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: Tamper Proof Container Systems Corporation 

File: B-402191 

Date: January 27, 2010 

John P. Connelly, Esq., and Christopher T. Hynes, Esq., Hinckley, Allen & Snyder 

LLP, for the protester. 

Marion T. Cordova, Esq., Department of Homeland Security, for the agency. 

Louis A. Chiarella, Esq., and Christine S. Melody, Esq., Office of the General Counsel, 

GAO, participated in the preparation of the decision. 

DIGEST 

Protest that agency improperly declined to award protester a contract under broad 

agency announcement for exploratory research in nuclear detection technology is 

denied where the record shows that the evaluation was conducted in accordance 

with the stated evaluation criteria and the agency reasonably concluded that the 

protester’s proposal was unacceptable under all the non-cost evaluation criteria. 

DECISION 

Tamper Proof Container Systems Corporation (TPCS), of Belmont, Massachusetts, 

protests the decision by the Department of Homeland Security (DHS), Domestic 

Nuclear Detection Office (DNDO), not to award it a contract under Broad Agency 

Announcement (BAA) No. BAA 09-101 for exploratory research in nuclear detection 

technology. TPCS argues that the agency’s evaluation of its proposal was improper. 

We deny the protest. 

DNDO is the office responsible for all DHS nuclear detection research, development, 

testing, evaluation, acquisition, and operational support; it develops the global 

nuclear detection architecture, conducts research and development, and acquires 

and supports the deployment of the domestic nuclear detection system. DNDO’s 

Transformational and Applied Research Directorate conducts, supports, and 

coordinates a transformational program of research and development (R&D) to 

dramatically improve national capabilities to detect and report attempts to import or 

transport a nuclear device, special nuclear material, or radiological materials 
intended for illicit use. BAA at 4. DNDO is the DHS activity which issued the BAA 

here.1

The BAA, issued on March 25, 2009, sought proposals for exploratory research only. 

Specifically, the solicitation stated that “this BAA is intended to transform the basic 

building blocks of nuclear detection technology” in the various technology topic 

areas and sub-topics that were listed in the BAA. 2

 Id. at 5. Offerors were required to 

propose to a specific sub-topic. Id. at 7. Relevant to the protest here, Topic Area 

(TA)-02 was “passive detection,” and Sub-Topic 2.3 was “non-traditional concepts for 

gamma and/or neutron detection,” which the BAA described as follows: 

For the detection of gamma rays and neutrons and their respective 

energies, alternative concepts are desired that utilize non-traditional 

properties of detection materials and associated readout technologies 

and/or techniques. . . . In this Sub-Topic, DNDO is soliciting the 

utilization of other material properties to sense the presence of 

gamma-ray or neutron radiation and to measure their energies. The 

intent is to stimulate investigation into these alternate means of 

radiation detection. . . . Submissions must involve novel concepts, and 

should not be related to concepts submitted in prior proposals unless 

substantially and justifiably different and improved. Furthermore, 

evidence of a literature search of prior related technology is required 

to help provide supporting evidence of the novelty of concepts 

presented in the proposal. 

Id. at 11-12. 

 

1

 A BAA is a contracting method by which agencies can acquire basic and applied 

research to fulfill requirements for scientific study and experimentation directed 

toward advancing the state of the art or increasing knowledge and understanding, 

rather than focusing on a specific system or hardware solution. Federal Acquisition 

Regulation (FAR) § 35.016. Unlike sealed bidding or other competitive procurement 

methods, a BAA does not contain a specific statement of work, and offerors who 

submit proposals are not competing against each other but rather are attempting to 

demonstrate that their proposed research meets the agency’s requirements. The 

agency may decide to fund those efforts and award contracts to those offerors who 

submit ideas which the agency finds suitable. See id.; Microcosm, Inc., B-277326 et 

al., Sept. 30, 1997, 97-2 CPD ¶ 133 at 1-2. 

2

 The BAA also contrasted exploratory research programs (like the one here) to 

advanced technology demonstrations, which are the final stage of development and 

evaluation of proven technologies in the DNDO transformational R&D program, and 

the potential subject of other agency BAAs. BAA at 5. 

Page 2 B-402191 
The BAA included instructions regarding the preparation of proposals. Specifically, 

offerors’ proposals were to consist of three separate volumes: Volume I, technical 

and management proposal; Volume II, supplemental data; and Volume III, cost 

proposal. Importantly, the solicitation informed offerors that “Volume I is the 

primary document to be evaluated by the technical reviewers,” while Volumes II and 

III were “supplementary materials” to be considered “at the discretion of individual 

reviewers.” Id. at 23, 26. 

The BAA announced that proposals would be evaluated under five evaluation 

criteria, in descending order of importance: transformational impact; technical 

approach; team capability and experience; management approach; and cost realism 

and reasonableness. Id. at 31. However, the BAA also stated that “[t]he primary 

basis for selecting proposals for award shall be relevance to the DNDO mission, 

technical merit, and funds availability.” Id. 

The BAA contemplated the award of multiple cost-plus-fixed-fee contracts, each 

with a base year and four 1-year options, although it also informed offerors that 

multiple awards were not guaranteed. Id. at 30, 35. In this regard, the agency also 

“reserve[d] the right to fund none, parts, or all of any proposal received . . .” and 

informed offerors that “[t]he actual number and size of awards under this BAA will 

be at the discretion of DNDO, based on the [stated evaluation] criteria . . . and the 

availability of funds.” Id. at 6. 

The DNDO received 34 proposals, including one from TPCS, by the June 9 closing 

date. TPCS submitted a proposal under Sub-Topic 2.3 (non-traditional concepts for 

gamma and/or neutron detection) for a six-sided intrusion detection system with 

embedded/integrated nuclear/radiation detection. In general terms, TPCS proposed 

taking a technology it had already developed to detect intrusions into freight 

containers (based on embedding a copper wire containing mesh into all six sides of a 

freight container using bespoke polymers), and extending the technology of using 

radiation sensitive optical fibers to add the capability of detecting gamma and 

neutron sources from within freight containers. Protest, Oct. 26, 2009, attach. B, 

TPCS Proposal, Vol. I, at 2. Among other things, TPCS’ proposal detailed how its 

technology was a layered, or integrated, detection system that could solve a number 

of problems associated with cargo container security simultaneously. Id. at 7. 

An agency technical evaluation board (TEB) evaluated offerors’ proposals under the 

stated evaluation criteria using an adjectival rating system: excellent; very good; 

good; fair; and unacceptable. The TEB also identified the various strengths, 

weaknesses, and deficiencies that it found in support of its adjectival ratings. Based 

on the evaluation ratings, the TEB then assigned proposals one of three selection 

recommendations: “highly recommended” (proposals should be funded if funding 

exists); “selectable” (proposals should be funded if sufficient funding is available 

after funding the highly recommended proposals); and “not selectable” (even if 

sufficient funding existed, the proposal should not be funded). Agency Report (AR), 

Page 3 B-402191 
Tab 6, TEB Report, at 8. Overall, the TEB found one proposal to be “highly 

recommended” for selection, ten proposals to be “selectable,” and the remaining 

proposals to be “not selectable.”3 Id. at 8-12. The TEB’s ratings of TPCS’ proposal, 

which was the lowest-ranked proposal, were as follows: 

Evaluation Criteria Rating 

Transformational Impact Unacceptable 

Technical Approach Unacceptable 

Team Capability and Experience Unacceptable 

Management Approach Unacceptable 

Cost Realism and Reasonableness Good 

Selection Recommendation Not Selectable 

Id. at 79-82. 

Additionally, the TEB did not identify any strengths in TPCS’ proposal under any 

evaluation factor other than cost, and identified a total of 24 weaknesses under the 

non-cost evaluation factors, including that: 

• TPCS’ proposal does not provide enough information about its detector system to 

determine any transformational impact. The detector system has been 

researched for multiple years, and TPCS is looking for funding to build a 

container and perform sea trials. There is no transformational impact in this 

proposal. This effort may be more suited to an Advanced Technology 

Demonstration if TPCS can provide system performance information. 

• Turning an intrusion detection system into a radiation detection system by 

replacing copper wires with radiation sensitive optical fibers is not 

transformational. 

• TPCS’ technical approach is really a vague concept of operations. The offeror 

does not provide any details about the actual detectors, nor do they discuss the 

science. Instead, they focus on the physical attributes, such as wire spacing and 

how it would be installed. 

• The current team consists only of TPCS; it is not clear that they possess the 

necessary manpower, background, or experience in this area. Their cost 

estimate indicates that they need to hire two engineers/physicists if awarded, 

indicating they do not have the existing staff. 

• No management approach provided in proposal. 

 

3

 Because of funding availability, the TEB recommended that only the nine highestranked offerors actually be awarded contracts. Id. at 9. 

Page 4 B-402191 
Id. Based on its evaluation, the agency determined that TPCS’ proposal was 

unsuited for an exploratory research contract and not among the most meritorious 

proposals for negotiations and/or contract award. The agency provided TPCS with 

notice that its proposal was no longer being considered for award on September 24, 

and this protest followed. 

TPCS asserts that DNDO’s evaluation of its proposal as not meeting the agency’s 

needs was unreasonable. The protester primarily argues that the agency unfairly 

made its conclusions and decision concerning the transformational and technical 

merits of TPCS’ proposal without reading and considering the entire proposal, 

specifically Volume II, which contained the “lion’s share” of the technical and 

scientific details regarding TPCS’ submission. In support of its assertion, TPCS 

contends that during the post-selection debriefing, the lead TEB evaluator 

acknowledged that he had not read Volume II of TPCS’ proposal. TPCS argues that 

had all three volumes of its proposal been fully, fairly, and properly evaluated, its 

proposal could have (and more importantly, should have) been selected for contract 

award.4

 Protest, Oct. 26, 2009, at 10; Comments, Dec. 9, 2009, at 1-3. 

We find TPCS’ central challenge--that the agency improperly failed to consider its 

entire proposal--fails to state a valid basis of protest. As detailed above, the BAA 

expressly and repeatedly stated that Volume I was the only aspect of offerors’ 

proposals that the technical evaluators were required to consider, while Volumes II 

and III were to be considered solely at the discretion of the individual reviewers. 

Because the TEB members were not required to consider Volumes II and III of 

offerors’ proposals as part of their evaluation, the protester’s allegation that the lead 

TEB member did not read Volume II of its proposal, even if correct, does not 

establish a violation of any term of the solicitation or applicable procurement statute 

 

4

 TPCS also initially protested that the Security and Accountability For Every Port 

Act of 2006 (SAFE Port Act) required DHS to scan 100% of in-bound and out-bound 

high-risk cargo containers, and that TPCS’ technology had the unique ability to meet 

the SAFE Port Act requirements of providing 100% scanning of maritime containers 

(thereby essentially requiring it to be selected for contract award). Protest, Oct. 26, 

2009, at 9-10. The agency addressed this aspect of TPCS’ protest in its report to our 

Office, AR, Nov. 24, 2009, at 11, and TPCS’ comments offered no rebuttal of the 

agency’s positions. Comments, Dec. 9, 2009, at 1-5. Where, as here, an agency 

provides a detailed response to a protester’s assertion and the protester does not 

respond to the agency’s position, we deem the issue to have been abandoned. 

Remington Arms Co., Inc., B-297374, B-297374.2, Jan. 12, 2006, 2006 CPD ¶ 32 at 4 

n.4. Similarly, to the extent TPCS initially protested the evaluation of its proposal 

under the team capability and experience and management approach factors, we 

find these challenges to have been abandoned as well. 

Page 5 B-402191 
or regulation.5

 We note that the decisions relied on by TPCS (e.g., Intown Props., 

Inc., B-262236.2, B-262237.2, Jan. 18, 1996, 96-1 CPD ¶ 89 (holding that agency finding 

that certain personnel proposed by protester were unqualified was improper where 

the record showed that the agency failed to consider different personnel proposed in 

protester’s revised proposal) are inapposite to this case, as the agency evaluators 

here were expressly not obligated to take into account the information included in 

Volume II as part of their evaluation. In this connection, Volume II was intended to 

include “supplemental data”; it was not for the purpose of providing the required 

technical and scientific details of TPCS’ technical proposal. 

To the extent TPCS challenges the agency’s evaluation on bases independent from 

its argument regarding consideration of its proposal Volume II, the protester fails to 

show that the evaluation was unreasonable. We discuss below representative 

examples of the agency’s evaluation findings and the protester’s challenges. 

In reviewing a protest of an agency’s proposal evaluation, it is not our role to 

reevaluate proposals. Rather, we will consider only whether the evaluation was 

reasonable and consistent with the terms of the solicitation and applicable 

procurement statutes and regulations. Gamut Elecs., LLC, B-292347, B-292347.2, 

Aug. 7, 2003, 2003 CPD ¶ 150 at 4; HMX, Inc., B-291102, Nov. 4, 2002, 2003 CPD ¶ 52 

at 7. An offeror’s mere disagreement with an agency’s judgment is not sufficient to 

establish that the agency acted unreasonably. HMX, Inc., supra. 

Here, for example, TPCS challenges DHS’ evaluation of its proposal under the 

transformational impact factor. As set forth above, the BAA described the 

exploratory research sub-topic chosen by TPCS as one involving novel concepts for 

the detection of gamma rays and neutrons and their respective energies by utilizing 

non-traditional properties of detection materials and associated readout 

technologies and/or techniques. The TEB found TPCS’ idea of turning an intrusion 

detection system into a radiation detection system by using radiation sensitive 

optical fibers was not transformational, that the offeror’s proposal failed to provide 

sufficient information about the detection system to determine its transformational 

impact, and that TPCS’ proposed effort was more suited to an advanced technology 

demonstration and not exploratory research. The protester contends that its use of 

optical fiber light attenuation and the rate of attenuation for the detection of 

neutrons is a novel (i.e., transformational) concept. We find the protester’s assertion 

 

5

 To the extent TPCS believes that DHS should have considered offerors’ entire 

proposals in order to make an informed evaluation judgment, its protest is untimely. 

Our Bid Protest Regulations require that protests based upon alleged improprieties 

in a solicitation, which are apparent prior to the time set for receipt of proposals, 

must be filed prior to that time. 4 C.F.R. § 21.2(a)(1) (2009). The BAA here plainly 

laid out the evaluation scheme the agency would follow. 

Page 6 B-402191 
Page 7 B-402191 

amounts to mere disagreement with the agency’s judgment, which does not render it 

unreasonable. 

TPCS also challenges DHS’ evaluation of its proposal under the technical approach 

factor. The TEB rated the offeror’s proposal as unacceptable based on numerous 

weaknesses, including that the technical approach portion of TPCS’ proposal was “a 

vague concept of operations. The offeror does not provide any details about the 

actual detectors, nor do they discuss the science. Instead, they focus on the physical 

attributes, such as wire spacing and how it would be installed.” AR, Tab 6, TEB 

Report, at 80. In challenging these findings, TPCS argues that the TEB evaluators 

disregarded the additional technical and scientific information contained in 

Volume II of its proposal when determining the merits of its technical approach (an 

argument which we have already considered and rejected). The protester also 

argues that its detection system represented a way to solve multiple problems 

simultaneously and not just radiation detection. However, as the BAA here was for 

exploratory research regarding the detection of gamma rays and neutrons and their 

respective energies only, and did not seek an integrated detection system network, 

we think that the record shows that the agency’s evaluation of TPCS’ technical 

approach, and its conclusion that TPCS’ proposal was ill-matched to the sub-topic it 

had chosen, were reasonable. 

In sum, we find reasonable the agency’s evaluation of TPCS’ proposal and the 

determination not to award a contract to TPCS under the BAA here. 

The protest is denied. 

Lynn H. Gibson 

Acting General Counsel