United States Government Accountability Office

Washington, DC 20548

Comptroller General

of the United States

Decision

Matter of: Next Tier Concepts, Inc.

File: B-406620.3; B-406620.4

Date: November 13, 2012

Donald J. Walsh, Esq., Offit Kurman, for the protester.

Bradley D. Wine, Esq., Morrison & Foerster LLP, for Emagine IT, Inc., an intervenor.

Heather M. Self, Esq., Department of Agriculture, for the agency.

Mary G. Curcio, Esq., and David A. Ashen, Esq., Office of the General Counsel, 

GAO, participated in the preparation of the decision.

DIGEST

1. Protest that debriefing after initial award became discussions which were 

required to be meaningful when the agency took corrective action and accepted 

revised quotations is denied. 

2. Protest that awardee gained an unfair advantage when it hired a former 

government employee is denied where the record contains no “hard facts” to 

demonstrate that the former government employee had access to inside information 

or assisted the awardee in preparing its quotation. 

DECISION

Next Tier Concepts, Inc., of Vienna, Virginia, protests the Department of 

Agriculture’s issuance of a delivery order to Emagine IT, Inc., of Fairfax, Virginia,

under request for quotations (RFQ) No. AG-3144-S-12-0007-000002, for support 

services for the National Resources Conservation Service-Office of the Chief 

Information Officer (NRCS-OCIO). Next Tier asserts that the agency failed to 

provide it with meaningful discussions and unreasonably evaluated its proposal. 

Next Tier also complains that Emagine gained an unfair competitive advantage

through hiring a former government employee. 

We deny the protest.

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-406620.3, B-406620.4 

BACKGROUND

The RFQ, issued on February 16, 2012 for commercial IT services, contemplated 

the issuance of a fixed price delivery order on a best value basis, based on the 

following equally weighted evaluation factors: past performance, price, and 

management approach. The management approach factor in turn was comprised of

6 subfactors: management practices approach; CIO strategic management support; 

IT governance, data quality, and project management office support; IT security 

management; enterprise architecture; and infrastructure management and support. 

Following the March 21 submission and evaluation of quotations, a delivery order 

was issued to Next Tier. Subsequently, two unsuccessful vendors protested the 

award to our Office. In response, the agency took corrective action. Specifically, the 

agency cancelled the award; amended the solicitation to include four documents 

providing vendors with information on the agency’s requirements and the 

performance work statement; and requested and evaluated revised quotations. With 

respect to its revised quotation, Next Tier was rated green for management 

practices; yellow for CIO strategic management support, IT governance, and 

infrastructure management; red for IT security management and enterprise 

architecture; and limited confidence for past performance.1

 Next Tier Consensus 

Evaluation. Next Tier offered to perform for $32,683,011.02. Id. Emagine was 

rated blue for management practices, IT governance, and IT security management; 

green for CIO strategic management support, enterprise architecture, and

infrastructure management; and satisfactory confidence for past performance. 

Emagine offered to perform for $30,655,778.20. Emagine Consensus Evaluation. 

The delivery order was issued to Emagine based on its higher technical ratings and 

lower price. Following a debriefing, Next Tier submitted this protest to our Office. 

DISCUSSION

Initial versus Reopened Competition

Next Tier protests that the agency failed to hold meaningful discussions with the 

firm. Next Tier does not assert that the agency opened formal discussions at any 

time, but instead contends that the debriefing it was provided following the initial

award and before the agency took corrective action constituted discussions. Next 

Tier explains that during this debriefing the agency informed it of the weaknesses in 

its quotation. According to Next Tier, it relied on this information in preparing its 

 

1 The adjectival ratings for management approach were blue-exceptional, greenacceptable, yellow-marginal, and red-unacceptable. The past performance ratings 

were substantial confidence, satisfactory confidence, limited confidence, no 

confidence and unknown confidence. 
Page 3 B-406620.3, B-406620.4 

response to the amended solicitation; addressed only the weaknesses noted during 

the debriefing; and overall did not change its quotation substantially. Next Tier 

complains that during the subsequent debriefing following the corrective action, the 

agency listed a number of weaknesses in its quotation that were not pointed out 

during the first debriefing. Next Tier concludes that the debriefing conducted after 

the initial award took the place of discussions, and since several weaknesses were 

not pointed out at that time, the agency failed to hold meaningful discussions. 

Next Tier’s argument is without merit. Discussions are exchanges between the 

government and offerors that are undertaken prior to award with the intent of 

allowing offerors to revise their proposals. See Federal Acquisition Regulation 

(FAR) § 15.306(d). In contrast, the purpose of a debriefing is not to give offerors the 

opportunity to cure deficiencies for the instant procurement, but instead to furnish 

the basis for the selection decision and contract award so they can better compete in 

the future. See Eggs & Bacon, Inc., B-310066, Nov. 20, 2007, 2007 CPD ¶ 209 at 4 

n.5; Consolidated Eng’g Servs., Inc., B-293864.2, Oct. 25, 2004, 2004 CPD ¶ 214 at 

5; OMV Medical, Inc.; Saratoga Medical Center, Inc., B-281388, Feb. 3, 1999, 99-1 

CPD ¶ 53 at 9 n.3. The subsequent reopening of the competition did not transform 

the debriefing into discussions. 

Unfair Competitive Advantage

Next Tier protests that the awardee, Emagine, hired Mr. JH, the former acting 

director for IT governance for the NRCS IT Services Division. According to Next 

Tier, Mr. JH was involved in drafting and overseeing the procurement, including the 

evaluation process. Next Tier believes that Mr. JH possessed intimate knowledge 

about the specific needs of the agency, the price and approaches of various offerors, 

and the evaluation of the quotations. 

Contracting agencies are required to avoid even the appearance of impropriety in 

government procurements. FAR § 3.101-1. Where a firm may have gained an 

unfair advantage through its hiring of a former government official, the firm can be 

disqualified from a competition based on the appearance of impropriety, even if no 

actual impropriety can be shown, so long as the determination of an unfair 

competitive advantage is based on facts, and not mere innuendo or suspicion; there 

must be “hard facts” establishing the person’s access to nonpublic information which 

could provide a firm with an unfair competitive advantage. Health Net Federal 

Services, LLC, B-401652.3, B-401652.5, Nov. 4, 2009, 2009 CPD ¶ 220 at 29, 30.

Here, there is no basis for concluding that hiring Mr. JH provided Emagine an unfair 

competitive advantage in the competition. In this regard, the awardee denies that 

Mr. JH assisted in its proposal preparation. Specifically, Emagine explains that it 

approached Mr. JH about employment sometime after August 9, well after the 

July 27 closing date for submission of revised quotations and shortly after the 

August 7 notice of award; and only sent Mr. JH an offer of employment (on a 
Page 4 B-406620.3, B-406620.4 

different project) by letter of August 15, resulting in him commencing employment 

only on September 4. Declaration of President of Emagine; Offer of Employment, 

August 15, 2012. Next Tier has offered no convincing rebuttal to these dates, which 

by themselves preclude the possibility of Emagine gaining an unfair competitive 

advantage in the competition by hiring Mr. JH. Moreover, while the Army

acknowledges that Mr. JH assisted in preparing the performance work statement 

and the evaluation criteria, Contracting Officer’s Declaration at 2, the agency denies 

that Mr. JH was otherwise involved in the procurement. Specifically, the agency 

reports that Mr. JH did not evaluate proposals, have access to any source selection 

information, or otherwise take part in the procurement. Id. at 3. Given this absence 

of any “hard facts” to show an apparent impropriety in the procurement process, 

there is no basis to conclude that Emagine had an unfair competitive advantage that 

should result in its exclusion from the competition.

 

Technical Evaluation

Next Tier generally complains that the ratings for its revised quotation were 

substantially reduced from those initially received. As noted by the agency, 

however, the quotations submitted in response to the amended RFQ were evaluated 

by a new panel which also had an enhanced understanding of the agency’s needs 

from the documents provided in the amended RFQ. Further, the agency expected 

that vendors would submit substantially more detailed offers based on the enhanced 

understanding that these documents provided. Agency Report at 3. Indeed, the 

amended solicitation specifically advised vendors that: “The information submitted 

in response to this amended RFQ will be evaluated completely on its own. No 

reference to the old information submitted will be given to the evaluators.” Amend. 2 

Summary. Furthermore, we have long recognized that different evaluation panels 

could reasonably reach different conclusions regarding the quality of an offeror's 

proposal given the subjective judgment necessarily exercised by evaluators. See

SOS Interpreting, Ltd., B-293026.4, B-293026.5, Aug. 25, 2004, 2005 CPD ¶ 25 at

7; Warvel Prods., Inc., B-281051.5 , July 7, 1999, 99-2 CPD ¶ 13 at 10-12; tg Bauer 

Assocs., Inc., B-229831.6, Dec. 2, 1988, 88-2 CPD ¶ 549 at 7. 

Next Tier specifically protests that the agency unreasonably evaluated its quotation 

under two subfactors under the management approach factor. In this regard, Next 

Tier asserts that the agency unreasonably assigned weaknesses to its quotation for 

failing to adequately address memorandums of understanding under the CIO 

strategic management support subfactor and not addressing technology standards 

and standardization of processing under the enterprise architecture subfactor; and 

unreasonably rated its past performance limited confidence, rather than unknown 

confidence. 

Competitive prejudice is an essential element of a viable protest, and where the 

protester fails to demonstrate prejudice, our Office will not sustain a protest. 

McDonald-Bradley, B-270126, Feb. 8, 1996, 96-1 CPD ¶ 54 at 3. Here, Next Tier 
Page 5 B-406620.3, B-406620.4 

has challenged the evaluation of its quotation under two subfactors of the 

management approach factor--the CIO strategic management support subfactor for 

which it was rated yellow or marginal, and the enterprise architecture subfactor for 

which it was rated red or unacceptable. In each case, Next Tier has challenged one

weakness. The agency, however, assigned Next Tier’s quotation five weaknesses 

under the first subfactor and six weaknesses under the second subfactor. Thus, 

even if Next Tier is correct about the challenged weaknesses, there appears to be 

no basis for concluding that its ratings for these two subfactors would substantially 

increase. Further, even if its ratings for these two subfactors increased to green, 

Next Tier would still have less than acceptable ratings on at least 3 subfactors, and 

Emagine’s quotation would still have higher ratings than Next Tier’s for at least 

4 subfactors. Furthermore, even if Next Tier is correct in its assertions with respect 

to past performance, Next Tier would only be rated unknown confidence in contrast 

to Emagine’s rating of satisfactory confidence. Since Next Tier also proposed a 

higher price than Emagine, there simply is no basis to conclude that Next Tier 

suffered any prejudice from the alleged evaluation errors. 

The protest is denied. 

Lynn H. Gibson

General Counsel