Noblis MSD, LLC

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: Noblis MSD, LLC

File: B-423599; B-423599.2

Date: September 11, 2025

Rebecca Pearson, Esq., Brandon E. Dobyns, Stephen G. Darby, Esq., Alexander Gorelik, Esq., and Celeste Friel, Esq., Taft Stettinius & Hollister LLP, for the protester.
J. Alex Ward, Esq., James A. Tucker, Esq., Markus G. Speidel, Esq., and Cody B. Fisher, Esq., Morrison & Foerster LLP, for Solute Inc., the intervenor.
Diana L. King, Esq., Department of the Navy, for the agency.
Michael Willems, Esq., and Evan D. Wesser, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1. Protest alleging that agency erred by making award to an offeror whose proposal did not include a signed standard form 33 is denied where the offer contained other material evidence of the offeror's intent to be bound by its offer.

2. Protest alleging that agency misevaluated proposals and made an unreasonable source selection decision is denied where the record shows that the agency's evaluation was reasonable and consistent with the terms of the solicitation.

DECISION

Noblis MSD, LLC, of Philadelphia, Pennsylvania, challenges the award of a contract to Solute, Inc., of San Diego, California, under request for proposals (RFP) No. N66001-24-R-0022, issued by the Department of the Navy for engineering, technical, and programmatic support services. The protester alleges the agency erred in its evaluation and best-value tradeoff decision in numerous respects.

We deny the protest.

BACKGROUND

The agency issued the RFP on Nov. 17, 2023, seeking engineering, technical, and programmatic support services for specialized networking, communication, and computer systems that are part of the Consolidated Afloat Networks and Enterprise Services (CANES), which, among other things, supports command and control in naval operations. Agency Report (AR), Tab 5, RFP at 1, 8. The RFP contemplated the award of a single indefinite-delivery, indefinite-quantity cost-plus-fixed-fee contract with a 3-year base period and two 2-year options. Id. at 2-4. The RFP explained that award would be made on the basis of a best-value tradeoff between three technical factors and cost. Id. at 141-142. The three technical factors, listed in descending order of importance, were: (1) organizational experience; (2) past performance; and (3) small business participation. Id. The non-cost factors when combined were significantly more important than cost, but the RFP explained that “the degree of importance of cost will increase with the degree of the equality of proposals in terms of the non-cost evaluation factors.” Id. at 142.

The solicitation identified four key technical areas that the agency would evaluate for both organizational experience and past performance: (1) architecture research and design; (2) upgrades; (3) developmental testing; and (4) application integration and application development. RFP at 136, 143. However, the solicitation explained that these areas did not constitute sub-factors and would not be rated separately. Id. at 143. Instead, each technical factor would be rated based on an overall evaluation of all key areas. Id.

Concerning organizational experience, the RFP directed offerors to provide three references, along with a matrix explaining the relevance of those experience references to the four key areas and other supporting material. Id. at 136. The RFP explained that the same references would also be used to evaluate past performance for recency, relevance, and quality across the four key areas. Id. at 137. The RFP explained that quality would be assessed using Contract Performance Assessment Reporting System (CPARS) assessments, past performance questionnaires submitted by offerors, as well as other sources. Id. However, the RFP cautioned that the agency “does not assume the duty to search for data to cure the problems it finds in the information provided by the offeror […] [t]he burden of providing thorough and complete past performance information remains with the offeror.” Id. at 138.

Relevant to this protest, the solicitation provided that an offer “must” include several components. RFP at 125. For example, the solicitation required a “[s]tatement of unconditional assent to all terms, conditions, and provisions included in the RFP,” and, separately, a standard form 33 (SF-33) with specific identified blocks completed by the offeror, including the signature block (box 18). Id. at 125-126. The RFP went on to note that:

The completion and submission to the Government of the above items will constitute the offer. The offer must communicate the unconditional assent to the terms and conditions in this RFP, including any attachments and documents incorporated by reference. Acceptance of the offer will create a binding contract between the parties. The failure or refusal to assent to any of the terms and conditions of this RFP or the imposition of additional conditions or any material omission by the offeror may constitute a deficiency which may make the offer unacceptable.

Id. at 126

The agency received two proposals in response to the RFP, one from the protester and one from the intervenor. Memorandum of Law (MOL) at 5. During an initial evaluation, the agency evaluators concluded that Solute's proposal was unacceptable because, in addition to another minor irregularity, Solute's SF-33 was unsigned. AR, Tab 8.1, Source Selection Evaluation Board (SSEB) Report at 29. However, after internal consultation, the contracting officer concluded that Solute's proposal, which, among other things, included a signature on its cover page, indicated a sufficient intent to be bound by its offer, and that the lack of signature amounted to a minor informality that did not render the proposal unacceptable. Supp. MOL at 9-10. The agency evaluated both proposals and both offerors were assigned the highest adjectival ratings for all three non-cost factors, with a total evaluated cost of $109,978,079 for Noblis and $102,557,997 for Solute. AR, Tab 7, Business Clearance Memorandum at 49. The source selection authority (SSA) concluded that the two proposals were “essentially equal in all non-cost evaluation factors,” and therefore that there was no basis to justify paying a 7 percent premium for Noblis's proposal. Id. at 50. The agency then made award to Solute, and this protest followed.

DISCUSSION

Noblis alleges that the agency erred in its evaluation and best-value tradeoff in several respects. First, Noblis alleges that Solute failed to sign its proposal and therefore was ineligible for award. Comments and Supp. Protest at 11-15. Second, Noblis argues that the agency erred in evaluating both organizational experience and past performance. Id. at 18-30, 33-35. Finally, Noblis challenges the agency's best-value tradeoff arguing that it was unreasonable. Id. at 32-33, 35. We address these arguments in turn.[1]

Unsigned SF-33

First, the protester argues that the agency should have rejected the awardee's proposal as unacceptable because the awardee's proposal did not include a signed SF-33. Comments and Supp. Protest at 11-15. The protester notes that the solicitation clearly required offerors to include a signed SF-33, among other things, and explained that proposals that did not meet the requirements could be found unacceptable and rejected. Id. More significantly, the protester contends that our decisions have concluded that an agency may not waive a failure to sign a proposal because, where an offeror has not indicated an unequivocal intent to be bound, the agency cannot create a legally binding agreement by accepting the unsigned offer. Id. at 11 (citing Distributed Solutions, Inc., B-416394, Aug. 13, 2018, 2018 CPD ¶ 279 at 3). Lastly, the protester notes that the agency itself initially concluded that the awardee's proposal was unacceptable for precisely this reason, before subsequently reversing itself after internal discussions. Id. at 12.

In response, the agency concedes that the awardee's proposal did not include a signed SF-33 and that the agency initially concluded the awardee's proposal was unacceptable, in part, for that reason. Supp. MOL at 9-10. However, the agency notes that the awardee's proposal included a signed cover letter immediately preceding the unsigned SF-33 that expressly stated that the proposal was valid for 240 days, as noted on the SF-33 and as required by the solicitation. Id. The signed cover letter also affirmatively represented that the proposal took no exception to the terms and conditions of the solicitation. Id. Based on the signed statement in the awardee's proposal, the agency concluded that the awardee had indicated a clear intent to be bound by its proposal, and that the failure to sign the SF-33 could be waived as a minor informality. Id.

On the specific facts present here, we agree with the agency's conclusion. Our decisions have repeatedly concluded that an offer, which is not signed and lacks some other material indication of the offeror's intention to be bound, generally must be rejected since the government's acceptance of the offer would not result in a binding contract without confirming the offeror's intention to be bound. Distributed Solutions, Inc., supra at 7 (concluding that an agency could reject unsigned proposal that included only the offeror's representative's printed name rather than a signature).

However, that is not the case here because the awardee's proposal included other material indications of its intent to be bound. As the agency explains, the cover letter of the proposal was signed and included a commitment that the offer was “valid” for 240 days as well as confirming that the awardee took no exception to the terms of the solicitation. AR, Tab 11, Solute's Volume I Proposal at 5. Moreover, other than the signature block, the awardee had filled all required fields on the unsigned SF-33, including the field that identified, by name, a senior vice president who was authorized to sign on behalf of the awardee. Id. at 6. Significantly, the senior vice president identified on the SF-33 is the same individual who signed the cover letter on the immediately preceding page of the proposal. Id. at 5-6. These facts, collectively, support the reasonableness of the agency's conclusion that the awardee expressed a material intent to be bound, and that the agency could waive this requirement of the RFP without competitive prejudice to other offerors.[2] See American Cybernetic Corp., B‑310551.2, Feb. 1, 2008, 2008 CPD ¶ 40 at 2-3 (competitive prejudice is an essential element to every viable protest, and where an agency's allegedly improper actions did not affect the protester's chances of receiving award, there is no basis for sustaining the protest).

Organizational Experience

The gravamen of the protester's challenge to the agency's evaluation of Solute's organizational experience is that the agency's assignment of a rating of outstanding was irrational in light of the numerous risks and concerns the agency identified in Solute's organizational experience for key area 4, Application Integration and Application Development. Comments and Supp. Protest at 18-30. Specifically, the protester argues that the evaluators assessed a strength for Solute's key area 4 organizational experience when the actual evaluation narrative suggested that Solute should have been assigned a weakness instead of a strength for that area. Id. For example, the agency evaluators noted that Solute did not demonstrate experience with the full range of challenges inherent in the work, which created risk because Solute's experience did not indicate familiarity with necessary protocols or services. AR, Tab 8.1, SSEB Report at 41. Furthermore, the contemporaneous evaluation shows several other areas in which the evaluators concluded that Solute's organizational experience failed to demonstrate adequate experience with various aspects of the key area and posed a risk to performance. Id. at 39-42. The protester argues that these evaluation findings, at minimum, met the definition of a weakness, which the source selection plan defined as a “[a] flaw in an offeror's proposal that increases the risk of unsuccessful contract performance[,]” and that Solute's organizational experience should not have been assessed as outstanding overall. Protester's Comments and Supp. Protest at 19-20 (citing AR, Tab 6, Source Selection Plan at 10).

In response, the agency first notes that, while the evaluators found that some aspects of the awardee's organizational experience posed risk for key area 4, the evaluators also found that other aspects of Solute's experience had merit, and that the experience examples for key area 4, considered as a whole, demonstrated adequate experience. Supp. MOL at 13-14. For example, the agency highlights the SSEB's finding that one of Solute's experience references included significant achievements that facilitated [DELETED], which had merit because some applications contemplated by the RFP would be able to leverage a similar approach for integration or development. Id. (citing AR, Tab 8, SSEB Report at 40).

More significantly, the agency also noted that the solicitation was clear that individual key areas would not receive adjectival ratings and that each offeror's organizational experience would be rated across all four key areas. Id. at 14‑15. In this regard, Solute demonstrated ample experience for key areas 1-3 and received significant strengths for those three key areas. Additionally, the rating criteria explained that a rating of outstanding would be assigned when a proposal demonstrates exceptional experience and contains multiple strengths or at least one significant strength, and the risk of unsuccessful performance is low. See, AR, Tab 8.1, SSEB Report at 31. Accordingly, while Solute's experience in key area 4 was less ample than its experience for key areas 1-3, the four key areas considered together easily supported an overall rating of outstanding for this factor. Supp. MOL at 14-15.

In response, the protester argues that, while the agency is correct, that the evaluators summarized Solute's experience for key area 4 as overall adequate, such a finding still does not support assigning a strength in that area, and the numerous areas of risk identified did not represent a low risk of unsuccessful performance such that the overall rating of outstanding was unreasonable. Protester's Supp. Comments at 14-16.

In reviewing a protest challenging an agency's evaluation, our Office will not reevaluate proposals nor substitute our judgment for that of the agency, as the evaluation of proposals is a matter within the agency's discretion. Ad Hoc Research Assocs., LLC, B‑420641, B‑420641.2, July 5, 2022, 2022 CPD ¶ 154 at 5. We instead review the record to determine only whether the agency's evaluation was reasonable and consistent with the stated evaluation criteria as well as applicable procurement statutes and regulations. Id. A protester's disagreement with the agency's judgment, without more, does not establish that the evaluation was unreasonable. DEI Consulting, B‑401258, July 13, 2009, 2009 CPD ¶ 151 at 2.

Here, the protester simply disagrees with the agency's assessment of the merit of the awardee's experience. While the protester is correct that the evaluators found that Solute's experience posed several risks concerning key area 4, the evaluators found the overall risks to be low and could likely be overcome with minor government intervention. They also found that other aspects of the experience had merit, therefore the combined experience for that area warranted a strength. See, e.g., AR, Tab 8.1, SSEB Report at 41, 45. While the protester contends that the risks clearly outweighed the areas of merit, the question of whether, collectively, those risks and areas of merit represented a strength or a weakness is fundamentally a judgment call left to the agency. We see no basis on the record before us to conclude that the agency's judgment was clearly unreasonable.

Past Performance

The protester primarily challenges the agency's past performance evaluation on the basis that the agency allegedly ignored negative past performance information concerning Solute that was allegedly “too close at hand” to ignore.[3] Comments and Supp. Protest at 33-35; Protest at 11-15. Specifically, the protester alleges that a specific agency official indicated that Solute performed poorly on an incumbent effort, such that the agency was compelled to shift work to Noblis. Id. The protester also contends that the work involved was substantially similar to the current requirement, was for the same procuring activity, and the contracting officer's representative (COR) for both efforts was the same individual. Protester at 12-13. Accordingly, the protester contends the agency was obliged to consider this negative performance information.

In response, the agency argues, first, that the contract the protester argues should have been considered was affirmatively submitted by Solute as a past performance reference, along with six task orders under that contract. MOL at 6. The contemporaneous evaluation record shows that the evaluators considered CPARS submitted for that reference, which were collectively found to be satisfactory. AR, Tab 8.1, SSEB Report at 52. Additionally, the agency provided sworn declarations from the individual the protester identified as the source of the alleged adverse information about Solute's performance as well as another cognizant agency official, both of whom explained that Solute's performance under the incumbent contract was not poor and that the work in question was not shifted from Solute to Noblis because of any performance concerns. See MOL, exh. A, Declaration of Division Deputy for Organizational Improvement, and exh. B, Declaration of Program Manager.

Rather, the work in question represented an expansion that required the issuance of a new task order, and issuing a task order to Noblis rather than to Solute was a lower cost option to the government. Id. The agency issued a task order to Noblis because of that price advantage and not because of any concern with Solute's performance. Id. Finally, the agency argues, in the alternative, that even if this were a negative performance example, the information was not too close at hand because the two individuals who had personal knowledge of the event in question were not involved in this source selection, the CORs for the incumbent efforts were not part of the evaluation team for this procurement, and none of the actual evaluators for this procurement had any first-hand knowledge of the incident the protester argues should have been considered. MOL at 9.

Where a protester challenges an agency's evaluation of past performance, we will review the evaluation to determine if it was reasonable and consistent with the solicitation's evaluation criteria and applicable procurement statutes and regulations. Recogniti, LLP, B-410658, Jan. 21, 2015, 2015 CPD ¶ 49 at 4. As a general matter, an agency's evaluation of offerors' past performance is a matter of discretion, which we will not disturb unless the agency's assessments are unreasonable or inconsistent with the solicitation criteria. Government and Military Certification Sys., Inc., B-411261, June 26, 2015, 2015 CPD ¶ 192 at 8-9. However, in certain circumstances, when evaluating past performance, we have concluded that evaluators cannot ignore information of which they are personally aware (i.e., information that is “too close at hand”), even if that information is not included in the offeror's proposal. See, e.g., Firestorm Wildland Fire Suppression, Inc., B-310136, Nov. 26, 2007, 2007 CPD ¶ 218 at 4. In the narrow instances where we have applied this principle, we have required the protester to demonstrate that the outside information bearing on the offeror's proposal was not just known by the agency generally but, rather, was known to the specific agency employees involved in the source selection process. General Dynamics Info. Tech., Inc., B-420589, B-420589.2, June 15, 2022, 2022 CPD ¶ 149 at 26.

The agency is correct that the record reflects that the evaluators concluded that Solute received uniformly Satisfactory CPARS ratings on the reference in question, but the provided record does not reflect any discussion or specific consideration of the incident the protester contends should have been considered. AR, Tab 8.1, SSEB Report at 52. The protester and the agency disagree about the underlying facts and sequence of events: while the agency contends that there was no negative performance on Solute's part, the protester disputes that conclusion.

However, even assuming, for the sake of argument, the protester is correct that the agency failed to consider this information and that it was negative performance information, we cannot conclude that the agency was obliged to consider the information on these facts. The protester identified the agency officials who were involved in the alleged redirection of the work, and both of those officials have provided sworn statements indicating that they were not involved in the evaluation or source selection decision for this procurement. Moreover, the agency provided a list of individuals actually involved in the evaluation and source selection for this procurement and the protester has not alleged that any of those individuals had firsthand knowledge of the alleged incident. That is, even assuming the evaluators failed to consider this information and the information in question represented negative past performance information, which is not clear from the record, the protester has not established that the evaluators ignored information of which they were personally aware or otherwise should have been aware of. See Firestorm Wildland Fire Suppression, Inc., supra. Accordingly, we cannot conclude that the agency was compelled to consider this information on these facts, and this protest ground is without merit.

Best-Value Tradeoff

Finally, the protester argues that the agency erred in the conduct of its best-value tradeoff. The protester makes several alternative arguments concerning the tradeoff decision, but the gravamen of the protester's argument is that the agency erred by concluding that the protester and the awardee were essentially equal with respect to non-cost factors, simply because both offerors had the same adjectival ratings. Comments and Supp. Protest at 25-30, 32-33, 35. The protester contends that the SSA failed to look behind the adjectival ratings and reached an unreasonable conclusion because, among other things, the organizational experience of the two offerors was not equal. Id. The protester notes that its organizational experience received significant strengths in all four key areas and the agency identified no risks in the protester's proposal. Id. By contrast, while Solute's proposal received significant strengths for the first three key areas, the evaluators assessed various risks to the Solute's proposal under key area 4, and the tradeoff narrative did not meaningfully address this discriminator between the two proposals. Id. The protester argues that, had the SSA fully acknowledged the scope of this risk, he might have reached a different conclusion because organizational experience was the most important non-cost evaluation factor. Id.

In response, the agency denies that the SSA failed to look behind the adjectival ratings. The agency notes that the SSA specifically acknowledged that Solute's organizational experience for key area four posed some risk, explaining that Solute “[could] successfully perform the contemplated effort with the potential need for minor assistance and ramp-up from the Government” to reduce risk of poor performance. Supp. MOL at 13 (citing AR, Tab 7, Business Clearance Memorandum at 50). Moreover, later on the same page of the business clearance memorandum, the SSA concluded that “[a]s discussed above, Noblis and Solute were considered essentially equal in all non-cost evaluation factors.” AR, Tab 7, Business Clearance Memorandum at 50. The agency argues that the SSA did not conclude that the two offerors were essentially equal because he failed to look behind the ratings but rather reached that conclusion because he did not view the differences between the proposals as significant. Supp. MOL at 14-15. Moreover, the agency contends that our decisions do not require that a finding of technical equality be supported by strict numerical or adjectival equivalency. Id. at 15 (citing The SI Org., Inc., B‑410496, B-410496.2, Jan. 7, 2015, 2015 CPD ¶ 29 at 14; Ogilvy, Adams & Rinehart, B-246172, B-246172.2, Apr. 1, 1992, 92-1 CPD ¶ 332). Accordingly, the agency contends that cost was the primary discriminator between the two proposals and Solute's proposal represented the best value because of its lower cost.

Source selection officials have broad discretion in determining the manner and extent to which they will make use of the technical and price evaluation results, and their judgments are governed only by the tests of rationality and consistency with the stated evaluation criteria. Integrity Mgmt. Consulting, Inc., B-418776.5, June 22, 2021, 2021 CPD ¶ 245 at 10. When reviewing an agency's source selection decision, we examine the supporting record to determine if it was reasonable and consistent with the solicitation's evaluation criteria and applicable procurement statutes and regulations. The SI Organization, Inc., B-410496, B-410496.2, Jan. 7, 2015, 2015 CPD ¶ 29 at 14. Additionally, it is well-established that adjectival ratings are merely guides for intelligent decision making in the procurement process. CAMRIS Int'l, Inc., B-416561, Aug. 14, 2018, 2018 CPD ¶ 285 at 4. Source selection officials are required to consider the underlying bases for ratings, including the advantages and disadvantages associated with the specific content of competing proposals. General Dynamics, American Overseas Marine, B‑401874.14, B-401874.15, Nov. 1, 2011, 2012 CPD ¶ 85 at 10.

Here we find no basis to object to the SSA's consideration of the competing merits of the proposals. While the protester is correct that the business clearance memorandum does not recite verbatim all of the assorted risks identified by the technical evaluators concerning Solute's organizational experience for key area 4, the SSA clearly recognized that Solute's proposal posed some risk regarding its organizational experience in key area 4, and explained that, in his view, the risk could be mitigated with minor assistance from the agency. AR, Tab 7, Business Clearance Memorandum at 50.

A finding that the two proposals were essentially technically equal is not irrational on these facts: both offerors received significant strengths for three of the four key areas, and the agency reasonably concluded, as discussed above, that, despite the risks, Solute's key area 4 nonetheless merited a strength. In short, the business clearance memorandum documents that the SSA was aware of the substantive difference between the proposals that the protester claims was ignored, but also documents that the agency did not find it to be a salient difference between the two offerors. While the protester would prefer that the agency viewed organizational experience as a discriminator between the proposals, we cannot conclude that the agency erred by concluding that the two proposals were essentially technically equal, and that cost was the most significant discriminator between the two proposals. See Ogilvy, Adams & Rinehart, B-246172, B-246172.2, Apr. 1, 1992, 92-1 CPD ¶ 332 (concluding that a finding that proposals were essentially technically equal does not require strict equality).

The protest is denied.

Edda Emmanuelli Perez
General Counsel

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