holding that “plaintiff was obligated to provide a concrete explanation of how amending the RFP to account for [a] ‘change’ would have led to an improved competitive position”
How later courts described this case
- holding that “plaintiff was obligated to provide a concrete explanation of how amending the RFP to account for [a] ‘change’ would have led to an improved competitive position”
- finding that FAR 15.206(a) was not triggered by agreements to raise wages because the RFP expressly identified the potential for a wage increase
Written by the judges who cited it.
The opinion
In the United States Court of Federal Claims
No. 13-964C
(Filed: April 7, 2014)
*Opinion originally filed under seal on March 26, 2014
)
OCEAN SHIPS, INC., )
)
Plaintiff, )
)
v. )
) Bid protest; best value procurement;
THE UNITED STATES, ) deference to technical and past
) performance evaluation; failure to
Defendant, ) timely challenge terms of a
) solicitation.
and )
)
PATRIOT CONTRACT )
SERVICES, LLC., )
)
Defendant-Intervenor. )
)
Lars E. Anderson, Tysons Corner, VA, for plaintiff. James Y. Boland and Anna E.
Pulliam, Tysons Corner, VA, of counsel.
Michael D. Snyder, Civil Division, U.S. Department of Justice, Washington, DC,
with whom were Stuart F. Delery, Assistant Attorney General, and Bryant G. Snee,
Acting Director, Commercial Litigation Branch, for defendant. Scott Scheffer, Military
Sealift Command, Washington, DC, of counsel.
Craig S. King, Washington, DC, for defendant-intervenor. Stewart S. Manela,
Patrick R. Quigley, and Christopher A. Bowen, Washington, DC, of counsel.
OPINION
FIRESTONE, Judge.
In this bid protest case, Ocean Ships, Inc. (“plaintiff” or “OSI”) challenges the
decision by the Navy’s Military Sealift Command (“MSC”) Prepositioning Program 1 to
award a small business set-aside contract for the operation and maintenance of eight large
government-owned sea vessels to Patriot Contract Services LLC (“Patriot” or “the
defendant-intervenor”). Plaintiff, the incumbent contractor, argues that the $ * * * 2
award should be set aside for two reasons.
Plaintiff first asserts that MSC was obligated to amend the Request for Proposals
(“RFP”) and solicit revised final proposals because of a mandatory wage rate escalation
that allegedly occurred after MSC announced its intent to award the contract to Patriot,
but before the final award was made. Specifically, plaintiff argues that during the delay
occasioned by OSI’s challenge of Patriot’s status as a small business before the Small
Business Administration (“SBA”), OSI entered into an extension contract with MSC.
Plaintiff further contends that under the Collective Bargaining Agreements (“CBA”)
between OSI and some of its unions, this extension triggered a mandatory 4% wage
increase for at least some of its workers. OSI and the government agree that this wage
increase is binding on the contract-awardee under the terms of the RFP. 3 Although the
1
The Prepositioning Program strategically places military equipment and supplies aboard ships
located in key ocean areas to ensure rapid availability during a major theater war, a humanitarian
operation, or other contingency. MSC maintains 26 prepositioning ships in support of the Army,
Navy, Air Force, Marine Corps, and Defense Logistics Agency. Administrative Record (“AR”)
5969.
2
This amount assumes that the parties exercise all four one-year option periods after the one-
year base period.
3
As discussed infra, Patriot argues that the wage increase is not binding.
2
terms of the CBA were included in the Department of Labor wage determination that was
included in the RFP, none of the offerors appear to have accounted for the wage increase
in their proposed pricing because it had not been triggered at the time bidding closed.
OSI thus contends that the award should be set aside because the 4% wage increase
amounted to a material change to the RFP that required MSC to solicit a new round of
proposals.
OSI also argues that MSC did not make a proper best value award determination
because the Source Selection Authority (“SSA”) failed to properly apply the stated
Technical and Past Performance evaluation criteria in its evaluation. Specifically, OSI
asserts that MSC failed to rate OSI’s Past Performance submission sufficiently higher
than Patriot’s, improperly concluded that their respective Technical proposals were of
equal value, and thus arbitrarily and capriciously rendered a best value determination in
favor of Patriot. In this connection, OSI also faults MSC’s best value determination for
failing to account for what OSI believes will be Patriot’s higher reimbursable training
costs than those incurred by the other offerors. 4
Presently before the court are the parties’ cross-motions for judgment on the
administrative record under Rule 52.1 of the Rules of the United States Court of Federal
Claims (“RCFC”) and plaintiff’s motion for a permanent injunction. As discussed below,
the court finds that the 4% wage increase did not trigger MSC’s obligation to amend the
RFP, however, even assuming that the 4% wage increase did give rise to a material
4
OSI does not dispute, however, that the RFP omitted reimbursable costs, including training,
from MSC’s price evaluation.
3
change in the RFP, the court finds that plaintiff has failed to demonstrate that OSI was
prejudiced by MSC’s refusal to reopen bidding. Specifically, OSI has not demonstrated
how reopening bidding to allow offerors to submit revised bids to account for the 4%
increase would have significantly improved OSI’s chance for award. The court also finds
that OSI has not met its burden to demonstrate that MSC’s evaluation of the proposals or
best value determination were arbitrary or capricious. For all of these reasons, the court
DENIES plaintiff’s motion for judgment on the administrative record and GRANTS the
United States’ cross-motion for judgment on the administrative record.
I. STATEMENT OF FACTS 5
a. The scope of the RFP
MSC issued RFP N00033-13-R-3210 on December 20, 2012, which sought
proposals for the operation and maintenance of eight WATSON Class Large, Medium
Speed Roll On/Roll Off (“LMSR”) vessels in various operating statuses. 6 AR 112, 114,
5969-70. Each WATSON Class LMSR is approximately 950 feet in length, and is
comprised of diverse mechanical and electrical components. AR 5969-70. The vessels
5
Unless otherwise stated, these facts are undisputed and are taken from the complaint, the
parties’ briefs, and the Administrative Record.
6
In evaluating offerors’ experience with “ocean-going” vessels, MSC counted vessels in both
“full operational status” (“FOS”) and “reduced operational status” (“ROS”). AR 5972. ROS
vessels operate with reduced crews that spend a substantial amount of time pier-side, but can be
ready to set to sea within a specified number of days (often four days). Id. Although the term
“ocean going vessels” was not defined in the RFP, MSC explained that the ordinary meaning of
the term within the industry includes ROS vessels, because they are designed for, and capable of,
travel on the ocean. Id. Both Patriot and OSI listed ROS vessels in their Past Performance
submissions, AR 2702, 3126, 3161, and MSC credited both ROS and FOS vessels as potentially
relevant when evaluating Past Performance.
4
are powered by two gas turbine engines which, though less common in commercial use
due to their high fuel consumption rates, are not unusual. Id. These engines are useful
for prepositioning vessels in austere locations because they require little complicated
maintenance and are relatively small units that can be replaced if broken beyond basic
repair. Id. MSC maintains spare gas turbine engines in its inventory, which can be flown
to most worldwide locations for this purpose. Id.
Section M of the RFP provided for a pass-fail evaluation of certain “threshold
requirements” and a “trade-off” for other requirements. As to the former, offerors had to
demonstrate that within the past 15 years, they possessed at least 10 years of experience
simultaneously operating at least two “ocean-going” ships of no less than 4,500 tons and
10,000 horsepower, and that they had experience managing at least two drydockings of
greater than $5 million in final cost or greater than 30 days in final duration. AR 579.
An offeror that failed to satisfy these requirements would be considered technically
unacceptable and thus ineligible for award. Id.
For the “trade-off” analysis, MSC considered three factors: (1) Management
Approach, (2) Past Performance, and (3) Price. Management Approach was more
important than Past Performance, and non-price factors when combined were
significantly more important than price. AR 580. However, the importance of price
increased as the non-price differences between offers diminished. Id. In addition, the
RFP provided:
An overall adjectival rating will be assigned to each of the Management
Approach and Past Performance factors as a result of the source selection
evaluation. In assigning these ratings, the evaluators will consider, for each
5
factor, the offeror’s ability to exceed the minimum performance
requirements of this solicitation (under the Management Approach factor),
and the risk of nonperformance, defective performance or late performance
under the resulting contract.
AR 580.
b. RFP provisions related to the Service Contract Act
The McNamara-O’Hara Service Contract Act of 1965 (“SCA”), 41 U.S.C. § 6702
et seq. (2012), was enacted to provide wage and other protections to service employees
working under U.S. government contracts. See James C. Fontana, Employer Obligations
Under the Service Contract Act: Just Another Minimum Wage Law?, 25 Pub. Cont. L.J.
483, 485 (1996). Among other things, the SCA and its implementing regulations require
that contractor employees who provide services to the federal government be paid at least
as much as the “prevailing” wage and fringe benefits paid to employees providing similar
services in similar work in the same locality. Id. The Department of Labor is responsible
for determining the prevailing wages that constitute the floor for service employees. Id.
As a general rule, the SCA does not apply to contracts that provide services outside of the
United States. 41 U.S.C. § 6702(a)(3).
Although the proposal instructions directed offerors to “assume that the Service
Contract Act . . . applies to all wages and fringes,” AR 576, the RFP also included a
provision recognizing that the SCA might not apply because some or all of the work
would be performed overseas. Specifically, the RFP stated:
It is possible that ships under this contract could be forward deployed for
the entire contract period. Although (in accordance with FAR 22.1003-2)
SCA compliance is not required for work performed outside the [United
States], in the interest of attracting and retaining the best qualified/
6
experienced civilian mariners and to reduce performance risk, the
contractor is required to pay its mariners at the minimum wage and fringe
benefit levels contained in the Department of Labor . . . Wage
Determination included in Attachment B under Section J of the Contract.
The contract per diem rate for all contract periods shall be inclusive of
anticipated escalation for all price components, to include wage and fringe
benefits and associated costs. The Government will only entertain
Requests for Equitable Adjustment in accordance with FAR 52.222-43
when the Service Contract Act applies (i.e. when performance occurs
within the territorial waters of the U.S.).
AR 539. Accordingly, offerors were required to certify that “wages and fringe benefits
included in its proposed pricing and to be paid to crewmembers compl[ied] with the
Service Contract Act minimum wages and fringe benefits identified in the wage
determination attached to” the solicitation. AR 573, 650.
The RFP included a copy of a January 4, 2013 Department of Labor’s wage
determination, which was based upon two CBAs 7 entered into by OSI and its service
unions for performing services under the fourth option period of OSI’s prior contract with
MSC. AR 711-50. One of the CBAs addressed compensation for officers in the
American Maritime Officers (“AMO”) labor union, 8 and one addressed compensation for
7
Regarding CBAs, the RFP also stated:
(f) Collective Bargaining Agreements (CBA). If applicable, offerors shall provide
current documents that are signed and dated by the parties. However, the terms of
the CBA between the contractor and the union are neither considered to be a part
of the contract nor form the basis of any claim or request for equitable adjustment
(REA).
AR 572.
8
The AMO CBA was first entered into on September 29, 2008 (and wages were subsequently
amended for option years), and states that it is to remain “in full force and effect for the duration
of its resultant agreement between [OSI] and MSC . . . .” AR 716.
7
unlicensed mariners in the Seafarers International Union (“SIU”). Id.
With regard to wage escalations, the AMO CBA stated:
There shall be a four percent (4%) increase of Total Labor Costs (TLC)
effective each anniversary date [October 1] for the duration of this
agreement and any extension thereof. The anniversary date of the contract
shall be established as the commencement of operation of the first vessel.[ 9]
The Union reserves the right to allocate the wages or benefits of Officers
employed hereunder, the amounts resulting from this revision as it deems
appropriate. TLC is defined to include all rates of pay (Base Wages and
[Nonwatch Standing Allowances]), overtime rates, all other forms of
compensation paid, and all benefit contributions. TLC excludes feeding,
transportation, overlap costs, and taxes.
AR 720. Thus, the RFP identified the potential for a 4% wage increase under the AMO
CBA in the event OSI’s contract was extended beyond October 1, 2013. Regarding
unlicensed mariners, the SIU CBA stated that “in the event this Agreement is extended
beyond the option periods, the Company and the Union shall meet to negotiate all
economic terms and conditions.” AR 748. 10
OSI, Patriot, and the other offerors certified that the proposed wage rates and
fringes set forth in their offers met or exceeded those included in the Department of
Labor’s wage determination identified above. See AR 2579, 2879, 3348, 3775.
Accordingly, MSC found that all of the offerors complied with the RFP’s SCA
certification requirement. AR 5118.
9
There is no dispute amongst the parties that October 1 is the “anniversary date.”
10
While there was a 4% increase in total labor costs for “Years 2 through 5,” the SIU CBA states
that after that time “all economic terms and conditions” will be “negotiate[d].” AR 748. In the
wage determination, the Department of Labor states that it “does not recognize . . . prospective
wage rates and fringe benefit provisions that are effective only upon such contingencies,” and
further states that the “contingency language” does not “reflect[] [an] arm’s length negotiation”
under “section 4(c)” of the Service Contract Act (now codified as 41 U.S.C. § 6707(c)).
8
c. Proposal submissions and evaluations
Five offerors submitted proposals on the initial due date, February 7, 2013,
including OSI and Patriot. AR 4203. All five, however, were found technically
unacceptable, and MSC decided to enter into discussions because “[n]one of the
proposals presented issues sufficient to exclude them from the competitive range.” AR
4211-12, 4215. At this stage, one of the bidders withdrew from consideration. AR 5116.
MSC then conducted three rounds of discussions with the four remaining offerors. AR
5115-17.
i. Evaluation of the “Ship Operational Experience” threshold
requirement
In its Technical Proposal, to satisfy the “ship operational experience” threshold
requirement, Patriot provided a chart displaying the vessels it had operated over the past
fifteen years, AR 3126, 3161-62, which included both FOS and ROS vessels. Patriot also
submitted the following narrative description of its experience:
Patriot Contract Services, LLC (PATRIOT) was established in 1997 and is
a full service U.S. Government and commercial ship manager with a long
history of success in all facets of vessel operations. PATRIOT’s experience
includes managing multiple Military Sealift Command (MSC) assets. We
also have significant additional relevant operational experience through the
company’s operation and maintenance of MARAD vessels, as well as
construction, maintenance, and operation of commercial containerships. We
are fully qualified to manage the eight Watson Class LMSR vessels. As
shown in Attachment 1 and Fold-out 1, PATRIOT’s management of
relevant vessels over the last 15 years includes 34 specific vessels/contracts
accounting for some 2 million gross registered tons of maritime assets. We
have accomplished this by utilizing our collective manning pools of more
than 5,000 active U.S. Merchant Marine Officers and unlicensed mariners.
Since 1997, PATRIOT has simultaneously operated as many as 23 ocean
going ships greater than 4,500 tons and 10,000 HP, with no fewer than 6
under our management at any given time.
9
AR 3125. MSC’s Technical evaluators reviewed Patriot’s narrative and associated
charts, and found Patriot to have met the “Ship Operational Experience” threshold
requirement. AR 4986-87. OSI, as the incumbent, also satisfied this threshold
requirement.
ii. Evaluation of Patriot and OSI’s Technical/Management Approach
factor
1. Management Approach evaluation criteria
Section M of the RFP provided as follows regarding Management Approach:
The Government will consider the Organizational Charts, Key Shore
Side[ 11] Personnel Resumes and Organizational Narrative submitted by the
offerer, as specified under Section L-15.B.(c).B.I, in evaluating this factor.
The following factors will be considered:
a. The offeror’s organizational structure and program management
approach, and the feasibility of that approach to conduct day-to-day
operations, and coordinate and collaborate with Government
b. The relevance of the proposed Key Personnel’s qualifications,
experience, education, expertise, and skill levels in relation to their
assigned roles.
AR 580.
Relatedly, Section L directed offerors to provide the following as part of their
Management Approach proposals:
(a) Organizational Charts: Offeror shall provide organizational
charts . . . that depict the structure it will utilize in the management
11
Regarding shipboard personnel (in contrast to shore side personnel), the U.S. Coast Guard
regulates mariner qualifications through a comprehensive credentialing regime. AR 475, 477,
5970.
10
of a potential contract. . . .
(b) Key Shore Side Personnel Resumes: For the individuals
identified above as Key Shore Side personnel (in accordance with
Section C-3.3.1 [of the Statement of Work]), the Offer[or] shall submit
current resumes . . . .
(c) Organizational Narrative: Offeror shall explain the role of each
individual designated as Key Shore Side Personnel and discuss
how the organizational structure will function as an entity to meet
contract requirements in the areas of Management Approach,
Program Management, Engineering, Vessel Operations, Property
Management, and Budget Management.
AR 575. Depending on the number of strengths 12 and weaknesses assigned to each
proposal, offerors would receive a rating of Outstanding, 13 Good, 14 Acceptable,
Marginal, or Unacceptable. AR 65.
12
The RFP defined “strengths” as follows:
Strength means an aspect of the proposal that exceeds minimum requirements and
expectations, or represents an added benefit to the Government and is expected to
increase the quality of the offeror’s performance. Strengths are typically high
quality personnel, facilities, organizational structures and or technical approaches
that allow an offeror to perform the work cost effectively or at a higher level of
quality.
AR 66 (emphasis added).
13
A proposal was to receive a rating of “Outstanding” if it “meets requirements and indicates an
exceptional approach and understanding of the requirements.” AR 65. “Outstanding” proposals
contained strengths that “far outweighed” any weaknesses, as well as a very low risk of
unsuccessful performance. Id.
14
A “Good” rating was appropriate if the “[p]roposal meets requirements and indicates a
thorough approach and understanding of the requirements.” AR 65. “Good” proposals were
required to contain strengths that outweighed any weaknesses, and a low risk of unsuccessful
performance. Id.
11
2. Patriot’s and OSI’s Management Approach submissions and
evaluation
For the Management Approach Technical tradeoff factor, Patriot submitted an
organizational narrative, AR 3128-58, an organizational chart, AR 3132, and proposed
key shore side personnel resumes, AR 3164-3200. Upon final evaluation by the
Technical Evaluation Team (“TET”), Patriot received an overall rating of “Good” for the
Management Approach Technical tradeoff factor. AR 4986. Patriot’s Management
Approach was assessed to have eleven strengths (of which seven related to the quality of
Patriot’s proposed personnel) and no weaknesses or deficiencies. AR 4988-95. In
addition to personnel-based strengths, Patriot was credited for its explanation of how new
hires would be integrated into the organization and a proposed weekly vessel-by-vessel
materiel status report. AR 4992. The TET summarized the quality of Patriot’s
Management Approach as follows:
Patriot’s FPR3 [third proposal] was rated as GOOD. Their proposal
indicated a thorough approach and understanding of the requirements.
They were able to successfully address the sole Weakness identified in their
FPR2 [second proposal] proposal. The documented Strengths may increase
the quality of performance. There are no outstanding Clarifications,
Omissions[,] Weaknesses, or Deficiencies. Risk of unsuccessful
performance is low.
AR 4986.
For the Management Approach Technical tradeoff factor, OSI submitted an
organizational narrative, AR 2655-64, four organizational charts, AR 2706, 2708-10, and
12
proposed key shore side personnel resumes, AR 2665-98. 15 Upon final evaluation by the
TET, OSI received an overall rating of “Good” for the Management Approach Technical
tradeoff factor. AR 4980. OSI’s Management Approach was assessed to have seventeen
strengths (of which eleven related to the quality of OSI’s proposed personnel) and no
weaknesses or deficiencies. AR 4981-85. In addition to personnel-based strengths, OSI
was credited for several management practices designed to facilitate communication
across the organization. AR 4981-83. The TET summarized the quality of OSI’s
Management Approach as follows:
FPR2 [second proposal] - OSI submitted all revised documents in
accordance with Government requirements. They were able to successfully
resolve all outstanding Omissions, Clarifications, and Weaknesses. They
demonstrated a thorough approach and understanding of the requirements.
Their strengths are such that increased quality of performance to the benefit
of the Government is expected. Risk of unsuccessful performance is low.
FPR3 [third proposal] - OSI did not submit FPR3 technical documents.
The evaluation summary remains valid.
AR 4980.
The Source Selection Advisory Council (“SSAC”) compared Patriot’s and OSI’s
proposed Management Approach Technical tradeoff factors, considered the strengths
identified in each, AR 5170-72, 5180-82, and concluded:
OSI and Patriot both offer technical approaches exceeding the minimum
requirements of the RFP, and the benefits offered by each are different in
their focus. In particular, OSI’s technical approach offers additional
benefits in its proposed communications practices and its proposed
15
As part of the “Solicitation Package” portion of its proposal, OSI submitted the CBA with its
unions, which in turn included a training syllabus used in the past. AR 2488-2547. Section L-
15A(f) of the RFP stated, however, that CBAs do not become part of the contract. AR 572. OSI
did not reference the training syllabus in its Management Approach submission. AR 2643-64.
13
operations department, and Patriot’s technical approach offers additional
benefits in its proposed materiel management practices. Though
substantively different, these proposed management practices are of
comparable value to the government.
AR 5183.
The SSA concurred, stating:
Having reviewed the TET report, having been briefed by the TET, and
having compared the information conveyed in those reports and briefings
against the proposed organizational structures outlined in the technical
proposals; I concur with the TET’s assessment that all of the management
approaches proposed warrant a Good rating. The SSAC tradeoff
recommendation details differences among the reports, but concludes that,
though different, the technical proposals all display management
approaches of similar overall quality. Having reviewed the rationale of that
recommendation in conjunction with the TET report, TET briefing, and
proposed organizational structures; I concur with the SSAC’s reasoning and
conclusion.
AR 5188.
iii. Evaluation of Patriot and OSI’s Past Performance
1. Past Performance evaluation criteria
With respect to evaluation of Past Performance, Section M of the RFP provides as
follows regarding evaluation of this factor:
Past Performance
(1) The past performance evaluation will assess the offeror’s probability of
meeting the solicitation requirements. To develop an overall rating, the
Government’s evaluation will take into account relevant and recent
information submitted by each offeror as part of its proposal and the
Government’s assessment and evaluation of other sources of information . .
. .[ 16]
16
Other sources of information for Past Performance may include, but are not limited to, Past
Performance Information Retrieval System (“PPIRS”) reports, the Federal Awardee Performance
14
(2) The Government will consider the company itself, predecessor
companies, key personnel who have relevant experience and
subcontractors who will perform major or critical aspects of the
requirement.
AR 580-81.
Relatedly, Section L directed offerors to provide the following as part of their Past
Performance submissions:
(a) Offerors are requested to provide information on up to five (5) previous
Government contracts whose effort is/was recent and relevant to the effort
required by this solicitation. Offerors may provide information on
Government and/or Commercial contracts for which they performed as a
prime or subcontractor.
i. “Recent” is defined as a contract in-progress or completed within
the last three (3) years.
ii. “Relevant” is defined as a contract that is of similar scope,
complexity, dollar value, and/or contract type.
a. Scope: Similarity of services or supplies as those defined
in the solicitation.
b. Complexity: The measure of the similarity of technical
difficulty, managerial intricacy, and/or required coordination
of efforts and disciplines performed by the offeror and any
subcontractors in its submitted contracts to the requirements
outlined in the solicitation.
AR 575-76.
and Integrity Information System (“FAPIIS”), Electronic Subcontract Report System (“ESRS”),
questionnaires and interviews. AR 242.
15
2. Patriot’s and OSI’s Past Performance submissions and
evaluations
Patriot submitted Past Performance data sheets for five recent contracts, which
included vessels in both FOS and ROS status. AR 3201-15. MSC was able to obtain
information about each effort from questionnaires, PPIRS, and MSC employees familiar
with Patriot performance on pertinent contracts. AR 4274, 5024-26, 6667-69. Of the
efforts submitted by Patriot for consideration, three were “Relevant,” and Patriot’s
performance was assessed as “Exceptional” on one, “Very Good” on one, and
“Satisfactory” on one. Id. Patriot also submitted two “Somewhat Relevant” contracts for
which its performance was assessed as “Exceptional.” Id. Based on these submissions,
MSC assessed that it had “Substantial Confidence” in Patriot’s ability to perform the
contract. 17 AR 5172.
OSI also submitted Past Performance data sheets for five recent contracts, which
also included ships in both FOS and ROS status. AR 2720-34. As with the efforts
submitted for consideration by Patriot, MSC was able to obtain information about each
from questionnaires, the PPIRS, or MSC employees familiar with OSI’s performance on
pertinent contracts. AR 4261-63, 5021-22, 6647-66. Of the efforts submitted by OSI for
consideration, two were “Very Relevant” contracts, one was a “Relevant” contract, and
one was a “Somewhat Relevant” contract; and OSI’s performance on each was assessed
17
In the SSAC Comparative Analysis of Proposals and Award Recommendation, the SSAC
concluded, “[c]onsidering Patriot’s experience with Government-owned vessels, including
LMSRs, and its demonstrated abilities to adapt to challenging and specialized requirements, such
as the USNS Hayes and Waters contract, the Government has a high expectation that Patriot will
successfully perform the required effort.” AR 5172.
16
as “Very Good.” Id. OSI also submitted one “Somewhat Relevant” contract for which
its performance was assessed “Satisfactory.” Id. Based on these submissions, MSC
assessed that it had “Substantial Confidence” in OSI’s ability to perform the contract.
Id. 18
The SSAC compared Patriot’s and OSI’s Past Performance and concluded:
Both Patriot and OSI received a confidence rating of “Substantial
Confidence” with a very low risk of unsuccessful performance. Patriot’s
past performance record includes a steady history of highly positive
performance on three relevant and two somewhat relevant contracts
providing the Government with Substantial Confidence in its ability to
perform. Similarly, OSI has demonstrated a steady history of positive
performance under its current and recent contracts. Uniquely, OSI has a
highly positive history with the current WATSON class LMSR contract,
viewed as Very Relevant as well as one other Very Relevant contract and
several other contracts that were considered either Relevant or Somewhat
Relevant. Having highly positive history on two very relevant contracts,
including the incumbent contract for this requirement, OSI’s demonstrated
past performance is slightly superior to Patriot’s.
AR 5183.
The SSA concurred, stating:
Having reviewed the Past Performance Evaluation Team (PPET) report and
having been briefed by the PPET, I concur with the PPET’s evaluation and
ratings of the offerors’ past performance. Based on information represented
in the PPET report and my analysis and assessment of the information, I
concur that OSI has the highest rating for this trade-off factor and a slight
18
After award, the contracting officer explained that
[i]n considering scope and complexity of prior efforts for purposes of determining
which were more or less relevant, MSC considered whether the effort was an
MSC contract, vessel size, vessel mission; whether the vessel was ROS or FOS;
and the number of vessels operated under the contract. Whether vessels operated
on prior efforts were powered by gas turbine engines was not considered.
AR 5980.
17
advantage over Patriot; and that Patriot and OSI have evidenced past
performance that displays a lower element of risk to the government than
[the other offerors], and agree they have done so because they have
displayed highly-rated performance on more similar past work . . . . With
respect to demonstrated past performance, the SSAC tradeoff
recommendation concludes that the Government has a high expectation that
Patriot will successfully perform the required effort, and I concur with the
SSAC’s reasoning and conclusion.
AR 5188.
iv. Patriot’s and OSI’s Price submissions and evaluations
The RFP indicated that the resulting contract would be a fixed-price contract paid
at a per diem rate, with certain limited reimbursements by the government at invoice
price (i.e., exclusive of overhead and administrative expenses which are compensated
through the fixed-price per diem). AR 11-12, 452, 570. The proposal instructions
directed offerors to fill out three pricing forms (Forms A, B, and C) for each period of the
contract. Offerors were to input information into Form A that would be used to calculate
the total per diem price for each year. Offerors were to input daily wages, overtime,
fringe benefits, and applicable taxes for each applicable crew position into Form C. The
RFP further explained that “[t]he rates proposed in Pricing Sheets A and C shall be
inserted into Pricing Sheet B, which will multiply the proposed rates by the applicable
number of . . . days for each contract year. Form B will be used to determine the Total
Estimated Contract Price for evaluation purposes.” AR 576-77. The parties do not
18
dispute that training, some of which was reimbursable, was not included in the
description of items that would be evaluated as part of the price proposal. 19
OSI’s proposed total price was $ * * *, which was $ * * * (roughly 2.8%) more
than Patriot’s proposed total price of $ * * *. AR 5170.
v. MSC’s best value determination
The SSAC recommended award to Patriot. AR 5169-70. In comparing the two
offers in their entirety, including the three tradeoff factors of Technical, Past
Performance, and Price, the SSAC concluded:
Patriot’s and OSI’s proposals are of comparable quality in management
approach; while OSI’s proposal presents a slight advantage in past
performance and Patriot’s proposal offers an advantage in price. We have
compared the two proposals and, after considering the relative merits of
each, are unable to identify any aspects of OSI’s proposed management
approach that warrant payment of a higher price, nor are we able to justify
award to OSI at [a] $ * * * premium in price based upon its slightly
superior demonstrated past performance. For these reasons, award to OSI
does not represent the best value to the government. Considering each
offeror’s proposed management approach, past performance, and price,
Patriot offers a proposal that represents the best value to the Government.
Patriot’s management approach demonstrates a sound understanding of the
requirements and includes strengths that provide benefit to the Government,
while its highly positive record of recent and relevant past performance
provides substantial confidence that it will successfully perform the
19
The RFP made clear that training was required both at the beginning and throughout the
contract period. For example, Section C (Descriptions and Specifications) subsection 1.8
(Contract Training Requirements) stated: “The contractor shall ensure that each mariner meets
all Federal . . . training requirements that are presently in effect or may be imposed . . . in the
future. . . . The costs of such training are for the contractor’s account.” AR 381. Under
subsection 1.8.2 (“Cost of MSC/Navy Required Training”), some of training costs would be
reimbursable. Id. (“Costs associated with MSC/Navy required training and drills are
reimbursable according to the per diem/travel for Federal Employees under the Joint Travel
Regulations (JTR) in effect at the time of travel. Wages will only be reimbursable when a
crewmember is not assigned to a vessel. Course completion certificates shall be included with
invoices for reimbursement.”).
19
requirement. Patriot’s offer is also the lowest priced offer, at $ * * *. In
accordance with the Source Selection Plan and the RFP, it is recommended
that award of the proposed contract should be made to Patriot.
AR 5183-84.
On August 28, 2013, the SSA selected Patriot’s offer as representing the best
value to the government. AR 5186-89. The SSA explained its reasoning as follows:
I have been briefed by the Contracting Officer, Chairpersons of the
Technical Evaluation Team (TET), Source Selection Evaluation Board
(SSEB) and Source Selection Advisory Council (SSAC). I have reviewed
the individual Evaluation Reports and SSAC’s analysis and
recommendation, and considered the evaluation and comparative
assessments of the strengths, weaknesses and risks of the proposals
conducted by the SSAC, which I agree with and hereby adopt as my own. I
concur with the ratings assigned and I have determined that award should
be made to Patriot. This decision represents my independent judgment.
...
Considering the technical proposals, and past performance against the
prices offered, I have determined Patriot’s offer to represent the best value
to the government. Although the non-price factors are significantly more
important than price, the slight advantage in past performance, the least
important non-price factor, is insufficient to overcome the premium in price
offered by OSI. In particular, given the similarity in quality of technical
proposals and limited differences in displayed past performance, I note (as
reflected at M-1B.III of the RFP) that the importance of price will increase
as differences in the quality of proposals decrease.
In accordance with the Source Selection Plan and the RFP, I have
determined that award of the proposed contract should be made to Patriot.
Said contract, if all options are exercised and all work is fully performed,
will result in a total cost to the Government of $ * * *.
AR 5187-89.
20
d. OSI’s size protest and subsequent request to re-open discussions
On September 3, 2013, following the best value determination, MSC sent notice of
Patriot’s selection as the apparent awardee to the offerors. Actual award was to be made
five business days thereafter. AR 5196-5203. However, on September 9, 2013, OSI
protested Patriot’s size status to the contracting officer, who then sent it on to the SBA,
thereby delaying the award. AR 5204-09, 5372. On September 20, 2013, while OSI’s
size protest was still pending, 20 MSC informed OSI that it intended to extend OSI’s
contract. See AR 6005. On September 30, 2013, MSC extended OSI’s incumbent
contract without issuing a notice under FAR 22.1010. 21 AR 5999. On that same day,
MSC requested that each offeror extend their offers until March 31, 2014. AR 6095-96,
6186-87, 6266-67, 6368-69. All offerors agreed to extend their offers. AR 6098, 6188,
6265, 6371.
Also on September 30, 2013, OSI and AMO signed a new Appendix A to their
incumbent CBA. AR 6022. This new appendix required a 4% escalation in total labor
costs, effective October 1, 2013. AR 6022. On October 2, 2013, OSI and SIU signed a
new Memorandum of Understanding (“MOU”), which was effective from October 3,
2013 through September 30, 2014. The MOU also called for a 4% increase in total labor
costs for all employees. AR 6025.
20
Due to a lapse in appropriations, the SBA remained closed until October 17, 2013, and thus
was unable to issue a decision. AR 5403.
21
A contracting officer is required to provide the incumbent contractor and its employees’
collective bargaining agent written notice of a contract modification (including an extension) at
least 30 days prior to performance. 48 C.F.R. § 22.1012-1.
21
On October 7, 2013, after having revised the agreements with its unions, OSI
lodged an agency level protest with MSC arguing that with the new wage increases in
effect, a new round of final proposal revisions should solicited. AR 5866. According to
OSI, the 4% wage escalation beginning October 1, 2013 was now binding on all offerors
under the terms of the RFP, and that this wage increase resulted in a “changed situation
from what offerors could have expected at the time of the solicitation . . . .” AR 5866.
On October 17, 2013, the SBA denied OSI’s size protest. AR 5406. On October 18,
2013, MSC’s contracting officer determined that OSI had failed to demonstrate any
prejudice from the wage rate escalation and denied OSI’s protest. The contracting officer
stated:
Your protest is without basis. Wage determination 1999-0007, Rev. 13
(attachment B to N00033-13-R-3210) remains correct for the subject RFP.
The RFP has not been amended and does not require amendment.
Moreover, your letter fails to provide, “a description of the resulting
prejudice to your company” as required by FAR 33.103(d)(2)(iii).
I hereby deny your protest.
AR 5426-27. On that same day, the contracting officer awarded Patriot the contract. AR
5406, 5430-31, 5433.
OSI filed a protest at the United States Government Accountability Office
(“GAO”) on October 25, 2013, raising many of the same arguments as it has in its protest
before this court. AR 5643-61. Of particular relevance, OSI contended that the 4% wage
rate increase required MSC to reopen discussions, arguing that the wage escalation could
amount to as much as a $ * * * million increase in total price over life of the contract,
22
assuming all options are exercised. OSI asserted that the RFP should be amended to give
offerors the opportunity to explain how they might absorb that increase. AR 5657. On
November 18, 2013, GAO granted the requests of Patriot and MSC to dismiss the protest
as related to whether the wage rate escalation required a re-opening of discussions,
stating:
GAO does not view the Protester’s allegations on this protest ground to
constitute a cognizable basis of protest. This protest ground is therefore
DISMISSED, and the Agency’s report need not include a response to it.
GAO will incorporate the dismissal of this protest ground into any decision
on the merits of the other pending protest claims.
AR 5947. OSI subsequently withdrew its remaining protest and brought the instant
action in this court.
Plaintiff filed its complaint on December 6, 2013. On December 12, 2013, this
court denied plaintiff’s motion for a preliminary junction as moot, based on the parties’
representations that the briefing schedule would resolve the case before expiration of
OSI’s contract extension. 22 See ECF No. 15.
II. DISCUSSION
a. Standard of review
In deciding bid protest cases, the court applies the standard of review found in the
Administrative Procedure Act, 5 U.S.C. § 706 (2012). See 28 U.S.C. § 1491(b)(4)
(2012). A procurement decision must be upheld unless the court determines that the
agency action was “arbitrary, capricious, an abuse of discretion, or otherwise not in
22
OSI’s extension expires on March 31, 2014.
23
accordance with law.” Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345,
1350 (Fed. Cir. 2004). In resolving questions of fact, the court may make findings “from
the record evidence as if it were conducting a trial on the record.” Bannum, Inc. v.
United States, 404 F.3d 1346, 1357 (Fed. Cir. 2005).
The court may set aside an award decision if a protester carries its burden of
showing that either “(1) the procurement official’s decision lacked a rational basis; or (2)
the procurement procedure involved a violation of regulation or procedure.” Weeks
Marine, Inc. v. United States, 575 F.3d 1352, 1358 (Fed. Cir. 2009). To succeed under
the first prong, a plaintiff must demonstrate that it was prejudiced by an exercise of
agency discretion that lacked any “coherent and reasonable explanation.” Banknote
Corp. of Am., 365 F.3d at 351; Norsat Int’l [Am.], Inc. v. United States, 111 Fed. Cl.
483, 493 (2013) (citing cases). When proceeding under the second prong, the protester
must show that the prejudice caused by the agency’s violation was “significant,” such
that “there was a ‘substantial chance’ it would have received the contract award but for
the [government’s] errors . . . .” Bannum, 404 F.3d at 1353; Consol. Eng’g Servs., Inc. v.
United States, 64 Fed. Cl. 617, 623 (2005).
Success under the first prong is particularly difficult in light of the substantial
latitude that agency officials possess to conduct a best value analysis. See E.W. Bliss Co.
v. United States, 77 F.3d 445, 449 (Fed. Cir. 1996) (court must defer to agency’s
discretion on technical ratings and other “minutiae of the procurement process”); CHE
Consulting, Inc. v. United States, 552 F.3d 1351, 1356 (Fed. Cir. 2008) (court must defer
to agency’s assessment of risk associated with given procurement strategy). Deference to
24
procurement officials is especially pronounced in matters of Past Performance, and the
court will not second-guess an agency’s reasonable determination as to the relevance or
weighting of an offeror’s prior experience. See Glenn Def. Marine (ASIA), PTE Ltd. v.
United States, 720 F.3d 901, 909 n.6, 911 (Fed. Cir. 2013) (rejecting dissent’s treatment
of Past Performance adjectival ratings as if they “can be added up and ‘averaged out’ to
score the contractor”); Linc Gov’t Servs., LLC v. United States, 96 Fed. Cl. 672, 718
(2010) (“Thus, when evaluating an offeror’s past performance, the [Source Selection
Authority] may give unequal weight, or no weight at all, to different contracts when the
[Source Selection Authority] views one as more relevant than another” (internal
quotation marks and citations omitted)). Ultimately, if the record can support the
agency’s exercise of discretion, the court will uphold the award decision, “even though it
might, as an original proposition, have reached a different conclusion . . . .” Honeywell,
Inc. v. United States, 870 F.2d 644, 648 (Fed. Cir. 1989) (quoting M. Steinthal & Co. v.
Seamans, 455 F.2d 1289, 1301 (D.C. Cir. 1971)); see also R & W Flammann GmbH v.
United States, 339 F.3d 1320, 1322 (Fed. Cir. 2003) (noting that “when an [officer’s]
decision is reasonable a court may not substitute its judgment for that of the agency”).
It is against this backdrop that the court turns to the merits of OSI’s case. Plaintiff
contends that the award to Patriot should be overturned for essentially two reasons. First,
plaintiff argues that MSC was obligated to amend the RFP and solicit revised final offers
after October 1, 2013 because none of the offerors submitted price proposals that
incorporated the 4% wage rate escalation that allegedly occurred on that date. Second,
plaintiff contends that MSC failed to properly apply the stated Technical and Past
25
Performance evaluation criteria and thus did not make a proper best value award
determination. Each will be examined in turn.
b. Plaintiff has failed to demonstrate how the 4% wage increase amounts to a
“material change” or how it was prejudiced by MSC’s failure to amend
the RFP
Plaintiff contends that MSC arbitrarily and improperly refused to amend the RFP
to allow for revised proposals after October 1, 2013, when a mandatory 4% increase in
wages and fringes allegedly went into effect under the CBAs between OSI and its
union(s). From plaintiff’s perspective, this increase constituted a “material change” to
the original RFP because offerors had not anticipated the wage increase in their
proposals. Plaintiff relies on FAR 15.206(a), which requires the government to amend a
solicitation prior to award “[w]hen, either before or after receipt of proposals, the
Government changes its requirements or terms and conditions . . . .” 48 C.F.R. § 15.206.
Plaintiff further argues that because offerors might absorb some or all of the increase—
rather than pass it on to MSC—plaintiff has carried its burden of demonstrating
prejudice. Plaintiff asserts that it should not have to make a more specific showing of
prejudice because here, non-price factors were significantly more important than price.
In response, the government argues that the wage increase does not constitute a
change within the meaning of FAR 15.206(a) because such an increase was an express
term of the CBA between OSI and AMO, which was incorporated into the RFP. As
noted, that CBA stated that “[t]here shall be a four percent (4%) increase of Total Labor
Costs (TLC) effective on each anniversary date for the duration of this agreement and any
26
extension thereof.” AR 720. 23 Moreover, the government argues, any increase triggered
by the CBAs would be binding on all offerors to the same extent. In such circumstances,
the government contends that the 4% increase did not materially change the solicitation.
In addition, the government argues that, even assuming the 4% increase gave rise to a
material change, OSI has failed to demonstrate how it has been prejudiced by the failure
to amend the RFP. Specifically, the government contends that OSI has not identified
how amending the solicitation and allowing offerors to revise their submissions to
account for the wage adjustment would have materially advanced OSI’s ability to obtain
the award.
The court agrees, for the same reasons stated by the government, that FAR 15.206
was not triggered by OSI’s agreements to raise wages by 4% on October 1, 2013. First,
the RFP, by including the CBA between OSI and AMO, expressly identified the potential
for a wage increase after October 1, 2013. Therefore, nothing occurred on that day that
actually altered the solicitation’s requirements. In addition, even assuming that plaintiff
is correct that the 4% wage increase amounted to a material change, 24 plaintiff has failed
23
Patriot disputes that this language obligates a successor to OSI to provide the 4% increase.
24
In this connection, the cases on which plaintiff relies to show that the wage increase amounted
to a material change can be readily distinguished from the case at bar and most do not merit
discussion. For example, in Hunt Bldg. Co. v. United States, 61 Fed. Cl. 243, 246, 271-72
(2004), modified, 63 Fed. Cl. 141 (2004), the court held that award was improper due to the
unequal treatment of the offerors. In that case, however, the agency refused to relax certain
solicitation requirements requested by the protester, while agreeing to relax similar requirements
in favor of another offeror (the eventual awardee) at closing. The court concluded that the
unequal treatment led to the awardee submitting a final proposal in response to a different set of
requirements than those which applied to the protester. By contrast, both OSI and Patriot
submitted final proposal revisions with the same set of assumptions concerning the applicability
of any prospective wage increases.
27
to show how OSI was prejudiced by MSC’s refusal to amend the RFP and reopen
bidding. As previously noted, an agency’s violation of procurement regulations or
procedures cannot justify the setting aside of an award unless a protester demonstrates
that it was significantly prejudiced by the violation. Bannum, 404 F.3d at 1353. Plaintiff
cannot carry its burden by merely claiming that knowledge of the 4% wage escalation
would have led different offerors to absorb (or pass along) different amounts of the
additional cost. See Consol. Eng’g Servs., 64 Fed. Cl. at 638-39 (“a bare assertion that
[the protester] may make different staffing choices is simply insufficient to meet its
burden” to show prejudice from an intervening wage determination). 25 Particularly given
that the wage increase would have applied to all offerors, plaintiff was obligated to
provide a concrete explanation of how amending the RFP to account for this “change”
would have led to an improved competitive position for OSI relative to the other offerors.
Id. Having failed to provide such an explanation, the court rejects plaintiff’s protest on
the grounds related to the purported wage increase. 26
Idea Intern., Inc. v. United States, 74 Fed. Cl. 129 (2006) is also inapposite. Idea involved a
post-award modification that completely shifted the risk of nonperformance from the contractor
to the government. Id. at 141. By contrast, the purported wage increase in the case at bar
constituted only 4% of total labor costs during the first year of a firm-fixed-price contract.
25
Notably, plaintiff does not attempt to distinguish Consol. Eng’g Servs., a case that OSI
acknowledges presents similar facts as the case at bar. See Pl.’s Mot. 17.
26
The court is aware that Patriot disagrees with plaintiff and the government as to whether, as
the awardee, Patriot is required to comply with the 4% wage increase. Because OSI has failed to
make the requisite showing of prejudice, the court need not opine on Patriot’s statutory or
contractual duty, if any, to cover this increase.
28
c. MSC’s best value decision was not arbitrary, capricious, an abuse of
discretion, or contrary to law
Plaintiff challenges MSC’s best value determination on the following grounds: (1)
MSC failed to consider the impact of training costs that would likely be incurred by
Patriot in the best value evaluation; (2) MSC conducted an improper
Technical/Management Approach evaluation; and (3) MSC conducted an improper Past
Performance evaluation. As explained below, none of the plaintiff’s arguments are a
proper basis for overturning the award.
i. Plaintiff has failed to demonstrate that MSC’s best value
determination was arbitrary or capricious
As noted, the RFP stated that pricing would be evaluated by calculating an overall
price based on daily wages, overtime, fringe benefits, and applicable taxes for each
applicable crew position. Plaintiff does not assert that reimbursable training costs 27 were
included in the list of costs to be considered in MSC’s price evaluation to support its
overall best value determination. Nonetheless, OSI contends that when MSC performed
its best value evaluation, MSC should have recognized that any cost savings in Patriot’s
proposal would be offset by Patriot’s higher training costs. Plaintiff asserts that MSC’s
decision to ignore the cost of training, which was arguably reimbursable under the
27
Plaintiff initially asserted that it was irrational for MSC to exclude the cost of reimbursable
training from the price evaluation. Pl.’s Reply 24 (citing Business Clearance Memorandum in
which MSC acquisition officials state, “[t]he price for [reimbursable] expenses is not considered
in the total evaluated price as the expenses incurred would be very similar regardless of which
offeror is successful.”). The plaintiff disputed this assumption on the grounds that employees of
the unions affiliated with Patriot lacked the training possessed by the unions affiliated with all of
the other offerors. Plaintiff now argues that MSC should have found some way to take this
differential in training costs into account as part of its best value determination.
29
contract, was premised on the erroneous assumption that expenses incurred for such costs
would be similar for all offerors. See Pl.’s Reply at 24. According to plaintiff, Patriot
“stood alone as the only offeror associated with unions that do not have officers or crew
already trained and certified to serve aboard the Watson Class LMSRs.” Pl.’s Mot. 26.
Plaintiff argues that if MSC had considered training costs in its price evaluation, MSC
would have recognized that Patriot’s contract price could have been as much as $ * * *
million higher than its evaluated price.
The government responds that the plain language of the RFP prohibited MSC from
considering the impact of reimbursable costs, including training, in making a best value
decision, and that the award could not be sustained if MSC had rejected Patriot’s offer on
grounds outside the evaluation criteria. The government also argues that, to the extent
OSI believed MSC should have incorporated training costs into the price evaluation, OSI
was obligated to make that challenge before award.
The court agrees with the government that MSC was not required to consider
training costs as part of its best value evaluation under the terms of the RFP. OSI was
obligated to bring that challenge before award and has now waived its right to contest
MSC’s non-consideration of training costs under Blue & Gold Fleet, L.P. v. United
States, 492 F.3d 1308, 1313 (Fed. Cir. 2007). As noted above, the RFP did not include
reimbursable training expenses among the costs that would be considered as part of
MSC’s price evaluation. Plaintiff neither contends that this omission was a latent error
nor identifies any good cause for its delay in raising the issue. In such circumstances,
“the bidder cannot lie in the weeds hoping to get the contract, and then if it does not,
30
blindside the agency about the error in a court suit.” DGR Assocs., Inc. v. United States,
690 F.3d 1335, 1343 (Fed. Cir. 2012); see also FirstLine Transp. Sec., Inc. v. United
States, 100 Fed. Cl. 359, 385-87 (2011) (finding challenge to price evaluation scheme
based on exclusion of transition costs waived).
Put simply, MSC’s decision to follow the evaluation scheme as it was presented in
the RFP was not erroneous. The court agrees with the government that, if MSC had done
otherwise, MSC “would have impermissibly deviated from the solicitation’s evaluation
criteria.” Firstline Transp. Sec., Inc., 100 Fed. Cl. at 388 (internal quotations omitted);
see also 10 U.S.C. § 2305(b)(1) (“The head of an agency shall evaluate sealed bids and
competitive proposals and make an award based solely on the factors specified in the
solicitation.”); Blue & Gold Fleet, 492 F.3d at 1313 (“The terms of the solicitation
prospectus did not include any requirement that the bidders consider the Service Contract
Act, and thus, the Park Service could not decide at the time of the evaluation to apply the
Act.”). Accordingly, the court rejects plaintiff’s contention that MSC erred by failing to
consider the training costs as part of its price evaluation or best value determination.
ii. MSC’s Management Approach evaluation was not arbitrary or
capricious
As noted, the SSAC concluded that although OSI’s seventeen strengths and
Patriot’s eleven strengths were “substantively different,” their respective management
approaches were of comparable value to the government, AR 5183, a conclusion with
which the SSA concurred, AR 5188. Plaintiff argues that because OSI received
seventeen strengths and Patriot received only eleven strengths, it was arbitrary for MSC
31
to assign both proposals a rating of “Good” and to treat the two proposals as providing
equal value. Relying heavily on FirstLine Transp. Sec., Inc., 104 Fed. Cl. at 371, plaintiff
suggests that by assigning the same grade to two offerors that received a different number
of strengths, an SSA impermissibly elevates the relative importance of price in the best
value tradeoff. Pl.’s Mot. 31. Plaintiff also contends that when the “nature of the
strengths” received by OSI and Patriot are compared, it is “clear” that OSI’s Technical
proposal was better. Pl.’s Mot. 32. For example, plaintiff contends that it was irrational
for MSC to assign Patriot one strength for proposing * * * additional shore side
personnel, while assigning OSI only two strengths for proposing * * * additional billets.
Plaintiff also argues that OSI should have received a strength based on the quality of its
training program related to gas turbine engines and associated equipment that OSI
developed while serving as the incumbent contractor. In response, the government and
Patriot assert that plaintiff’s arguments constitute mere disagreements with the agency’s
judgment, which is not a proper basis to overturn an award. The government also
contends that because the quality of training was not listed as an evaluation criterion, the
SSA was not permitted to consider it when making the best value award determination.
The court concludes that MSC’s Technical evaluation was not irrational and must
be sustained. Contrary to plaintiff’s contentions, MSC’s assignment of the same
adjectival rating to both OSI and Patriot was not arbitrary or capricious. Despite
plaintiff’s belief that the court can “take judicial notice that * * * additional personnel
dedicated to the contract will provide more value to the Government in terms of
successful contract performance than * * *,” Pl.’s Reply 34, the court must defer to the
32
agency’s discretion on matters like Technical ratings or other procurement minutiae.
E.W. Bliss Co., 77 F.3d at 449; Preferred Sys. Solutions, Inc. v. United States, 110 Fed.
Cl. 48, 59 (2013). Indeed, “this court does not sit as a super source selection authority to
second guess and re-score offerors’ proposals.” Patriot Taxiway Indus., Inc. v. United
States, 98 Fed. Cl. 575, 586 (2011). The court cannot say that it was unreasonable to
withhold an additional strength for training, and therefore cannot substitute its judgment
for that of the MSC evaluators. See R & W Flammann GmbH, 339 F.3d at 1322.
Although an SSA should consider both adjectival ratings and other information on
advantages and disadvantages, Mil-Mar Century Corp. v. United States, 111 Fed. Cl. 508,
553 (2013) (agreeing with Femme Comp. Inc. v. United States, 83 Fed. Cl. 704, 758
(2008) that “looking beyond the adjectival ratings is necessary because proposals with the
same adjectival ratings are not necessarily of equal quality”), it is well-established that
“an agency official exercising discretion need not address every piece of evidence
presented in its decision.” Preferred Sys., 110 Fed. Cl. at 59 (citing Rebosky v. United
States, 60 Fed. Cl. 305, 312 (2004)). In this case, the SSA adopted the findings of the
SSAC, which had found that OSI’s Technical approach offered benefits in its
communications practices and operations department, which were comparable to the
benefits Patriot offered in its material management practices. AR 5183, 5188.
Ultimately, plaintiff’s argument constitutes mere disagreement with the judgment of the
SSA, which is insufficient to set aside a contract award.
The court also agrees with the government that FirstLine Transp. Sec., Inc., 104
Fed. Cl. at 371, offers little support to plaintiff’s case. In that case, the court set aside a
33
best value award determination after the agency assigned the same overall technical
rating to the protester, which had received thirty-three strengths and no weaknesses, as
the agency had to the awardee, which had received one weakness and only a single
strength. Id. The court found that “the government not only ignored the dramatic
difference in the number of strengths assigned to the proposals; it also took affirmative
steps to minimize or neutralize those differences in the SSEB report.” Id. at 378. In
contrast to FirstLine Transp. Sec., Inc., the case at bar does not involve a dramatic gap in
the number of strengths assigned to the two proposals, and plaintiff has not uncovered
sufficient evidence of any affirmative steps to neutralize the differences between the
proposals. 28 Accordingly, the court rejects plaintiff’s argument that MSC’s Technical
evaluation was arbitrary and capricious.
iii. MSC’s Past Performance evaluation was rational and supported by
the record
Plaintiff contends that it was irrational for MSC to assign a “Substantial
Confidence” risk rating to Patriot, and therefore that MSC’s subsequent conclusion that
OSI enjoyed “only” a slight advantage over Patriot was arbitrary. Plaintiff attacks MSC’s
Past Performance evaluation of Patriot on a variety of grounds, including the relevance of
Patriot’s prior contracts and whether Patriot’s prior experience reflected a similar scope
28
The only evidence plaintiff has uncovered of any such affirmative steps is a suggestion from a
peer reviewer recommending that the Technical Evaluation Report “clarify[] why OSI received
only a rating of “Good”, after FPR2, when they had nothing but strengths that seem to indicate
increased quality of performance.” AR 5123. The evaluators declined to further amend the
TET’s report, “because the approach used in the . . . Report had successfully withstood protests
in the past . . . .” AR 5128. A peer reviewer’s suggestion that an explanation be provided for a
rating is not the same as a suggestion that the rating be changed.
34
and degree of complexity as would be required under the new contract. Plaintiff
contends that it was irrational to assign OSI and Patriot the same “Substantial
Confidence” rating in light of the fact that Patriot was found to have only three
“Relevant” and two “Somewhat Relevant” prior contracts, compared to OSI’s two “Very
Relevant” one “Relevant,” and one “Somewhat Relevant” contracts. Plaintiff also argues
that, based on comments from OSI’s references, MSC should have assigned OSI an
“Exceptional” rating on some of its prior contracts, rather than simply “Very Good.”
The court agrees with the government and defendant-intervenor that plaintiff’s
argument, at core, is a mere disagreement with how the SSA exercised its discretion. As
previously noted, this court affords the greatest deference to procurement officials in
matters of Past Performance. Courts are ill-equipped to discern the relative importance of
an offeror’s experience working with gas turbine engines or managing vessels in
Reserve—rather than Full—operating status. Moreover, as the Federal Circuit recently
noted, it is improper for the court to disturb an agency’s Past Performance evaluation by
independently “adding up” and “averaging out” Past Performance evaluations. Glenn
Def. Marine, 720 F.3d at 909 n.6. Plaintiff would have the court go a step further:
looking behind the offerors’ Past Performance submissions to evaluate whether the
agency properly accounted for the number of ships and their operating status. 29
29
The court notes that plaintiff’s attack on MSC’s Past Performance evaluation premised on the
idea that MSC “simply counted the number of [P]ast [P]erformance ‘contracts’ rather than
‘ships’ and ignored the actual operational requirements of those ships . . . .” is also untimely
under the aforementioned reasoning of Blue & Gold Fleet, 492 F.3d at 1313.
35
Particularly in light of the Federal Circuit’s recent precedent, plaintiff’s approach must be
rejected.
d. Plaintiff’s remaining contentions are without merit
The court has considered plaintiff’s remaining contentions and considers them
without merit. 30 Having failed to demonstrate that either MSC’s Past Performance or
Technical evaluations were improper, OSI cannot establish that the agency’s best value
determination should be set aside.
III. CONCLUSION
For the reasons discussed, plaintiff’s motion for judgment on the administrative
record is DENIED and the government’s cross-motion is GRANTED. 31 Each party
shall bear its own costs. The Clerk is directed to enter judgment accordingly. 32
30
Plaintiff’s contention that MSC failed to meaningfully evaluate risk of performance is
unsupported and contrary to record evidence. The argument is premised on a strained reading of
the solicitation, which states that “evaluators will consider, for each factor . . . the risk of
nonperformance, defective performance or late performance under the resulting contract.” AR
241. MSC’s Past Performance and Technical evaluation both reflect consideration of risk. For
example, following the first round of evaluations, MSC acquisition personnel assigned Patriot a
weakness because MSC’s primary points of contact at Patriot were not initially slated to dedicate
100% of their time to the contract. AR 4993. Evaluators also sought clarification from Patriot
because of concerns that Patriot lacked sufficient financial resources to perform the contract. AR
5037. With regard to Past Performance, the evaluation team acknowledged some of the
dissimilarities raised by OSI, such as the fact that the contracts involving USNS Hayes and
USNS Waters involved ships that were somewhat dissimilar from the WATSON class LMSR
requirement. AR 4270.
31
Having failed to establish that OSI was prejudiced by the alleged intervening wage rate
escalation or that MSC’s Technical or Past Performance evaluations were arbitrary or capricious,
the court must DENY plaintiff’s motion for a permanent injunction. See Centech Grp., Inc. v.
United States, 554 F.3d 1029, 1037 (Fed. Cir. 2009) (plaintiff’s entitlement to a permanent
injunction requires actual success on the merits). In addition, having granted the government’s
cross-motion for judgment on the administrative record, defendant-intervenor’s cross-motion for
judgment on the administrative record is DENIED as moot.
36
IT IS SO ORDERED.
s/Nancy B. Firestone
NANCY B. FIRESTONE
Judge
32
On April 2, 2014, the court received the parties’ proposed redactions to this opinion and the
transcript from the court’s March 11, 2014 oral argument. The transcript of the oral argument
shall remain sealed.
37