United States General Accounting Office

Washington, DC 20548 

Comptroller General

of the United States

Decision 

Matter of: Wilson Beret Company 

File: B-289685 

Date: April 9, 2002 

James A. McMillan, Esq., and Alan M. Grayson, Esq., Grayson Kubli & Hoffman, for 

the protester. 

Sharif T. Dawson, Esq., and Marlene Surrena, Esq., Defense Supply Center 

Philadelphia, for the agency. 

Paul E. Jordan, Esq., and John M. Melody, Esq., Office of the General Counsel, GAO, 

participated in the preparation of the decision. 

DIGEST 

Protest of exclusion of protester’s proposal from the competitive range is sustained 

where evaluation under one factor was unreasonable, and correct evaluation could 

have resulted in a different competitive range determination. 

DECISION 

Wilson Beret Company protests the elimination of its proposal from the competitive 

range under request for proposals (RFP) No. SPO100-01-R-0045, issued as a total 

small business set-aside by the Defense Supply Center Philadelphia (DSCP), Defense 

Logistics Agency (DLA) for military berets. Wilson asserts that the agency 

improperly evaluated its proposal. 

We sustain the protest. 

The RFP sought proposals to supply the Army and Air Force with berets of various 

colors, including black. With regard to black berets, the RFP contemplated the 

award of a fixed-price contract for a 2-year base period, with three 1-year options, 

encompassing 3,643,488 units. Proposals were to be evaluated on the basis of five 

factors, listed in descending order of importance: experience/past performance; 

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-289685 

manufacturing plan; quality control plan; DLA mentoring business agreements 

program; and price.1

 Non-price factors were significantly more important than price. 

Award was to be made to the offeror whose proposal was most advantageous to the 

government. 

Thirteen offerors, including Wilson, submitted written proposals to supply black 

berets, which were evaluated as follows: 

 Past 

Performance 

Mfg. 

Plan 

Quality 

Plan 

DLA 

Mentor 

Overall Price 

(millions) 

Offeror 1 A (low end) MA A N A [deleted] 

Offeror 2 MA UA UA 6 UA [deleted] 

Offeror 3 A MA A N A [deleted] 

Offeror 4 MA (high end) MA A N MA [deleted] 

Offeror 5 MA A MA 3 MA [deleted] 

Offeror 6 HA A A N A [deleted] 

Offeror 7 MA (high end) MA MA 1 MA [deleted] 

Wilson MA (low end) MA HA 4 MA [deleted] 

Offeror 9 A MA HA 2 A [deleted] 

Offeror 10 MA A HA N A [deleted] 

Offeror 11 MA (high end) MA HA 5 MA (high end) [deleted] 

Offeror 12 MA (low end) MA MA N MA [deleted] 

Offeror 13 MA (high end) MA A N MA [deleted] 

Agency Report (AR), Tab 6. Based on these evaluation results and prices, the 

contracting officer eliminated Wilson and offerors 2, 7, and 9-13 from the competitive 

range due to their technical ratings and their higher proposed prices, all of which 

exceeded the agency’s price objective for black berets. AR, Tab 7, ¶ 5. In 

eliminating Wilson’s proposal, the contracting officer noted that it had been rated 

marginally acceptable under both the experience/past performance and 

manufacturing plan factors, resulting in an overall marginally acceptable rating. 

Specifically, she found: 

The Manufacturing Plan rated Marginally Acceptable contains 

deficiencies in the manufacturing procedures, production scheduling 

and production equipment subfactors . . . . Wilson’s offered prices 

exceed the Government’s negotiation objectives and the offered prices 

of the highest technically rated offeror in the competitive range, 

 

1

 With the exception of the DLA mentoring factor, non-price factors were rated on an 

adjectival basis as highly acceptable (HA), acceptable (A), marginally acceptable 

(MA), or unacceptable (UA). RFP § M, at 52.215-9P17. The DLA mentoring factor 

was evaluated on the basis of numerical ranking among the offerors or neutral (N). 
Page 3 B-289685 

[offeror 6]. Its technical proposal is considered inferior to [Offerors 1, 

3, and 6] and although it is essentially equal to that of [Offerors 4 and 5] 

from a technical standpoint, it is not superior to them and does not 

contain features which warrant retaining it in the competitive range. 

AR, Tab 7, ¶ 7(h). After receiving notice of its elimination from the competitive 

range and a debriefing, Wilson filed this protest challenging the evaluation of its 

proposal under the experience/past performance and manufacturing plan factors, 

and the resulting elimination of its proposal from the competitive range. 

The determination of whether a proposal is in the competitive range is principally a 

matter within the discretion of the procuring agency. Dismas Charities, Inc., 

B-284754, May 22, 2000, 2000 CPD ¶ 84 at 3. Federal Acquisition Regulation (FAR) 

§ 15.306(c) allows an agency to establish a competitive range consisting of only the 

most highly-rated proposals. Our Office will review an agency’s evaluation of 

proposals and determination to exclude a proposal from the competitive range for 

reasonableness and consistency with the RFP and applicable statutes and 

regulations. Novavax, Inc., B-286167, B-286167.2, Dec. 4, 2000, 2000 CPD ¶ 202 at 13; 

SDS Petroleum Prods., Inc., B-280430, Sept. 1, 1998, 98-2 CPD ¶ 59 at 4. 

We find that the evaluation of Wilson’s proposal under the experience/past 

performance factor was reasonable, but that the evaluation under the manufacturing 

plan factor was not. 

EXPERIENCE/PAST PERFORMANCE 

DLA rated Wilson’s experience/past performance marginally acceptable based in 

part on Wilson’s performance on a prior contract with Bancroft Cap [deleted], and its 

proposal to rely on Bancroft for assistance and consultation in various areas of 

contract performance. Wilson asserts that it was improper for the agency to take 

Bancroft’s poor past performance into account because Wilson did not propose to 

subcontract or otherwise team with that firm. In Wilson’s view, it is a “start-up”

company with no past performance record, and therefore should have been rated 

neutral for experience/past performance. 

Wilson is correct that, where an offeror has no record of past performance, it may 

not be evaluated favorably or unfavorably on past performance. FAR 

§ 15.305(a)(2)(iv); Boland Well Sys., Inc., B-287030, Mar. 7, 2001, 2001 CPD ¶ 51 at 2, 

n.1. However, the record shows that Wilson did have a past performance record 

concerning beret manufacture. According to its proposal, “Wilson Beret employees 

(including the owner) have past experience producing the black berets for DSCP 

through Bancroft Cap” and “assisted Bancroft Cap establish a finishing operation” in 

a building rented to Bancroft by Wilson (the “Osceola facility”). Wilson Proposal 

at 2. With regard to Wilson’s president and majority owner, the proposal noted her 

training “on all aspects of the beret production and processes,” her status as a 
Page 4 B-289685 

licensed ISO 9000:2000 instructor, her engineering degree, and work “as a process 

engineer and as a quality engineer in local industry.” Wilson Proposal at 2-3, 10. In 

addition, an August 2001 letter from Bancroft to the agency identified the “finishing 

operation” referred to in Wilson’s proposal as including “attaching the leather 

sweatband onto the beret,” and identified Wilson’s president as the “manager of the 

new facility.” Supplemental AR, attach. 1. 

Where a proposed employee will have a significant role in contract performance, an 

agency reasonably may consider that employee’s past performance in evaluating the 

offeror’s proposal. Lynwood Mach. & Eng’g, Inc., B-287652, Aug. 2, 2001, 2001 CPD 

¶ 138 at 4. Notwithstanding Wilson’s claimed status as a startup company, its 

proposal representations provided DLA with a reasonable basis for concluding that 

Wilson, through its owner, possessed past performance history with beret 

production that warranted assigning Wilson’s proposal other than a neutral past 

performance rating. 

Wilson asserts that its connection to the Bancroft contract was limited. Specifically, 

the protester avers that its president was not hired as a Bancroft employee and did 

not receive compensation from Bancroft; spent only 2 to 4 hours per week at the 

facility; never entered into a contract to manage the facility; and only agreed to the 

limited role at the request of the local mayor and chamber of commerce to “create 

jobs for the community.” Protester’s Supplemental Comments at 7. Whether or not 

Wilson’s characterization is correct, however, the fact remains that its proposal, 

evidently designed to obtain maximum evaluation credit, specifically identified its 

own past experience producing berets with Bancroft, and stated that it assisted 

Bancroft in establishing the Osceola facility. Further, as the August 2001 letter 

shows, Bancroft understood that the facility was being managed by Wilson’s owner. 

To the extent that its connection to Bancroft’s contract in fact was very limited, it 

was incumbent upon Wilson to make this clear in its proposal. Offerors are 

responsible for submitting an adequately written proposal. Carlson Wagonlit Travel, 

B-287016, Mar. 6, 2001, 2001 CPD ¶ 49 at 3. 

In addition to Wilson’s own relevant past performance, the agency considered 

Bancroft’s past performance in evaluating Wilson under the past performance factor. 

In determining whether one company’s performance should be attributed to another, 

an agency must consider the nature and extent of the relationship between the two 

companies--in particular, whether the workforce, management, facilities, or other 

resources of one may affect contract performance by the other. Lynwood Mach. & 

Eng’g, Inc., B-285696, Sept. 18, 2001, 2001 CPD ¶ 113 at 4. Wilson proposed extensive 

use of Bancroft facilities, expertise, and certain former employees to perform this 

contract. For example, its proposal stated under the title “Experience/Past 

Performance” that the firm “can demonstrate the ability to successfully produce the 

berets” due to: Bancroft’s past mentoring of Wilson, including training of Wilson 

Beret owners and employees “on all aspects of the beret production and processes”; 

Bancroft’s offer to train additional employees “on all aspects of the production and 
Page 5 B-289685 

quality assurance, particularly the felting, dying and/or blocking operations”; 

Bancroft’s agreement to consult with Wilson in areas including “manufacturing, sale 

and distribution of berets, assistance and advice in establishing the manufacturing 

facility/equipment layout, establishing an accounting system, purchasing of 

equipment, inventory/supplies, and production shipping and distribution”; and 

Wilson’s intention, if awarded the contract, to possibly assume Bancroft’s Osceola 

facility, “including its equipment, staff and system.” Wilson Proposal at 2-3. Wilson 

also proposed to hire two of Bancroft’s current supervisors, id. at 10, and proposed 

to use Bancroft’s facilities for 150 days for felting, until Wilson’s own machines were 

delivered. Id. at 6. While Wilson states that it has no formal teaming arrangement 

with Bancroft, its proposed reliance on that firm for virtually all aspects of contract 

performance made Bancroft’s past performance relevant and appropriate for the 

agency to consider. 

DLA’s past performance evaluation conclusions based on both Wilson’s own and 

Bancroft’s past performance were reasonable. Bancroft had experienced delivery 

problems on its beret contract, and the Osceola facility, ostensibly managed by 

Wilson’s president, was brought in to supplement Bancroft’s production capacity. 

AR, Tab 5. Wilson apparently was unable to resolve the problem, because Bancroft 

subsequently requested a revision/extension of its already delinquent delivery order. 

Id. Under these circumstances, the agency could reasonably conclude that Wilson’s 

past performance was marginally acceptable. 

MANUFACTURING PLAN 

Wilson asserts that the agency improperly evaluated its proposal as marginally 

acceptable under the manufacturing plan factor. The proposal was rated marginally 

acceptable under the first, second and fourth subfactors based on the agency’s 

finding that it lacked information, including training details and certain written 

commitments. Wilson maintains that these ratings were unreasonable because the 

information was either included in its proposal, or was not required by the RFP. We 

find that the downgrading of Wilson’s proposal under the first and fourth subfactors 

was unreasonable.2

 

 

2

 We find nothing improper in the evaluation of Wilson’s proposal as marginally 

acceptable under the second subfactor, production scheduling (offerors’ control and 

surveillance over subcontractors to ensure that the delivery schedule is met). RFP 

§ L, at 130. The downgrading was based on the absence of an agreement defining the 

duration and extent of Bancroft’s involvement in the contract. AR, Tab 11. Wilson 

asserts that this was improper because there was no requirement that such an 

agreement be provided (Protester’s Comments at 9). However, in light of Wilson’s 

proposed reliance on Bancroft, we believe the agency reasonably could expect such 

documentation of Bancroft’s role to be furnished; Wilson’s failure to furnish the 

information thus provided a reasonable basis for downgrading its proposal. 
Page 6 B-289685 

First Subfactor 

Under the first subfactor, offerors were to describe manufacturing procedures to 

produce the berets, including a list of operations and proposed standard allowed 

minutes, standard allowed hours, and number of operators. RFP § L, at 130. In its 

evaluation, the agency downgraded Wilson’s proposal on the basis that it did not 

include sufficient information on manufacturing operations, operators, and proposed 

training. However, the agency now concedes that Wilson’s proposal did in fact 

contain sufficient information regarding manufacturing operations and operators, 

and now maintains that Wilson’s marginally acceptable rating was justified because 

“the firm still failed to indicate how much training (and its duration) it anticipated 

was necessary.”

3

 AR at 8-9. Wilson maintains that this conclusion is unreasonable 

because its proposal included detailed training information. 

Even ignoring the fact that DLA essentially has re-evaluated this aspect of Wilson’s 

proposal in response to the protest, the evaluation conclusion is unsupported.4

 

Wilson’s proposal included a Gantt chart containing entries for five different training 

activities, with durations of from 12 to 22 weeks. Wilson Proposal at 16. Even 

though the protester specifically called attention to, and included a copy of, this 

chart in its comments on the agency report, the agency ignored this argument in its 

supplemental report, and has not undertaken to explain why the chart did not satisfy 

the informational requirement. Given this failure to address the matter, the fact that 

the chart, on its face, seems to provide precisely the information requested, and the 

fact that the agency has abandoned the other bases for downgrading Wilson’s 

proposal in this area, there appears to be no basis for Wilson’s receiving any rating 

lower than acceptable for this subfactor. 

 

3

 We note that the agency also commented negatively on Wilson’s proposal to use a 

[deleted] instead of a true linking machine to perform one of the manufacturing 

operations. DLA does not rely on this aspect of the evaluation to support the 

marginally acceptable rating. 

4

 Although our Office considers the entire record in determining the reasonableness 

of an agency’s evaluation, including statements and arguments made in response to a 

protest, we accord greater weight to contemporaneous materials rather than 

judgments made in response to protest contentions, such as the agency’s new 

judgment here that the training information deficiency alone warranted a marginally 

acceptable rating for the subfactor. This reflects the concern that, because it was 

prepared in the heat of an adversarial process, it may not represent the fair and 

considered judgment of the agency, which is a prerequisite of a rational evaluation 

and source selection process. Boeing Sikorsky Aircraft Support, B-277263.2, 

B-277263.3, Sept. 29, 1997, 97-2 CPD ¶ 91 at 15. 
Page 7 B-289685 

Fourth Subfactor 

Under the fourth subfactor, offerors were to provide a profile of the major plant 

equipment proposed for use on the contract. RFP § L, at 131. The agency rated 

Wilson’s proposal marginally acceptable based on the absence of letters of 

commitment (LOCs) for any of the equipment it proposed to obtain. AR, Tab 11. 

Wilson maintains that the downgrading of its proposal on this basis was 

unreasonable because the RFP made no mention of a requirement for LOCs in this 

area; Wilson states that it would have provided LOCs had it been aware that its 

proposal otherwise would be downgraded. The agency responds that it was 

permissible for it to determine the need for LOCs on a case-by-case basis, even 

absent an RFP requirement for them. 

While we would agree with the agency that it generally may consider LOCs in an 

evaluation even where they are not expressly required by the RFP, it was 

unreasonable for the agency to do so here because the RFP was misleading. In this 

regard, the production equipment subfactor stated: 

The offeror shall provide a profile of the major plant equipment 

proposed for use on any resultant contract. At a minimum, the offeror 

shall provide a listing that specifies the manufacturer, model number, 

age, general condition, and quantity of each item listed. If this 

equipment will not be on hand at the time of solicitation closing, 

identify the equipment you plan to acquire and describe your method 

of obtaining the equipment in sufficient time to meet the production 

requirements. Please note that for equipment procured outside the 

United States, documentation must be provided for the mode of 

transportation and the time frame for shipping.

RFP § L, at 131. This description provided specific informational guidelines for 

offerors to follow with regard to equipment to be obtained after the time of 

solicitation closing. While it called for identification of the equipment and the 

method of timely obtaining it, and required other specific documentation for 

non-domestic equipment, it did not require LOCs. In contrast, the immediately 

preceding third manufacturing plan subfactor, materials, informed offerors--in all 

upper case, underlined text--that they must submit LOCs from material suppliers for 

all components with lead times. RFP § L, at 131. Wilson provided the required LOCs 

for materials. The agency did not find (and does not now assert) that Wilson’s 

proposal did not meet the informational requirements for the fourth subfactor; 

rather, the sole reason for the marginal acceptability rating provided by the agency 

was the failure to provide LOCs. Under the circumstances, we think Wilson 

reasonably read the list of required information as exclusive, and thus could 

reasonably assume that it would not be penalized for failing to provide information 

that was not specified. We conclude that it was unreasonable for the agency to 

downgrade Wilson’s proposal for failure to include LOCs. 
Page 8 B-289685 

Prejudice 

We will sustain a protest where there is a reasonable possibility that the protester 

was prejudiced by the agency’s actions, that is, that, but for the agency’s actions, it 

would have had a substantial chance of receiving the award. McDonald-Bradley, 

B-270126, Feb. 8, 1996, 96-1 CPD ¶ 54 at 3; see Statistica, Inc. v. Christopher, 102 F.3d 

1577, 1581 (Fed. Cir. 1996). This standard is met here. Absent the flaws discussed 

above, Wilson’s proposal would have been evaluated as acceptable under both the 

manufacturing procedures and production equipment subfactors. Wilson thus would 

have had acceptable ratings under three of the four subfactors (only the production 

scheduling subfactor would remain marginally acceptable), and since the four 

subfactors were of equal weight (RFP amend. 0001, § M, at 147), it is reasonable to 

assume that Wilson’s proposal may have been rated overall acceptable under the 

manufacturing plan factor. This added acceptable rating, combined with Wilson’s 

ratings under the other factors, reasonably could have resulted in an overall 

acceptable technical rating; however, even if Wilson’s proposal remained marginally 

acceptable overall, its individual factor scores would be similar to those of other 

offerors included in the competitive range.5

 

DLA asserts that, even if all of Wilson’s disputed ratings were raised, its proposal still 

would be eliminated from the competitive range due to its higher price. 

Supplemental Report at 7. However, the record does not support this position. 6

 

While Wilson’s price exceeded the agency’s “negotiation objectives,” Offeror 6 was 

included in the competitive range despite the fact that its price also exceeded those 

objectives. Further, although the agency eliminated Offerors 9 and 10 due to their 

higher proposed prices notwithstanding their overall acceptable ratings, Wilson’s 

price was lower than those offerors’ prices. Finally, it is clear from the contracting 

officer’s explanation of her decision to eliminate Wilson’s proposal that her decision 

was based on technical and price factors combined. AR, Tab 7, ¶ 7(h). We conclude 

that it is not clear whether Wilson’s proposal would have been eliminated from the 

 

5

 Offeror 4 was marginally acceptable (high end), marginally acceptable and 

acceptable under the three factors, while Offeror 5 [deleted] was marginally 

acceptable, acceptable and marginally acceptable. Wilson’s ratings, as adjusted in 

accordance with our conclusions, could be marginally acceptable (low end), 

acceptable and highly acceptable. 

6

 Further, the agency’s position in this regard represents, at best, a post hoc

price/technical tradeoff. As discussed above, it is our view that such post-protest 

judgments made in the heat of the adversarial process may not reflect the fair and 

considered judgment of the agency. Boeing Sikorsky Aircraft Support, supra. 
Page 9 B-289685 

competitive range had the evaluation been conducted properly. Accordingly, we 

sustain the protest. 7

 

RECOMMENDATION 

We recommend that the agency re-evaluate Wilson’s proposal on the basis of the 

flaws discussed above and make a new competitive range determination with 

appropriate supporting documentation. We also recommend that Wilson be 

reimbursed the reasonable costs of filing and pursuing the protest, including 

attorneys’ fees. 4 C.F.R. § 21.8(d)(1) (2001). The protester should submit its 

certified claim for such costs, detailing the time expended and the costs incurred, 

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

The protest is sustained. 

Anthony H. Gamboa 

General Counsel 

 

7

 Wilson also asserts that the agency improperly failed to provide it an opportunity to 

respond to the negative past performance information referenced in the evaluation. 

Protest at 11. Under FAR § 15.306(b)(1), agencies must conduct discussions with 

offerors “whose past performance information is the determining factor preventing 

them from being placed in the competitive range.” The agency asserts that Wilson’s 

past performance rating was not the “determining factor”; rather, it was Wilson’s 

overall technically marginal proposal, coupled with its higher proposed price, that 

resulted in its proposal’s elimination. In view of our conclusion that the evaluation 

and the resulting competitive range determination were deficient, this issue is 

academic and not for consideration. Dyna-Air Eng’g Corp., B-278037, Nov. 7, 1997, 

97-2 CPD ¶ 132.