United States Government Accountability Office

Washington, DC 20548

Comptroller General

of the United States

 

Decision

Matter of: TMG Construction Corporation

File: B-407190

Date: November 19, 2012

Reginald M. Jones, Esq., Douglas P. Hibshman, Esq., and Nicholas T. Solosky, 

Esq., Fox Rothschild LLP, for the protester.

Michael H. Payne, Esq., and Joseph A. Hackenbracht, Esq., Cohen Seglias Pallas 

Greenhall & Furman PC, for JS Global, LLC, an intervenor.

Madeline Shay, Esq., Department of the Army, for the agency.

Jennifer D. Westfall-McGrail, Esq., and Edward Goldstein, Esq., Office of the 

General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest arguing that solicitation requirement for top secret facility site clearance at 

time of award and requirement that contractor be capable of providing 

“safeguarding” (i.e., classified storage) capability at top secret level should be read 

together to require safeguarding approval at time of award is denied where it is 

clear from governing guidance that facility clearance determination is separate from 

storage capability determination.

DECISION

TMG Construction Corporation (TMG), of Purcellville, Virginia, protests the award of 

a contract to JS Global, LLC (JSG), of Upper Marlboro, Maryland, under request for 

proposals (RFP) No. W912DR-12-R-0013, issued by the Department of the Army, 

Corps of Engineers, for repair, renovation, and construction projects in the District of 

Columbia’s National Mall area. The protester argues that JSG’s proposal should 

have been rejected as technically unacceptable because the awardee lacks a top 

secret safeguarding clearance. TMG also challenges the technical evaluation of its 

own proposal.

We deny the protest.

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-407190 

BACKGROUND

The RFP, which was set aside for small businesses, contemplated the award of a 

5-year indefinite-delivery/indefinite-quantity (ID/IQ) contract with a maximum value 

of $49.99 million to the offeror whose proposal represented the best value to the 

government. Proposals were to be evaluated based on price and the following six 

equally-weighted non-price factors: (1) experience in task order construction 

contracts; (2) experience with historical/monumental buildings; (3) past performance 

in task order construction contracts; (4) past performance in historical/monumental 

buildings; (5) work plan; and (6) seed project.1 The non-price factors, when 

combined, were of significantly greater importance than price. In their price 

proposals, offerors were to propose coefficients for 24 project categories, which the 

agency would use to calculate an average weighted coefficient.2

Of significance to this protest, the RFP required each offeror to possess “an active 

top secret facility site clearance” 3

 1 The RFP provided that proposals would be assigned adjectival ratings under 

factors 1, 2, 5, and 6, and risk ratings under factors 3 and 4. An adjectival rating of 

outstanding was to be assigned if a proposal’s strengths far outweighed its 

weaknesses and the risk of unsuccessful performance was very low; a rating of 

good if strengths outweighed weaknesses, with a low risk of unsuccessful 

performance; a rating of acceptable if strengths and weaknesses were offsetting, 

and the risk of unsuccessful performance no worse than moderate; a rating of 

marginal if weaknesses were not offset by strengths, and the risk of unsuccessful 

performance high; and a rating of unacceptable if the proposal had deficiencies and 

was unawardable. Performance risk ratings were substantial confidence, 

satisfactory confidence, limited confidence, no confidence, and unknown 

confidence.

at the time of proposal submission, at the time of 

award, and throughout the life of the contract. RFP at 30. The solicitation further 

provided (in amendment No. 3 furnishing responses to offeror questions) that the 

2 The selected contractor’s coefficients were to be multiplied by RS Means unit 

costs to arrive at task order prices. The RS Means Facilities Construction Cost 

Data Book is a trade publication that provides annually-updated construction cost 

information to assist professionals in estimating construction-related costs. See

www.constructioncostestimating.net/rs-means-estimating.shtml. 3 As explained by the agency, the National Industrial Security Program (NISP) 

Operating Manual, Department of Defense (DoD) 5220.22-M, Feb. 28, 2006, 

provides the standards for the protection of classified information released or 

disclosed to industry in connection with classified contracts. AR, at 7 n.1. 

According to this manual, a facility clearance is “an administrative determination that 

a company is eligible for access to classified information or award of a classified 

contract.” NISP Operating Manual, at 2-1-1. 
Page 3 B-407190 

contractor would be required to provide “safeguarding” (i.e., classified storage 

capability) at the top secret level. RFP, amend. 3, at 6. 

The agency received seven timely proposals, including those from TMG and JS 

Global. The record reflects that evaluation panels evaluated both the technical 

proposals and offerors’ proposed coefficients. A source selection evaluation board 

(SSEB) reviewed the evaluators’ findings and revised some of the ratings in 

accordance with its analysis of the proposals’ strengths and weaknesses. The 

SSEB rated the proposals of the protester and the awardee as follows:

JS Global TMG

TO Construction Contract 

Experience Outstanding Marginal

Historical/Monumental 

Buildings Experience Good Marginal

Past Performance--TO 

Constr. Contracts

Very Relevant/

Substantial Confidence

Relevant/

Satisfactory Confidence

Past Performance--

Historical/Monumental 

Buildings

Very Relevant/

Substantial Confidence

Somewhat Relevant/

Satisfactory Confidence

Work Plan Outstanding Good

Seed Project Good Good

Price Coefficient 1.2311 1.1823

Agency Report (AR), Tab 8, SSEB Report at 28. 

Because TMG’s technical ratings and its aggregate weighted coefficient were lower 

than JSG’s, the source selection authority (SSA) performed a tradeoff analysis 

between the two proposals, and concluded that JSG’s proposal represented a 

better overall value to the government. In this regard, the SSA found that TMG had 

less relevant experience and past performance than JSG, which increased the risk 

to the government. The SSA further noted that TMG’s seed project price was 

significantly higher than both JSG’s price and the government estimate, which 

raised concerns that TMG’s slightly lower average coefficient might not “bring actual 

better value to the Government over the course of subsequent task orders.” Source 

Selection Decision at 17.

The agency awarded the contract to JSG on July 23, 2012, and notified the 

protester the following day. TMG requested a debriefing, which the agency 

furnished on August 15. TMG protested to our Office on August 17.

DISCUSSION

The protester alleges that all offerors, except itself, failed to meet the solicitation’s 

definitive responsibility security clearance requirements, thus rendering all 
Page 4 B-407190 

proposals, other than its own, ineligible for award. Specifically, TMG contends that 

the RFP required offerors to demonstrate that they possessed top secret level 

safeguarding clearance (top secret storage capability) approved by a cognizant 

security agency prior to award. In this connection, TMG asserts that the RFP’s 

express requirement for a top secret facility clearance at the time of award, and the 

subsequent indication in Amendment 3 that “safeguarding is required at the Top 

Secret level” are “coextensive and must be read in conjunction with one another.” 

Protester’s Comments, Sept. 28, 2012, at 8. Accordingly, TMG contends, the 

requirement that compliance with the top secret facility clearance be demonstrated 

prior to award applied equally to the top secret storage capability requirement. 

The agency and intervenor argue that the top secret storage capability requirement 

noted in amendment 3 was not a definitive responsibility requirement since the RFP 

did not expressly require offerors to demonstrate compliance with this capability 

prior to award. In this regard, they dispute the notion that the requirement for the 

contractor to provide “safeguarding at the top secret level,” was coextensive with 

the separately stated pre-award requirement for a top secret facility clearance. The 

agency explains that while a contractor must have a facility clearance in order to 

apply for storage capability approval, the facility clearance determination is separate 

from storage capability approval--meaning that, for example, a contractor with a top 

secret facility clearance could be approved for storage capability at a level other 

than top secret. The agency further explains in this connection that there are many 

cases in which document safeguarding by the contractor is not necessary because 

physical control of documents remains with the agency. The agency also notes that 

the DD Form 254 (Contract Security Classification Specification) attached to the 

contract awarded to JSG here provided that the level of storage associated with the 

forthcoming task orders could vary from none to top secret, and that individual task 

orders would specify if classified storage were needed. 

As a general matter, where a dispute exists as to the 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 of the provisions; to be reasonable, 

an interpretation must be consistent with such a reading. ArmorWorks Enters. LLC, 

B-405450, Oct. 28, 2011, 2011 CPD ¶ 242. 

Here, we agree with the agency and the intervenor that the requirement to possess 

a top secret facility clearance at the time of proposal submission did not imply a 

similar requirement for top secret safeguarding approval. In reaching this 

conclusion, we note that the solicitation did not include any language expressly 

linking the requirement for top secret safeguarding with the stated requirement that 

offerors possess a top secret facility clearance at the time of proposal submission. 

Moreover, it is apparent from the NISP Operating Manual that a facility clearance 

determination, which indicates access eligibility, is separate from a storage 

capability determination. This separation is evident where the manual establishes 

that a facility clearance affords contractors “access” to classified information, 
Page 5 B-407190 

whereas for a contractor to maintain “custody” of classified material, the contractor 

must have both a facility clearance and storage capability approved by a cognizant 

security agency. See NISP Operating Manual, at 2-1-1. Thus, notwithstanding the 

protester’s assertions to the contrary, the security requirements at issue were not 

“coextensive” and the solicitation’s specific pre-award requirement for a top secret 

facility clearance did not extend to the more general indication that the selected 

contractor will be required to provide safeguarding at the top secret level during 

contract performance. 

Because the solicitation did not require offerors to possess top secret storage 

capability at the time of proposal submission, the requirement that the contractor be 

capable of providing top secret storage was not a definitive responsibility criterion 

as TMG has argued. See Rohmann Servs., Inc., B-405171, B-405171.2, Sept. 8, 

2011, 2011 CPD ¶ 177 at 8 (the ability to obtain a security clearance generally is a 

matter of responsibility, absent an express requirement in the solicitation to 

demonstrate the ability prior to award). Rather, the only determination regarding a 

safeguarding clearance that the agency was required to make prior to contract 

award was that the prospective awardee had the capability to obtain the required 

level of clearance, a determination that the agency effectively made when it 

determined JSG responsible. See Ktech Corp.; Physical Research, Inc., B-241808, 

B-241808.2, Mar. 1, 1991, 91-1 CPD ¶ 237 at 3 (whether a prospective contractor 

has the ability to obtain any necessary security clearances concerns the firm’s 

ability to perform and is therefore a matter of responsibility).4

 

The protester also challenges the ratings assigned its proposal under the task order 

contract experience and seed project factors. TMG argues that the agency 

unreasonably rated its proposal as marginal under the former factor based on an 

erroneous finding that it had failed to demonstrate adequate RS Means estimating 

 4 The protester has not argued that JSG will be unable to obtain a safeguarding 

clearance; its argument was simply that JSG should have been required to 

demonstrate that it already had the clearance prior to award. We would not 

consider the former argument in any event, given that we do not consider 

challenges to affirmative determinations of responsibility, except in circumstances 

not present here. See Bid Protest Regulations, 4 C.F.R. § 21.5(c) (2012). 

Moreover, it should be noted that under the Small Business Act, 15 U.S.C. 

§ 637(b)(7) (2006), the Small Business Administration (SBA) has conclusive 

authority to determine the responsibility of small business concerns, such as JSG. 

In this regard, when a procuring agency finds that a small business is not eligible for 

award based on a nonresponsibility determination or a failure to satisfy definitive 

responsibility criteria, the agency is required to refer the matter to the SBA for a final 

determination under its certificate of competency procedures. Specialty Marine, 

Inc., B-292053, May 19, 2003, 2003 CPD ¶ 106 at 3.

 
Page 6 B-407190 

experience. Similarly, the protester argues that the agency unreasonably rated its 

proposal as marginal under the seed project factor based on a finding that it 

improperly used a non-scheduled price when unit prices were available in RS 

Means.

In reviewing protests objecting to an agency’s technical evaluation, our role is 

limited to ensuring that the evaluation was reasonable and consistent with the terms 

of the solicitation. KBS, Inc., B-402365.3, Feb. 2, 2011, 2011 CPD ¶ 37 at 5.

With regard to the protester’s first complaint, the record shows that the weakness in 

dispute is only one of four weaknesses found by the evaluators under the task order 

contract experience factor. That is, in addition to attributing TMG’s proposal a 

weakness based on its “minimal experience with RS Means,” the evaluators also 

identified weaknesses based on the proposal’s lack of detail regarding the types of 

construction involved in the protester’s earlier projects, the poor organization of the 

protester’s response, and the absence of verifiable SCADA [Secure Supervisory 

Control & Data Acquisition] experience.5 AR, Tab 7, Technical Evaluation Report, 

at 39. Because the record also reflects that the agency did not assign TMG’s 

proposal any strengths under this factor, TMG’s marginal rating was appropriate 

even without the finding of weakness that the protester disputes.6

 Accordingly, we 

have no basis to question the protester’s “marginal” rating under the task order 

contract experience factor.

Regarding the protester’s second complaint, TMG has challenged one of three 

evaluated weaknesses assigned its proposal under the seed project factor. Id. at 

44. Even assuming the protester is correct that the weakness in question was 

improper and it should have received higher than a marginal rating under the seed 

project factor, the record reflects that it would still have been lower-rated than the 

awardee’s proposal under each of the other five factors. Since the RFP provided 

that technical factors were significantly more important than price in the 

determination of best value, we fail to see any reasonable possibility under these 

circumstances that the protester’s proposal would have been selected for award 

notwithstanding the alleged error. Accordingly, we have no basis to sustain TMG’s 

protest in this regard. See Armed Forces Hospitality, LLC, B-298978.2, 

B-298978.3, Oct. 1, 2009, 2009 CPD ¶ 192 at 9-10 (competitive prejudice is an 

 5 The RFP instructed offerors that their earlier projects should demonstrate 

experience with a variety of different types of construction (e.g., electrical, plumbing, 

HVAC, security, and SCADA systems).

6 As noted above, the RFP provided for a “marginal” rating if weaknesses were not 

offset by strengths and there was a high risk of unsuccessful performance. See

note 2, supra.
Page 7 B-407190 

essential element of a viable protest, and where the protester fails to demonstrate 

prejudice, our Office will not sustain a protest). 

The protest is denied.

Lynn H. Gibson

General Counsel