determination as to whether a particular offer is in the competitive 

range are matters within the discretion of the contracting agency. Chant Eng’g Co., 

Inc., B-281521, Feb. 22, 1999, 99-1 CPD ¶ 45 at 3; Laboratory Sys. Servs., Inc., 

B-256323, June 10, 1994, 94-1 CPD ¶ 359 at 2. In reviewing challenges to an agency’s 

competitive range determination, our Office does not independently reevaluate 

proposals; rather, we examine the evaluation to determine whether it is reasonable. 

Tri-Services, Inc., B-253608, Sept. 7, 1993, 93-2 CPD ¶ 131 at 2; Educational Computer 

Corp., B-227285.3, Sept. 18, 1987, 87-2 CPD ¶ 274 at 2. 

 

1

 The protester also argues that the solicitation’s page limitation impeded its ability 

to discuss each of these procedures in sufficient detail, and that any lack of detail in 

its sample task could have been supplied during discussions. Protest at 8. We 

dismiss this complaint as untimely. If the protester believed that the page limitation 

prevented it from providing the detail required by the solicitation, the protester 

should have protested this issue before the due date for proposals. 4 C.F.R. 

§ 21.2(a)(1) (2009). Because the protester failed to do so, this complaint is now 

untimely. 

2

 On January 8, after developing the record, the GAO attorney responsible for the 

protest conducted an outcome prediction alternative dispute resolution (ADR) 

conference at the request of the agency, and provided the parties with full detail 

regarding the merits of the issues raised by NAE-TECH, as well as the protest’s likely 

outcome. Notwithstanding the predicted outcome, the protester elected not to 

withdraw its protest. 

Page 3 B-402158 
As set forth above, the solicitation required offerors to provide a discussion of their 

field methods and stated that the agency would evaluate whether the offeror’s 

submission demonstrated a good understanding of how to execute the work that 

needed to be performed. RFP at 178. The agency found that the protester failed to 

provide a discussion of how it would perform a large number of basic tasks, 

including: site preparation; surface sweeps; brush clearance; civil surveys; field 

observation for munitions response site prioritization protocol evaluations; 

management and disposal of material potentially presenting an explosive hazard; 

management, accountability, and disposal of “munitions and explosives of concern”; 

management and disposition of munitions debris; and management and disposal of 

investigation derived waste. AR, Tab 10, Debriefing Letter, at 7-8. We think it was 

reasonable for the agency to assign a deficiency for protester’s decision to merely list 

these critical tasks rather than provide detail about how they would be performed. 

We also find unpersuasive the protester’s argument that it intended to supply the 

missing detail during discussions, given that the solicitation stated that the agency 

intended to make award without discussions. RFP at 151. Further, we see no 

contradiction in the fact that the agency assigned a strength for the firm’s discussion 

of the more complex logistical problems and challenges, but assigned a deficiency 

for the firm’s failure to discuss many of the more basic procedures. 

With regard to what NAE-TECH contends was disparate scoring of proposals in 

response to the solicitation at issue here and the unrestricted solicitation,3 we note 

that it is not unusual for individual evaluators or separate evaluation teams to reach 

disparate conclusions when judging proposals since both objective and subjective 

judgments are involved. See Digital Radio Corp., B-216441, May 10, 1985, 85-1 CPD 

¶ 526 at 8. Thus, the mere fact that one evaluation team assigned a deficiency and 

another evaluation team did not assign a deficiency for similar language in the 

context of a different evaluation does not render the evaluations invalid. 

See Panuzio/Rees Assocs., B-197516, Nov. 26, 1980, 80-2 CPD ¶ 395 at 9. We find no 

indication in the record that the scoring by the technical evaluation team reflects 

anything other than their professional judgment about the merits of NAE-TECH’s 

proposal, or that the deficiency discussed above with respect to the protester was 

based on anything other than a reasonable assessment of the protester’s proposal. 

As noted above, while the protester contends that additional detail about the sample 

task could have been provided during discussions, the point is that the flaws in the 

protester’s proposal caused it to be excluded from further consideration before 

discussions were held. 

 

3

 For the record, we note that one of the business components of NAE-TECH also 

participated in the unrestricted competition. Thus, the protester claims to be aware 

of differences in the evaluation of its affiliate’s proposal. 

Page 4 B-402158 
Page 5 B-402158 

Given our conclusion that the agency acted reasonably in assigning this deficiency 

and others to the protester’s proposal, we think the agency reasonably concluded 

that NAE-TECH’s was not one of the most highly rated proposals, and reasonably 

excluded it from further consideration. 

The protest is denied. 

Lynn H. Gibson 

Acting General Counsel