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: Sletten Companies/Sletten Construction Company 

File: B-402422 

Date: April 21, 2010 

Timothy E. Heffernan, Esq., and Brian R. Dugdale, Esq., Watt, Tieder, Hoffar & 

Fitzgerald, LLP, for the protester. 

John E. McCarthy, Jr., Esq., Peter J. Eyre, Esq., and James G. Peyster, Esq., Crowell 

& Moring LLP, for M.A. Mortenson Company, an intervenor. 

Leigh Ann Bunetta, Esq., General Services Administration, for the agency. 

Linda C. Glass, Esq., Jonathan L. Kang., Esq., and Guy R. Pietrovito, Esq., Office of 

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

DIGEST 

Protest challenging the evaluation of the protester’s proposal and the agency’s 

selection decision is denied, where record shows that the protester’s proposal failed 

to meet material requirements of the solicitation and was technically unacceptable. 

DECISION 

Sletten Companies/Sletten Construction Company, of Great Falls, Montana, protests 

the award of a contract to M.A. Mortenson Company, of Bellevue, Washington, under 

request for proposals (RFP) No. GS-08P-09-JFC-0009, issued by the General Services 

Administration (GSA) for the design and construction of a federal courthouse in 

Billings, Montana. The protester argues that GSA misevaluated the firm’s proposal 

and failed to consider its lower price in the selection decision. 

We deny the protest. 

BACKGROUND 

The RFP, which is being funded under the American Recovery and Reinvestment 

Act, provided for the award of a fixed-price contract for the design and construction 

of a new federal courthouse in Billings, Montana. In accordance with Federal 

Acquisition Regulation (FAR) part 36.3, “Two-Phase Design-Build Selection 

Procedures,” the procurement was to be conducted in two phases. Under phase I, 

the agency sought submissions from interested firms to determine which qualified 

firms would be invited to provide technical and price proposals under phase II. In 
phase I, GSA received 20 responses and selected six offerors, including Sletten and 

M.A. Mortenson, to participate in phase II. 

The Phase II RFP provided for award on a best value basis and identified the 

following technical evaluation factors in descending order of importance: design 

concept, no-cost test fit, and project management plan. The RFP provided that the 

technical factors, when combined, were significantly more important than price. 

RFP ¶ 2.1.2. Offerors were informed that the agency may award a contract on the 

basis of initial proposals without conducting discussions. RFP ¶ 3.1.1. The 

solicitation also provided for “concept presentations” after the submission of 

proposals. RFP ¶ 3.1.2. 

Proposal preparation instructions were provided that described the information that 

offerors were required to provide for each evaluation factor. Under the design 

concept evaluation factor, offerors were required to submit, among other things, a 

narrative explaining their design concept and to provide a site plan reflecting all of 

the required elements in both size and scaled formats. Offerors’ floor plans were 

required to provide Building Owners and Managers Association (BOMA) occupiable 

square footages calculations.1

 RFP ¶ 1.2.1. Under the no-cost test fit evaluation 

factor, offerors were required to provide a test fit plan for each floor, including 

basement and parking areas, and were also required to submit size and scaled format 

plans for each floor, including basement and parking areas, reflecting all the required 

elements. 

Offerors were also provided with a “program of requirements” that identified work 

space requirements for court personnel and various other tenant agencies, such as 

the United States Marshal Service, Executive Office of the United States Attorney, 

United States Probation Office and the GSA Public Building Service. For example, 

specific net square footage requirements were identified for the district judge 

facilities in the court. See Program of Requirements at 9. The total gross square feet 

for the courthouse and parking was stated to be 145,088. Id. at 4. 

The agency received proposals from all six of the offerors selected to participate in 

phase II; the proposals were first evaluated by the agency source selection 

evaluation board (SSEB). As the record in this procurement raises questions about 

both the adequacy of the proposal Sletten submitted, and the fairness of the 

evaluation scores assigned, we set forth below a detailed recitation of the facts in the 

record on both subjects. 

 

1

 GSA states that BOMA is an international organization recognized as setting real 

estate industry standards for space measurement in office buildings. Agency Report 

(AR) at 3 n.2. 

Page 2 B-402422 
Additional Facts Regarding the Adequacy of Sletten’s Proposal 

In its initial review of Sletten’s technical proposal, the SSEB found that Sletten’s 

proposal did not comply with a number of solicitation requirements, including that 

Sletten did not submit scalable drawings of the site plan, failed to provide mandatory 

BOMA space calculations on the drawings, and submitted floor plans that were 

missing required items. AR at 5; see also AR, Tab 12, SSEB Report, at 6. GSA states 

that, because of the lack of required detail in Sletten’s proposal, the SSEB could not 

determine “whether what was being shown actually met the solicitation 

requirements.” AR at 6. 

After the closing date for receipt of initial proposals, Sletten informed the 

contracting officer (CO) by email that there was a problem with the space summary 

table in the firm’s proposal, stating that “we identified that some of the US Attorney’s 

fourth floor space was added to the Courts Program Space thus distorting the actual 

space provided for the US Courts, US Attorneys, and ultimately the BOMA 

Calculations.” Sletten provided a revised space summary table. See GSA Dismissal 

Request, Exh. 3, Sletten Email to GSA, Nov. 10, 2009. GSA states that Sletten’s 

revised space summary table was also inconsistent with the program requirements 

and that Sletten’s space allocations could not be verified because Sletten failed to 

provide scalable drawings and BOMA room calculations on the drawings. See AR, 

Tab 11, CO’s Evaluation Memorandum, at 3. 

The proposals were subject to a peer review, which was limited to evaluating the 

proposals under the concept design and no-cost test fit evaluation factors. See AR, 

Tab 10, Peer Review Evaluation. Sletten’s proposal was evaluated under this peer 

review as being “marginal,” which was the rating reserved for submissions that 

lacked essential information and contained deficiencies and/or significant 

weaknesses that could be correctable. Id. at 2. 

Prior to the “concept design” oral presentations, Sletten again contacted the CO, 

acknowledging that its proposal did not satisfy solicitation requirements with 

respect to minimum stair width. Sletten requested that it be allowed to offer a 

different design to satisfy the solicitation requirements. See GSA Dismissal Request, 

Exh. 4, Sletten Email to GSA, Nov. 16, 2009. Sletten also informed the CO that all 

BOMA calculation requirements would be met should Sletten become the successful 

offeror. The CO characterized Sletten’s requests as changes to its design concept, 

and denied Sletten’s requests. Id. at 3. Nonetheless, in its concept design oral 

presentation, Sletten provided information that was inconsistent with the design 

offered in its initial proposal. 

After Sletten’s oral presentation, the CO asked Sletten to provide the BOMA 

calculations that were missing from its initial proposal. AR at 7; GSA Dismissal 

Request, Exh. 6, GSA Email to Sletten, Nov. 19, 2009. In response, Sletten 

transmitted a space summary comparison table that, for the first time, identified the 

Page 3 B-402422 
program spaces, the required square footage and the space provided. According to 

the agency, the table attached to Sletten’s submission was both inconsistent with 

Sletten’s initial proposal, and inconsistent with the revised space summary table that 

the firm provided to the agency in its November 10 email. AR at 7-8. 

The Scoring of Sletten’s Proposal and the Selection Decision 

The SSEB members evaluated Mortenson’s and Sletten’s proposals, as follows: 

Evaluator A B C D E 

Average 

Score Price 

Mortenson 80 72.5 95 90 90 85.5 $59.5M 

Sletten 62.5 75 20 10 80 49.5 $51.8M 

AR, Tab 12, SSEB Evaluation Report at 28. Sletten’s evaluation scores reflected the 

evaluators’ concerns that, although Sletten’s proposal presented some strengths, it 

was deficient in a number of regards.2

 Among other things, the evaluators noted, as 

deficiencies, that Sletten had failed to provide required drawings, that Sletten’s floor 

plans were not the plans utilized for the BOMA calculations, and that Sletten’s BOMA 

calculations did not represent the solicitation’s requirements. Id. at 6. The 

evaluators also identified deficiencies associated with proposed space; for example, 

the evaluators noted that “[a]ll district judge chambers are unacceptably small -- 

clear lack of understanding on a key square footage,” and that Sletten proposed 

placing jury deliberation rooms for the fourth floor courtrooms on the third floor. Id.

at 7. 

Mortenson’s higher evaluation scores reflected the SSEB’s judgment that Mortenson 

had presented a superior proposal. In this regard, the SSEB noted, among other 

things, that Mortenson’s “proposal incorporates the most energy performance and 

sustainability concepts of all the final proposals and is the most High Performing 

Green Building concept.” AR, Tab 12, SSEB Evaluation Report, at 5. The SSEB 

recommended award to Mortenson. 

The SSEB’s assessments were reviewed by both the CO, and the agency’s source 

selection authority (SSA). The CO agreed that Mortenson submitted the technically 

superior proposal with a low performance risk and that Mortenson submitted a fair 

 

2

 The SSEB chair was concerned that the very low scores assigned to Sletten’s 

proposal by evaluators C and D were not justified and asked these two evaluators for 

additional justification for their scores. One evaluator provided additional narrative 

information, which was included in the SSEB Report. The other evaluator provided 

additional information after the SSEB’s report was finalized; this evaluator’s 

comments were attached to the report and presented to the SSA. AR at 9 n.5. 

Page 4 B-402422 
and reasonable price that, although it was not the lowest proposed price, was below 

the government estimate. In this regard, the CO noted that Mortenson’s proposal 

satisfied all solicitation requirements and did not require discussions. AR, Tab 11, 

CO’s Evaluation Memorandum, at 2. 

With respect to Sletten’s proposal, the CO noted that the peer review assessment had 

rated the firm’s proposal as marginal overall, and agreed with the SSEB that Sletten’s 

proposal presented a high performance risk. In this regard, the CO noted the SSEB’s 

finding that Sletten’s proposed design would require “a significant amount of 

redesign and further adherence to the program specifications.” Id. at 2. 

The CO concluded that all proposals, except Mortenson’s, required extensive 

revisions through discussions and that, based upon her experience, she expected 

that offerors’ proposed prices would increase as a result of the revisions. The CO 

determined that there was no benefit in conducting discussions and recommended 

award to Mortenson. Id. at 3. 

The SSA ultimately agreed with the conclustions of the SSEB and CO that 

Mortenson’s proposal should be selected for award as the only proposal that was 

fully compliant with the solicitation. AR at 10; Tab 14, Source Selection Decision, at 

4. Specifically, she determined that the other five offerors’ proposals, including 

Sletten’s, required discussions and significant proposal revisions to become eligible 

for award. 

In making her selection decision, the SSA decided to address the very low point 

scores assigned to Sletten’s proposal by two evaluators. Upon review, the SSA 

concluded that these two scores were not supported by the evaluation record. As a 

result, the SSA removed the scores given by these two evaluators from the 

evaluations of all of the offerors. Without scores from these evaluators, GSA 

increased Sletten’s average technical score to 72.5 points, and decreased 

Mortenson’s average score to 80.3.3 AR, Tab 14, Source Selection Decision, at 3-4. 

(It was these scores that were provided to Sletten in its debriefing. Initial Protest at 

8.) The increase in Sletten’s technical point score, however, did not change the 

SSA’s decision that only Mortenson’s proposal was fully compliant with the 

solicitation requirements and that award should be made to Mortenson without 

conducting discussions. 

 

Award was made to Mortenson. Following a debriefing, Sletten filed this protest 

with our Office. 

3

 By our calculations, Mortenson’s average technical score should have been 80.8 

((80 + 72.5 + 90) / 3 = 80.8), rather than 80.3. See AR Tab 12, SSEB Evaluation 

Report. In any event, Sletten was not harmed by this understatement of Mortenson’s 

recalculated score. 

Page 5 B-402422 
DISCUSSION 

Sletten challenges the agency’s evaluation of its technical proposal, arguing that the 

identified concerns were not deficiencies and could, in any event, have been 

corrected through clarifications or discussions. Sletten also complains that GSA did 

not consider the firm’s lower proposed priced in selecting Mortenson’s proposal for 

award. 

 

Where a protester challenges an agency’s evaluation of a proposal’s technical 

acceptability, our review is limited to considering whether the evaluation is 

reasonable and consistent with the terms of the RFP and applicable procurement 

statutes and regulations. National Shower Express, Inc.; Rickaby Fire Support, 

B-293970, B-293970.2, July 15, 2004, 2004 CPD ¶ 140 at 4-5. Clearly stated RFP 

technical requirements are considered material to the needs of the government, and 

a proposal that fails to conform to such material terms is technically unacceptable 

and may not form the basis for award. Id.; Outdoor Venture Corp., B-288894.2, 

Dec. 19, 2001, 2001 CPD ¶ 13 at 2-3. 

Here, the record shows that Sletten’s proposal did not comply with a number of 

solicitation requirements, which the SSEB found to be proposal deficiencies. For 

example, the SSEB found that Sletten had failed to provide required drawings, that 

Sletten’s floor plans were not the plans utilized for the BOMA calculations, that 

Sletten’s BOMA calculations did not represent the solicitation’s requirements, and 

that Sletten’s design did not satisfy the minimum space requirements (such as for the 

district judges’ chambers). See AR, Tab 12, SSEB Evaluation Report, at 6-7. 

Sletten does not contend that its proposal satisfies these requirements, but instead 

argues that these deficiencies do not render its proposal technically unacceptable.4

 

We disagree. First, GSA found that Sletten’s failure to provide required information 

in its proposal, such as scalable drawings and BOMA calculations, prevented the 

SSEB from being able to evaluate properly Sletten’s proposal. Sletten has not shown 

that the agency’s judgment in this regard was unreasonable. Moreover, the 

solicitation’s space and allocation requirements can only be viewed as material 

 

4

 In this regard, Sletten argues that GSA never stated in its contemporaneous 

evaluation record that Sletten’s proposal was technically unacceptable. While true, 

we think the contemporaneous record reasonably supports a conclusion that this 

proposal was unacceptable as tendered. First, the record shows that the SSA 

expressly found that only Mortenson’s proposal was “fully compliant with the 

solicitation” and that Sletten’s proposal would require revisions through discussions. 

AR, Tab 14, Source Selection Decision, at 4. The CO also specifically determined 

that Sletten’s initial proposal was not compliant with the RFP, and included 

significant weaknesses and deficiencies that could not be improved without 

discussions and revisions. AR, Tab 11, Evaluation Memo at, 3. 

Page 6 B-402422 
requirements, which Sletten failed to satisfy. In fact, Sletten’s actions throughout the 

procurement demonstrate its recognition of the materiality of the solicitation 

requirements, given its repeated attempts to revise its proposed design after the 

closing date for receipt of proposals. 

We also disagree with Sletten that, to the extent the agency wanted to avoid holding 

discussions, these deficiencies could easily be corrected through clarifications. 

“Clarifications” are limited exchanges between the government and offerors that 

may occur when award without discussions is contemplated. Such communications 

with offerors, however, may not be used to cure proposal deficiencies or material 

omissions, materially alter the technical or cost elements of the proposal, or 

otherwise revise the proposal. FAR § 15.306(b)(2). The evaluated deficiencies in 

Sletten’s proposal could only be corrected through discussions, as this would require 

a material revision of its proposal. 

With respect to conducting discussions with Sletten, we have found that a 

contracting agency is generally not required to conduct discussions where, as here, 

the RFP specifically instructs offerors of the agency’s intent to award a contract on 

the basis of initial proposals. See FAR § 15.306(a)(3); Colomek Sys. Eng’g., 

B-291931.2, July 9, 2003, 2003 CPD ¶ 123 at 7. In this regard, the CO’s discretion in 

deciding not to hold discussions is quite broad. Our Office will review the exercise 

of such discretion only to ensure that it was reasonably based on the particular 

circumstances of the procurement. Colomek Sys. Eng’g., supra. The fact that the 

protester in its initial proposal failed to comply with the RFP requirements does not 

give rise to an obligation on the agency’s part to hold discussions, where discussions 

are not otherwise necessary.5

 

Sletten also challenges the source selection decision, complaining that the SSA failed 

to consider Sletten’s lower price. Because we conclude that the agency found the 

protester’s proposal to be technically unacceptable, the agency was not required to 

consider the firm’s lower proposed price in its tradeoff decision, since it is well 

established that a technically unacceptable proposal cannot be considered for 

award. EMSA Ltd. P’ship, B-254900.4, July 26, 1994, 94-2 CPD ¶ 43 at 5. 

Finally, in its comments on the agency report, Sletten complains that GSA evaluated 

proposals inconsistently, and argues that the awardee’s proposal should also have 

been viewed as technically unacceptable. In making this argument, Sletten alleges 

that the SSEB found the Mortensen proposal to be deficient for failing to include 

 

5

 Although Sletten contends that GSA failed to conduct discussions with it, the 

record shows that GSA had communications with Sletten and permitted the firm to 

submit BOMA calculations. The agency’s limited discussions with only Sletten was 

not protested to our Office. In any event, Sletten failed to allay the agency’s concern 

with its BOMA calculations, despite the opportunity to submit these calculations. 

Page 7 B-402422 
Page 8 B-402422 

 

information in its project management plan “on identifying, coordinating and 

cooperating with all entities.” Protester’s Comments at 29 (citing the SSEB Report). 

In response to a request from our Office to address this issue, GSA states that the 

“deficiencies” identified in the awardee’s proposal were actually raised in the 

underlying comments of one SSEB member, who ultimately determined that the 

awardee’s proposal was fully compliant with the solicitation requirements. GSA also 

states that the SSA independently determined that Mortenson’s proposal was fully 

compliant.6 GSA Response, April 9, 2010, at 2. 

The protest is denied.7

Lynn H. Gibson 

Acting General Counsel 

6

 On this issue--and in answer to our request for additional information--the agency 

provided declarations from the relevant SSEB member (who served as the SSEB 

chair) and the SSA. The SSEB chair identifies the specific pages in Mortenson’s 

proposal that provided the information he initially concluded was absent. 

Declaration of the SSEB Chair, Apr. 9, 2010, at 1-4. In our view, this response 

adequately answered the protester’s allegation. While we generally accord greater 

weight to contemporaneous evidence of an evaluation and source selection decision, 

we will consider post-protest explanations that provide a rationale for 

contemporaneous conclusions where, as here, those explanations are credible and 

consistent with the contemporaneous record. ITT Fed. Servs. Int’l Corp., B-283307, 

B-283307.2, Nov. 3, 1999, 99-2 CPD ¶ 76 at 6. 

7

 Sletten made a number of arguments in its protest, and we have addressed the 

significant arguments. Although we do not specifically address every one of Sletten’s 

arguments, we have reviewed all Sletten’s arguments and find no basis to sustain the 

protest.