United States Government Accountability Office

Washington, DC 20548

Comptroller General

of the United States

Decision

Matter of: APEX-MBM, JV

File: B-405107.3

Date: October 3, 2011

Ronald Shaw, Esq., for the protester.

Cpt. Elizabeth Kadlub, Department of the Army, for the agency.

Pedro E. Briones, Esq., and Guy R. Pietrovito, Esq., Office of the General Counsel, 

GAO, participated in the preparation of the decision.

DIGEST

Protest that agency used unstated evaluation criteria when it rejected protester’s 

proposal for failure to propose site-specific staff deployments and supplies and 

equipment is sustained where the solicitation did not require, and its general 

instructions and 15-page limitation for submissions did not suggest, that offerors 

propose staff deployments or supplies and equipment, and instead requires such 

details to be coordinated with, and approved by, the agency after contract award.

DECISION

APEX-MBM, JV, of San Antonio, Texas, protests the award of a contract to Wilson 

Technologies, Inc., of Silver Spring, Maryland, under request for proposals (RFP) 

No. W91YTZ-11-R-0033 issued by the Department of the Army for hospital 

housekeeping services.1

We sustain the protest.

BACKGROUND

The RFP, issued as a small business set-aside under the commercial item 

acquisition procedures of Federal Acquisition Regulation (FAR) Part 12, provided for 

the award of a fixed-price, indefinite-delivery/indefinite-quantity contract for hospital 

 1 The protester is an approved section 8(a) joint venture between Apex Limited, Inc., 

and Main Building Maintenance, Inc. (MBM). MBM is the incumbent contractor for 

these services. Protest at 17.

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-405107.3 

housekeeping services for Army medical facilities at Aberdeen Proving Ground, 

Fort Detrick, and Fort Meade (all located in Maryland) for a 1-year base period 

and 4 option years. See RFP at 3, 123.

Offerors were informed that award would be made on a lowest-price, technically 

acceptable basis considering the following factors: technical acceptability, past 

performance, and price. Id. at 129. The technical and past performance factors 

were of equal weight, and, when combined, were less important than price. Id. 

Instructions for the preparation of proposals required, among other things, 

submission of separate technical, past performance, and price proposals. Id.

at 118-21. With regard to technical proposals, offerors were required to describe 

their proposed plans, processes, procedures, and systems, and provide all 

supporting data and documentation describing their technical response to the 

requirements.2

 See id. at 119. With regard to price proposals, offerors were 

required to provide a unit price per square foot for each of the eight types of cleaning 

services, as well as overall, for each performance period. See id. at 120-21; 

Schedule.

A detailed Performance Work Statement (PWS) was provided that describes eight 

types of required cleaning services and states performance standards and other 

general tasks. PWS at 16-26. The PWS identified key contract personnel (an 

executive housekeeper and shift supervisors/shift leaders), who were required to 

meet various certification, experience, and training requirements. See id. at 1-2. 

Within 30 days of award, the contractor was required to submit for agency approval 

a quality control plan, a housekeeping policy and procedures manual, and other 

plans. See id. at 6. The PWS also required the contractor to provide an annual list 

of all supplies and equipment needed to perform these services,3 as well as monthly 

work schedules, periodic cleaning schedules to be coordinated with the agency, and 

detailed staffing reports. See id.

With respect to the technical acceptability factor, the RFP provided that the agency 

would evaluate the following subfactors on a pass/fail basis:

at 7, 13, 16.

1. Clearly and comprehensively presents [the] technical basis of [its] 

response to the [RFP].

 2 Technical proposals were not to exceed 15 pages or include company-identifying 

information. RFP at 119.

3 The PWS also stated that the contractor shall not use any supplies, chemicals, or 

equipment without written approval from the agency. See PWS at 14.
Page 3 B-405107.3 

2. Provides sufficient details for the Government to determine whether 

the proposal satisfactorily meets the requirements of the [PWS].

3. Clearly demonstrates that the Offeror fully understands and is 

capable of performing the cleaning requirements for the price indicated 

in its proposal.

4. Describes in [its] technical presentation a technical capability in 

hospital housekeeping cleaning that is adequate to accomplish the 

scope of work.

See id. at 131. With respect to the price factor, the RFP stated that price would be 

evaluated for realism, reasonableness, and fairness. Id. at 133.

The agency received nine proposals, including those of APEX and Wilson 

Technologies.4

 CO’s Statement at 6. APEX proposed to account for materials, 

labor, tools, equipment, and scheduling with a name-brand automated work 

management and quality control system software, which would be submitted for 

agency approval prior to implementation. See Protester’s Technical Proposal at 2-3. 

APEX also described its quality control manual, including a list of various 

procedures, guidelines, inspection techniques, corrective action programs, and 14 

categories of mandatory training. See id. at 6-7, 12-13. APEX further stated that the 

manual would be tailored for each facility and submitted to the agency within 30 

days of award. Moreover, APEX proposed to submit for approval within 30 days of 

award, a housekeeping policy and procedures manual unique to the facilities, and, in 

this regard, identified over 60 categories of area-specific, task-specific, and recurring 

cleaning procedures that would be adapted to the various tasks and performance 

standards identified in the PWS. See id. at 13-14.

APEX also identified six staff categories, including key personnel, and stated that its 

staffing plan was formulated based on the tasks, standards, square footage, and 

types of services described in the PWS. See id. at 3-5. The proposal further 

described a proposed management structure, provided an organizational chart, and 

stated that APEX would provide the names, qualifications, and contact numbers for 

key personnel to the agency upon contract award. See id. APEX’s proposal also 

included a chart listing time frames for submission of required reports and stated that 

any future report requirements would be incorporated into the chart. Id. at 15.

The proposals were evaluated by the agency’s technical evaluation board (TEB), 

which found APEX’s and four other offerors’ proposals technically unacceptable. 

CO’s Statement at 6. Specifically, the TEB found that APEX’s proposal was 

 4 One proposal was rejected as untimely submitted. Contracting Officer’s (CO) 

Statement at 6.
Page 4 B-405107.3 

unacceptable under the technical acceptability evaluation factor, noting that APEX 

had not identified proposed staff deployments for each of the three installations; 

processes or procedures for quality control; or tools, supplies, and/or equipment. 

See Agency Report (AR), Tab 10, APEX Evaluation, at 2. Based on these findings, 

the TEB concluded that APEX’s proposal failed to satisfy subfactors 1, 3, and 4, 

under the technical acceptability factor. Id. at 3.

The agency determined that award should be made to Wilson Technologies on the 

basis that it submitted the lowest-priced offer among the technically acceptable 

offers; Wilson’s offer was priced at $16,377,798.5 AR, Tab 12, Price Negotiation 

Memorandum, at 5. In this regard, the agency determined that Wilson Technologies’ 

price was fair and reasonable as compared to the price of the current bridge contract 

and to the independent government estimate (IGE) for the procurement.6

 Id. at 6. 

Award was made to Wilson Technologies, and this protest followed.

DISCUSSION

APEX protests the agency’s technical evaluation, arguing that the agency did not 

evaluate its proposal in accordance with the RFP’s stated evaluation criteria and, 

in this respect, complains that the RFP did not require offerors to identify staff 

deployments at each installation or propose tools, supplies, and equipment. See

Protest at 17; Comments at 15-17.

The Army argues that APEX’s technical proposal was found unacceptable because 

it did not comply with the RFP’s requirements and did not adequately address the 

technical acceptability factors. See AR at 10-11. In this regard, the agency asserts 

that the protester failed to provide adequate details for evaluation, specifically, a 

staffing plan, proposed supplies and equipment, or quality control procedures. See

id. at 7, 9-10.

In reviewing protests challenging the evaluation of proposals, we do not conduct a 

new evaluation or substitute our judgment for that of the agency, but examine the 

record to determine whether the agency’s judgment was reasonable and in accord 

with the solicitation’s evaluation criteria. Abt Assocs., Inc.

 5 APEX proposed an overall price of $7,581,383 for all performance periods. 

Protester’s Price Proposal at 30. The agency did not evaluate the price of the 

proposals that were found to be technically unacceptable. See AR, Tab 12, Price 

Negotiation Memorandum, at 5.

, B-237060.2, Feb. 26, 

1990, 90-1 CPD ¶ 223 at 4. Where a protester challenges the agency’s evaluation 

6 The agency estimated the 5-year annualized price of the current bridge contract to 

be $16,019,147; the IGE for this procurement was $16,679,465. AR, Tab 12, Price 

Negotiation Memorandum, at 6.
Page 5 B-405107.3 

and source selection, we will review the evaluation and award decision to determine 

if they were reasonable, consistent with the solicitation’s evaluation scheme, as well 

as procurement statutes and regulations, and adequately documented. See, e.g., 

Wackenhut Servs., Inc., B-400240, B-400240.2, Sept. 10, 2008, 2008 CPD ¶ 184 

at 6; S4, Inc., B-299817, B-299817.2, Aug. 23, 2007, 2007 CPD ¶ 164 at 9.

Based on our review of the record here, we agree with the protester that the agency 

evaluated its technical proposal and rejected it as unacceptable based on unstated 

criteria. As set forth above, the RFP required technical proposals to describe--in no 

more than 15 pages--the offeror’s proposed plans, processes, procedures, and 

systems, and provide all supporting data and documentation. RFP at 119. No 

further substantive instructions were provided in this regard. More specifically, the 

RFP did not request that offerors identify their proposed staff deployments at each 

installation or the tools, supplies and equipment that would be used. Id. at 118-33. 

Rather, the PWS requires the contractor to submit--after award--work schedules and 

a list of all supplies and equipment needed to perform the requirements.7 See PWS 

at 13-14, 16. Moreover, the PWS requires the contractor to coordinate cleaning 

schedules with the agency and, in this regard, requires the contractor to provide 

work schedules at least 30 calendar days prior to the month of performance. Id.

at 7, 16. Under these circumstances, we do not think that an offeror would 

reasonably understand that it was required to propose staff deployments for each of 

the three medical facilities, as well as tools, supplies and equipment, particularly 

here where the PWS requires such details be coordinated with, or approved by, the 

agency after contract award.

Accordingly, we find that the agency’s determination that APEX’s proposal was 

unacceptable because it failed to propose staff deployments at each installation or 

supplies and equipment, was based on unstated evaluation criteria, and we sustain 

the protest. See, e.g., DRS ICAS, LLC, B-401852.4, B-401852.5, Sept. 8, 2010, 

2010 CPD ¶ 261 at 10-11 (agency applied unstated evaluation criteria when it 

assessed a technical weakness based on protester’s failure to identify and address 

specific threats and technologies for future systems upgrades, and offerors would 

not reasonably realize that they should submit such information, where RFP only 

required offerors to address how the “architecture” of their proposed systems would 

accommodate upgrades and systems growth); RJO Enter., Inc.

 7 As we state above, APEX proposed a name-brand automated work management 

and quality control system software to account for materials, labor, tools, equipment, 

and scheduling, and stated that the system would be submitted to the agency for 

approval prior to its implementation. Protester’s Technical Proposal at 2. APEX’s 

technical proposal also stated that it would submit a housekeeping policy and 

procedures manual unique to the PWS tasks and facilities within 30 days after

contract award for agency approval. See id. at 13-14.

, B-260126.2, 
Page 6 B-405107.3 

July 20, 1995, 95-2 CPD ¶ 93 at 13-16 (agency applied unstated evaluation criteria 

when it downgraded protester’s proposal for failure to submit resumes for certain 

labor skill levels where RFP did not require resumes for every skill level and 

contemplated that contractor would propose staffing plans and labor mixes for future 

task orders).

RECOMMENDATION

We recommend that the agency either reevaluate proposals under the stated 

evaluation criteria consistent with this decision, or amend the solicitation to clarify 

the factors that the agency will consider in evaluating technical proposals and solicit 

and reevaluate revised proposals accordingly.8

pursuing the protest, including reasonable attorneys’ fees. Bid Protest Regulations, 

4 C.F.R. § 21.8(d)(1) (2011). APEX should submit its certified claims for costs 

directly to the contracting agency within 60 days after receipt of this decision. 

 If another firm is found to offer the 

lowest-price, technically acceptable offer, then the Army should terminate Wilson 

Technologies’ contract for convenience of the government and make award to that 

other firm. We also recommend that APEX be reimbursed the costs of filing and 

Id., 

§ 21.8(f)(1).

The protest is sustained.9

Lynn H. Gibson

General Counsel

 8 APEX also contends that, to the extent that the agency found APEX’s proposal 

unacceptable on a pass/fail basis using a traditional responsibility factor, the agency 

actually made a non-responsibility determination that should have been referred to 

the Small Business Administration. See Protest at 16-17; see, e.g. Frontier Sys. 

Integrators, B-298872.3, Feb. 28, 2007, 2007 CPD ¶ 46 at 6. We find nothing in the 

record here that shows that the agency found APEX’s proposal unacceptable based 

on a non-responsibility determination. Rather, as we discuss above, the agency’s 

determination that APEX’s proposal was unacceptable was based on unstated 

evaluation criteria.

9 APEX also protests the agency’s price reasonableness and realism analyses. See

id.; Comments at 18-22. We do not address the protester’s arguments in this regard 

because, as we discuss above, we recommend that the agency reevaluate

proposals.