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: FAS Support Services, LLC 

File: B-402464; B-402464.2; B-402464.3 

Date: April 21, 2010 

John C. Dulske, Esq., Joan Kelley Fowler Gluys, Esq., and Bryan L. Kost, Esq., Dulske 

& Gluys, PC, for the protester. 

Thomas C. Papson, Esq., and Todd J. Canni, Esq., McKenna Long & Aldridge LLP, for 

Vinnell Brown & Root LLC, an intervenor. 

Maj. Theodore T. Richard, and Larry M. Anderson, Esq., Department of the Air Force, 

for the agency. 

Jonathan L. Kang, Esq., and Guy R. Pietrovito, Esq., Office of the General Counsel, 

GAO, participated in the preparation of the decision. 

DIGEST 

Firm’s challenge to an agency’s refusal to reinstate the protester into an on-going 

competition after the lifting of the firm’s suspension from contracting with the 

federal government is denied, where the record shows that the agency reasonably 

concluded that reinstatement would cause unacceptable delay to the procurement. 

DECISION 

FAS Support Services, LLC, of Dallas, Texas, challenges the award of a contract by 

the Department of the Air Force to Vinnell Brown & Root LLC (VBR), of Herndon, 

Virginia, under request for proposals (RFP) No. FA5613-08-R-5010 for base operation 

and maintenance services at facilities in Turkey and Spain. During the procurement, 

FAS was suspended from contracting with the federal government. Although this 

suspension was lifted prior to award, the agency declined to reinstate FAS into the 

on-going competition. FAS contends that the Air Force acted unreasonably in 

refusing to reinstate its proposal, and also challenges the agency’s evaluation of 

VBR’s proposal. 

We deny the protest. 
Page 2 B-402464 et al. 

BACKGROUND 

The RFP was issued on February 13, 2009, and sought proposals to provide base 

operation and maintenance services at six facilities in Turkey and Spain. The 

proposed contract consolidates two existing contracts for performance of agency 

requirements in Turkey and Spain, and also adds certain additional requirements. 

The solicitation anticipated award of a fixed-price contract with an approximately 

10-month phase-in and base period, followed by 4 option years. 

The RFP advised offerors that proposals would be evaluated on the basis of the 

following three factors: (1) price; (2) technical acceptability, which was evaluated 

on a pass-fail basis and had subfactors of phase-in and technical proposal; and (3) 

performance confidence, which considered the recency, relevance, and quality of 

offerors’ past performance. RFP § M.3.0. The RFP stated that only proposals rated 

as technically acceptable would be considered for award. Id. § M.3.4. The RFP 

further stated that the agency would make award to the lowest-priced offeror whose 

technically-acceptable proposal received a performance confidence score of 

substantial confidence; if no offeror received a substantial confidence rating, the 

agency would make an “integrated assessment best value award decision” or 

conduct additional discussions. Id. § M.3.4.1. 

The Air Force received proposals from two offerors, FAS and VBR. At the time it 

submitted its proposal, FAS was a joint venture between First Support Services, Inc. 

(FSSI) and Taos Industries, a subsidiary of Agility Defense & Government Services. 

FSSI owned [deleted] percent of the joint venture and served as its managing 

partner, while Taos/Agility owned [deleted] percent of the joint venture. VBR is a 

limited liability corporation whose members are Northrop Grumman Enterprise 

Management Services Corp. and Kellogg Brown & Root Services, Inc. 

Proposals were evaluated by the agency’s source selection evaluation team (SSET), 

which initially rated each offeror’s proposal as follows:1

FAS VBR 

Technical 

Acceptability 

Susceptible to being 

made acceptable 

Susceptible to being 

made acceptable 

Past 

Performance 

Satisfactory 

Confidence 

Satisfactory 

Confidence 

Price $[deleted] $[deleted] 

 

1

 Proposals could be rated under the technical acceptability factor as acceptable, 

susceptible to being made acceptable, or unacceptable, and under the past 

performance factor as substantial, satisfactory, limited, unknown, or no confidence. 

RFP §§ M.3.1, M.3.3.4. 
AR, Tab 10b, Revised Initial SSET Briefing, at 18. 

Following discussions, each offeror submitted a revised proposal, which the SSET 

rated as follows: 

FAS VBR 

Technical 

Acceptability Acceptable Acceptable 

Past 

Performance 

Substantial 

Confidence 

Substantial 

Confidence 

Price $[deleted] $[deleted] 

AR, Tab 10c, Final Proposal Revision Briefing, at 31-32. 

The agency conducted a second round of discussions with both offerors and 

requested revised proposals. FAS did not make any revisions to its proposal; VBR 

submitted revisions to its technical proposal, and lowered its price. The Air Force 

found VBR’s revised proposal unacceptable under the phase-in subfactor, which 

resulted in the following revised ratings: 

FAS VBR 

Technical 

Acceptability Acceptable Unacceptable 

Past 

Performance 

Substantial 

Confidence 

Substantial 

Confidence 

Price $300,984,994 $285,668,291 

AR, Tab 10d, SSA Briefing, at 17. 

On November 16, based on the above ratings, the SSET and contracting officer (CO) 

recommended to the source selection authority (SSA) that award be made to FAS as 

the only technically-acceptable offeror with a substantial confidence rating for past 

performance. CO Statement at 19. 

Also on November 16, the Defense Logistics Agency (DLA) announced the 

suspension from contracting of a number of companies and their affiliates, including 

The Public Warehouse Company (PWC), PWC Logistics Services Co., Agility Defense 

& Government Services, Inc., and Taos Industries, Inc. AR, Tab 12a, DLA Suspension 

Notice, at 1. The suspensions were based on criminal indictments filed against PWC, 

and were extended to the other companies based on their affiliations with that 

contractor. Id. at 2. The companies were listed on the excluded parties list system 

(EPLS), which is maintained by the General Services Administration and lists all 

Page 3 B-402464 et al. 
contractors debarred, suspended, or proposed for debarment from federal 

contracting. See Federal Acquisition Regulation (FAR) § 9.404(a). 

On November 17, as part of a pre-award survey, the CO became aware of the 

suspension of PWC, Agility and Taos, based on their listing on the EPLS. The CO 

states that she was concerned because Taos/Agility was one of the two FAS joint 

venture partners. CO Statement at 19. On November 27, DLA suspended FAS from 

contracting, based on Taos/Agility’s participation the joint venture. AR, Tab 12e, 

EPLS Listing for FAS. On December 2, the Air Force advised FAS that, based on the 

company’s suspension from contracting, its proposal was excluded from further 

consideration. AR, Tab 15, Notice of Exclusion, at 1. 

On December 8, the Air Force conducted further discussions with VBR regarding the 

technically unacceptable areas in its proposal. VBR addressed the agency’s concerns 

regarding its technical proposal, but did not revise its price. As a result of the 

discussions, the agency concluded that VBR’s technical proposal was acceptable. 

CO Statement at 21. 

On December 9, FAS informed the CO that DLA had lifted the firm’s suspension, 

based on the company’s statement that it would divest itself of Taos/Agility’s 

ownership in the joint venture. On December 11, the CO issued a written 

determination stating that FAS would not be reinstated in the competition. In her 

determination, the CO noted that FAR § 9.504(d)(3) provides that a CO “may, but is 

not required to” consider an offeror’s proposal if its suspension from contracting is 

lifted prior to award. The CO cited two primary bases for denying FAS’s request: 

(1) reinstatement of FAS’s proposal would cause unacceptable delay to the 

procurement because FAS would need to “substantially revise” its proposal to 

account for the removal of Taos/Agility as a joint venture partner, and the agency 

would need to conduct discussions and perform new evaluations; and (2) FAS did 

not have a reasonable chance for award, in light of VBR’s lower price and the need 

for FAS to revise its proposal. AR, Tab 17, Reinstatement Decision, at 4-7. 

On December 11, FAS filed an agency-level protest with the Air Force, challenging 

the agency’s refusal to reinstate its proposal. The agency denied the protest on 

January 22, 2010. On the same date, the agency awarded the contract to VBR. This 

protest followed. 

DISCUSSION 

FAS argues that the Air Force unreasonably refused to reinstate its proposal into the 

competition following the lifting of its suspension from contracting. The protester 

also argues that the agency unreasonably evaluated VBR’s proposal. As discussed 

below, we find that the Air Force reasonably exercised its discretion to not reinstate 

FAS’s proposal. Because we conclude that FAS was reasonably excluded from the 

Page 4 B-402464 et al. 
Page 5 B-402464 et al. 

competition, FAS is not an interested party to challenge the Air Force’s evaluation of 

VBR’s proposal.2

Agency Denial of Reinstatement Request 

The FAR prohibits an agency from awarding a contract to a debarred or suspended 

contractor. FAR § 9.405. The FAR also provides, however, that “[i]f the period of 

ineligibility expires or is terminated prior to award, the contracting officer may, but 

is not required to, consider” an offeror’s proposal. FAR § 9.405(d)(3). The FAR 

clearly commits the decision whether to reinstate an offeror into a competition 

following the lifting of a suspension to the discretion of a CO. See South Texas 

Turbine Supply, B-272163, Sept. 5, 1996, 96-2 CPD ¶ 105 at 3. 

As a preliminary matter, FAS makes extensive arguments that its suspension from 

contracting was improper, and that the agency abused its discretion by improperly 

relying on that suspension in concluding that reinstatement of FAS’s proposal into 

the competition was not warranted. In its report on the protest, the Air Force argues 

that DLA properly concluded that, under the facts of PWC’s suspension, FAS’s 

suspension was proper. Agency Legal Memo at 9-10. We need not resolve whether 

FAS’s suspension by DLA was improper. As our Office has held, suspension and 

debarment of a contractor is a matter of agency contract administration that we do 

not review.3

 Shinwha Elec., B-291064 et al., Sept. 3, 2002, 2002 CPD ¶ 154 at 4. 

As discussed above, the Air Force’s refusal to reinstate FAS’s proposal into the 

competition was based on the CO’s concerns regarding the delay to the 

procurement, and the CO’s view that FAS’s proposal did not have a likely chance for 

award. AR, Tab 17, Reinstatement Decision, at 4-7. We think that the agency’s 

 

2

 The Air Force requested that our Office provide “outcome prediction” alternative 

dispute resolution regarding the merits of the protest. After the protester and 

intervenor submitted their comments on the AR, the GAO attorney assigned to the 

protest conducted outcome prediction and advised that, in his view, the protest 

would likely be denied. The protester subsequently advised that it would not 

withdraw its protest, and requested that our Office issue a decision. 

3

 The protester contends that our Office once reviewed agency debarment and 

suspension decisions to “to ensure that the agency has not acted arbitrarily to avoid 

making an award to an offeror otherwise entitled to award, and also to ensure that 

minimum standards of due process have been met.” SDA, Inc., B-253355 et al., 

Aug. 24, 1993, 93-2 CPD ¶ 132 at 4. As we advised in Shinwha Elec., however, “our 

Office will no longer review, even under limited standards, protests that an agency 

improperly suspended or debarred a contractor from receiving government 

contracts.” Shinwha Elec., supra, at 5. For this reason, we will examine only 

whether the CO’s actions in responding to DLA’s lifting of the suspension were 

reasonable. 
Page 6 B-402464 et al. 

concern regarding delay to the procurement was reasonable, and in turn, provided a 

reasonable basis for declining to reinstate FAS’s proposal into the competition.4

First, the CO concluded that the removal of Taos/Agility as a joint venture partner 

would require the agency to conduct a new evaluation of FAS’s past performance 

because FAS itself had no past performance, and instead relied on the past 

performance of its two joint venture partners. AR, Tab 17, Reinstatement Decision, 

at 5. FAS’s proposal cited four past performance examples: (1) the incumbent 

contract for the agency’s maintenance requirements in Spain, which was performed 

by a different joint venture between FSSI and Taos/Agility; (2) a base operations 

contract at Diago Garcia, performed by a joint venture where FSSI was the managing 

partner; (3) a base operations contract in Guam where FSSI was a joint venture 

partner; and (4) a warehouse design/build and management contract in Kuwait, 

which was performed by Taos/Agility. The CO found that the Kuwait contract was 

actually performed by Taos/Agility and thus was not relevant to the agency’s review 

of past performance for FAS. Id. at 5. With regard to the other contracts--

particularly the FSSI and Taos/Agility joint venture for the Spain maintenance 

contract--the CO stated that FAS’s past performance would need to be reconsidered 

in light of the fact that FSSI would be performing the contract entirely on its own. 

Id. 

Next, with regard to the technical acceptability factor, CO concluded that the agency 

would need to conduct a new evaluation to determine the extent to which FAS’s 

technical proposal relied on the resources of Taos/Agility. Id. at 5. The CO also 

concluded that the agency would need to reopen discussions to allow FAS to revise 

its technical approach to account for the removal of the suspended partner. Id. The 

record shows that FAS’s technical proposal discusses in numerous areas the 

capabilities of both FSSI and Taos/Agility. For example, the protester’s proposal 

states that the joint venture is “structured to capitalize on the collected capabilities 

and assets” of FAS and Taos/Agility. AR, Tab 9, FSS Initial Proposal, Vol. 3, at 26. 

With regard to management, the proposal states that “FAS is governed by a 

streamlined Board of Directors whose members are selected from [FSSI] and Agility 

. . . [which] will oversee the contract and represent the shareholders.” Id. 

Additionally, FAS’s proposal cites the experience of FSSI and Taos/Agility in 

performing the Spain contract’s requirements, as evidence of the protester’s 

technical capabilities, as follows: “A key discriminator for this contract is the 

composition of the phase-in team . . . [which is comprised of] core members of the 

[Spain contract] phase-in team that successfully transitioned the contract in 60 

days.” See, e.g., AR, Tab 9, FAS Initial Proposal, at ES6. 

 

4

 As discussed herein, given our view that the agency’s concern regarding delay 

provided a reasonable, and independent basis to not reinstate FAS’s proposal into 

the competition, we do not resolve whether the Air Force reasonably concluded that 

FAS would have had a reasonable chance for award, if discussions were held. 
Page 7 B-402464 et al. 

With respect to the amount of delay at issue, the CO concluded that reinstatement of 

FAS’s proposal would require an estimated 6 months to address the anticipated 

additional discussions, proposal revisions, and evaluation. AR, Tab 17, 

Reinstatement Decision, at 6. The CO viewed this delay as unacceptable because it 

would require sole-source extensions of the two incumbent contracts. Id. In this 

regard, the CO was concerned that such an extension would present difficulties for 

the agency because the incumbent contract for the requirements in Spain was 

performed by a joint venture between FAS’s sole remaining partner, FSSI, and 

Agility, one of the companies that had been suspended by DLA in November. Id. In 

contrast, the CO stated that VBR had addressed all of the technical acceptability 

concerns and the agency was ready to proceed with award. Id. at 3-4. 

FAS does not dispute that it would need to revise its proposal to account for the 

removal of Taos/Agility from the joint venture. See Protester’s Comments on AR 

at 10-11. Instead, the protester contends that it could have addressed all of the 

agency’s concerns through discussions. See id. The protester further argues that the 

magnitude of required revisions would not be “substantial” because, in the 

protester’s view, FSSI is capable of performing all of the contract requirements. 

See id. 

We think that the agency’s concerns regarding delay were reasonable. As discussed 

above, the record clearly shows that FAS’s proposal was based on the combined 

experience and past performance of FSSI and Taos/Agility. We agree with the 

agency that, at a minimum, the protester would need to revise its proposal to address 

how FSSI would perform the contract on its own, and the agency would need to 

conduct a new evaluation of FSSI’s technical acceptability and past performance. In 

sum, we think the agency reasonably declined to reinstate FAS’s proposal into the 

competition. 

Other challenges to award decision 

FAS raises several additional challenges to the Air Force’s evaluation of VBR’s 

proposal and the agency’s award decision. FAS argues that the agency abused its 

discretion in conducting discussions with VBR after the protester was suspended 

from contracting.5

 The protester also argues that the agency treated the offerors 

 

(continued...) 

5

 FAS argues that the agency abused its discretion in conducting discussions with 

VBR to make its proposal acceptable because the RFP stated that “[o]nly those 

proposals determined technically acceptable or reasonably susceptible to being 

made acceptable will be considered for further evaluation.” RFP § M.3.1. Because 

VBR was rated technically unacceptable prior to FAS’s exclusion from the 

competition, the protester argues that the agency’s actions were inconsistent with 

the terms of the RFP. We note, however, that the RFP also explained that the agency 

could conduct discussions as follows: “The Government anticipates awarding 
Page 8 B-402464 et al. 

unequally by refusing to reopen the competition to allow FAS an opportunity for 

discussions. Finally, FAS argues that the agency unreasonably evaluated VBR’s 

proposed price. Because, as discussed above, we conclude that the Air Force’s 

rationale for declining to reinstate FAS’s proposal was reasonable, the protester is 

not an interested party to raise any of these additional issues.6

 Bid Protest 

Regulations, 4 C.F.R. § 21.0(a) (2009); Moreland Corp., B-291086, Oct. 8, 2002, 2002 

CPD ¶ 197 at 4. 

The protest is denied. 

Lynn H. Gibson 

Acting General Counsel 

 

(...continued) 

without discussions; however, any proposal rated as ‘reasonably susceptible of being 

made acceptable’ will be reviewed to determine if communications or discussions 

are warranted. The Government reserves the right to conduct discussions if deemed 

in its best interests.” RFP § M.3.6. We do not agree with the protester’s 

interpretation of this solicitation provision as restricting the agency’s broad 

discretion regarding discussions. See Synectic Solutions, Inc., B-299086, Feb. 7, 

2007, 2007 CPD ¶ 36 at 11. Moreover, we think that the solicitation advised offerors 

that the agency retained discretion to conduct discussions if it determined that they 

were in the “best interests” of the government. 

6

 In any event, we find no merit to FAS’s challenges to the agency’s evaluation of 

VBR’s proposed price. The protester argues that the agency did not reasonably 

evaluate the basis for the awardee’s reduction to its proposed price following the 

second round of discussions. The record shows, however, that the awardee 

explained that the reduction was based on a revised exchange rate calculation, and 

that the agency accepted this explanation. AR, Tab 11, VBR Discussions Evaluation 

Memorandum, Dec. 7, 2009, at 1. The protester also argues that the awardee may 

have reduced its price by shifting costs to certain contract line item numbers 

(CLINs) that were not evaluated by the agency. In this regard, the protester notes 

that the RFP stated that certain CLINs, regarding, for example, contingency costs, 

were not to be evaluated for award, but instead would be negotiated after award. 

See RFP § 4.2.3. In the protester’s view the express terms of the RFP allowed 

offerors to “improperly game their offers . . . [b]y significantly reducing prices on 

evaluated CLINs and moving those costs to CLINs which were to be negotiated after 

award.” First Supp. Protest at 16. We find this argument untimely because it is a 

challenge to the terms of the solicitation that was not raised prior to the time for 

receipt of proposals. 4 C.F.R. § 21.2(a)(1). Moreover, the protester does not identify 

any costs that may have been shifted from evaluated to non-evaluated CLINs, and 

thus merely speculates that VBR could have “gamed” its proposed price. Such 

speculation is not a valid basis of protest. See Kellogg Brown & Root Servs., Inc., 

B-298694.7, June 22, 2007, 2007 CPD ¶ 124 at n.6.