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: Apptis Inc.--Costs 

File: B-402146.3 

Date: March 31, 2010 

Patricia H. Wittie, Esq., Karla J. Letsche, Esq., and Kathryn E. Swisher, Esq., Oldaker 

Belair & Wittie LLP, for the protester. 

Maj. Carla T. Peters, Department of the Army, 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 

Request for a determination of entitlement based on agency’s decision to take 

corrective action is denied where the corrective action was prompt with respect to 

supplemental protest arguments, and the initial protest arguments were not clearly 

meritorious. 

DECISION 

Apptis Inc., of Chantilly, Virginia, requests that our Office recommend that the 

Department of the Army, Army Medical Research Acquisition Activity, reimburse its 

costs of filing and pursuing its protest of the issuance of a task order to Electronic 

Data Systems, LLC (EDS), of Herndon, Virginia, under task order proposal request 

(TOPR) No. VAP 09-13200, for support services for the Military Health System 

Services Desk. 

We deny the request. 

BACKGROUND 

The TOPR was issued on August 10, 2009, and sought quotes for information 

technology support services. The TOPR was limited to vendors under a 

multiple-award indefinite-delivery/indefinite-quantity contract for Defense Medical 

Information Systems/Systems Integration, Design, Development, Operation and 

Maintenance Services. The solicitation anticipated award of a fixed-price task order, 

with a 1-month transition period, an 11-month base period, and three 12-month 

options. The solicitation stated that offerors would be evaluated on the basis of 
price, and the following non-price evaluation factors, which were listed in 

descending order of importance: information technology service management 

(ITSM) technical approach;1

 past performance; service desk/ITSM management 

approach; service desk/ITSM experience; and quality control approach towards 

continual service improvement. The TOPR advised offerors that the technical 

factors were “significantly more important” than price, and that “[o]nly proposals 

receiving an overall rating of ‘Acceptable’ or higher will be considered for award.” 

TOPR at 6. 

The Army received proposals from four offerors, including Apptis and EDS. The 

Army convened a technical evaluation panel (TEP) to evaluate the offerors’ technical 

proposals. After the TEP completed its evaluation, the contracting officer (CO), who 

also served as the source selection authority (SSA) for this procurement, revised the 

TEP’s ratings for Apptis’ proposal. The CO lowered the protester’s rating under the 

ITMS technical approach from acceptable to marginal, raised its rating under the 

past performance factor from moderate to low risk, and lowered its overall technical 

rating from acceptable to marginal.2

 Compare Agency Report (AR), Tab 8, TEP 

Report at 4-6 with Tab 10, Award Decision Memorandum (ADM), at 7. 

The Army’s final ratings of the firms’ proposals were as follows: 

APPTIS EDS 

OVERALL TECHNICAL MARGINAL GOOD 

ITSM technical approach Marginal Good 

Past performance Low risk Low risk 

Service desk/ITSM 

management approach Marginal Good 

Service desk/ITSM 

experience Marginal Good 

Quality control approach Acceptable Good 

PRICE $97,025,632 $114,326,058 

AR, Tab 10, ADM, at 7, 13. 

Because Apptis did not receive an overall technical score of “acceptable” or higher, it 

was not considered for award. Id. at 15. The Army conducted a price-technical 

tradeoff evaluation of the three remaining offerors, and selected EDS for award. 

 

1

 This evaluation factor had four subfactors. 

2

 For the non-past performance factors, the TOPR used an evaluation scheme of 

exceptional, good, acceptable, marginal, and unacceptable. For past performance, 

the TOPR used an evaluation scheme of low, moderate, high, and unknown risk. 

Page 2 B-402146.3
Apptis requested a debriefing regarding the award, which was provided on 

October 6. 

On, October 16, Apptis filed a protest challenging the award to EDS. The protester 

raised a number of arguments, including, as relevant here, challenges to its ratings 

under the technical approach, service desk/ITSM management approach, and service 

desk/ITSM experience evaluation factors. The protester also argued that the agency 

did not evaluate EDS’s proposal for price reasonableness, and that the selection 

decision did not adequately justify award to EDS in light of its higher proposed price 

as compared to Apptis. 

On November 27, Apptis filed a supplemental protest which raised the following 

arguments: (1) the CO improperly revised the TEP’s ratings for Apptis’ proposal; 

(2) the evaluation deviated from the stated weights of the factors identified in the 

TOPR; (3) the agency failed to consider Apptis’ past performance in its overall 

technical evaluation rating; (4) the agency’s evaluation of EDS’s proposal under the 

technical approach factor was flawed; (5) the agency treated EDS and Apptis 

differently with regard to the evaluation of similar areas of the technical approach 

and service desk/ITSM management approach factors; and (6) the agency’s 

evaluations of Apptis’ and EDS’s price proposals were flawed. On November 30, 

Apptis submitted comments on the agency report regarding its initial protest 

arguments.3

On December 2, our Office requested that the Army provide a report addressing the 

supplemental protest issues by December 8. We also requested that the agency 

provide more information concerning the following initial and supplemental protest 

issues: (1) the CO’s revisions to the TEP’s evaluation ratings; (2) the evaluation of 

Apptis’ discussion of the Blade Operations Center (BOC) requirements under the 

technical approach factor; (3) the evaluation of Apptis’ proposed transition 

approach; and (4) the indication by the Army that past performance was not 

considered in offerors’ overall technical ratings. GAO Email, Dec. 2, 2009, at 1. 

On December 8, prior to submitting its supplemental report, the Army advised that it 

would take corrective action by re-evaluating offerors’ proposals and making a new 

selection decision. In its notice, the agency stated that it was not taking corrective 

action in response to any of the initial protest issues, but instead explained that “the 

supplemental protest indicated that the Government should have more clearly 

explained the basis for the source selection decision.” Army Notice of Corrective 

 

3

 Our Office granted an extension to the parties to file comments regarding the 

Army’s report on the initial protest issues, but advised Apptis that we could not 

extend the time for filing supplemental protest issues arising from the documents 

that were provided by the agency 1 day prior to the production of the agency’s legal 

memorandum. 

Page 3 B-402146.3
Action, Dec. 8, 2009, at 1. In response to the request for costs, the Army further 

explained that its decision was based on issues raised by our Office’s December 2 

request for more information. Agency Reponse to Request for Costs at 3. 

DISCUSSION 

Apptis requests that we recommend that the agency reimburse its costs of pursuing 

its initial and supplemental protests. For the reasons discussed below, we agree 

with the Army that reimbursement is not warranted here because the agency’s 

corrective action was prompt with regard to the supplemental protest arguments, 

and because the initial protest arguments were not clearly meritorious. 

When a procuring agency takes corrective action in response to a protest, our Office 

may recommend reimbursement of protest costs, including reasonable attorneys’ 

fees, if, based on the circumstances of the case, we determine that the agency unduly 

delayed taking corrective action in the face of a clearly meritorious protest, thereby 

causing the protester to expend unnecessary time and resources to make further use 

of the protest process in order to obtain relief. 31 U.S.C. § 3554(c)(1)(A) (2006); Bid 

Protest Regulations, 4 C.F.R. § 21.8(e) (2009); AAR Aircraft Servs.--Costs, B-291670.6, 

May 12, 2003, 2003 CPD ¶ 100 at 6. The mere fact that an agency decides to take 

corrective action does not also establish that a statute or regulation clearly has been 

violated. Id. Thus, as a prerequisite to our recommending the reimbursement of 

costs where a protest has been settled by corrective action, not only must the protest 

have been meritorious, but it also must have been clearly meritorious, i.e., not a 

close question. PADCO, Inc.--Costs, B-289096.3, May 3, 2002, 2002 CPD ¶ 135 at 3. A 

protest is clearly meritorious where a reasonable agency inquiry into the protester’s 

allegations would reveal facts showing the absence of a defensible legal position. 

Yardney Technical Prods., Inc., B-297648.3, Mar. 28, 2006, 2006 CPD ¶ 65 at 4. 

Additionally, while we consider corrective action to be prompt if it is taken before 

the due date for the agency report responding to the protest, we generally do not 

consider it to be prompt where it is taken after that date. AGFA HealthCare Corp.--

Costs, B-400733.6, Apr. 22, 2009, 2009 CPD ¶ 90 at 3-4. 

We conclude that the Army’s corrective action was prompt with regard to Apptis’ 

supplemental protest arguments. As discussed above, the protester raised a number 

of supplemental arguments on November 27. Because the agency’s corrective action 

took place prior to the submission of its supplemental agency report responding to 

these arguments, such that Apptis did not need to expend unnecessary time or 

resources responding to the report, we view the corrective action as prompt.4

 

See AGFA HealthCare Corp.--Costs, supra. 

 

(continued...) 

4

 Apptis also argues that its challenge to the CO’s revisions to the TEP’s evaluation 

ratings should be considered as part of the protester’s initial challenge to the 

agency’s failure to conduct a reasonable selection decision, and that the agency’s 

corrective action was therefore not prompt with regard to this issue. Specifically, 

Page 4 B-402146.3
With regard to the initial protest arguments cited by the protester in its request for 

reimbursement, we conclude, as explained below, that none of them are clearly 

meritorious. As discussed above, our Office requested additional information from 

the agency in order to further develop the record with respect to these issues. In our 

view, the need for such additional development demonstrates that the protest 

arguments were not clearly meritorious. See Alaska Structures, Inc.-Costs, 

B-298575.4, Jan. 22, 2007, 2007 CPD ¶ 15 at 6 (requesting additional record 

development by the agency in response to protester’s comments demonstrates that a 

protest issue is a “close question,” that is, not clearly meritorious). 

First, Apptis contends that the Army improperly failed to consider its proposal in the 

price-technical tradeoff analysis for award. As discussed above, however, the 

agency did not consider the protester’s proposal for award because the solicitation 

stated that only offerors whose proposals received an overall technical score of 

acceptable or better would be eligible for award. In light of the protester’s overall 

technical rating of marginal, we think that the agency’s decision here was consistent 

with the solicitation and provides no basis to conclude that this protest ground was 

clearly meritorious. Instead, for us to conclude that this ground of the protest was 

clearly meritorious, Apptis must demonstrate that its proposal should have received 

an overall rating of acceptable or better. As discussed below, we do not find Apptis’ 

challenges to the evaluation of its technical proposal--which received marginal 

ratings under three of the five evaluation factors--to be clearly meritorious. 

Next, Apptis argues that the Army unreasonably rated its proposal as marginal under 

the technical approach factor. The overall marginal rating for this factor was based 

on one weakness and two significant weaknesses regarding the protester’s transition 

approach, which was one of four equally-weighted subfactors under the technical 

approach factor.5

 AR, Tab 10, ADM, at 7. The agency concluded that these 

 

(...continued) 

the protester contends that the challenge to the best value decision should have put 

the agency on notice that its entire evaluation scheme--including the CO’s revisions 

to Apptis’ evaluation ratings--was flawed. We do not think that these two arguments 

are sufficiently related to warrant reimbursement of the supplemental argument. In 

any event, we think that the challenge to the CO’s revisions is not clearly meritorious 

given that a selection official may make an independent evaluation of offerors’ 

proposals, and may disagree with or expand upon the findings of lower-level 

evaluators, provided the evaluation is reasonable and documented in the 

contemporaneous record. KPMG Consulting LLP, B-290716, B-290716.2, Sept. 23, 

2002, 2002 CPD ¶ 196 at 13. 

5

 Although the protester refers to four subfactors for the technical approach factor, 

the TOPR did not explicitly identify the evaluation criteria as separately-scored 

subfactors. Instead, the solicitation stated that the evaluation factor would assess 

technical approach in four areas: (1) understanding information technology 

(continued...) 

Page 5 B-402146.3
weaknesses outweighed the single significant strength that related to its 

understanding of ITSM and incident and problem management requirements. Id.

Apptis argues that the weaknesses assessed for its transition approach were not 

reasonable. As discussed above, we asked the agency to provide more information 

concerning its evaluation of Apptis’ proposed transition. GAO Email, Dec. 2, 2009, 

at 1. Because the agency took corrective action before providing this information, 

the record is not complete, and provides no basis to find that this protest argument is 

clearly meritorious. See Alaska Structures, Inc.--Costs, supra. 

The protester also contends that because the overall factor rating of marginal was 

based on weaknesses under a single subfactor, the agency unreasonably did not 

accord equal weight to all of the four subfactors. Our Office has recognized that 

where, as here, a solicitation does not disclose the relative weight of evaluation 

factors or subfactors in a FAR Part 15 procurement, they should be considered 

approximately equal in importance or weight. Bio-Rad Labs., Inc., B-297553, Feb. 15, 

2006, 2007 CPD ¶ 58 at 6. The Army does not dispute that the subfactors should have 

been equally weighted, but argues that it reasonably concluded that the weaknesses 

regarding transition outweighed a single strength relating to the first two subfactors, 

and that the overall rating of marginal was reasonable. See AR, Tab 10, ADM, at 7. 

In our view, the protester incorrectly assumes that an assessment of weaknesses 

under one of four equally-weighted subfactors precludes an overall rating of 

marginal. The TOPR stated that a “marginal” rating reflects a proposal that “does not 

demonstrate a full understanding of all the requirements and may pose a risk that the 

offeror might fail to perform satisfactorily without significant Government oversight 

or participation.” TOPR at 9. We think that, under the evaluation standards 

announced in the solicitation, weaknesses relating to an offeror’s understanding of 

the requirements could have reasonably resulted in an overall rating of marginal for 

the technical approach factor--assuming the agency’s assessment of the weaknesses 

was reasonable. 

Next, Apptis argues that the Army failed to identify or give credit to Apptis for its 

experience or knowledge of the BOC requirements for the solicitation. Here also, 

our Office asked the agency for additional information regarding its evaluation of 

Apptis’ proposal. For the reasons discussed above, we think that the record here 

was not adequately developed, and thus does not provide a basis for us to conclude 

that the initial protest argument was clearly meritorious. 

 

(...continued) 

infrastructure library best practices, (2) approach to incident and problem 

management, (3) transition, and (4) government furnished information and property. 

TOPR at 6. The Army did not separately score these areas, but instead identified 

strengths or weaknesses for each offeror’s proposal in determining an overall rating 

for the evaluation factor. 

Page 6 B-402146.3
Page 7 B-402146.3

Finally, Apptis argues that the agency unreasonably evaluated its proposal under the 

service desk/ITSM experience factor. Specifically, the protester contends that 

although the TOPR stated that offerors would be evaluated on the basis of either 

corporate or proposed staff experience, see TOPR at 6, the agency assessed 

weaknesses in the protester’s proposal based on an alleged lack of staff experience, 

to the disregard of its demonstrated corporate experience. AR, Tab 10, ADM, at 8. 

The protester also contends that the agency unreasonably concluded that its 

proposed staff did demonstrate the required experience. In its response to the 

protest, the Army acknowledged that Apptis’ proposal demonstrated corporate 

experience, but argues that the agency viewed the experience as insufficiently 

related to the requirements of the solicitation. CO Statement at 16. As the protester 

notes in its comments on the AR, however, the agency’s position is not reflected in 

the contemporaneous record; in fact, the protester’s corporate experience is not 

discussed. See AR, Tab 8, TEP Evaluation, at 5; Tab 10, ADM, at 8. 

Although we did not request an additional response from the agency on this issue, 

we now view the record as requiring additional development concerning whether the 

agency’s evaluation reflects contemporaneous judgments regarding Apptis’ 

corporate experience, as well as other areas of the agency’s evaluation. For this 

reason, do not think that this issue meets our requirement that a protest argument be 

clearly meritorious, i.e. not a close question.6

The request for entitlement to protest costs is denied. 

Lynn H. Gibson 

Acting General Counsel 

 

6

 Apptis also argues that the Army failed to evaluate EDS’s proposal for price 

reasonableness. We do not think that Apptis is an interested party to challenge the 

evaluation of the awardee’s price because, as discussed above, we do not think that 

any of the protester’s arguments concerning the evaluation of its technical proposal 

are clearly meritorious, and because there were other offerors whose proposals were 

technically acceptable, and therefore eligible for award. 4 C.F.R. § 21.0(a)(1); 

Allenhurst Indus., Inc., B-256836, B-256836.2, July 8, 1994, 94-2 CPD ¶ 14 at 5.