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: Nova Builders 

File: B-402091; B-402091.2; B-402091.3 

Date: January 19, 2010 

Jacob B. Pankowski, Esq., Richard L. Moorhouse, Esq., and Sean M. Connolly, Esq., 

Greenberg Traurig LLP, for the protester. 

William W. Goodrich Jr., Esq., Richard J. Webber, Esq., and Kavitha J. Babu, Esq., 

Arent Fox LLP, for Clark/McCarthy Healthcare Partners, the intervenor. 

Stacey North-Willis, Esq., and Charlma Quarles, Esq., Department of Veterans 

Affairs, for the agency. 

Sharon L. Larkin, Esq., and James A. Spangenberg, Esq., Office of the General 

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

DIGEST 

In a procurement involving the award of a fixed-price incentive contract for 

preconstruction and construction services, the source selection authority’s (SSA) 

selection of a lower-priced proposal that the SSA found to be “essentially equal” to 

the protester’s under the non-price factors is reasonable, where the SSA performed a 

comprehensive evaluation and documented his source selection decision, including 

each of the areas of disagreement with the evaluation of the source selection 

evaluation team, and the SSA’s conclusions are supported by the record and are 

consistent with the RFP. 

DECISION 

Nova Builders of Arlington, Virginia protests the award of a contract to 

Clark/McCarthy Healthcare Partners of Tampa, Florida under request for proposals 

(RFP) No. VA-101-09-RP-0123, issued by the Department of Veterans Affairs (VA) for 

preconstruction services and optional construction of a VA medical facility in New 

Orleans, Louisiana. Nova challenges the reasonableness of the evaluation and 

source selection decision. 

We deny the protest. 
Page 2 B-402091 et al.

BACKGROUND 

The RFP contemplated the award of a fixed-price incentive (successive targets) 

contract. Under this type of contract, the selected contractor and the agency agree 

to an initial target price (which consists of an initial target cost plus an initial target 

profit), and at some point during the contract (usually before completion of the first 

item) the parties negotiate either a firm fixed price or firm target price for the 

remainder of the work, with profit to be calculated pursuant to a formula established 

by the contract. Federal Acquisition Regulation (FAR) § 16.403-2; RFP at 37-39. As 

the RFP stated here, the selected contractor would perform the preconstruction and 

design work under contract line item number (CLIN) 1 based on a proposed initial 

target price for construction, then the parties would negotiate a firm fixed price or 

firm target price for the construction work to be performed through optional CLIN 2 

if the agency chose to exercise that option upon completion of CLIN 1. Thus, only 

the CLIN 1 price was fixed at the outset; the CLIN 2 price was “estimated” and would 

not be negotiated until the project design drawings and other preconstruction work 

were completed during CLIN 1 and the VA chose to exercise the CLIN 2 option. The 

RFP established a total ceiling price of $750 million for the performance of both 

CLINs 1 and 2. RFP at 19. 

The RFP stated that award would be made based on the evaluation of “both cost and 

technical considerations most advantageous to the government,” with the technical 

evaluation “considered significantly more important than [p]rice.” Id. 33-34. With 

regard to the technical evaluation, the RFP identified four equally weighted factors: 

key personnel, technical/management approach, schedule, and small business 

participation. With regard to price, the RFP provided for the evaluation of 

“reasonableness, realism, and acceptability to the [g]overnment” of the offeror’s 

proposed preconstruction services and initial target price, including proposed initial 

target cost and initial target profit. Id. at 34. 

With regard to the small business participation factor, the RFP provided that the 

proposals of large business offerors (including Nova and Clark) would be evaluated 

based on the following subfactors listed in “decreasing” order of importance: (1) the 

extent the offeror included small businesses through a teaming arrangement,1

 (2) the 

degree to which the offeror’s proposed subcontracting plan “exceeds” the goals set 

forth elsewhere in the solicitation,2 and (3) the offeror’s record of meeting or 

 

(continued...) 

1

 Teaming arrangements with service disabled veteran owned small businesses were 

considered more important than teaming arrangements with veteran owned small 

businesses, which were considered more important than teaming arrangements with 

all other small businesses of any category. RFP at 34. 

2

 Exceeding goals for service disabled veteran owned small businesses was 

considered more important than exceeding goals for veteran owned small 
Page 3 B-402091 et al.

exceeding small business performance goals in federal contracts performed in the 

last 3 years.3

 Id. at 34. Under this factor, each offeror was required to “describe the 

participation of small businesses in the [teaming] arrangement” and “provide a copy 

of the teaming arrangement[’]s executed agreement” in its proposal. Id. at 31. Each 

offeror’s subcontracting plan was required to 

indicate the total target as a percentage of contract value for each of 

the categories listed [below]. The goals for this project, expressed in 

terms of percentage of planned subcontracting dollars, are as follows: 

SMALL BUSINESS 28.7% 

SERVICE DISABLED VETERAN OWNED BUSINESS 7% 

VETERAN OWNED BUSINESS 10% 

SMALL DISADVANTAGED BUSINESS 5% 

WOMEN OWNED BUSINESS 5% 

HUBZONE SMALL BUSINESS4 3% 

Id. at 31-32. The RFP did not identify separate goals for CLINs 1 and 2, but again 

repeated that offerors’ proposed subcontracting plans “shall indicate the total target 

as a percentage of contract value for each of the categories listed.” Id. at 32. The 

RFP further required that offerors provide copies of the “Standard Forms [SF] 294 

and 295 for all federal construction projects completed within the last three years,” 

as well as an explanation for any of the goals not met.5 Id.

Three offerors responded to the RFP, including Nova and Clark.6

 Nova’s initial 

proposal reflected an overall price of [REDACTED], which Nova offered to reduce 

by [REDACTED] if the agency accepted Nova’s [REDACTED]. Clark’s initial 

proposal reflected an overall price of [REDACTED], without any reference to 

[REDACTED]. Agency Report (AR), Tab 8b, Final SSET Price Evaluation Report, 

 

(...continued) 

businesses, which was considered more important than exceeding goals for all other 

small businesses of any category. RFP at 34. 

3

 Exceeding subcontracting goals was considered more important than meeting 

subcontracting goals. RFP at 34. 

4

 “HUBZone” refers to “historically underutilized business zone” small businesses. 

5

 The SF 294 is a “subcontracting form for individual contracts,” and the SF 295 is a 

“summary subcontract report.” Both forms report the contractor’s subcontracting 

goals for performed contracts. 

6

 Both Nova and Clark were large businesses that partnered or teamed with other 

large businesses to provide the services required by the RFP. 
Page 4 B-402091 et al.

attach., at 1, 3; Tab 42, Interim SSET Price Evaluation Report, attach., at 1, 3. At the 

conclusion of discussions, Nova’s final proposal revisions eliminated earlier 

references to [REDACTED], and both offerors reduced their proposed prices as 

stated below: 

CLIN Description Nova Clark 

0001A Preconstruction Services [REDACTED] [REDACTED] 

0001B General Conditions [REDACTED] [REDACTED] 

Total CLIN 1 Price [REDACTED] [REDACTED] 

0002AA Initial Target Cost [REDACTED] [REDACTED] 

0002AB Initial Target Profit (dollars) [REDACTED] [REDACTED] 

0003AB Initial Target Profit (percent) [REDACTED] [REDACTED] 

Total CLIN 2 Price (Initial Target Price)7[REDACTED] [REDACTED] 

Total Price (CLINs 1 and 2) $741,711,347 $714,508,488 

AR, Tab 8b, Final SSET Price Evaluation Report, attach., at 1, 3. 

Both Nova and Clark identified specific subcontracts with small businesses to 

perform a portion of the work. For CLIN 1, Nova identified one specific subcontract 

for [REDACTED] with a service disabled veteran owned small business under a 

“Teaming Agreement.” AR, Tab 3D, Nova’s Technical Proposal, Small Business 

Participation, at 116; Teaming Agreement. Clark identified for CLIN 1 subcontracts 

with a number of small businesses totaling [REDACTED] under “Consultant 

Agreements.” AR, Tab 5E, Clark’s Technical Proposal, Small Business Participation, 

at 2; Subcontracting Plan, at 7-8th unnumbered pages; Consultant Agreements. 

In their proposals, Nova and Clark’s small business plans also included target goals 

for each of the small business categories required by the RFP.8

 Each offeror 

identified separate target goals for CLINs 1 and 2, as identified below: 

 

7

 The initial target price is the sum of the initial target cost and initial target profit. 

RFP at 19. 

8

 We note that the dollars amounts identified by the offerors as target goals for 

CLIN 1 are different from the dollar amounts they proposed to subcontract. 
Page 5 B-402091 et al.

CLIN 1 Nova Clark VA 

goals 

Total contract 

price9 

[REDACTED] [REDACTED]

Total 

subcontracting 

dollars 

[REDACTED] [REDACTED]

Small businesses [REDACTED] [REDACTED]10 [REDACTED] [REDACTED] 28.7% 

Service disabled 

veteran- owned 

small businesses 

[REDACTED] [REDACTED] [REDACTED] [REDACTED] 7% 

Veteran owned 

businesses 

[REDACTED] [REDACTED] [REDACTED] [REDACTED] 10% 

Small 

disadvantaged 

businesses 

[REDACTED] [REDACTED] [REDACTED] [REDACTED] 5% 

Women owned 

businesses 

[REDACTED] [REDACTED] [REDACTED] [REDACTED] 5% 

HUBZone small 

businesses 

[REDACTED] [REDACTED] [REDACTED] [REDACTED] 3% 

 

9

 The subcontracting plans submitted by offerors were based on initial proposal 

prices. The plans were not altered during final proposal revisions when offerors 

reduced their prices. 

10 Offerors calculated goals as a measure of subcontracting dollars, not as a measure 

of total contract value. By way of example here, [REDACTED] divided by 

[REDACTED] reflected a planned small business goal of [REDACTED] percent. 
Page 6 B-402091 et al.

CLIN 2 Nova Clark VA 

goals 

Total contract price [REDACTED] [REDACTED]

Total 

subcontracting 

dollars 

[REDACTED] [REDACTED]

Small businesses 

(total) 

[REDACTED] [REDACTED] [REDACTED] [REDACTED] 28.7% 

Service disabled 

veteran- owned 

small businesses 

[REDACTED] [REDACTED] [REDACTED] [REDACTED] 7% 

Veteran owned 

businesses 

[REDACTED] [REDACTED] [REDACTED] [REDACTED] 10% 

Small disadvantaged 

businesses 

[REDACTED] [REDACTED] [REDACTED] [REDACTED] 5% 

Women owned 

businesses 

[REDACTED] [REDACTED] [REDACTED] [REDACTED] 5% 

HUBZone small 

businesses 

[REDACTED] [REDACTED] [REDACTED] [REDACTED] 3% 

AR, Tab 3D, Nova’s Technical Proposal, Small Business Participation, at 116-18; 

Tab 5E, Clark’s Technical Proposal, Subcontracting Plan, at 3rd unnumbered page; 

RFP at 31-32. 

The source selection evaluation team (SSET) separately evaluated technical and 

price proposals, generating reports that identified strengths and weaknesses of each 

proposal under the evaluation factors. The final SSET reports reflected that Nova’s 

proposal was rated technically superior to Clark’s, but that Clark’s price proposal 

was rated superior to Nova’s.11 In this regard, Nova’s and Clark’s proposals received 

technical scores of 70 and 61 points, respectively, out of a possible 80 points,12 and 

their proposals received price scores of 14 and 15 points, respectively, out of a 

 

11 The third offeror’s proposal was rated inferior to both Nova’s and Clark’s proposals 

under the technical and price factors. 

12 Each of the four technical evaluation factors was worth 20 points. As reflected in 

the SSET’s final technical evaluation report, Nova’s technical proposal received 

scores of 17 points for key personnel, 18 points for technical/management approach, 

16 points for schedule, and 19 points for small business participation. AR, Tab 8a, 

Final SSET Technical Evaluation Report, attach., at 4. Clark’s technical proposal 

received scores of 15 points for key personnel, 15 points for technical/management 

approach, 19 points for schedule, and 12 points for small business participation. 

Id. at 7. 
Page 7 B-402091 et al.

possible 20 points. AR, Tabs 8a and 8b, Final SSET Technical and Price Evaluation 

Reports. 

As reflected in the SSET evaluation reports, the largest area of scoring differential 

was under the small business participation factor, where the SSET assigned Nova’s 

proposal a score of 19 (out of a possible 20) points and Clark’s proposal a score 

of 12 points. 

There, the SSET assessed Nova’s proposal strengths for, among other things, 

meeting or exceeding the goals for small disadvantaged veteran owned small 

businesses, implementing a “formal and detailed [REDACTED],” and being 

“proactive in garnering local small business partners by holding ‘job fair’ forums.” 

The SSET also found several weaknesses in Nova’s proposal, including that the 

proposal did not meet several of the small business goals for the preconstruction 

phase of the procurement with regard to small disadvantaged businesses, women 

owned businesses, and HUBZone businesses. However, the SSET determined that 

these weaknesses were offset by “strengths associated with [Nova’s] overall small 

business goals and [its] formalized [REDACTED].” AR, Tab 8a, Final SSET Technical 

Evaluation Report, attach., at 4. 

In contrast, the SSET assigned Clark’s proposal 12 points under the small business 

participation factor. Although the SSET identified strengths in Clark’s proposal for 

including a “[REDACTED],” meeting all of the VA’s small business goals and 

exceeding the goal for service disabled veteran owned small businesses, and for 

being “proactive in garnering local small business partners by holding ‘job fair’ 

forums,” the SSET noted weaknesses in Clark’s proposal for failing to meet small 

business goals in past projects by “substantial margins,” and because, despite 

holding job fairs, “the proposal demonstrates limited utilization of local New Orleans 

partner firms which will hamper their ability to successfully garner local small 

business firms.” Id. at 7. 

 

Upon the completion of the SSET reports, the contracting officer, with the assistance 

of the SSET chairman, combined the SSET’s technical and price evaluation reports 

into a draft “proposal evaluation report” (PER), which was prepared and modified 

from time to time during the evaluation to assist the source selection authority (SSA) 

by capturing the information in the SSET reports in a single document. Hearing 

Transcript (Tr.)13 at 501, 971-73. 

 

Late in the evaluation, on September 21, 2009, the contracting officer became the 

SSA, and the former SSA continued to act as a supervisory contracting officer. 

The new SSA inserted comments in the most recent PER questioning some of the 

 

13 Our Office conducted a 3-day hearing, during which we heard testimony from the 

former and current SSAs and the SSET chair. 
Page 8 B-402091 et al.

judgments of the SSET with regard to the technical evaluation of proposals, 

particularly with regard to the small business participation factor and price factors. 

There is no record of the SSET ever responding to these concerns. 

In addition, the SSA, supervisory contracting officer, and SSET chair received advice 

from a consultant, hired to assist the agency in the evaluation, who challenged some 

of the SSET’s conclusions and identified numerous “inconsistencies” between the 

RFP and statements in the PERs. Based on his analysis, the consultant opined that 

the agency faced “considerable risk . . . of ‘successful’ protest.” AR, Tab 19, 

Consultant’s Email to SSA and Supervisory Contracting Officer, Sept. 15, 2009, at 2. 

As a result, the most recent PER was modified to address some of the consultant’s 

concerns.14 Tr. at 409-10, 997-98, 1002-04. 

The new SSA considered all of the information provided by the SSET and the 

consultant, and performed his own independent assessment of proposals. Although 

the SSA accepted and adopted the majority of the SSET’s technical and price 

analyses, the SSA disagreed with some of the SSET’s conclusions, particularly with 

regard to the evaluation of the small business participation factor. As a result, the 

SSA increased Clark’s score under the small business participation factor by 3 points 

(thereby adjusting Clark’s score under this factor to 15 points) and lowered Nova’s 

score by 3 points (thereby adjusting Nova’s score under this factor to 16 points).15

 

The SSA documented each area of disagreement in a detailed source selection 

decision, provided his rationale for why he believed the SSET’s conclusions were 

in error, and summarized his evaluation under each of the evaluation factors. AR, 

Tab 6, Source Selection Decision, at 3-5, 10. 

For example, under the small business participation factor, where the SSET assigned 

Clark’s proposal a weakness because individual team members had not met small 

business goals on some past projects, the SSA found that this weakness was 

 

14 For example, the consultant advised that, in earlier PERs, the SSET had improperly 

given Nova’s proposal the credit for [REDACTED] that reduced the firm’s overall 

price when such [REDACTED] were not contemplated by the RFP; the consultant 

also disagreed with the SSET’s conclusion, as reflected in the PERs, that Clark’s 

[REDACTED] is a “disincentive[]” to [REDACTED]. AR, Tab 19, Consultant Email to 

SSA and Supervisory Contracting Officer, Sept. 15, 2009, at 2-3. The raising of these 

concerns led to PER revisions that removed both the credit for [REDACTED] and 

the documented concern regarding [REDACTED]. Compare AR, Tab 13a, PER (Sept. 

23, 2009), at 17 with AR, Tab 13b, PER (Sept. 15, 2009), at 18. To the extent that 

Nova challenges these revisions, we find them reasonable. 

15 The SSA’s changes to the small business participation factor resulted in changes to 

the overall technical factor scores as follows: 67 points for Nova’s proposal and 

64 points for Clark’s proposal. AR, Tab 6, Source Selection Decision, at 4. 
mitigated by statements in Clark’s proposal that [REDACTED]. The SSA noted that 

the Nova team had also failed to meet small business goals in the past, but the SSET 

offset the weaknesses and gave Nova’s proposal a strength because it believed that a 

newly implemented [REDACTED] would address this issue. The SSA disagreed with 

this assessment because the [REDACTED] had only recently been developed, had 

been implemented in only one contract, and “there are no results to determine the 

effectiveness of [REDACTED].” The SSA also disagreed with the SSET’s conclusion 

that Clark’s “[l]imited utilization of local New Orleans partner firms will hamper [its] 

ability to garner local small business firms.” As noted by the SSA, Clark’s proposal 

had included [REDACTED] whereas Nova’s proposal did not include [REDACTED]. 

Furthermore, the SSA noted that Nova’s proposal included a preconstruction 

(CLIN 1) small business goal of only [REDACTED] percent, as compared to other 

offerors who proposed small business goals of [REDACTED] percent of their 

preconstruction prices. With regard to the SSET’s remaining conclusions, the SSA 

agreed with the SSET’s assessment that both offerors were “proactive” in holding 

“’job fair’ forums” to attract small business, Clark’s small business plan either met or 

exceeded all of the VA’s small business goals, and Nova’s small business plan met or 

exceeded some of the VA’s small business goals but did not meet others. Id. at 3-4, 

10; Contracting Officer’s Supp. Statement at 2-4; Tr. at 602, 606-08, 650-58; AR, 

Tab 8a, Final SSET Technical Evaluation Report, attach., at 4, 7. 

The SSA also disagreed with some of the SSET’s conclusions with regard to the price 

evaluation. Although the SSA did not alter the scores for this factor and accepted 

most of the strengths and weaknesses assessed to proposals under this factor, the 

SSA rejected the SSET’s assigned weaknesses that Clark’s price proposal presented 

risk because the offeror did not demonstrate an “understanding of the local New 

Orleans market” and would not be able to “absorb minor unforeseen issues without 

causing distress.” The SSA found that these weaknesses were “unsubstantiated,” 

that Clark “has shown they have the capability to work in different markets and 

complete the work within budget and on time,” and that Clark has the “tools in 

place” to respond to “minor unforeseen issues.” AR, Tab 6, Source Selection 

Decision, at 4-5. The SSA noted, too, that although Clark’s preconstruction (CLIN 1) 

price was higher than Nova’s, Clark’s overall lower price (by approximately 

$27 million) “gives the Government [the] greatest flexibility to absorb any changes 

without exceeding the ceiling price.” Id. at 10. 

With regard to the remaining evaluation factors, the SSA did not alter the SSET’s 

scores, concurring with the SSET’s analysis and highlighting some of the evaluation 

conclusions. Id. at 9-11. For example, the SSA noted that although the Nova team 

was currently using a contracting method similar to the one here, the Clark team had 

also worked on a project of similar size and scope. The SSA noted that both offerors 

teamed with firms that show an understanding of the local New Orleans market, and 

both offerors were similarly “organized and oriented in alignment with the CLINs.” 

In addition, the SSA found that both offerors’ proposals included “thorough and 

complete” preconstruction and construction schedules. Id. at 9-10. 

Page 9 B-402091 et al.
Considering all of the information before him, the SSA concluded that Nova’s and 

Clark’s proposals were “essentially equal” under the technical factor, despite Nova’s 

slightly higher overall technical score, and that Clark’s lower-priced proposal “offers 

the best overall value” to the government. AR, Tab 6, Source Selection Decision, 

at 9, 11-12. The SSA selected Clark for award and this protest followed. 

DISCUSSION 

Nova contends that the SSA’s source selection decision was unreasonable due to the 

“repeated failures of [the SSA] to make a source selection decision consistent with 

the evaluation findings of the SSET” and the solicitation. Nova’s Post-Hearing 

Comments at 1. In essence, Nova contends that the SSA was unreasonable in 

rejecting the SSET’s findings, particularly with regard to the small business 

participation and price factors. 

In reviewing an agency’s source selection decision, we examine the record to 

determine whether the decision was reasonable, consistent with the stated 

evaluation criteria, and adequately documented. AIU North America, Inc., 

B-283743.2, Feb. 16, 2000, 2000 CPD ¶ 39 at 7-8. Although source selection officials 

may reasonably disagree with the ratings and recommendations of evaluators, they 

are nonetheless bound by the fundamental requirement that their independent 

judgments be reasonable, consistent with the stated evaluation scheme, and 

adequately documented. Id.; DynCorp Int’l LLC, B-289863, B-289863.2, May 13, 2002, 

2002 CPD ¶ 83 at 4. A protester’s mere disagreement with a source selection 

official’s judgments does not demonstrate that those judgments are unreasonable. 

Entz Aerodyne, Inc., B-293531, Mar. 9, 2004, 2004 CPD ¶ 70 at 3. 

As our review of the record confirms, the SSA here performed a thorough and 

complete analysis of the evaluation record, which is contemporaneously 

documented in a well-reasoned source selection decision. Although appointed to the 

position late in the procurement, the SSA served as the contracting officer for this 

procurement and was in repeated contact with the former SSA and SSET chair 

throughout the procurement, including participating in drafting the PERs. Thus, the 

SSA was knowledgeable as to the details of the entire evaluation. Once appointed as 

the SSA, the SSA questioned the SSET with regard to some of their conclusions that 

either appeared inconsistent with the evaluation criteria or were unsubstantiated by 

the record, and the SSET never responded to the SSA’s concerns. Tr. at 268-69, 449, 

654. We note, also, that the consultant hired by the agency to assist with this 

procurement also raised concerns about some of the SSET’s conclusions, which the 

SSA considered. AR, Tab 19, Consultant Email to SSA and Supervisory Contracting 

Officer, Sept. 15, 2009, at 1-4. The SSA, in his source selection decision, documented 

each area of disagreement with the SSET and provided supporting rationale for his 

evaluation conclusions. We find that the SSA’s conclusions, including the areas of 

disagreement with the SSET, are supported by the record and are consistent with the 

Page 10 B-402091 et al.
Page 11 B-402091 et al.

evaluation criteria. Although we do not discuss each of Nova’s challenges to the 

evaluation, we discuss several of the protested issues below. 

Small Business Participation

For example, as noted above, the SSET assigned Clark’s proposal a weakness under 

the small business participation factor because individual team members had not 

met small business goals on some past projects. However, the SSET offset a similar 

weakness assessed to Nova’s proposal and gave the proposal a strength because 

Nova proposed to implement a [REDACTED]. AR, Tab 8a, Final SSET Technical 

Evaluation Report, attach., at 4, 7. 

The SSA disagreed with these SSET conclusions.16 The SSA found that the weakness 

assigned to Clark’s proposal did not recognize statements from Clark’s proposal that 

[REDACTED] which had been [REDACTED]. The SSA also concluded that Nova’s 

[REDACTED] had been overrated by the SSET because [REDACTED] had only 

recently been developed, had been implemented in only one contract, and “there are 

no results to determine the effectiveness of [REDACTED].” AR, Tab 6, Source 

Selection Decision, at 3-4, 10. 

Nova contends that the SSA should not have accepted Clark’s “conclusory” proposal 

statements about its [REDACTED] without making any attempt to confirm 

[REDACTED]. Nova asserts, also, that the SSA acted disparately when he failed to 

credit Nova’s proposal for making good faith efforts to meet small business goals on 

past contracts, and when he failed to positively consider Nova’s “more substantive 

response” concerning its [REDACTED]. Second Supplemental Protest at 7-9; Nova’s 

Comments at 14-16; Nova’s Post-Hearing Comments at 14-18. 

Our review of the record, however, supports the reasonableness of the SSA’s 

conclusions. With regard to the SSA’s acceptance of Clark’s proposal statements, 

the SSA similarly accepted statements in Nova’s proposal. In fact, it was Nova’s 

description of the limited and recent deployment of its [REDACTED] to only one 

 

16 The record shows that Nova’s team failed to meet the small business goals on six 

contracts; Clark’s team failed to meet the goals on five contracts, four of which the 

proposal noted involved [REDACTED]. AR, Tab 3D, Nova’s Technical Proposal, 

Small Business Participation, at 127-28; Tab 5E, Clark’s Technical Proposal, Small 

Business Participation, at 3. Only Clark provided the SF 294/295 for all of its team 

members’ prior contracts. Nova chose to provide only the SF 294/295 for the 

contract in which it implemented the [REDACTED]. Nova’s failure to provide the SF 

294/295 for all contracts as required by the RFP was another factor that the SSA 

reasonably considered in adjusting point scores under the small business 

participation factor. AR, Tab 6, Source Selection Decision, at 4, 10; Contracting 

Officer’s Statement at 4; RFP at 31-32. 
contract, as well as the SF 294/295 that Nova provided for this contract that showed 

that small business goals had not been met even with [REDACTED], which led the 

SSA to conclude that the SSET had overrated [REDACTED]. Contracting Officer’s 

Supplemental Statement at 4; see AR, Tab 3D, Nova’s Technical Proposal, Small 

Business Participation, at 120, 128, SF 294/295. Furthermore, Nova did not discuss 

any good faith efforts in connection with any of the other contracts where its team 

members failed to meet small business goals. AR, Tab 3D, Nova’s Technical 

Proposal, Small Business Participation; Tr. at 591-92. In contrast, Clark addressed 

each of the contracts where small business goals were not met, and indicated that 

[REDACTED] for meeting goals in four of those contracts. AR, Tab 5E, Clark’s 

Technical Proposal, Small Business Participation, at 3, SF 294/295. The SSA had no 

reason to doubt Clark’s statements concerning [REDACTED] to meet small business 

goals, and Nova has provided no evidence suggesting that Clark’s statements were 

erroneous. Based on the record, we find the SSA’s evaluation conclusions here were 

reasonable and did not evidence disparate treatment. 

In another example, the SSET assessed Clark’s proposal a weakness under the small 

business participation factor because it believed that Clark’s “limited utilization of 

local New Orleans partner firms will hamper [its] ability to garner local small 

business firms.” AR, Tab 8a, Final SSET Technical Evaluation Report, attach., at 7. 

However, the SSA disagreed with this assessment because Clark’s proposal had 

[REDACTED]--thus showing that the SSET’s belief that Clark could not garner local 

small businesses was “unsubstantiated.” AR, Tab 6, Source Selection Decision, at 3, 

10; Contracting Officer’s Supplemental Statement at 2; Tr. at 650-54. 

Nova contends that the foregoing discussion by the SSA regarding Clark’s use of 

local businesses constitutes an unstated evaluation criterion that could not be 

considered under the small business participation factor. However, Nova also 

argues that its proposal should have been credited for teaming with local large 

businesses. Although we agree with Nova that local business involvement would 

constitute an unstated evaluation criterion under this factor because it is not 

reasonably encompassed within the small business participation factor, local 

business involvement was not applied as an evaluation factor by the SSA. Rather, 

the record shows that the SSA’s discussion of this issue was merely in response to 

the SSET’s comments that indicated that this aspect of Clark’s proposal may inhibit 

Clark’s ability to obtain small business participation. See Tr. at 651-52, 657. The 

SSA’s elimination of a weakness associated with the SSET’s application of unstated 

criteria was reasonable. 

In another example, Nova challenges the SSA’s statement that Nova’s 

“preconstruction [CLIN 1] small business goal of [REDACTED] for a preconstruction 

price of [REDACTED] of the preconstruction price, while other offerors are between 

[REDACTED]” of their preconstruction prices. AR, Tab 6, Source Selection 

Decision, at 3, 10. Although Nova does not challenge the accuracy of this statement, 

Nova contends that the SSA deviated from the stated evaluation criteria when he 

Page 12 B-402091 et al.
Page 13 B-402091 et al.

“ignored Nova’s commitment to small business contracting under [CLIN 2],” and 

when he considered the goals as a percentage of total preconstruction or contract 

dollars as opposed to a percentage of subcontracting dollars.17 Nova’s Comments 

at 12-14. 

The SSA admitted at the hearing that he gave more weight to offerors’ proposed 

subcontracting goals for CLIN 1 because he was “getting ready to award” CLIN 1 and 

the CLIN 2 price and subcontracting plan were likely to change when the CLIN 2 

option was exercised. Tr. at 728-29. However, we do not find that this was 

unreasonable or inconsistent with the RFP. The RFP did not specify how 

subcontracting goals would be evaluated under each CLIN, thus leaving the agency 

with the discretion of how to evaluate each CLIN. While the evaluation record 

shows that the SSA considered the offerors’ goals under both CLINs, which is 

consistent with the protester’s view that the goals for the “entire project” must be 

considered, we find that the SSA acted within his discretion in giving more weight to 

CLIN 1, given that CLIN 2 was only an option and the subcontracting plan for CLIN 2 

could well change with the exercise of that option. 

We similarly reject Nova’s contention that the SSA unreasonably considered the 

offerors’ goals as a percentage of the overall contract value for CLINs 1 and 2, as 

opposed to a percentage of total subcontracting dollars.18 As stated above, the RFP 

expressly required offerors’ subcontracting plans to indicate their “total target 

[goals] as a percentage of contract value,” and therefore offerors were on notice that 

 

17 Nova also contends that the SSA deviated from the stated evaluation factors when 

he credited firms for meeting small business goals, when the RFP required only that 

offerors’ subcontracting plans be evaluated for exceeding (not meeting) the goals. 

Second Supplemental Protest at 3-5; see RFP at 34. However, this allegation is 

untimely under our Bid Protest Regulations as it was not raised within 10 days of 

when the basis of protest should have been known. 4 C.F.R. § 21.2(a)(2) (2009). The 

agency report provided to the protester on November 12, 2009, included both the 

RFP and the final SSET technical evaluation report, which identified that proposals 

were evaluated for meeting, not just exceeding, small business goals. AR, Tab 8a, 

Final SSET Technical Evaluation Report, attach., at 4, 7. Furthermore, the SSA 

provided a statement on December 7 that confirmed that Clark’s proposal had been 

credited for meeting small business goals. Contracting Officer’s Supplemental 

Statement at 2. Nevertheless, Nova failed to raise this ground of protest until 

December 28, after the GAO hearing. Although Nova contends that the SSA’s 

testimony during the hearing provided an independent basis of protest, we find that 

the testimony merely supported what was evident from the record documents 

provided to Nova weeks earlier. This protest ground is dismissed as untimely. 

18 As Nova points out, its goals for some of the small business categories are higher 

than Clark’s when measured as a percentage of subcontracting dollars. 
Page 14 B-402091 et al.

this would be evaluated. RFP at 31-32. Although Nova contends that the RFP 

provided contrary guidance by listing the VA’s goals as a percentage of 

subcontracting dollars and including a sample subcontracting plan as an attachment 

to the RFP that similarly calculated goals as a percentage of subcontracting dollars, 

we do not find that these aspects of the RFP can reasonably be interpreted to 

indicate that offerors’ target goals as a percentage of contract value could not or 

would not be evaluated.19

 

Nova also complains that the SSA misevaluated offerors’ small business 

subcontractor teaming arrangements. Nova contends that the SSA did not give the 

appropriate weight to offerors’ teaming arrangements, and that he evaluated these 

arrangements under the wrong subfactor. Nova’s Post-Hearing Comments at 13. 

As stated above, under the small business participation factor, the agency was 

required to evaluate, in “decreasing” order of importance the following subfactors: 

(1) the extent the offeror included small businesses through teaming arrangements, 

(2) the degree to which the offeror’s proposed subcontracting plan exceeded the 

VA’s stated small business goals, and (3) the offeror’s record of meeting or exceeding 

small business performance goals in past contracts. RFP at 34. The SSA testified 

that he considered all subcontractor arrangements under the second subfactor, 

which evaluated offerors’ subcontracting plans. Tr. at 553-54. Nova contends that 

this was in error, as teaming arrangements should have been considered under the 

first subfactor, which was given more weight in the evaluation. We agree with Nova 

that teaming arrangements should have been evaluated under the first subfactor, but 

find that Nova was not prejudiced by this aspect of the evaluation. 

Both offerors subcontracted or teamed with small business subcontractors. As 

stated above, under CLIN 1, Nova planned to subcontract [REDACTED] to a service 

disabled veteran owned small business ([REDACTED]) for [REDACTED], and Nova 

included in its proposal a “Teaming Agreement” to that effect. AR, Tab 3D, Nova’s 

Technical Proposal, Small Business Participation, at 116; Teaming Agreement. For 

CLIN 1, Clark proposed to subcontract [REDACTED] to [REDACTED] service 

disabled veteran owned small businesses [REDACTED] to provide [REDACTED]; 

[REDACTED];20 and [REDACTED]. Clark included with its proposal “Consultant 

Agreements” with each of these subcontractors. AR, Tab 5E, Clark’s Technical 

Proposal, Small Business Participation, at 2; Subcontracting Plan at 7-8th

unnumbered pages; Consultant Agreements. 

 

19 To the extent that Nova contends that the solicitation language is ambiguous, the 

ambiguity is patent and should have been protested as an apparent solicitation 

defect on or before the time that proposals were due. See 4 C.F.R. § 21.2(a)(1). 

20[REDACTED]. 
Nova contends that only its arrangement with [REDACTED] should be categorized 

as a teaming arrangement and considered under the most heavily weighted first 

subfactor of the small business participation factor and that Clark’s subcontracting 

arrangements cannot be considered under this subfactor. It bases this conclusion on 

the fact that it submitted a “Teaming Agreement” for its proposed subcontractor, 

whereas Clark only submitted “Consultant Agreements” for its subcontractors. 

Nova’s Post-Hearing Comments at 13. 

The term “teaming arrangement” is not defined in the solicitation, but the SSA 

considered this term to include both joint venture team members and subcontractor 

arrangements. Tr. at 551. The FAR similarly defines “team arrangement” to include 

situations where 

(1) Two or more companies form a partnership or joint venture to act 

as a potential prime contractor; or 

(2) A potential prime contractor agrees with one or more other 

companies to have them act as its subcontractors under a specified 

Government contract or acquisition program. 

FAR § 9.601. 

Here, Nova’s proposal makes clear that its relationship with [REDACTED] is as a 

prime/subcontractor and not a joint venture or other partnership. Nova also 

identifies the [REDACTED] as a “consultant” and not as key personnel. AR, Tab 3D, 

Nova’s Technical Proposal, at 40, 42, 44, 116; Teaming Agreement §§ 2, 7. Based on 

our review of the proposals, we think that Nova’s relationship with [REDACTED] is 

essentially no different than the prime/subcontractor relationships identified by 

Clark, and, in accordance with the definition set forth above, if Nova’s proposed 

subcontractor relationships could be considered “teaming arrangements,” so could 

Clark’s. The fact that the two offerors titled their agreements with their 

subcontractors differently does not require, based on the RFP or the FAR, that the 

agency give more weight to Nova’s relationship with the Ranger Group. Although it 

is true that [REDACTED]’s status as a service disabled veteran owned small business 

entitled it to the most weight under the evaluation subfactor for teaming 

arrangements, see RFP at 34, we note that Clark also subcontracted with 

[REDACTED] service disabled veteran owned small businesses [REDACTED], as 

well as [REDACTED] other small businesses. Thus, not only has Clark 

subcontracted with more specified service disabled veteran owned and other small 

businesses than Nova, Clark’s planned subcontracting dollars exceed that of Nova’s 

by [REDACTED] times. Accordingly, it appears that Clark’s proposal would have 

been entitled to receive even more favorable consideration than it received under the 

RFP had the SSA considered the subcontracting arrangements of these two offerors 

to be teaming arrangements under the first subfactor. Thus, even assuming that both 

offerors’ subcontracting arrangements should have been considered as teaming 

arrangements under the first subfactor, based on the record, Nova was not 

Page 15 B-402091 et al.
Page 16 B-402091 et al.

prejudiced by the SSA’s consideration of these similar arrangements under a lesser 

weighted subfactor.21

Finally, Nova objects to the scoring changes made by the SSA under the small 

business participation factor. As discussed above, the SSA reasonably considered 

each of the strengths and weaknesses documented by the SSET, agreeing with some 

and disagreeing with others where he found that the SSET either did not 

“thoroughly” consider the record or their conclusions were “unsubstantiated.” 

Tr. at 281-82, 459, 461, 650, 652, 654, 787, 797, 874. When all of the issues were 

considered together, the SSA appropriately determined that there was less difference 

between Nova’s and Clark’s proposals under the small business participation factor 

than the SSET had originally determined. Based on this record, we find the SSA’s 

judgments to be reasonable.22 

Price Evaluation

Nova challenges the SSA’s evaluation of proposals under the price evaluation factor. 

Specifically, Nova complains that the SSA rejected the SSET’s assessment of a 

weakness to Clark’s price proposal because of risks associated with Clark’s 

“apparent lack of understanding of the local New Orleans market and the inability to 

absorb minor unforeseen issues without causing distress.” AR, Tab 6, Source 

Selection Decision, at 4-5; Tab 8b, Final SSET’s Price Evaluation Report, at 2. The 

SSA determined that the SSET’s concerns were “unsubstantiated.” AR, Tab 6, 

Source Selection Decision, at 5; Tr. at 787, 791, 794. 

Initially, we question whether consideration of local market knowledge is 

encompassed within the price evaluation factor, which does not suggest in any 

way that this would be a consideration. In any event, we agree with the SSA that 

the SSET’s concern about Clark’s understanding of the local market was 

“unsubstantiated.” As the SSA noted, contrary to the SSET’s observations, Clark’s 

proposal demonstrated a knowledge of the local New Orleans market. In this regard, 

 

21 Nova’s argues, based on the testimony of the SSET chair, that Clark’s proposal did 

not demonstrate a “substantial and significant use of small businesses.” Nova’s 

Post-Hearing Comments at 19. However, as noted above, this testimony is not 

supported by the proposals, which demonstrate that both firms identified the work 

that their small businesses would perform, and Clark committed to providing a 

greater number of subcontracts and subcontracting dollars to small businesses than 

did Nova. 

22 Nova also protested the SSA’s evaluation of proposals under the key personnel and 

technical/management approach factors, contending that the SSA unreasonably 

concluded that Nova’s and Clark’s proposals were “similar” under these factors. 

Based on our review of the record, we find no merit to Nova’s arguments. 
Page 17 B-402091 et al.

Clark [REDACTED] under this RFP, and its proposal comprehensively addressed 

local market conditions. AR, Tab 4B, Clark’s Phase I Proposal, Local Market 

Conditions, at 1-8; Tab 5E, Clark’s Technical Proposal, Technical/ Management 

Approach, at 16. Clark, as a large business contractor who has successfully 

performed similar work in the past, demonstrated to the SSA its “capability to work 

in different markets and complete the work within budget and on time,” and the SSA 

noted that the SSET had failed to explain how these markets differed from New 

Orleans.23 AR, Tab 6, Source Selection Decision, at 5; Tr. at 791. We thus find that 

the SSA’s elimination of this weakness in Clark’s proposal was reasonable. 

Similarly, to the extent covered by the price evaluation factor, we agree with 

the SSA that Clark’s ability to address minor unforeseen challenges was also 

“unsubstantiated.” As noted by the SSA, Clark had project management and cost 

control “tools in place” to respond to “minor unforeseen issues” that could arise 

during the performance of the contract. AR, Tab 6, Source Selection Decision, at 5. 

In addition, the SSA asked the SSET to further explain its concerns, and the SSET 

did not respond. AR, Tab 13a, PER (Sept. 23, 2009), at 12; Tr. at 268-69. Based on 

this record and considering the SSET’s failure to substantiate its concerns, we find 

the SSA’s conclusion here was reasonable. 

Nova complains that the SSA gave too much weight to the $27 million price 

differential between offeror’s proposals, arguing that the price differential is 

“meaningless.” Nova’s Comments at 18. Nova also challenges the SSA’s conclusion 

that Clark’s lower overall price “gives the Government [the] greatest flexibility to 

absorb any changes without exceeding the ceiling price.” Nova’s Post-Hearing 

Comments at 22; see AR, Tab 6, Source Selection Decision, at 10. Nova contends 

that any price differential between the two offerors’ proposals was “ephemeral” 

given that the initial target price was only an estimate that would be renegotiated to 

develop a firm fixed price or firm target price upon the execution of CLIN 2. Nova’s 

Post-Hearing Comments at 22. Thus, Nova contends, it is not clear that the agency 

could implement a greater number of change orders to Clark without having to 

increase the overall ceiling price, and the price proposals should have been 

considered “essentially equal.” Id.; Nova’s Comments at 18. 

Although it is true that there is some estimation of prices in the proposal, the RFP 

contemplated that the agency would evaluate the reasonableness, realism, and 

completeness of offerors’ proposed initial target prices. RFP at 34-35. The RFP 

required, and offerors provided, detailed “Cost Estimate Reports,” calculations, and 

assumptions to support the development of their initial target prices. RFP at 32. 

 

23 Although Nova argues that the acquisition plan establishes differences between the 

New Orleans and other markets, Nova’s Comments at 21, the plan does not address 

other markets and only addresses the New Orleans market conditions. AR, Tab 11, 

Acquisition Plan; Tr. at 793. 
Page 18 B-402091 et al.

Thus, the proposed initial target prices are not as “meaningless” as Nova contends. 

The SSA’s consideration of strengths and weaknesses associated with these 

proposed prices are consistent with the RFP and are reasonably based on the 

information provided by the offerors. Although Nova disagrees with the SSA’s 

conclusions, it has not shown them to be unreasonable.24 

 

Best Value Decision

Finally, Nova challenges the SSA’s best value decision. Nova contends that the 

decision inadequately documents the SSA’s rationale, evidences a lack of 

consideration of key discriminators because it focuses on areas of disagreement with 

the SSET, and gives too much weight to the $27 million price differential. In sum, 

Nova contends that the SSA’s source selection is flawed because it minimized Nova’s 

technical superiority and overemphasized price.25 

As discussed above, the SSA’s source selection decision adequately explains why he 

concluded that Nova’s technical proposal was “essentially equal” to Clark’s proposal 

and was not worth the higher price. AR, Tab 6, Source Selection Decision, at 9, 

11-12. In this regard, the record shows that the SSA performed a thorough and 

comprehensive evaluation and documented his source selection decision in a 

manner that is consistent with both the RFP and the FAR. Although the SSA did not 

 

24 Nova also complains that the SSA was not provided with, and therefore failed to 

consider, a cost/price analysis performed by the agency consultant, which predicts 

“firm target prices” for each offeror based on hypothetical “firm target costs” and 

hypothetical profit rates that do not exist in the offerors’ proposals. Supplemental 

Protest at 2-3; Nova’s Hearing exh. 1, Consultant’s Cost/Price Analysis. (As noted 

above, in a fixed-price incentive (successive targets) contract, “firm target prices” 

are negotiated by the parties if and when the agency exercises the CLIN 2 option.) 

The consultant’s hypothetical analysis of “firm target prices” is not rationally or 

reasonably based on any facts in the record, and, in any event, the RFP did not 

permit consideration of “firm target prices” and limited the evaluation to “initial 

target prices.” Tr. at 16, 21-22, 26-27, 219; RFP at 34. Therefore, the fact that the SSA 

was not provided with, and therefore did not consider, the consultant’s analysis of 

firm target prices was appropriate. 

25 Nova also contends that the consultant’s opinion that inconsistencies between 

language in the PERs and the RFP created a risk of protest, which led to changes in 

the evaluation documents, evidences that the agency evaluated the risk of protest as 

an unstated evaluation criteria. However, there is nothing improper about an agency 

reviewing its evaluation documents for consistency with the solicitation and making 

corrections once those inconsistencies are identified; in fact, this review is a very 

reasonable approach to ensuring a well-supported source selection. The discussion 

of protest risk in this context is unobjectionable. 
Page 19 B-402091 et al.

address in his decision each and every proposal strength and weakness as Nova 

would have liked, he did highlight several aspects of the evaluation under each of the 

evaluation criteria, and he specifically addressed each area of disagreement with the 

SSET reports. 

The protest is denied. 

Lynn H. Gibson 

Acting General Counsel