Opinion

Govwave, LLC v. United States

Court: United States Court of Federal Claims
Filed: Feb 27, 2025
Status: Published
On the bench: Marian Blank Horn
Cited by: 0 cases
Authority: More cited than 34.3%

discussing duty to verify bids under FAR Part 14

How later courts described this case

discussing duty to verify bids under FAR Part 14
“Bid protest actions are subject to the standard of review established under section 706 of title 5 of the Administrative Procedure Act (‘APA’
“Under FAR 52.212-1(g), the Government may waive “informalities and minor irregularities.’”
“Following passage of the APA in 1946, the District of Columbia Circuit in Scanwell Labs., Inc. v. Shaffer, 424 F.2d 859 (D.C. Cir. 1970

Written by the judges who cited it.

The opinion

In the United States Court of Federal Claims

Nos. 24-172C; 24-406C; 24-446C; 24-448C; 24-461C; 24-467C; 24-471C

Filed: February 3, 2025

Redacted Version Issued for Publication: February 27, 20251

* * * * * * * * * * * * * * * * *

GOVWAVE, LLC, et al., *

Protestors,

v. *

UNITED STATES,

Defendant.

* * * * * * * * * * * * * * * * **

Eric Valle and Jonathan Williams, PilieroMazza PLLC, Washington, DC, for

protestor GovWave, LLC.

Taylor Holt and Emily Chancey, Maynard Nexsen PC, Huntsville, AL, for

protestor Futron, Inc.

Kathy Potter and Sharon Roach, Potter & Murdock, P.C., Washington, DC, for

protestor Government Acquisitions, Inc.

John Tolle, Baker, Cronogue, Tolle & Werfel, LLP, McLean, VA, for protestor DH

Technologies, Inc.

Nicole Pottroff and Greg Weber, Koprince McCall Pottroff LLC, Lawrence, KS,

for protestor Enterprise Technology Solutions, Inc.

Matthew Long, Moore & Lee, McLean, VA, for protestor Unicom Government, Inc.

Olivia Lynch and Emily Golchini, Crowell & Moring LLP, Washington, DC, for

protestor Advanced Computer Concepts, Inc.

Kristin Olson, Department of Justice, Commercial Litigation Branch, Civil

Division, Washington, DC, for defendant. With her were Miles J. Wright, Trial Attorney,

1 This Opinion was issued under seal on February 3, 2025. The parties were asked to

propose redactions prior to public release of the Opinion. This Opinion is issued with the

some of the redactions that the parties proposed in response to the court’s request. Words

which are redacted are reflected with the notation: “[redacted].”

Commercial Litigation Branch, Isabelle Aubrun, Trial Attorney, Commercial Litigation

Branch, Corinne A. Niosi, Assistant Director, Commercial Litigation Branch, Patricia M.

McCarthy, Director, Commercial Litigation Branch, and Brett A. Shumate, Acting

Assistant Attorney General, Civil Division. Of counsel Maj. James Kim and Maj. Joshua

Fix, Trial Attorneys, Contract Litigation & Intellectual Property Division, U.S. Army Legal

Services Agency, Fort Belvoir, VA, and Alex M. Cahill, Attorney-Advisor, Army Materiel

Command Legal Center-Rock Island Arsenal, Rock Island, IL.

OPINION

HORN, J.

Protestors GovWave, LLC (GovWave), Futron, Inc. (Futron), Government

Acquisitions, Inc. (Government Acquisitions), DH Technologies, Inc. (DH Technologies),

Enterprise Technology Solutions, Inc. (Enterprise Technology Solutions) Unicom

Government, Inc. (Unicom), and Advanced Computer Concepts, Inc. (Advanced

Computer Concepts) each filed pre-award bid protests in the United States Court of

Federal Claims challenging the decision of the Department of the Army, Army Contracting

Command – Rock Island (Army) to exclude the protestors’ offers in response to

Solicitation W52P1J-20-R-0082 (the Solicitation).2 Each of the seven protestors were

eliminated from the competition for failing to comply with the Army’s “strict compliance

requirements” during Step 1 of the evaluation process.

FINDINGS OF FACT

The Army’s April 15, 2021 Acquisition Plan related to the Solicitation at issue in the

above captioned protests explains:

This acquisition is a follow-on to the Information Technology Enterprise

Solutions-3 Hardware (ITES-3H) Multiple Award Indefinite Delivery

Indefinite Quantity (IDIQ) contracts awarded in February 2016. The purpose

of this acquisition is to support Army, Department of Defense (DoD) and all

Federal Agency Information Technology (IT) infrastructure and infostructure

goals with a full range Commercial Off-The-Shelf (COTS) hardware and

related incidental software and services that meet the definition in Federal

Acquisition Regulation (FAR) 2.101, Definitions, for “commercial items.”

Army Contracting Command – Rock Island (ACC-RI), in support of CHESS

[Computer Hardware, Enterprise Software and Solutions], intends to award

2 The court notes that although the agency has not yet made awards under the

Solicitation, and, therefore, the protestors cannot protest an award decision to another

offeror or offerors in a post-award bid protest, at this time, unlike a pre-award protest in

which offerors challenge the Solicitation itself, the seven protestors have been evaluated,

at the first step of a three step evaluation procedure for the procurement established by

the agency, and eliminated from the competition by the agency for non-compliance.

at least 17 Firm Fixed Price (FFP) IDIQ contracts, with up to 7 awards

reserved for small business. The ITES-4H ceiling is $10,000,000,000.00

with a five-year base period and one five-year option period. Ordering will

be decentralized and open to all DoD and Federal Agencies. The IDIQs will

allow the Government to realize cost savings, provide visibility and oversight

through contractor reporting and analysis of CHESS IT e-Mart data, and

streamline the acquisition process.

(capitalization in original; alteration added).3 The April 15, 2021 Acquisition Plan

continued:

The intention of this acquisition is to integrate, modernize and refresh the

existing IT equipment for client, server, storage, and network environments

while providing standardized interfaces. The acquisition provides an

ordering vehicle for authorized users to meet equipment requirements. The

contractors will be required to perform in a fully responsive, complete and

flexible manner over the entire contract life, recognizing the dynamic nature

of the IT environment: changes in the requirements of users, standards,

regulations, and technology, as well as the various commercial alternatives

available for purchase, leasing and licensing.

The Solicitation, as amended, projects evaluating offers in three separate steps in

order to make a best value award. The Solicitation provides:

EVALUATION FACTORS FOR AWARD

M.1 BASIS FOR CONTRACT AWARD

The awards will be made based on the best overall (i.e., best value)

proposals that are determined to be the most beneficial to the Government,

with appropriate consideration given to the four evaluation factors:

3 As explained on the Army’s website:

Computer Hardware, Enterprise Software and Solutions (CHESS) is the

Army’s designated primary source for commercial IT. CHESS provides a

no-fee, flexible procurement strategy through which an Army user may

procure commercial-off-the-shelf (COTS) IT hardware, software, and

services via an e-commerce (IT e-mart) based process. CHESS offers

simple, straightforward contract vehicles through its online Army e-

commerce ordering system, the IT e-mart (https://chess.army.mil). These

contracts provide continuous vendor competition for best value and

consolidation of requirements to maximize cost avoidance and leverage the

Army’s buying power.

https://www.eis.army.mil/programs/chess (last visited Feb. 27, 2025).

Technical Factor, Price, Past Performance, and Small Business

Participation. In the evaluation, the technical factor is more important than

the Past Performance factor and the past performance factor is more

important than Small Business Participation. All non-priced factors

combined are significantly more important than Price. Although Price is not

the most important factor, the closer the ratings in the non-price factors, the

more significant price becomes. The Government will perform a trade-off

analysis of the non-priced factors with price to select the best value

proposals that provide the best value to the Government. To receive

consideration for award, a rating of no less than Acceptable must be

achieved for the technical factor (to include each subfactor) and the Small

Business Participation factor. Additionally, any Other Than Small Business

Offeror must have an acceptable Small Business Subcontracting Plan to

receive an award in accordance with FAR 19.702(a). Offerors are cautioned

that awards may not be made to the lowest priced proposal. An award will

not be made to any Offeror with a deficiency in any factor.

M.2 NUMBER OF CONTRACT AWARDS

The Government intends to award at least 17 Firm Fixed Price (FFP),

Indefinite Delivery, Indefinite Quantity (IDIQ) type contracts as a result of

this solicitation. Each contract will have a base period of 5 years, with one

available 5-year option period.

i. The Government will first reserve an anticipated seven awards for small

businesses. The Government will select these small business awardees

based on a trade-off analysis of all factors, including price, to select the

small business Offerors who represent the best value to the Government.

ii. Next, the Government will consider all remaining Offerors, without regard

to size status, to make the remaining awards. The Government anticipates

making at least 10 additional awards to the remaining Offerors without

consideration of size status. These Offerors will be selected on a trade-off

analysis of all factors, including price, to select the Offerors who represent

the best value to the Government.

M.3 EVALUATION METHODOLOGY

This is a competitive best value source selection in which competing

Offerors will be evaluated against four evaluation factors: Technical, Price,

Past Performance, and Small Business Participation. The contract award

decisions will be determined based upon the evaluation of each Offeror's

complete proposal against the evaluation criteria identified below. Selection

of awardees will be accomplished as follows:

Step 1 - STRICT COMPLIANCE REQUIREMENT: Proposals will be

reviewed to determine if all compliance requirements set forth in the

Instructions to Offerors are satisfied. Failure to provide proposals in

compliance with the instructions specified as STRICT COMPLIANCE

REQUIREMENTS in the Instructions to Offerors of this RFP [Solicitation]

shall render the Offerors proposal [sic4] non-compliant. Any Offeror’s

proposal determined non-compliant will not be evaluated and will not be

further considered for award. Only Offerors whose proposals are

determined compliant will move to Step 2 of the evaluation process.

Step 2 - Review of Part A - Equipment List: The Offerors Equipment List will

be evaluated on an Acceptable/Unacceptable basis. To determine technical

acceptability, the Government will evaluate an Offerors Equipment List

using statistical sampling. In this regard, the Government will evaluate a

percentage of the proposed items in the Equipment List (i.e., the statistical

sample) to determine if the Offerors proposed Equipment List meets the

Governments minimum requirements indicated in Column C of Attachment

0002.[5] All Offerors Equipment Lists will be evaluated for the same items

4 The Army in the Solicitation and evaluation documents consistently and incorrectly uses

the phrase “the Offerors proposal.” The court does not add a “[sic]” after each

grammatically incorrect use of the phrase “the Offerors proposal” going forward in the

Opinion.

5 The Solicitation included a list of attachments to the Solicitation:

as part of the statistical sample. In the context of this evaluation, Acceptable

is defined as the Government determining that all items evaluated in the

statistical sample meet or exceed the Governments minimum requirements

as identified in Column C of Attachment 0002. Unacceptable is defined as

the Government determining through statistical sampling that the Offerors

Equipment List does not meet the minimum requirements identified in

Column C of Attachment 0002. If the Government determines through

statistical sampling that an Offeror does not meet a minimum requirement

identified in Column C of Attachment 0002, the Government will not further

evaluate the Offerors Equipment List and the statistical sampling evaluation

will stop. The Offerors proposal will be deemed Unacceptable and will not

proceed to Step 3.

Step 3 - Evaluation of Part B - Technical, Past Performance, Price and

Small Business Participation proposals: The Government intends to

evaluate proposals and may conduct discussions. If discussions are

determined to be necessary by the Government, a Competitive Range

consisting of the most highly rated proposals based on the Technical Part

B, Past Performance, Price and Small Business Factors will be established.

The Government may engage in Communications under FAR 15.306(b) as

necessary to determine which Offerors should be included in the

Competitive Range. The Competitive Range, if necessary, will be

established considering the Governments intent to make seven awards to

small businesses, and thereafter make at least 10 unrestricted awards to all

remaining Offerors. Any proposal, which does not have a realistic chance

of receiving award, will not be included in the Competitive Range.

Relevant to the above captioned protests, Attachment 0005 was removed by Amendment

0029. Attachment 0005 was titled: “Price Model - Option Period - Five Year,” and the

Solicitation explained

Attachment 0004 - Price Model - Base Period - 5 Years. Attachment 0004

has been revised to include a tab at the bottom for Option Period pricing

input, in lieu of separate documents for the base period and option periods.

Offerors are required to utilize this revised Price Model for their proposal

submission. Failure to utilize the revised Price Model will deem the Offerors

submission noncompliant and will receive no further evaluation or eligibility

for award. . . .

b. Delete the following attachments in their entirety:

i. Attachment 0005 - Price Model - Option Period - Five Years, Attachment

0005 has been deleted in its entirety as a result of the revisions made to

Attachment 0004.

(omission added).

M.4 DISCUSSIONS

a. After receipt of proposals, the Government will conduct an evaluation.

During the conduct of this acquisition, the Acquisition Source Selection

Interactive Support Tool (ASSIST) will be used by the Government to

support the proposal evaluation and source selection process. A separate

tool, the ASSIST2Industry, will be used in conjunction with ASSIST to

facilitate exchanges with Offerors after receipt of proposals pursuant to FAR

15.306.

(capitalization in original; emphasis, alterations and footnotes added). The Solicitation

continued:

M.5 EVALUATION FACTORS

The following evaluation factors and subfactors will be used to evaluate

each proposal. Awards will be made to the Offerors whose proposals are

most advantageous to the Government based upon an integrated

assessment of the evaluation factors and subfactors described below.

FACTOR 1: Technical Factor is divided into the following:

PART A - Equipment List (Acceptable/Non-Acceptable as evaluated at Step

PART B - Technical Narrative (Overall Adjectival Rating)

SUBFACTOR 1 - Compliant IT Equipment (Adjectival Rating)

KEY POINT #1 - Compliant Solutions

KEY POINT #2 - Catalog Management

KEY POINT #3 - Technical Migration Management

SUBFACTOR 2 - Quality Programs (Adjectival Rating)

KEY POINT #1 - Quality Qualifications

KEY POINT #2 - Quality Methodology

KEY POINT #3 - Supply Chain Risk Management (SCRM)

KEY POINT #4 - Contract Management

Factor 2: Price (No Rating Assigned)

Factor 3: Past Performance (Relevancy/Confidence Rating)

Factor 4: Small Business Participation (Adjectival Rating; applies only to

Other than Small Business).

M.6 RELATIVE IMPORTANCE

Factor 1: Technical is the most important factor. An overall Technical Part

B factor rating will be assigned to each Offeror. Within Part B Technical

Narrative, Subfactor 1 - Compliant IT Equipment is more important than

Subfactor 2 - Quality Programs. Within Subfactor 1, all key points are of

equal importance. Within Subfactor 2, all key points are of equal

importance. Factor 1 – Technical Part B is significantly more important that

Price, Past Performance and Small Business Participation.

The past performance factor is more important than Small Business

Participation. All non-priced factors combined are significantly more

important than Price. Although Price is not the most important factor, the

closer the ratings in the non-price factors, the more significant price

becomes. The Government will perform a trade-off analysis of the non-

priced factors with price to select the best value proposals that provide the

best value to the government.

M.7 EVALUATION RATINGS

M.7.1 Ratings for Technical Evaluation Part A

Table 1 Technical Acceptable/Non-acceptable Ratings (Part A)

Adjectival Rating Description

Acceptable The Government determining that all

items evaluated in the statistical sample

meet or exceed the Governments

minimum requirements as identified in

Column C of Attachment 0002.

Non-Acceptable The Government determining through

statistical sampling that the Offerors

Equipment List does not meet the

minimum requirements identified in

Column C of Attachment 0002.

M.7.2 Ratings for Technical Evaluation Part B

Table 2 Combined Technical/Risk Ratings (Part B)

Adjectival Rating Description

Outstanding Proposal indicates an exceptional

approach and understanding of the

requirements and contains multiple

strengths, and risk of unsuccessful

performance is low.

Good Proposal indicates a thorough approach

and understanding of the requirements

and contains at least one strength, and

risk of unsuccessful performance is low

to moderate.

Acceptable Proposal meets requirements and

indicates an adequate approach and

understanding of the requirements, and

risk of unsuccessful performance is no

worse than moderate.

Marginal Proposal has not demonstrated an

adequate approach and understanding

of the requirements, and/or risk of

unsuccessful performance is high.

Unacceptable Proposal does not meet requirements of

the solicitation, and thus, contains one or

more deficiencies, and/or risk of

unsuccessful performance is

unacceptable. Proposal is unawardable.

In accordance with the Army Source Selection Supplement (28 November 2017),

Section 3.1, the Army methodology for evaluating Technical Approach and Related

Risk is the Combined Technical/Risk Rating, (see Table 1 above). This

methodology considers risk, in conjunction with the significant strengths, strengths,

weaknesses, significant weaknesses, uncertainties, and deficiencies in

determining technical ratings.

M.7.3 Relevancy Ratings for Past Performance Evaluation

Table 3 Past Performance Relevancy Ratings

Rating Definition

Very Relevant

Present/Past Performance effort that has a

value of at least $2,000,000.00 with delivery of

items that correspond to four (4) or more of the

ITES-4H catalogs.

Relevant Present/Past Performance effort that has a

value of at least $1,000,000.00 with delivery of

items that correspond to three (3) or more of the

ITES-4H catalogs.

Somewhat Relevant Present/Past Performance effort that has a

value of at least $250,000.00 with delivery of

items that correspond to two (2) or more of the

ITES-4H catalogs.

Not Relevant Present/Past Performance effort that has a

value of $249,999.99 or less with delivery of

items that correspond to one (1) or less of the

ITES-4H catalogs.

M.7.4 Confidence Ratings for Past Performance Evaluation

Table 4 Past Performance Confidence

Adjectival Rating Definition

Substantial Confidence Based on the Offerors recent/relevant

performance record, the Government

has a high expectation that the Offeror

will successfully perform the required

effort.

Satisfactory Confidence Based on the Offerors recent/relevant

performance record, the Government

has a reasonable expectation that the

Offeror will successfully perform the

required effort.

Limited Confidence Based on the Offerors recent/relevant

performance record, the Government

has a low expectation that the Offeror will

successfully perform the required effort.

No Confidence Based on the Offerors recent/relevant

performance record, the Government

has no expectation that the Offeror will be

able to successfully perform the required

effort.

Unknown (Neutral) Confidence No recent/relevant performance record is

available, or the Offerors performance

record is so sparse that no meaningful

confidence assessment rating can be

reasonably assigned. The Offeror may

not be evaluated favorably or unfavorably

on the factor of past performance.

M.7.5 Adjectival Ratings for Small Business Participation Evaluation

Table 5 Small Business Participation Ratings

Rating Description

Outstanding Proposal indicates an exceptional

approach and understanding of the small

business objectives.

Good Proposal indicates a thorough approach

and understanding of the small business

objectives.

Acceptable Proposal indicates an adequate

approach and understanding of the small

business objectives.

Marginal Proposal has not demonstrated an

adequate approach and understanding

of the small business objectives.

Unacceptable Proposal does not meet small business

objectives.

(capitalization and emphasis in original).

In the instructions to offerors, the Solicitation stated:

INSTRUCTIONS TO OFFERORS

L.1 OVERVIEW

The Army is conducting the ITES-4H competition in order to enter into

contracts to acquire the information technology required to meet the Armys

[sic] information technology mission.

The U.S. Army Computer Hardware, Enterprise Software and Solutions

(CHESS) in coordination with the Army Contracting Command Rock Island

(ACC-RI), requires contracts to support the Armys [sic] requirements both

Continental United States (CONUS) and Outside the Continental United

States (OCONUS), including remote OCONUS, covering a full range of

Information Technology (IT) equipment for client, server, storage, and

network environments; for related incidental services and software; for

maintenance/warranty of legacy IT equipment; and for warranty variations

as part of an Information Technology Enterprise Solutions 4 Hardware

(ITES-4H) solution. The equipment and services shall be commercial in

accordance with the definition of commercial items in Federal Acquisition

Regulation (FAR) 2.101.

L.2 PROPOSAL SUBMISSION REQUIREMENTS

a. Each Offeror shall submit only one comprehensive and complete

proposal, which consists of all required information with associated

attachments each in their appropriate file formats, that addresses all

Government requirements outlined in the solicitation. Submission of a

proposal shall be on an all or none basis. Partial proposals are not

acceptable and shall not be evaluated. If the Government has not received

the Offerors proposal by the due date and time, the proposal will be

considered incomplete and will not be further considered for award.

(capitalization in original; alterations added). The Solicitation continued:

L.3 STRICT COMPLIANCE REQUIREMENT

All volumes and files have strict compliance requirements and strict

compliance to those requirements will be evaluated. Any items identified as

a STRICT COMPLIANCE REQUIREMENT will be evaluated for compliance

prior to any further evaluation of the Offerors proposal. Failure to abide by

the strict compliance requirements for any of these factors will deem the

Offerors proposal non-compliant and will eliminate it from further

consideration. Factors and subfactors with strict compliance requirements

are clearly identified throughout these instructions.

(capitalization in original).

Regarding the format of the offerors’ proposals, the Solicitation explained:

L.4 PROPOSAL FORMAT

This section specifies the format each Offeror shall use in preparing its

proposal. The intent is not to restrict the manner in which proposals are

prepared, but rather to ensure a certain degree of uniformity in proposal

format for evaluation purposes. The proposal shall be prepared in a clear,

legible, practical manner. Five separate volumes shall be submitted. These

volumes shall be self-contained and shall not be cross-referenced. The

Government will not assume the duty to search for data or information to

cure problems discovered in any proposal submitted.

...

L.4.1.2 Each Offeror shall submit ONLY one proposal and that proposal

shall address all of the requirements of the Request for Proposals (RFP).

To be considered for this requirement, the Offeror must submit a complete

response to this RFP using the instructions provided in Section L. STRICT

COMPLIANCE REQUIREMENT: If the Offeror’s proposal fails to meet the

terms and conditions of the RFP or takes exception to any of the terms and

conditions of the RFP, it will render the Offeror’s proposal unacceptable and

will not be further considered for award.

L.4.1.2 (a) Each Offeror shall submit the most current versions of

Attachments 0002, 0004, 0006, 0007 and 0013 required for this RFP. The

Government will verify that the Offerors submission contains the most

current RFP Attachments 0002, 0004, 0006, 0007 and 0013 that were

provided by email with this Amendment.

L.4.1.2 (b) STRICT COMPLIANCE REQUIREMENT: Failure to provide the

most current versions of the RFP Attachments 0002, 0004, 0006, 0007 and

0013 shall render the Offerors proposal non-compliant and will not be

further considered for award. To be considered for award the Offeror must

submit a response to this solicitation in full to include the most recent

attachments provided.

L.4.1.3 A proposal is presumed to represent the Offerors best efforts to

respond to the RFP. The Offeror must provide adequately detailed

information that complies with the solicitation requirements, allows for

meaningful review by the Government evaluators, and affirmatively

demonstrates the merits of its proposal. The Offeror shall provide sufficient

detail to substantiate the validity of all stated assertions and must not merely

repeat the RFP requirements, but rather must provide convincing

documentary evidence of how contract requirements will be met. Data not

submitted with the proposal, but submitted previously, or presumed to be

known (i.e., previous projects performed for the United States Government

(USG)) will not be considered. Clarity and completeness are essential.

(capitalization in original; omission added).

Regarding the Technical Factor, the Solicitation provided:

L.5 SPECIFIC PROPOSAL INSTRUCTIONS

L.5.1 VOLUME I - Technical Factor. The volume shall be organized into the

following sections:

L.5.1.1 PART A - Equipment List. STRICT COMPLIANCE REQUIREMENT:

ANY cells marked for Contractor Fill-In on the Equipment List that are left

blank or are unintelligible as to the product the Offeror is proposing shall

render the Offerors proposal non-compliant and will not be further

considered for award.

This portion of the proposal shall include a completed Equipment List

spreadsheet (Attachment 0002) considering the following instructions:

a. The Offerors proposed configuration for each, and every System

Description identified on each Catalog (Catalog I through Catalog VII); The

Offeror shall complete the Equipment List at Attachment 0002 by providing,

in the proposed configuration column, its proposed item to meet each

requirement; and

b. An Offerors annotation with technical detail identifying that every

Requirement related to each System Description in the proposed

configuration is met or exceeded as to be confirmed by the Government. All

proposed configuration cells must contain content for the Offerors proposal

to receive consideration. STRICT COMPLIANCE REQUIREMENT: Cells

that contain linked content are non-compliant. Additionally, modification of

the Equipment List outside of indicated proposed configuration inputs are

not permitted and will result in a proposal being determined non-compliant

and not further evaluated; and

c. An identification of each Offerors proposed configuration product

Description providing identification of (brand/model) within the Offerors

proposed configuration for each and every System Description; and

d. Each Catalog Identification per each Description (brand/model) and

every Platform addition, inclusive to aid in associating equipment list to price

models.

e. The Offeror may also complete the Catalog Identification column to

coordinate association between equipment list and price models. The

burden of proof that the proposed item meets or exceeds the minimum

requirements remains with the Offeror.

f. The minimum processor types are defined for Catalogs I and II. Offerors

may propose a different base processor if the Offeror provides proof that

the processor meets or exceeds the minimal architecture of the processor

listed in the Equipment List.

g. Equipment List, electronic copy: Equipment List must remain in native

MS Excel file format. Offerors proposed configuration information must be

directly input in the proposed configuration field. Equipment List must not

be password protected. Offeror proposed configuration input is only

permitted in column D. STRICT COMPLIANCE REQUIREMENTS: Failure

to provide the most current version of the RFP Attachment 0002 shall render

the Offerors proposal non-compliant and will not be further considered for

award. Unauthorized modifications to the Equipment List are not permitted

and will render an Offerors proposal non-compliant and not further

considered for evaluation. Linked inputs are not permissible and will render

a proposal non-compliant.

h. The items in the Price Model that refer to the hardware and their detailed

specifications are in the Equipment List (Attachment 0002). The pricing

proposed in the Price Model (Attachment 0004) shall be for the same

products and configurations proposed in the Equipment List (Attachment

0002). Any discrepancy between the product proposed in the Equipment

List vs. the product proposed and priced out in the Price Model may result

in an unfavorable finding in the Offerors proposal.

(capitalization in original). The Solicitation at L.5(c)-(d) provides:

c. Executed copies of all amendments. Each Offeror shall complete (fill-in

and sign) the solicitation amendment sections (Standard Form 30

AMENDMENT OF SOLICTIATION/MODIFICATION OF CONTRACT,

Contract Administration Data Representations, Clause fill-ins, Certification

and Other Statements of Offerors) using the file provided with the

solicitation amendment. An authorized official of the firm shall sign the SF

30s and all certifications requiring original signature. An Acrobat PDF file

shall be created to capture the signatures for submission.

d. Should an amendment be issued against the solicitation; the Offeror shall

acknowledge by signing one copy of the Standard Form (SF) 30 entitled

Amendment of Solicitation/Modification of Contract and include it in the

proposal submission. In Accordance With (IAW) FAR 52.215-1(b),

acknowledgement of solicitation amendments issued after the proposal due

date shall be submitted via email to usarmy.ria.acc.mbx.ites-4h-

rfp@army.mil no later than date and time identified in the Amendment.

(capitalization in original).

As the defendant explained in its omnibus cross-motion for judgment on the

Administrative Record for all of the above captioned bid protests:

The Equipment List is a product catalog of various items the Government

may purchase. The Equipment List contains seven catalogs and identifies

the various “Product Descriptions” the Army requires, along with a System

Description and the necessary “Minimum Requirement” for each system.

The Army completed Columns A, B and C with its pre-configured inputs.

The Army marked the top of Column D as “Proposed Configuration” and

marked the top of Column E as “Catalog Identification.”

(internal references omitted). Therefore, in order to comply with the strict compliance

requirement for the Equipment List under the Technical Factor at Step 1, an offeror would

have to complete each box for Column D and Column E.

Regarding Price, the Solicitation provided:

L.5.2 VOLUME II - Price Factor.

The volume shall be organized as follows:

(1) Electronic Copy. Price submission requirements: Files contained in the

Volume II Price submission may not be password protected. Electronic links

are not permissible. The Offeror shall not include pivot tables in Excel

spreadsheets. The Offeror shall complete the Price Model in full. Offerors

must ensure that Attachment 0004 is completed and submitted with the

proposals. STRICT COMPLIANCE REQUIREMENT: All cells contain an

appropriate value. Any cells marked as contractor fill-in that are blank or

unintelligible in Attachment 0004 will render the Offerors submission as non-

compliant and the Offerors proposal will receive no further consideration or

evaluation. Offerors intending to propose zero dollars for a particular cell

must ensure the appropriate cell contains a 0. The Government will not

assume a blank cell in Attachment 0004 represents a zero as any blank cell

will result in the Offerors proposal being deemed non-compliant and not

further considered for award.

(2) General Instructions. In accordance with FAR 15.402 and FAR 15.403-

1, certified cost or pricing data is not required based on the fact that

adequate competition is expected for this procurement. If after receipt of

proposals the Contracting Officer determines that there is insufficient

information available to determine price reasonableness, the Offeror may

be required to submit other than certified cost or pricing data. Information

other than certified cost or pricing data may be submitted in contractors

chosen format to provide sufficient information in order to support price

reasonableness. There are no page limitations for this volume. Proposal

information included in this volume that is not directly related to Price will be

disregarded. Proposed dollar values shall be identified in US Dollars with

only two decimal places. Any cells with more than two decimal places will

be rounded up or down to the next whole cent.

L.5.2.1 Instructions for the Price Model

a. A price must be proposed for every item in each catalog identified in the

Price Model. Proposed prices shall be for new items/equipment only.

b. DO NOT alter any part of the Price Model other than the cells shaded in

yellow and orange.

c. Do not enter any formulas into the Price Model.

d. Offerors shall completely fill out the updated Price Model (Attachment

0004) included with this Amendment. Failure to provide prices for all items

and catalogs identified in the Price Model of the solicitation will render the

Offeror ineligible for award. Further, all proposed prices and numbers shall

be stated in U.S. Dollars, rounded, and displayed to two decimal places. It

will be assumed that rows/columns containing zeros instead of prices are

intentional and shall be considered as having no cost to the Government.

e. Pricing for catalog items, as discounted, shall not exceed the Offerors

lowest available General Services Administration (GSA) Federal Supply

Schedule price, other Government contract vehicle price, commercial

catalog, or publicly published price list.

f. The Government anticipates receiving competitive proposals and using

competition to determine price reasonableness. The Government reserves

the right to request other than certified cost or pricing data to establish the

reasonableness of the proposed contract and/or subcontract prices after

receipt of proposals.

(capitalization in original).

Regarding Past Performance Factor, the Solicitation provided:

L.5.3 VOLUME III - Past Performance Factor. The Government will assess

the degree of confidence it has that the Offeror will successfully complete

the requirements in accordance with the contract terms based on the

Offerors demonstrated record of recent and relevant past performance.

Offerors shall provide a specific narrative explanation of each contract listed

in Section II of the past performance questionnaire describing the contract

requirements achieved and detailing how the effort is relevant to the

requirements of this solicitation.

L.5.3.1 Past Performance Contract References: The Offeror shall submit

with its initial proposal up to five contract references for itself. If the contract

reference the Offeror is submitting is an ordering type contractual vehicle

(e.g., an Indefinite Delivery “D” type contract, Blanket Purchase Agreement,

Basic Ordering Agreement, etc.), PPQ [Past Performance Questionnaire]

references are only acceptable after issuance of a delivery/task order where

performance is ongoing or has occurred.

a. Contract references may be provided for any combination of CONUS

and/or OCONUS locations.

b. The Government will only consider those references in which the Offeror

is identified as the Prime or First-tier subcontractor.

L.5.3.2 Specific Proposal Instructions. This volume shall be organized into

the following sections:

a. Contract Reference Information and ITES-4H PPQ POC List (Attachment

0013): The Government will not accept just the basic contract ordering

number for ordering type contractual vehicles. Given this, an individual

order (or orders) under the basic ordering contract vehicle must be

submitted in lieu of just the basic ordering contract itself. Each submitted

order shall be counted as one contract reference. For example, if an offeror

has performance on an IDIQ type contract, the Offeror must provide the

specific orders it desires the Government to evaluate. The Offeror must not

provide just the basic IDIQ contract number. All contract reference(s) shall

represent recent and relevant performance as a prime and/or first-tier

subcontractor under Government Agency contracts (i.e., Department of

Defense: Army, Navy, Air Force, Marine Corps, Defense Logistics Agency

(DLA) etc.; Federal, Department of Homeland Security, Department of

State, etc.). If submitting a reference as a first-tier subcontractor, Offeror is

expected to provide the name of the Prime contractor under which it worked.

If the Offeror has no Government Agency contracts, commercial references

may be provided. The recency period is 25 October 2019 through 16

October 2023. STRICT COMPLIANCE REQUIREMENT: The Offeror must

submit a completed ITES-4H PPQ POC List (Attachment 0013) of all the

POCs who received a questionnaire with the submission of the proposal.

Failure to provide a completed ITES-4H PPQ POC List will render the

proposal non-compliant and will not be further considered for award. The

past performance questionnaire (Attachment 0007) shall be used for each

contract reference submitted. The completed PPQs are excluded from the

page count for Past Performance.

b. Adverse Contract Performance: STRICT COMPLIANCE

REQUIREMENT: In addition to the contract references, the Offeror shall

identify any recent and relevant Government contract(s) it was awarded that

encountered any performance problems related to deliverables; services,

security violations (i.e. data, physical, virtual, etc.), Environmental

Protection Agency (EPA) violations, and every contract that was terminated

(termination for default or termination for cause only), in whole or in part

from 25 October 2019 through 16 October 2023. If there are no contracts

that meet the description above, the Offeror shall state as such and include

a statement in the Volume III of the proposal. The number of contract

references provided in response to this paragraph is unlimited. Submission

of Adverse Contract Performance information shall not count as part of the

page count for Past Performance.

For any contract falling under the Adverse Contract Performance

description above, provide all the information listed as follows:

1. Contract number and Order number.

2. Define the performance problem and/or Type of Termination or Breach.

3. Describe the performance problem that caused the adverse action,

termination, and/or breach.

4. Describe the corrective actions taken to resolve issues; and provide

date(s) of issue/resolution.

5. Provide a copy of any Letter of Concern, cure notice, or show cause

letters received.

6. Identify reasons for any Terminations for Default or Terminations for

Cause.

7. Describe in detail any performance problems that include

internal/external customer complaints and/or Contract Deficiency Reports

(CDRs), EPA violations.

8. Provide points of contact who can confirm the success of the corrective

measures to include email address and a valid telephone number.

The Government is under no obligation to search for additional past

performance references for any Offeror as the Government intends to

evaluate an Offerors past performance based on the information submitted

as part of an Offerors proposal. However, the Government reserves the

right to use data provided in the Offeror's proposal and data obtained from

other sources. To ensure inclusion of all references in the evaluation

process, the Offeror is encouraged to provide the Government with the most

current data on each reference.

(capitalization in original; alteration added).

Regarding the Small Business Participation Factor, the Solicitation provided:

L.5.4 VOLUME IV - Small Business Participation Factor. THIS

REQUIREMENT APPLIES TO OTHER THAN SMALL BUSINESS

OFFERORS ONLY. IAW 13 CFR 125.3(g), Small Business Offerors will be

given the maximum score, credit, or rating without having to submit any

information in connection with this factor. An Offeror is considered a Small

Business if it can certify Small Business status under North American

Industry Classification System (NAICS) 334111. STRICT COMPLIANCE

REQUIREMENT: Failure to submit Attachment 0006 will render the

Offeror's proposal non-compliant.

The Offeror shall demonstrate small business participation by detailing its

proposed approach to meet the requirements under this factor by

addressing the following two areas in its Small Business Participation

proposal:

a. Proposed Small Business Participation Commitment Document in

performance of the potential contract (applies only to Other Than Small

Businesses). The Offeror shall complete the Small Business Participation

Commitment Document at Attachment 0006 to show maximum practicable

opportunities to Small Businesses to compete on this requirement in

accordance with FAR 52.219-8, Utilization of Small Business concerns.

b. Commitment to Small Business:

i. Payment Procedures The Offeror shall include a written statement of its

established procedures to ensure timely payments to small business

subcontractors in accordance with FAR 52.219-8, Utilization of Small

Business Concerns, (for those contracts under which it was required within

the period of 25 October 2019 through 16 October 2023). If not required in

any recent contracts, the Offeror shall so state.

ii. Compliance with Small Business Subcontracting Plan - Offerors must be

in compliance with terms and conditions of FAR 52.219-9, Small Business

Subcontracting Plan (if required on recent contracts). The Offeror shall

provide three Individual Subcontracting Reports for recent contracts (where

performance occurred within the period of 25 October 2019 through 16

October 2023) that included a subcontracting plan. Offerors submitting

Commercial Subcontracting Plans shall provide three Summary

Subcontract Reports (SSRs) and the associated Commercial

Subcontracting Plan for each SSR. Caution: SSRs based on Individual

Subcontracting Plans will not be accepted. If Small Business

Subcontracting Plans were not required in any recent contracts, the Offeror

shall so state. If the Offeror has less than three recent contracts, the Offeror

shall provide the most recent Individual Subcontracting Report (or SSR for

Commercial Subcontracting Plans) for each contract it has, and state that

the Offeror does not have three recent contracts.

(capitalization in original).

The Solicitation was originally issued by the Army on August 25, 2021. Prior to

receiving the responses to the Solicitation, the Army issued 26 amendments to the

Solicitation, mostly in responses to questions and requests for clarifications from potential

offerors to the Solicitation. It appears that the Army received 96 offerors when the

Solicitation closed on October 25, 2022. In response to an agency level protest and a

subsequent protest at the United States Government Accountability Office (GAO), the

Army took partial corrective action, and issued two additional amendments, Amendment

27, and Amendment 28, with revised proposals due by January 23, 2023. The Army

subsequently issued Amendments 29, 30, and 31, addressing further questions and

ultimately making proposals due by October 16, 2023.

In October 2023, the Branch Chief Shanna Henao and the Procuring Contracting

Officer Carrie Lansing issued a Memorandum for Record for the Solicitation. The October

2023 Memorandum for Record provided in full:

MEMORANDUM FOR RECORD 11 Oct 2023

SUBJECT: Determination to Amend Solicitation W52P1J-20-R-0082 for the

ITES-4H requirement in support of Program Executive Office-Enterprise

Information Systems (PEO-EIS).

BLUF[6]: Determination to amend the above-mentioned solicitation in an

effort to update and revise the Tech evaluation process, past performance

process, as well as adding additional members to the technical team in

order to streamline the acquisition process and re-solicit for new proposals

to evaluate in a more effective and efficient manor with the goal of an award

in 1st quarter FY25, calendar year 2024 instead of an award in 1st quarter

FY26, calendar year 2025.

Background and Justification: The above-mentioned solicitation was issued

on 25 AUG 2021 and closed on 25 OCT 2022. An agency-level protest was

received by the closing date of the solicitation. The Army took partial

corrective action in response to the protest and denied the remaining

grounds. Subsequently, the protester filed a protest at the Government

Accountability Office (GAO), which was ultimately dismissed. Due to the

need to take partial corrective action in response to the agency-level

protest, two amendments were issued (Amendments 0027 and 0028) that

allowed offerors to submit revised proposals. Thus, evaluations for ITES-

4H began on 15 FEB 2023.

From FEB 2023 to APR 2023 both the Army Contracting Command-Rock

Island (ACC-RI) and the PEOCHESS team worked together several times

a week over the three-month period to go over the past performance

evaluations, the technical evaluations as well as the small business and

price evaluations. While progress was being made, it was not at the rate per

6 “BLUF” is an acronym for “Bottom Line Up Front.”

the anticipated milestones and therefore the award date was moving further

to the right. It was determined that the technical team did not have the staff

necessary to keep up with 89 technical proposals and complete the 2.5

evaluations necessary per week to make the scheduled award. Part of the

issue taking a significant amount of time regarded the extensive number of

items technical evaluators had to review as part of the Equipment List along

with reading through a lengthy 25 page narrative for Sub-factors 1 and 2.

Combined, this technical evaluation approach was significantly slowing the

Technical team, especially due to some poor proposal quality issues from

offerors. The Technical team also experienced several issues in terms of

proposal quality. The past performance team also encountered issues with

offerors providing a base IDIQ contract number without identifying any

specific delivery or task orders for the Army to evaluate. Due to these

difficulties, both the Past Performance and Technical evaluation teams

were behind schedule.

After a meeting with senior Army leaders in April 2023, it was determined

that the team, both PEO and ACC-RI, needed to come up with several

Courses of Action (COAs)/opportunities in order to streamline the process

of evaluating the large amount of interested offerors to make an award

much more quickly and efficiently than the current method. From APR 2023

– JUL 2023 ACC-RI assigned a new PCO and lead specialist to the team

and PEO committed to assigning additional personnel to the technical team.

It was determined that the RFP required an amendment to revise the

evaluation criteria in order to streamline the evaluation process. Several

amendments starting with Amendment 0029 have been issued. The

following highlights the main areas that were revised in the amendments as

well as the rationale for the change. Not every specific RFP change is

discussed below, however, the key changes to the RFP are noted below:

(a) Added Strict Compliance Requirements: The solicitation that initially

closed in October 2022 already contained some Strict Compliance

requirements for this solicitation in the form of Attachment 0014. This

amendment will increase the number of items with a strict compliance

requirement in order to enable the Army to efficiently evaluate and deal with

proposals that fail to provide the necessary information requested. In this

regard, Strict Compliance Requirements are notably being added to the

Equipment List to respond to situations where offerors leave blank cells in

the Equipment List. Providing a complete Equipment List (along with a

complete proposal) is essential to ensuring not only that the offeror complies

with the terms of the solicitation, but failing to provide a complete proposal

and Equipment List also significantly slows the evaluation process. Indeed,

this issue (blank cells on the Equipment List) significantly slowed the

Technical Evaluation Team during its evaluation. By adding strict

compliance to the Equipment List, and other material RFP requirements,

the Army can ensure it is spending its substantive evaluation time (i.e.,

reviewing Technical, Past Performance, Price, and Small Business) on only

complete proposals, rather than wading through numerous proposals that

are fundamentally incomplete. The RFP will clearly note what requirements

are considered matters of strict compliance and also will clearly note that

offerors deemed non-compliant will not be further evaluated or considered

for award.

(b) Added a “Phased” or “Step” Approach: Prior to this amendment, the RFP

contemplated the Technical, Past Performance, Price and Small Business

Evaluations occurring following the initial compliance check. This

amendment will add a “phased” or “Step” approach where offerors will

undergo the Step 1 compliance check and then have the Equipment List

Reviewed for Technical Acceptability. The Equipment List was already

being evaluated on an Acceptable/Unacceptable basis; however, it was

combined with the Subfactor 1 and Subfactor 2 evaluation. Now, the

Equipment List will be reviewed at Step 2 and only offerors who receive an

Acceptable will proceed to receive further consideration of Technical Sub-

factors 1 and 2, along with Past Performance, Small Business, and Price.

By using this additional Step 2 approach where offerors must provide an

acceptable Equipment List prior to receiving further evaluation, the Army

can ensure it is spending its substantive evaluation resources on proposals

that are not only complete, but also provide an acceptable baseline

Equipment List. Prior to this amendment, even if the Technical Team

determined an offeror had an unacceptable Equipment List, the team still

had to complete a full Technical evaluation of Sub-factors 1 and 2 in case

the SSA decided to include an unacceptable proposal as part of

discussions. Additionally, unacceptable proposals would still receive past

performance, price and small business evaluations. With this new

approach, the Army can streamline its evaluation by ensuring evaluation

resources are only spent on proposals with an acceptable equipment list,

which should assist the Army in meeting its award date goals.

Equipment List is a large document comprising of seven product catalogs

offerors must complete with over 900 cells of data for review. Previously,

the Army was going line by line validating each product proposed by every

offeror, which was taking significant time, especially with 89 proposals to

evaluate. Now, this amendment will introduce a statistical sampling

evaluation method to more efficiently evaluate the Equipment List. In this

regard, it was determined that the Army will sample 35% of the data, which

the technical team believes will provide a sufficient sample size to determine

an offeror Technically Acceptable. All offerors will be evaluated for the same

sample of products from the various catalogs. The sampling will be as

follows:

Catalog 1: first 50 cells due to limited number of cells in the catalog;

Catalog 2: The sample will begin at row 299 and evaluate 50 odd numbers,

which provides a more diverse product sampling;

Catalog 3: first 50 cells to allow for maximum diversity in the catalog;

Catalog 4: first 50 cells due to limited number of cells in the catalog;

Catalog 5: There are only 44 cells; as such, all 44 will be evaluated;

Catalog 6: 50 cells beginning at row 8; all even numbers will be evaluated;

Catalog 7: There are only 41 cells; as such, all 41 will be evaluated.

(d) Reduced Technical Page Count: Offerors were provided with 25 pages

to demonstrate an approach for Technical sub-factors 1 and 2. Upon review

by the Technical Team, it was determined that 25 pages was greatly in

excess of what an offeror needs in order to submit a proposal that fully

addresses the sub-factor 1 and 2 requirements. Specifically, the Technical

evaluators noted that many offerors included a lot of banal commentary

throughout the 25 page narrative that served more as promotional material

rather than illustrated the merits of an offerors Technical approach. In order

to streamline the evaluation process and encourage offerors to succinctly

present the merits of their proposal, the page count for Technical Part B

(sub-factors 1 and 2) was reduced to eight pages as part of Amendment

0029. However, following extensive consideration of offeror feedback

following the issuance of Amendment 0029, it was determined that fourteen

pages would both meet the requests of offerors to increase the page count

from the previously identified page count of 8 pages in Amendment 0029,

while also satisfy the Army’s desire to reduce the page count as compared

to what offerors provided at the initial closing date of the solicitation (25

October 2022). Fourteen pages is a reasonable number as it effectively

provides offerors two pages for each Key Point. Additionally, fourteen pages

still allows an offeror to provide the merits of its approach to meeting the

Government’s requirements, but will encourage offerors to “skip the fluff”

and include succinct statements noting how an offeror will provide a solution

in response to the RFP’s requirements.

(e) Added a Key Point to Sub-factor 2: Key Point 4 is added to Sub-factor 2

in order to provide the Government will a description of how the offeror

support and comply with the Statement of Work and the offeror’s processes

to support contract management. This is added in order to ensure a

successful offeror can manage a complex undertaking such as ITES-4H.

(f) Revised Past Performance: The past performance factor also was

changed in several key respects. First, if an offeror is submitting an ordering

type vehicle contract reference (e.g., IDIQ), the offeror is required to provide

the specific Delivery Order (DO) or Task Order (TO) it desires the Army to

evaluate. When the Army initially received proposals in October 2022,

numerous offerors simply provided the Army with the base IDIQ contract

number as a contract reference rather than provide a specific delivery or

task order. Because performance on an IDIQ type contract occurs at the

DO or TO level, the Army revised the terms of the RFP to ensure the Army

receives specific DO’s or TO’s where the offeror actually performed. This

will also ensure the Army knows exactly which references the offeror

desires the Army to evaluate. It will also help the Army ensure an efficient

evaluation process by not requiring the Army to guess or review potentially

thousands of DO’s or TO’s issued off of an IDIQ type contract.

Second, the Army revised the relevancy metrics as part of the Amendment

process. In this regard, the RFP now sets out specific dollar values and

number of catalogs an offeror must meet to receive a particular relevancy

rating. Offerors are expected to maintain an active role through extensive

participation over the life of the ITES-4H contract. ITES-4H is valued at

$10B over the 10-year period. CHESS expects total sales across all

awardees to equal approximately $1B per year. The relevancy dollar figures

were determined based on ITES-3H historical data points. CHESS looked

at the lowest total sales by a single vendor during a single year over the life

of the contract and structured the ratings based on that number.

Specifically, CHESS determined that the lowest sales by a single vendor

during a single year over the life of the contract was $1 million. Because $1

million was the lowest sales by a single vendor, the Army deems this value

to equate to a “Relevant” contract reference. Using the lowest total sales of

around $1,000,000.00 for a single year of performance allows room for

consideration of small business that could compete. Sales above

$2,000,000.00 would constitute as very relevant due to the historical data

from ITES-3H showing most vendors consistently sold above this number

and positively complied with all contract requirements. In addition, CHESS

determined anything under the Simplified Acquisition Threshold would be

the cutoff for relevant orders from a dollar value perspective. Considering

that the total contract value for ITES-4H is $10 billion, the Army’s dollar

value metrics for relevancy are very reasonable and are on the lower end

of the expected amount an awardee would receive as part of this contract

effort. The Army has specifically considered the lower threshold numbers in

order to promote competition for this effort. Further, the Army has set up the

past performance criteria to allow an offeror to meet the dollar value

requirements through combining up to five contract references. Overall, the

Government has set these dollar figure parameters because it is vital an

offeror can manage multiple contracts of higher value during a given period

of time. If an offeror is unable to complete multiple orders at a time due to

the magnitude of cost that could pose high risk to ITES-4H.

The relevancy definitions also provide a specific number of catalogs an

offeror must meet to align with a certain relevancy rating. Similar to the

dollar values, the Army has provided great leniency to offerors to meet the

requirements. ITES-4H has a total of seven catalogs. Here, to receive a

“Very Relevant” rating, an offeror would only need to provide contract

references meeting 4 catalogs (along with the associated dollar value) to

receive the highest rating. The Army believes its needs can adequately be

met through the aligned catalog numbers and also believes that because

the RFP allows offerors to provide up to five references, the Army’s catalog

relevancy requirements are more than reasonable and do not unduly restrict

competition.

I have also considered these amendments in light of the Federal Acquisition

Regulation (FAR) requirements at FAR 15.206. Specifically, I do not deem

these amendments to meet the requirements of FAR 15.206(e), which

would necessitate cancelling the solicitation. In this regard, the

requirements for ITES-4H have not changed. The Statement of Work

remains the same and the solicitation continues to require offerors provide

products that meet the Government’s requirements. What is changing is

portions of the evaluation criteria and how the Government intends to re-

structure the evaluation process to ensure the Army can award ITES-4H

requirement in a timely and efficient manner to meet the Army’s needs.

Because the fundamental ITES-4H requirement remains unchanged in

terms of the Army’s needs, I do not deem these amendments so substantial

that additional sources would have likely submitted offers. Indeed, the

changes in these amendments do not so significantly alter the purpose or

the nature of the contract. I also note that the RFP was released in August

2021 and did not close until October 2022—over a year for prospective

offerors to decide whether to submit a proposal. Ultimately, the Army

received 96 proposals in October—a significant amount of industry interest.

After conducting the initial compliance checks, 89 proposals remain, which

again is a large number offerors. This large number of offerors gives me

confidence that the field of competition for ITES-4H would not change based

on this amendment. Further, offerors have spent considerable time, effort

and money preparing proposals, thus, it is not in the interest of either the

Government or offerors to completely cancel the RFP. Based on these

considerations, I do not believe the ITES-4H solicitation requires

cancellation. Instead, several amendments starting with Amendment 0029

were issued and offerors will be allowed the opportunity to submit revised

proposals.

Additionally, the 7 offerors initially deemed non-compliant and removed

from the competition will not be re-instated. FAR 15.206(c) notes that

“Amendments issued after the established time and date for receipt of

proposals shall be issued to all offerors that have not been eliminated from

the competition.” Because the 7 were already eliminated, the FAR does not

require their reinstatement. Further, and importantly, the basis for which the

offerors were deemed non-compliant would not change as a result of this

amendment because the amendment is not relaxing any of the terms for

which the 7 offerors were removed.

(capitalization in original; footnote, alteration, and emphasis added).

Most relevant to the above captioned bid protests was the addition of the “Added

Strict Compliance Requirements,” which, as described above stated: