United States Government Accountability Office

Washington, DC 20548

Comptroller General

of the United States

 

Decision

Matter of: Mission Essential Personnel, LLC

File: B-407474; B-407493

Date: January 7, 2013

Michael D. McGill, Esq., Michael F. Mason, Esq., and Brendan Lill, Esq., Hogan 

Lovells US LLP, for the protester.

W. Jay DeVecchio, Esq., Kevin C. Dwyer, Esq., and Charles L. Capito, Esq., Jenner 

& Block LLP, for L-3 STRATIS, an intervenor.

Debra J. Talley, Esq., and Leslie A. Nepper, 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 that agency failed to engage in adequate discussions and misevaluated 

proposals under a task order competition is sustained where the record shows that 

(1) agency identified two concerns with protester’s proposal which led to its “No Go” 

rating but these concerns were not brought to the protester’s attention during 

discussions; and (2) that agency evaluated the current contract performance 

evaluation factor in a manner that was inconsistent with the terms of the underlying 

contracts’ stated evaluation scheme. 

DECISION

Mission Essential Personnel, LLC (MEP), of Columbus. Ohio, protests the issuance 

of two task orders to L-3 STRATIS, of Tampa, Florida, under task order request for 

proposals (RFP) Nos. 12-04 and 12-05, issued by the Department of the Army, to 

acquire intelligence support services in Afghanistan. MEP maintains that the 

agency unreasonably evaluated its proposals and failed to engage in adequate 

discussions. 

We sustain the protests. 

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-407474, B-407493 

BACKGROUND

MEP, L-3, and a third concern, Six3 Systems, are holders of multiple award, 

indefinite-delivery, indefinite-quantity contracts for the agency’s ongoing 

requirements for intelligence support services in Afghanistan under which the task 

orders in question were issued. The task order solicitations provided that they were 

governed by section 3.2 of the underlying contracts, and contemplate the issuance 

of task orders on a low-price, technically-acceptable basis, considering price and 

current contract performance. Agency Report (AR) (B-407474), exh. 03-01, at 1.

1

 

In terms of evaluating current contract performance, section 3.2 of the contracts 

provides for the assignment of ratings to the proposals of either “Go” (technically 

acceptable) or “No Go” (technically unacceptable). AR (B-407474), Tab 04-06, at 3.

For these acquisitions, the agency solicited proposals from all three of the contract 

holders to provide various labor categories of intelligence analysts for a base year 

and one option year. Under RFP 12-04, the agency received proposals from all 

three concerns, while under RFP 12-05, the agency received proposals from only 

the protester and L-3. In both acquisitions, the agency evaluated proposals, 

engaged in one round of discussions, and solicited and obtained revised proposals. 

After receiving and evaluating the revised proposals, the agency made a 

competitive range determination followed by a source selection decision.2

 

Under RFP 12-04, Six3 submitted the lowest price, followed by L-3 and MEP, 

respectively. Agency Request for Dismissal, B-407474 (Oct. 1, 2012), at 2. Under 

RFP 12-05, MEP submitted the lowest price followed by L-3. AR (B-407493),

exhs. 04-05 and 05-06. The record shows that in both acquisitions3, the agency’s 

competitive range consisted of only L-3, which was the only firm whose proposal 

received a “Go” rating under the current contract performance factor and which 

therefore was issued the delivery orders. In assigning MEP’s proposal a “No Go” 

 

1 The agency submitted separate reports for each protest. The basic information in 

the reports is largely duplicative and we will cite to the documents in only one of the 

reports where it is duplicative. 

2 The record includes no explanation regarding why the agency made a competitive 

range determination before making its source selection decision because, after 

establishing the competitive range in each acquisition, the agency did not engage in 

further discussions, but simply made its award decision.

3 Under RFP 12-04, prices ranged from approximately $24 million to approximately 

$38 million. Agency Request for Dismissal, B-407474, exh. 1, at 2. Under RFP 12-

05, prices ranged from approximately $47 million to approximately $50 million. AR 

(B-407493), exhs. 04-05 and 05-06. As a result, both of these procurements fall 

within our jurisdiction to hear protests related to the issuance of task orders valued 

in excess of $10 million. 10 U.S.C. § 2304c (e)(1)(B).
Page 3 B-407474, B-407493 

rating, the agency identified three concerns: (1) turnover in the firm’s program 

manager position, (2) delays in submitting invoices and (3) the adequacy of the 

firm’s “fill rate” in providing personnel.4

 AR (B-407474), exhs. 7, 11; AR (B-407493), 

exhs. 9, 10.

DISCUSSION

MEP takes issue with each of the agency’s three evaluation concerns. At the outset 

we note that, as a general rule, our Office does not independently evaluate

proposals; rather, we examine the record to ensure that the agency’s evaluation 

was reasonable and in accordance with the terms of the solicitation evaluation 

criteria. Yang Enters., Inc.; Santa Barbara Applied Research, Inc., B-294605.4 

et al., Apr. 1, 2005, 2005 CPD ¶ 65 at 5; Acepex Mgmt. Corp., B-283080 et al., 

Oct. 4, 1999, 99-2 CPD ¶ 77 at 3, 5. 

Program Manager Turnover and Invoicing Delays

MEP maintains that the agency unreasonably assigned weaknesses to its proposals

for having turnover in its program manager position, and for delaying the 

submission of its invoices. According to the protester, these problems were the 

result of agency actions rather than its own deficient performance. For example, 

the protester maintains that the only reason there was turnover with its program 

manager was because the agency hired its original program manager and, thus,

MEP had to engage in various interim and remedial actions to put another 

permanent hire in place. MEP also maintains that its delays in submitting invoices 

were caused by the inconsistent directions of the Army’s contracting officers 

concerning how the invoices should be prepared. The protester also argues that, to 

the extent the agency had concerns in these two areas, the agency never discussed 

these concerns with the protester.

Despite the fact that these concerns are reflected in the contemporaneous record, 

the agency responds that these two areas were not the cause for its assignment of 

a “No Go” ratings to the protester’s proposals. According to the agency, it assigned 

the “No Go” ratings to MEP’s proposals solely because of MEP’s allegedly low fill 

rates. The agency therefore maintains that, even if the protester is correct that 

these two concerns were improperly identified in the evaluation of MEP’s proposals, 

this did not prejudice the protester because they were not the underlying reason for 

rating its proposals “No Go.” The agency also contends that, since these concerns 

 

4 Fill rate refers to the rate at which the contractor fills the positions that the agency 

has contracted for under other task orders. For example, if the agency issued a 

task order for 100 positions and the contractor only filled 90 of those positions, the 

contractor’s “fill rate” would be 90 percent.
Page 4 B-407474, B-407493 

were not the underlying cause for the assignment of the “No Go” ratings, it was not 

required to discuss them with MEP. 

As stated above, the record shows that, in fact, the agency identified three concerns

during its evaluation--turnover in the program manager position, delays in 

submitting invoicing and MEP’s fill rate--and these three concerns together appear 

to have formed the underlying basis for the agency’s “No Go” rating. For both 

acquisitions, the agency’s competitive range determinations and source selection 

decision documents provided as follows: 

MEP – Most categories were rated Above Average with performance 

in accordance with the PWS, with the exception of Program and staff 

management. The rating for this category for June was Average with 

a notation that the incumbent PM [program manager] resigned without 

notice. The rating for July was Below Average with a notation that 

MEP was now on its fourth in-country PM within a 3-month period 

which was impacting continuity. The ratings for August were mostly 

Average with the exception of promptness in submission of required 

deliverables, which was give[n] a rating of Unsatisfactory with the 

notation that MEP is six months late in submitting invoices and 

submitted Feb[.] through July 2012 invoices in one batch. The PWS, 

para[.] 3.0.8 requires submission of invoices within seven days of the 

end of a billing cycle. MEP has experienced difficulty with achieving 

the required 90% fill rate. MEP’s overall average fill rate for June was 

[deleted]%, July was [deleted]%, and August was [deleted]%. The 

latest report submitted by MEP shows that for Task Order 0002 and 

0003, it has a [deletetd]% fill rate. For the remaining Task Orders the 

fill rates are: 0004 – [deleted]%, 0005 – [deleted]%, and 0006 – 

[deleted]%. Therefore, the current overall average fill rate for MEP is 

[deleted]%. While monthly rates continue to improve, MEP has not 

yet achieved the required 90% rate. MEP received a “No Go” on 

Current Contract Performance. 

AR (B-407493), exh. 10, at 2.5

 

 

5 The narrative statements in both of the competitive range determinations and both 

of the source selection decision documents are identical, with the exception of the 

source selection decision document executed for RFP 12-05, which included the 

additional sentences stating: “The latest report submitted by MEP shows that for 

Task Order 0002 and 0003, it has a [deleted]% fill rate. For the remaining Task 

Orders the fill rates are: 0004 – [deleted]%, 0005 – [deleted]%, and 0006 – 

[deleted]%. Therefore, the current overall average fill rate for MEP is [deleted]%.” 

See AR (B-407493), exh. 10, at 2. We quote the more fulsome statement above. 
Page 5 B-407474, B-407493 

Thus, contrary to the agency’s current position, the record shows that there were 

three concerns (rather than just one) that it identified in its “No Go” rating of MEP’s

proposals. Of the three concerns identified by the agency, turnover in the program 

manager position and delays in submitting invoices were the first and second 

reasons, respectively, that the agency identified as concerns, ahead of its concern 

relating to MEP’s fill rate. Additionally, in concluding that the MEP proposals 

merited “No Go” ratings, the contemporaneous evaluation materials do not 

differentiate among the three reasons identified as the basis for the agency’s 

assignment of the “No Go” rating, except to the extent that one of them--delays in 

invoicing--was assigned a rating of unsatisfactory. In our view, a fair reading of the 

contemporaneous evaluation was that it was a combination of the three concerns 

that resulted in the “No Go” ratings. 

Where, as here, an agency proffers an explanation of its evaluation during the heat 

of litigation that is not borne out by the contemporaneous record, we give little 

weight to the later explanation. CIGNA Gov’t Serv’s., LLC, B-401062.2, B401062.3, May 6, 2009, 2010 CPD ¶ 283 at 6; Boeing Sikorsky Aircraft Support, B277263.2, B-277263.3, Sept. 29, 1997, 97-2 CPD ¶ 91 at 15. We therefore find 

that, contrary to the agency’s current explanation, the contemporaneous record 

appears to show that the agency identified three apparently equal concerns that 

provided the underlying basis for rating the MEP proposal “No Go.” 

In light of our conclusion above, we also find that, to the extent that the agency 

identified program manager turnover and delays in invoicing as weaknesses or 

deficiencies in MEP’s performance on previous task orders, it was required to raise 

those concerns during the discussions the agency chose to conduct. In this 

connection, although the regulations concerning discussions under Federal 

Acquisition Regulation (FAR) part 15 do not, as a general rule, govern task and 

delivery order competitions conducted under FAR part 16, Hurricane Consulting, 

Inc., B-404619 et al., Mar. 17, 2011, 2011 CPD ¶ 70 at 6, our Office nonetheless

will review task order competitions to ensure that the competition is conducted in 

accordance with the solicitation and applicable procurement laws and regulations. 

Imagine One Tech. & Mgmt., Ltd., B-401503.4, Aug. 13, 2010, 2010 CPD ¶ 227 

at 7. While FAR § 16.505 does not establish specific requirements for discussions 

in task order competitions, exchanges in that context, like other aspects of such a 

procurement, must be fair and not misleading. CGI Fed. Inc., B-403570 et al., 

Nov. 5, 2010, 2011 CPD ¶ 32 at 9. Here, we do not regard the discussions as fair 

because the record shows that the agency identified two weaknesses or 

deficiencies that appear to have formed the underlying basis for its assignment of a 

“No Go” rating to the MEP proposal, but those weaknesses or deficiencies were 

never brought to MEP’s attention.

In view of the foregoing considerations, we sustain this aspect of MEP’s protests. 
Page 6 B-407474, B-407493 

Fill Rate Evaluation

With respect to the agency’s finding that MEP’s “fill rate” did not meet the “required 

90-percent fill rate,”6 the protester maintains that the agency’s evaluation is not in

accordance with the solicitations or the terms of the underlying contract. In this 

connection, the record shows that the agency only looked at MEP’s (and the other 

contractors’) fill rates during June, July, and August, 2012, for both solicitations (and 

during September, as well, for RFP 12-05).

7

 The protester maintains that this was 

inconsistent with the terms of the contracts’ task order evaluation scheme, which 

the protester contends requires that the agency look at the contractors’ performance 

over the entire contract performance period to date. MEP contends that, although 

L-3’s fill rate for the later part of the period considered was slightly higher than its fill 

rate during this same time ([deleted] percent for L-3 versus [deleted] percent for 

MEP), had the agency examined the contractors’ fill rates for the entire contract 

period of performance, it would have found that MEP’s fill rate was better overall 

than L-3’s. Thus, MEP contends that the assignment of a “No Go” rating was 

unreasonable and inconsistent with the contracts’ task order evaluation scheme. 

The agency maintains that it is not required under the terms of the underlying 

contracts to consider any particular period of performance. The agency argues that, 

inasmuch as the evaluation factor is “current contract performance,” it was 

reasonable for the agency to focus on the contractors’ most recent performance. 

The agency further maintains that, although the difference between L-3’s and 

MEP’s fill rates for this period is not large, nonetheless, it provides a reasonable 

basis to differentiate between the two proposals.

We agree with the protester’s interpretation of the terms of the underlying contracts. 

The definitions used for the “Go” and “No Go” ratings included in the contracts’ task 

order evaluation scheme clearly contemplate assignment of the ratings based on an 

examination of the contractors’ performance over the life of the contract, and not 

 

6

 The 90-percent fill rate “requirement” is not stated in the contract, but was 

specifically mentioned during discussions during the task order competitions. 

See e.g., AR, (B-407493), exh. 04-03, Discussions Letter to MEP. The agency 

reports that the contract actually requires a 100-percent fill rate, which the agency 

relaxed to 90 percent. AR (B-407493) at 3.

7 As noted, the record shows that the agency expressly considered MEP’s and L-3’s 

fill rates for September 2012 as well as June, July, and August 2012 in its 

competitive range determination and source selection decision document for 

RFP 12-05. AR (B-407493), exhs. 9 and 10.
Page 7 B-407474, B-407493 

simply during some unspecified recent interval of contract performance. 

Specifically, the definitions provide as follows:

GO: Very little or no doubt exists that the Contractor will successfully 

perform the required effort and meet or exceed the PWS

requirements. Since the base contract award

NO GO: There is significant doubt that the Contractor will successfully 

perform the required effort in accordance with the PWS. 

, the Contractor has 

been able to mobilize personnel into the theater of operations or 

handle surge and simultaneous operations. Current customers and 

contract officials have found the Contractor to have no slips in 

schedules, for both performance and deliverables. Current customers 

and contract officials have found the Contractor consistently 

responsive and extremely easy to work with and have, in the past, 

responded proactively to problems and their resolutions. 

Since the 

base contract award

AR (B-407474) Tab 04-06, at 3 (emphasis supplied). 

, the Contractor has been unable to mobilize 

personnel into the theater of operations or handle surge and

simultaneous operations. Current customers and contract officials 

found the Contractor to have numerous slips in schedules, for both

performance and deliverables. Current customers and contract 

officials found the Contractor to be non-responsive and difficult to work

with regarding problems and their resolutions.

We find that the contracts’ use of the phrase “since the base contract award” 

requires that the agency’s evaluation of current performance consider the 

contractors’ performance during that interval, and not simply during some 

unspecified shorter interval (for example, 3 months), as claimed by the agency. 

Since the agency’s evaluation here considered the contractors’ performance during 

only the 3-month interval immediately preceding the issuance of the task orders, 

that evaluation was improper because it was not consistent with the terms of the 

underlying contracts. We therefore sustain this aspect of MEP’s protests. 

RECOMMENDATION

We recommend that the agency reevaluate proposals, conduct discussions and 

obtain revised proposals if deemed appropriate, and make a new source selection 

decision to the extent practicable.8

 We also recommend that the agency reimburse 

MEP the costs associated with filing and pursuing its protest, including reasonable 

 

8 Under RFP 12-05, the agency overrode the Competition in Contracting Act (CICA) 

automatic stay of contract performance during the protest for “urgent and 

(continued...)
Page 8 B-407474, B-407493 

attorneys’ fees. 4 C.F.R. § 21.8(d) (2012). The protester’s 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).

The protests are sustained.

Susan A. Poling

General Counsel

 

(...continued)

compelling” reasons. For that solicitation, the agency should only take corrective 

action to the extent practicable. In this connection when an agency overrides the 

CICA stay based upon a written finding of urgent and compelling circumstances, 

CICA permits our Office to consider all circumstances--including cost and disruption 

to the government--in fashioning the appropriate remedy under a sustained protest. 

See 31 U.S.C. §§ 3554(b)(1), (2); see also Dept. of the Navy--Modification of 

Remedy, B-274944.4, July 15, 1997, 97-2 CPD ¶ 16 at 3 n.2.