Science and Management Resources, Inc. v. United States

In the United States Court of Federal Claims

No. 14-346C

(Filed Under Seal: June 27, 2014 | Reissued: July 21, 2014) *

)

SCIENCE AND MANAGEMENT ) Post-award Bid Protest; Best-Value

RESOURCES, INC., ) Negotiated Procurement conducted under

) FAR Part 15; FAR 15.305; FAR 15.308

Plaintiff, ) Motion to Dismiss; RCFC 12(b)(1);

) Standing; Tradeoff.

v. )

)

THE UNITED STATES, )

)

Defendant. )

)

David Franklin Barton, Gardner Law Firm, San Antonio, TX, for plaintiffs.

Meen Geu Oh, Commercial Litigation Branch, Civil Division, United States

Department of Justice, Washington, D.C., for defendant.

OPINION AND ORDER

KAPLAN, Judge.

This is a post-award bid protest arising out of the United States Air Force’s Request for

Proposals No. FA8125-13-R-0003 for a firm-fixed-price contract with labor-hour and cost-

reimbursement components. The Air Force (“agency” or “the government”) sought support and

maintenance services for Test, Measurement, and Diagnostic Equipment (“TMD equipment”) at

its Precision Measurement Equipment Laboratory (“PME lab”) at Tinker Air Force Base,

Oklahoma (“Tinker AFB”). The procurement was subject to the Federal Acquisition

Regulations (“FAR”), 48 C.F.R. Part 15.

The plaintiff in this case is the incumbent contractor, Science and Management

Resources (“SMR”). SMR challenges the contract award to Goldbelt Falcon, LLC (“Goldbelt”),

contending that the award decision was arbitrary and capricious, inconsistent with the terms of

the solicitation, and in violation of applicable procurement regulations. SMR seeks, among other

things, a permanent injunction against the agency proceeding with the award of the contract to

Goldbelt, cancellation of the award to Goldbelt, and the issuance of a new solicitation.

Alternatively, SMR seeks to have the agency reevaluate the bidders in what it argues is a manner

*

This Opinion was originally issued under seal, and the parties were given the opportunity to

request redactions. In light of the parties’ suggested redactions, filed on July 10, 2014, the

opinion is now reissued with redactions indicated by brackets.

consistent with the evaluation criteria stated in the RFP and award the contract consistent with

statute and regulation and in accordance with FAR 218, if necessary. SMR also seeks

reimbursement of its costs of pursuing this protest, including reasonable attorney’s fees.

Pending before the Court are the parties’ cross motions for judgment on the

administrative record. The government has also filed a motion to dismiss for lack of subject

matter jurisdiction pursuant to Rules of the Court of Federal Claims (“RCFC”) 12(b)(1),

claiming that SMR lacks standing to pursue this bid protest.

The Court held oral argument on the motions on June 10, 2014. For the reasons

explained below, the government’s motion to dismiss for lack of subject matter jurisdiction is

DENIED; the plaintiff’s motion for judgment on the administrative record is DENIED; and the

government’s cross-motion for judgment on the administrative record is GRANTED.

BACKGROUND 1

I. The Contract Solicitation and Evaluation Criteria

As noted above, on March 22, 2013, the Air Force issued Request for Proposals (“RFP”

or “solicitation”) No. FA8125-13-R-0003 for a firm-fixed-price contract with labor-hour and

cost-reimbursement components. AR 11:240; AR 25:685. 2 The solicitation sought a service

provider to maintain and repair TMD equipment at Tinker AFB’s PME lab 3 and called for a

thirty-day phase-in period, followed by an eleven-month base period, two one-year option

periods, and another option for a six-month extension period. AR 14:473. The solicitation

included Section L “Instructions to Offerors,” AR 11:295-318, Section M “Evaluation Factors

for Award,” AR 14:465-476, and the Performance Work Statement, AR 14:429-464.

According to the solicitation, the Air Force would award the contract to the offeror that

provided the best value to the government, utilizing tradeoff source selection procedures. AR

14:475. In evaluating proposals, the solicitation provided that an “[a]ward will be made to the

1

The background constitutes findings of fact made by the Court from the administrative record

of the procurement filed pursuant to RCFC 52.1(a). See Bannum, Inc. v. United States, 404 F.3d

1346, 1356 (Fed. Cir. 2005) (observing that bid protests “provide for trial on a paper record,

allowing fact-finding by the trial court”).

2

Citations to the administrative record refer to the amended record filed on May 23, 2014. The

record is paginated sequentially and also divided into tabs. In citing to the administrative record,

the Court will designate the tab, followed by page number. For example, AR 11:240 refers to

page 240, which is located in Tab 11.

3

Air Force Instruction 21-113, entitled Air Force Metrology and Calibration (AFMETCAL)

Management, requires the Air Force to abide by strict guidelines in maintaining and supporting

TMD equipment and personnel in Air Force PME labs (specialized laboratories used to test and

to calibrate equipment used in support of aircraft maintenance). AR 8:60; AR 14:434.

2

offeror proposing the combination of factors most advantageous to the [g]overnment based upon

an integrated assessment of the evaluation factors.” AR 14:466, ¶ 2.1.1.

Section M of the RFP identified the three evaluation factors that would be used to

determine the award: (1) Technical, (2) Past Performance, and (3) Cost/Price. AR 14:466, ¶

2.1.1. The technical evaluation factor comprised three subfactors: (1) Quality, (2) Program

Management, and (3) Production Function. Id.

Under the technical evaluation factor, the RFP provided that the government would

evaluate the offeror’s ability to “ensure[ that] Air Force Metrology and Calibration

(AFMETCAL) program laboratory certification requirements are met,” provide “[q]uality

personnel,” make available a “sufficient number of personnel to meet all workload

requirements,” and provide a plan for “status control accuracy and maintaining follow up

actions.” AR 14:467-68, ¶ 2.2. The RFP required the Air Force to evaluate an offeror’s

compliance with the technical factor on a pass/fail basis. AR 14:466, ¶ 2.1.3. Furthermore, it

stated that proposals shall be evaluated against the criteria listed in the solicitation. Id. Section

L also stated that offeror’s “responses will be evaluated against the [t]echnical subfactors defined

in Section M.” AR 11:300, ¶ 3.1. If an aspect of an offeror’s proposal was deemed

unacceptable, the Air Force stated it would, within its sole discretion, consider the “correction

potential” of the proposal. AR 14:465, ¶ 1.3.

The RFP further provided that the evaluation of past performance would be based on

information gathered from Past Performance Questionnaires (“PPQs”), the Past Performance

Information Retrieval System (“PPIRS”), Contractor Performance Assessment Reports

(“CPAR”), and interviews with government customers and clients. AR 14:470-71, ¶ 2.3.2.3.

The Air Force stated that it would evaluate the past performance information and attribute a

corresponding weight to the information based on relevancy, with each point of reference

receiving a rating of “Very Relevant,” “Relevant,” Somewhat Relevant,” or “Not Relevant.” AR

14:469-70, ¶ 2.3.2.2. More relevant performance would have a greater impact on the

performance confidence assessment than less relevant performance. AR 14:469, ¶ 2.3.2. As part

of the analysis, the Air Force would also consider the relevancy of the previously performed

contracts in light of the solicitation’s technical criteria and the comparability of the cost/price of

the previous contract to this contract. AR 14:469, ¶ 2.3.2.2. In addition, past performance

relevant to the technical subfactors would be further rated based on a performance quality

assessment. Id. Possible ratings ranged from “Exceptional” (the highest) to “Very Good,”

“Satisfactory, Marginal,” “Unsatisfactory,” or “Unknown.” AR 14:470-72, ¶ 2.3.2.3. The

solicitation further provided that offerors receiving an “Unknown” rating “will not be evaluated

favorably or unfavorably on past performance.” AR 14:472, ¶ 2.3.3.

The solicitation stated that, after a full analysis of the relevant data, the Air Force would

assign to each offeror an overall performance confidence assessment of “Substantial

Confidence” (the highest rating), “Satisfactory Confidence,” “Limited Confidence,” “No

Confidence,” or “Unknown Confidence” (reserved for when “the offeror’s performance record is

so sparse that no meaningful confidence assessment can be reasonably assigned.”). AR14:468, ¶

2.3.1. An offeror received a rating of Substantial Confidence if “based on [its] recent/relevant

performance record, the [g]overnment [had] a high expectation that the offeror [would]

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successfully perform the required effort.” Id. The solicitation also stated that “[a]ll offerors

rated as Substantial Confidence [would] be considered equal” under the past performance

evaluation factor. Id.

Regarding the cost/price evaluation factor, the solicitation informed offerors that the Air

Force would conduct a price reasonableness analysis, as defined in FAR 15.404-1, of the Total

Evaluated Price (TEP) of each offeror. AR 14:472-73, ¶¶ 2.4.1, 2.4.4. As part of this analysis,

the solicitation informed offerors that the “TEP will be calculated as the sum of the offeror’s

proposed prices for one thirty day phase-in period, one eleven-month base period, two one-year

options and one six-month extension.” AR 14:473, ¶ 2.4.4. The solicitation also stated that the

“six-month extension . . . will be [calculated] based on the proposed Option II unit pricing.” Id.

The solicitation explained that the Air Force would review offerors’ proposals for unbalanced

pricing—that is, whether prices were unbalanced with respect to similar pricing across the period

of performance. AR 14:472-73, ¶ 2.4.2. Further, the Air Force stated that it would evaluate each

offeror’s cost breakdown for reasonableness. AR 14:472, ¶ 2.4.1.

In describing the relative importance of the factors, the solicitation stated that

“technical acceptability is a prerequisite to the tradeoff between Cost/Price and Past

Performance.” AR 14:466, ¶ 2.1.2 (emphasis omitted). Factor 2, past performance, would be

considered more important than Factor 3, cost/price. Id. Only after a proposal was deemed

technically acceptable would the Air Force conduct a tradeoff analysis, if necessary, between

the offeror’s past performance and its proposed cost/price. Id.; AR 14:475-76, ¶ 3.0. The

solicitation provided that cost/price would “contribute substantially to the award decision.”

AR 14:466, ¶ 2.1.2.

All factors were to be evaluated concurrently. AR 14:466, ¶ 2.1.3. The Air Force

initially stated that it intended to award the contract without discussions, but it reserved the

right to conduct discussions if necessary. AR 14:476, ¶ 3.1. If discussions were conducted,

then the “[o]fferor responses to Evaluation Notices (ENs), and the Final Proposal Revision

(FPR) will be considered in making the [source selection] decision.” Id.

II. Assessment of the Proposals

Goldbelt, SMR, [“Offeror A”], [“Offeror B”], and [“Offeror C”] timely submitted

proposals in response to the solicitation. AR 22:639. The Air Force Source Selection

Evaluation Board (“SSEB”) then made an initial evaluation of the technical and past

performance factors of each proposal. AR 23:666. All of the offerors were rated technically

unacceptable for one or more subfactors; and therefore, the offerors were deemed technically

unacceptable in this initial evaluation. See generally AR 23:667.

On May 23, 2013, the SSEB briefed the Source Selection Authority (“SSA” or

“contracting officer”) on its results and recommended that all offerors except [Offeror B] remain

in the competitive range. AR 23:666. The SSA approved the SSEB’s recommendation to

remove Offeror B from the competitive range because its proposal was deemed unacceptable on

too many levels and would need significant rewriting to be competitive. AR 23:666. The SSA

then opened discussions with the remaining offerors. Id. The offerors received, in two rounds of

4

discussions, the following Evaluation Notices (ENs): Goldbelt – [. . .]; SMR – [. . .]; Offeror A –

[. . .]; Offeror C – [. . .]. Id.

Each offeror provided responses to the agency’s clarification requests and evaluation

notices, and ultimately, each offeror was deemed technically acceptable and received a past

performance rating of Substantial Confidence. AR 23:668. Because the offerors all received a

past performance rating of Substantial Confidence, consistent with the solicitation, they were all

deemed equal under the past performance factor, and no tradeoff analysis was conducted. Id.

The SSEB recommended that the contract be awarded to Goldbelt based on the fact that its

proposed price of $12,215,782.94 was the lowest price. Id.

On February 3, 2014, the Air Force awarded the contract to Goldbelt. AR 26:725.

Offeror A and SMR were, respectively, the presumptive second and third-place finishers. AR

22:662. Offeror A proposed a price of $[. . .], approximately $[. . .] higher than Goldbelt’s

proposed price. Id. SMR’s proposed price of $[. . .] exceeded Offeror A’s proposed price by

nearly $[. . .]. AR 22:662; AR 24:680.

III. SMR’s Protest

A. The GAO Decision.

Following a debriefing, SMR filed a bid protest at the Government Accountability Office

(GAO) alleging that (1) the agency’s price analysis was flawed due to an unclear technical

requirement in the Performance Work Statement; (2) the agency’s price analysis was flawed due

to an inaccurate best estimated quantity; (3) the lack of experience of the final technical review

team resulted in an improper price evaluation; and (4) the Air Force improperly converted the

basis of the award from a best value procurement process to a lowest price technically acceptable

process in failing to conduct a tradeoff analysis between the past performance and cost/price

factors as required by the RFP. AR 40:976-77. On April 10, 2014, the GAO dismissed the

protest, concluding that SMR had abandoned issues (1), (2), and (3) because it failed to provide a

substantive response to the agency’s report addressing these issues. AR 40:976. As to issue (4),

the GAO held that the evaluation process used in awarding the contract to Goldbelt complied

with the RFP. AR 40:978. To the extent that SMR was challenging the RFP’s evaluation

scheme, the GAO concluded its argument was untimely based on 4 C.F.R. § 21.2(a)(1). Id.

B. The Present Lawsuit.

Following the GAO’s decision, SMR filed its bid protest in this Court on April 25, 2014

alleging in two counts that the agency’s decision was arbitrary and capricious and contrary to

law. The Court held a status conference on April 29, 2014. Based on the Court’s assurance that

it would rule on cross motions for judgment on the Administrative Record no later than June 27,

2014, the government agreed to stay proceedings in the procurement pending a decision from the

Court.

5

DISCUSSION

I. Jurisdiction

The government has moved to dismiss this case under RCFC 12(b)(1), arguing that the

Court lacks subject matter jurisdiction because the plaintiff does not have standing to pursue its

protest. Def.’s Mot. 10, ECF No. 25. The standards for ruling on a motion to dismiss are well

established. Plaintiff bears the burden of establishing subject matter jurisdiction by a

preponderance of the evidence. Brandt v. United States, 710 F.3d 1369, 1373 (Fed. Cir. 2013).

In deciding a motion to dismiss for lack of subject matter jurisdiction, the court accepts as true

all undisputed facts in the pleadings and draws all reasonable inferences in favor of the plaintiff.

Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011).

The Court of Federal Claims has jurisdiction over actions “by an interested party

objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract or to

a proposed award or the award of a contract or any alleged violation of statute or regulation in

connection with a procurement or a proposed procurement.” 28 U.S.C. § 1491(b) (2006). A

party is an “interested party” and therefore has standing if the party “is an actual or prospective

bidder whose direct economic interest would be affected by the award of the contract.” Orion

Tech., Inc. v. United States, 704 F.3d 1344, 1348 (Fed. Cir. 2013).

A bidder has a direct economic interest if it suffered a competitive injury or prejudice.

Myers Investigative & Sec. Servs. v. United States, 275 F.3d 1366, 1370 (Fed. Cir. 2002)

(holding that “prejudice (or injury) is a necessary element of standing”). In a post award bid

protest, the bidder has suffered prejudice if it would have had a “substantial chance” of winning

the award “but for the alleged error in the procurement process.” Info. Tech. & Applications

Corp. v. United States, 316 F.3d 1312, 1319 (Fed. Cir. 2003). See also Weeks Marine Inc., v.

United States, 575 F.3d 1352, 1359 (Fed. Cir. 2009); Rex Serv. Corp. v. United States, 448 F.3d

1305, 1308 (Fed. Cir. 2006). “In other words, the protestor's chance of securing the award must

not have been insubstantial.” Info. Tech., 316 F.3d at 1319.

It is well established that a plaintiff’s standing for Article III purposes is determined on

the basis of the allegations in its complaint and not on the basis of their ultimate merits. Warth

v. Seldin, 422 U.S. 490, 500 (1975) (noting that the threshold inquiry into standing “in no way

depends on the merits of the [petitioner's] contention that particular conduct is illegal”). This

principle has been consistently applied to determine whether a plaintiff has standing in a bid

protest case. See, e.g., Linc Gov’t Servs., LLC v. United States, 96 Fed. Cl. 672, 694-95 (2010)

(distinguishing between the prejudice required to establish standing and the prejudice required to

succeed on the merits). As the court observed in Magnum Opus Techs. Inc. v. United States,

“[i]n a post-award bid protest, before reaching the merits of the parties’ dispute, the court

conducts only a ‘limited review’ of the plaintiff's allegations and the administrative record for

the ‘minimum requisite evidence necessary for plaintiff to demonstrate prejudice and therefore

standing.’” 94 Fed. Cl. 512, 530 n.12 (2010) (citations omitted). “This approach ‘avoid[s]

examining the parties’ arguments on the merits in order to resolve standing.’” Id. (quoting

Textron, Inc. v. United States, 74 Fed. Cl. 277, 285 (2006)).

6

Here, regardless of their ultimate merits, SMR’s allegations are sufficient to establish its

standing. SMR alleges that there were systemic defects in the evaluation process and

inadequacies in the administrative record that underlie the award. Among other things, SMR

alleges that the government fails to explain or substantiate its decision to rate the Past

Performance of Goldbelt and the other offerors at the “Substantial Confidence” level. Pl.’s Mot.

11, ECF No. 21. It also contends that there is insufficient explanation in the record to justify

rating Goldbelt’s final proposal or that of the other offerors technically acceptable. Id. at 10. In

addition, SMR argues that there is insufficient discussion in the administrative record of the

strengths or weaknesses of any offeror’s approach regarding any technical subfactor, which it

claims violates FAR 15.305(a). Id. at 15. SMR also alleges that the agency failed to utilize a

tradeoff source selection procedure, thus departing from the evaluation procedure stated in the

RFP. Id. at 14.

In this case, if SMR’s allegations were found meritorious, then “all of the agency’s

ratings would need to be redone, and a new best value determination made.” Preferred Sys.

Solutions v. United States, 110 Fed. Cl. 48, 57 (2013). In that light, the Court finds

unpersuasive the government’s argument that SMR lacks standing because another bidder

(Offeror A) was next in line for the award based on its price. Def.’s Mot. 11-13, ECF No. 25. 4

For one thing, it is not entirely clear which of the bidders would be next in line if the agency

were required to redo the entire evaluation process to correct the errors that the plaintiff alleges

were committed. And, in any event, a bidder need not be next in line for the consideration of an

award in order to possess standing; the “substantial chance” requirement is met where, “but for

the government’s alleged error, the protestor would have been ‘within the zone of active

consideration.’” Preferred Sys. Solutions, 110 Fed. Cl. at 57 (quoting Allied Tech. Grp., Inc. v.

United States, 94 Fed. Cl. 16, 37 (2010), aff’d, 649 F.3d 1320 (Fed. Cir. 2011)).

In this case, there is little question that SMR would have been within the “zone of active

consideration” were it not for the alleged errors in the evaluation process. Indeed, SMR is the

incumbent contractor and was a finalist for the contract award. Because SMR’s chance of

securing the award upon a new evaluation of the bidders’ proposals would not be “insubstantial”

(Info Tech., 316 F.3d at 1319) the jurisdictional requirement that SMR establish its standing has

been met. Therefore, the government’s motion to dismiss for lack of subject matter jurisdiction

is, accordingly, DENIED.

II. Merits

A. Standard of Review

The Court reviews challenges to a contract award under the same standards used to

evaluate agency action under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706. See

28 U.S.C. § 1491(b)(4) (“[I]n any action under this subsection, the courts shall review the

agency’s decision pursuant to the standards set forth in section 706 of title 5.”). To successfully

challenge an agency’s procurement decision, plaintiff must show that the agency’s decision was

4

As the government points out, Offeror A had the same rating as SMR on both the technical and

past performance factors, but a lower total evaluated price. Id. at 13.

7

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C.

§ 706(2)(A); Bannum, Inc., 404 F.3d at 1351. “The arbitrary and capricious standard applicable

here is highly deferential. This standard requires a reviewing court to sustain an agency action

evincing rational reasoning and consideration of relevant factors.” Advanced Data Concepts,

Inc. v. United States, 216 F.3d 1054, 1058 (Fed. Cir. 2000) (citing Bowman Transp., Inc. v.

Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285 (1974)).

The disappointed offeror “bears a heavy burden” in attempting to show that a procuring

agency’s decision lacked a rational basis. Impresa Construzioni Geom. Domenico Garufi v.

United States, 238 F.3d 1324, 1338 (Fed. Cir. 2001). Indeed, such a challenge can succeed only

if the agency “entirely failed to consider an important aspect of the problem, offered an

explanation for its decision that runs counter to the evidence before the agency, or the decision is

so implausible that it could not be ascribed to a difference in view or the product of agency

expertise.” Ala. Aircraft Indus., Inc.–Birmingham v. United States, 586 F.3d 1372, 1375 (Fed.

Cir. 2009) (alterations in original) (citing Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto

Ins. Co. (“State Farm”), 463 U.S. 29, 43 (1983)). Where the contract award is based on a best

value determination, the agency is entitled to “even greater discretion than if the contract were to

have been awarded on the basis of cost alone.” Galen Med. Assocs., Inc. v. United States, 369

F.3d 1324, 1330 (Fed. Cir. 2004).

The Court is particularly deferential to the agency’s technical evaluation. E.W. Bliss Co.

v. United States, 77 F.3d 445, 449 (Fed. Cir. 1996) (stating that “such matters as technical

ratings” involve “the minutiae of the procurement process . . . that a court will not second

guess”). “This is because the evaluation of proposals for their technical excellence or quality is a

process that often requires the special expertise of procurement officials, and thus reviewing

courts give the greatest deference possible to these determinations.” One Largo Metro, LLC v.

United States, 109 Fed. Cl. 39, 74 (2013) (alteration and internal quotations marks omitted)

(quoting Beta Analytics Int’l, Inc. v. United States, 67 Fed. Cl. 384, 395 (2009)).

Given this highly deferential standard of review, the court’s job is to “determine whether

the contracting agency provided a coherent and reasonable explanation of its exercise of

discretion.” Impresa, 238 F.3d at 1332-33 (quoting Saratoga Dev. Corp. v. United States, 21

F.3d 445, 456 (D.C. Cir. 1994)). The agency need only articulate a “rational connection between

the facts found and the choice made,” and the court will “uphold a decision of less than ideal

clarity if the agency’s path may reasonably be discerned.” State Farm, 463 U.S. at 43.

B. The Government’s Decision to Award the Contract to Goldbelt Was Not

Arbitrary and Capricious or Contrary to Law.

1. The Agency’s Technical Evaluation Was Rationally Based and

Sufficiently Documented.

SMR protests the technical evaluation of Goldbelt and the other offerors on the grounds

that (1) Goldbelt did not submit a quality control plan; (2) the Air Force did not explain its

decision to deem Goldbelt’s proposal technically acceptable; and (3) the Air Force did not

explain how technical acceptability ratings were ultimately made or document the strengths,

8

weaknesses, and risks of SMR’s proposal as compared to Goldbelt’s. Pl. Mot. 9-14. According

to SMR, “[t]he [a]gency’s evaluation of the technical provisions of Goldbelt’s Final Proposal

consists of cursory statements that the proposal is acceptable for each of the technical subfactors

without explaining any strengths or weaknesses of the proposal or recognizing that Goldbelt’s

Quality Control Plan was not included in the proposal.” Id. at 9-10. For the reasons set forth

below, these contentions are meritless.

a. Goldbelt Included a Quality Control Plan in Its Proposal.

SMR’s argument that Goldbelt’s final proposal did not include a Quality Control Plan as

required by the solicitation lacks merit. Although the administrative record that the government

initially filed did not reflect the inclusion of the plan, the Court granted the government’s motion

to amend the record, Def.’s Mot. Amend AR, ECF No. 22, based on the Court’s conclusion that

the plan was, in fact, considered by the Air Force. Order, ECF No. 31. The Court so concluded

based on the sworn affidavit of the contracting officer submitted in conjunction with the

government’s motion to amend the record, Rust Decl., Def.’s Mot. Amend AR 4, and the

evidence in the rest of the administrative record showing that such a plan was submitted.

Indeed, the administrative record contains ample evidence that the government

considered Goldbelt’s Quality Control Program, which included the Quality Control Plan, in

reviewing Goldbelt’s proposal for compliance with the solicitation’s technical requirements.

First, Volume I of Goldbelt’s initial proposal referenced the Quality Control Plan as Attachment

1 of Volume IV. See AR 60:1688, 1711, 1727, 1733; AR 71:2510. Second, the government

issued Goldbelt EN # [. . .] to solicit additional information concerning Goldbelt’s [. . .]. AR

65:2477-478; AR 74:3120-126; see also AR 25:694-96, 702. These were topics discussed in

Goldbelt’s Quality Control Plan. AR 159:3827-3848. The agency’s consideration of the plan is

also reflected in its notification to Goldbelt that [. . .]. AR 65:2477.5 Similarly, on June 10,

2013, the Air Force requested further information, EN # [. . .], on Goldbelt’s quality program

concerning language used in a data table. AR 99:3531; AR 74:3120-126; see also AR 25:694-

702. 6 Goldbelt responded to all of the agency’s ENs. AR 109:3550-AR 112:3565; AR 74:3120-

126. Accordingly, the Court remains satisfied that Goldbelt included a Quality Control Plan in

its final proposal and is further satisfied that the agency reviewed Goldbelt’s Quality Control

Plan in connection with its assessment of Goldbelt’s compliance with the technical requirements.

b. The Record Supports the Decision to Rate Goldbelt’s Proposal

Technically Acceptable.

SMR next contends that the government did not adequately explain why the initial

proposals were deemed technically unacceptable or why each offeror’s rating, especially

Goldbelt’s, was changed from unacceptable to acceptable after its responses to the agency’s

Evaluation Notices. This argument is meritless.

5

Goldbelt was asked to respond to all of these concerns by June 4, 2013. AR 65:2478.

6

According to that EN, although Goldbelt had responded to the agency’s earlier concerns, this

had resulted in an [. . .]. [. . .] was not reflected in Figure 1 of Goldbelt’s response. AR 99:3531.

9

As noted above, an agency need only articulate a “rational connection between the facts

found and the choice made”; even “a decision of less than ideal clarity” will be upheld “if the

agency’s path may reasonably be discerned.” State Farm, 463 U.S. at 43. That standard is easily

met here. The record reflects that the proposals were deemed technically acceptable only after

the agency engaged in extensive discussions with the offerors about their proposals. See AR

17:486-91; AR 65:2477-AR 67:2494; AR 109:3550-AR 112:3565; AR 121:3594-AR 125:3606;

AR 137:3698-AR 138:3705; see also AR 16:479-85; AR 74:3120-AR 76:3141. The evaluation

notices issued to each offeror provide a rational explanation of why the initial proposals were

technically unacceptable. See AR 109:3550-AR 112:3563; AR 121:3594-AR125:3605; AR

137:3698-AR 138:3705; AR 149:3798-AR 151:3809. Further, the record reflects an adequate

basis for the agency’s ultimate decision that the proposals were all technically acceptable based

on additional information supplied by the bidders. Id.

For example, the government initially questioned Goldbelt’s [. . .]—three technical

evaluation subfactors. AR 65:2477-82. Within a week, Goldbelt addressed the agency’s

inquiries by [. . .]. AR 74:3120-3126; AR 109:3550-AR 111-3562. In a second round of

inquiries, the government asked Goldbelt to explain a number contained in a data table in

Goldbelt’s technical proposal. Goldbelt stated it was a typographical error and corrected the

number. AR 99:3531-32, AR 112:3563-3565; AR 74:3120-3126. Moreover, Goldbelt applied

these discussions in its Final Proposal. AR 71:2516, 2590-91, 2647.

As indicated in the final evaluation section of the Technical Worksheet, Goldbelt’s

modifications to its initial proposal led the technical team to rate Goldbelt’s proposed approach

as “acceptable” for each technical subfactor. See AR 74. For example, in regard to subfactor 1a,

the team agreed that Goldbelt’s proposal showed “a clear understanding of the requirements as

outlined.” AR 74:3120. “The proposal included a detailed description of their self-inspection

process, management reviews and a method to ensure continued compliance.” AR 74:3125. As

to subfactor 1b, the technical worksheet states that Goldbelt “clearly [met] subfactor 1b.” Id.

The team found that Goldbelt “sufficiently incorporated [. . .] into the final proposal.” Id. As to

subfactor 2, the technical team concluded that Goldbelt “sufficiently incorporated [. . .]” AR

74:3126.

There is similarly no merit to SMR’s argument that Goldbelt did not show it could meet

the solicitation’s requirement of a 98% TMD equipment availability rate. Pl.’s Mot. 10.

Goldbelt addressed this issue in its proposal. AR 71:2562-84. Goldbelt’s response was deemed

technically acceptable by the technical evaluation team after the initial proposals were submitted.

AR 74:3122. According to the review team, Goldbelt “outlined a plan to monitor the rate

through [. . .] to control availability rate. The proposal also listed corrective measures to be

taken in the event the proactive measures are ineffective.” Id. As to subfactor 3b, the team

concluded that Goldbelt “outlined a detailed status control plan that proposes to identify root

causes of production delays in daily production meetings, document proposed corrective actions,

and analyze the effectiveness of corrective actions.” Id. As previously stated, the evaluation

team found Goldbelt’s response to be acceptable.

10

It bears noting again that deference to the judgment of the evaluators is warranted here

and that it is not within the Court’s purview to get in the proverbial “weeds” regarding the

evaluation process. See E.W. Bliss Co., 77 F.3d at 1367 (stating that “such matters as technical

ratings” involve “the minutiae of the procurement process . . . that a court will not second

guess”); see also Jordan Pond Co., LLC v. United States, 115 Fed. Cl. 623, 631 (2014) (stating

that “[t]he deference afforded to an agency’s decision must be even greater when a trial court is

asked to review a technical evaluation”). Accordingly, SMR’s challenge to the adequacy of the

agency’s findings with respect to offerors’ compliance with the technical requirements of the

solicitation provides no basis for disturbing the contract award.

c. The Agency Did Not Violate FAR 15.305 or FAR 15.308 in Its

Technical Evaluation of the Proposals.

Finally, there is no merit to SMR’s contention that the award violated applicable

regulations because the government did not adequately explain or compare the strengths and

weaknesses of each offeror’s technical proposal as required by FAR 15.305 and FAR 15.308. 7

See Pl.’s Resp. 19-23 (contending that “the Agency failed to articulate the specific advantages

that made one proposal of higher quality than another”). First, as described above, the record

contains ample documentation of the agency’s technical evaluation of the proposals. In fact, this

information is all consolidated in the document titled “Proposal Analysis Report,” which details

the evaluation of all the proposals. AR 25:685-724. The report includes a narrative with

notation of ratings assigned to each offeror and describes the reasons the evaluators assigned

such ratings to each offeror. Id.

Second, FAR 15.305 and FAR 15.308 must be read in light of the requirements of the

solicitation. The solicitation stated that “the proposals shall be evaluated against the [technical]

criteria” listed in the solicitation and “on a pass/fail basis, assigning ratings of Acceptable, or

Unacceptable” to each proposal. AR 14:466 (emphasis added). A proposal would be rated

acceptable if it clearly met the minimum requirements of the solicitation and unacceptable if it

did not clearly meet the minimum requirements of the solicitation. AR 14:467, ¶ 2.2. Therefore,

under this approach, what matters is only whether the offeror’s proposal meets this minimum

benchmark listed in the solicitation, not its relative strengths, deficiencies, weaknesses, and risks

from a technical standpoint. Given this methodology, there would be no reason to perform any

comparative examination of the strengths, weaknesses, and risks of competing proposals; it is

sufficient that the record fully shows that the agency followed the evaluation scheme in the

7

The FAR requires the Air Force to “evaluate competitive proposals and then assess their

relative qualities solely on the factors and subfactors specified in the solicitation” and document

in the contract file “[t]he relative strengths, deficiencies, significant weaknesses, and risks” of

each proposal to support its evaluation. FAR 15.305(a). The agency’s final award decision must

“be based on a comparative assessment of proposals against all source selection criteria in the

solicitation.” FAR 15.308. The Air Force must document its decision, and its documentation

must “include the rationale for any business judgments and tradeoffs made or relied on by the

[source selection authority], including benefits associated with additional costs.” Id.

11

solicitation and fully supports the agency’s conclusions that each offeror met the solicitation’s

technical requirement. 8

2. The Agency’s Past Performance Evaluation Was Rationally Based and

Sufficiently Documented.

SMR contends that Goldbelt’s Past Performance rating was unsupported and unjustified.

Pl.’s Mot. 10-11. It argues that the reviews of Goldbelt’s past performance were incomplete and

did not include relevant information such as Goldbelt’s ability to meet the TMD equipment

availability rate, maintain accurate status control, ensure all documents meet requirements, and

maintain calibration tech data. Id. These contentions also lack merit.

In reviewing an evaluation of past performance, “the greatest deference possible is given

to the agency.’” See Gulf Grp. Inc. v. United States, 61 Fed. Cl. 338, 351 (2004); see also Glenn

Def. Marine (ASIA), PTE Ltd. v. United States, 720 F.3d 901, 910 (Fed. Cir. 2013) (agencies

afforded “broad discretion” in past performance evaluations). “[I]t is important to note that what

does or does not constitute ‘relevant’ past performance falls within the [Source Selection

Authority’s] considered discretion.” PlanetSpace, Inc. v. United States, 92 Fed. Cl. 520, 539

(2010). “[E]valuation of experience and past performance, by its very nature, is subjective . . .

and an offeror’s mere disagreement with an agency’s evaluation judgments does not demonstrate

that those judgments are unreasonable.” Glenn Def. Marine-Asia PTE, Ltd., B-402687.6 et al.

2012 CPD ¶ 3 (Comp. Gen. Oct. 13, 2011).

In this case, the basis for the ratings of Substantial Confidence for each of the offeror’s

past performance is well documented in the Proposal Analysis Report, and the agency’s

conclusions are reasonable and consistent with the criteria in the solicitation. AR 25:696-700,

704-07, 712-14, 718-21. The Air Force considered the relevancy of the offerors’ previously

performed contracts in light of the solicitation’s technical criteria and the comparability of the

cost/price of the previous contract to this solicitation. See generally id. In addition, past

performance relevant to the solicitation’s technical subfactors were further rated based on a

performance quality assessment. Id. During this process, the Air Force issued five past

performance evaluation notices to [. . .] of the four offerors. AR 23:666. For example, Goldbelt

was asked to clarify [. . .]. AR 97:3528. Offeror A on the other hand did not receive any past

performance evaluation notices. AR 25:714. It submitted only one previous contract, worth $[. .

.], for review. AR 83:3207-17; AR 86:3280-83; AR 90:3394-3404; AR 94:3504-10. Based on

the PPIS, PPQs, and CPARs, the review team considered the contract Very Relevant and gave

Offeror A an overall performance quality rating of Satisfactory. AR 25:713. The contract was

also considered Very Relevant for subfactors 1 and 2 and Relevant for subfactor 3 in the

Solicitation. Id. Moreover, the team rated Offeror A’s performance quality assessment for each

subfactor as Very Good. Id. Only after this analysis was Offeror A assigned an overall

8

For these reasons, SMR’s reliance on Metcalf Constr. Co., Inc. v. United States, 53 Fed. Cl.

617 (Fed. Cl. 2002) is misplaced. In that case, the technical acceptability rating scheme was not

a pass/fail system; instead, the technical ratings ranged from Highly Acceptable to Unacceptable.

Id. at 624.

12

performance confidence assessment of “Substantial Confidence.” AR 25:714.

Goldbelt, in particular, was actually evaluated on the basis of more information than was

SMR. Goldbelt submitted for evaluation [. . .] previously performed contracts, worth on average

$[. . .]. AR 25:697-98. See also AR 80:3146-86; AR 92:3412-67. In contrast, SMR submitted [.

. .] contracts, worth on average $[. . .]. AR 25:705-06. See also AR 81:3187-3203; AR 82:3204-

06; AR 93:3468-3503. For Goldbelt’s [. . .] contracts, the Air Force received [. . .] PPQs and [. .

.] CPARs. See AR 84:3233-58; AR 88:3297-3349. By comparison, for SMR, the agency

received [. . .] PPQs and [. . .] CPARs. See AR 85:3258-79; AR 89:3350-93.

Thus, Goldbelt not only submitted the greatest number of previously performed contracts

for evaluation, but Goldbelt’s contracts also provided the Air Force with the largest number of

relevant, comparative reference points (Relevant or Very Relevant ratings), and the largest

number of positive ratings (Very Good or Exceptional ratings). See AR 25:696-700, 704-07. In

all, Goldbelt’s past performance information generated [. . .] Relevant or Very Relevant

comparative references and resulted in [. . .] Very Good or Exceptional ratings, [. . .] Satisfactory

ratings, and [. . .] Unsatisfactory ratings. AR 25:696-700. In comparison, SMR’s past

performance information resulted in [. . .] Relevant or Very Relevant comparative references, [. .

.] Very Good or Exceptional ratings, [. . .] Satisfactory ratings, and [. . .] Unsatisfactory ratings.

AR 25:704-07.

To the extent that SMR is arguing that Goldbelt should have been rated lower than

Substantial Confidence for its past performance because it received several “Unknown”

performance quality ratings, that argument is without merit. The solicitation stated that offerors

receiving an “Unknown” rating “will not be evaluated favorably or unfavorably on past

performance.” AR 14:472, ¶ 2.3.3. Further, as noted, the proper weighing of factors and rating

of the performance of the offerors is a decision that is left to the agency’s discretion. SMR has

not provided an adequate justification for the Court to second guess the agency’s judgment on

these matters here.

In short, the Court finds that the agency provided a coherent and reasonable explanation

of the exercise of its discretion regarding the performance ratings assigned to the offerors.

SMR’s challenge to this aspect of the agency’s determination is, accordingly, rejected.

3. The Air Force Evaluation of the Cost/Price Factor Was Rationally Based

and Sufficiently Documented.

SMR makes several allegations concerning the agency’s evaluation of the offerors’

cost/price proposals, including alleging that (1) the Air Force overlooked a lack of change in

price even though Goldbelt added “additional personnel”; (2) the Air Force did not scrutinize

Goldbelt’s omission of Emergency Service and Emergency Custodial Service costs in its price

proposal; and (3) the Air Force awarded the contract to Goldbelt based on a Total Evaluated

Price (“TEP”) that excluded the six-month extension period. Pl.’s Mot. 11-12. The Court finds

these allegations regarding the cost/price evaluation meritless.

13

First, Goldbelt’s Final Proposal did account for [. . .]. Goldbelt’s final price proposal

states that “[i]n response to Technical Evaluation Notice [. . .] . . . . [Goldbelt] [. . .] in each lab

[resulting in an] updated price proposal.” AR 71:2608, ¶ 3.14.1. As reflected in Goldbelt’s

proposals, this change (among others) increased Goldbelt’s proposed price by approximately $[. .

.]. Compare AR 60:1847-51 with AR 71:2615-19. See also AR 32:836-39 (initial price

proposal equals $[. . .]); AR 25:701 (final price proposal equals $12,215,782.94); AR 23:667-

68. 9

Similarly, contrary to SMR’s argument, no offeror was required to include a line item for

overtime wages for emergency services (including custodial services) in their cost/price

proposal. SMR relies upon language in the Performance Work Statement which states that work

identified by the government as “[e]mergency . . . shall be worked continuously around the clock

(24/7) until completed.” AR 14:436, ¶ 1.10.1, 439, ¶ 1.14.8.1 (“Emergency requests shall be

negotiated from the appropriate Over and Above line item.”). While the Performance Work

Statement is a part of the solicitation, no offeror was obligated by either Section L or M to

propose an estimated number of overtime hours (and corresponding overtime wages) in its

cost/price proposal. See generally AR 11:295-318; 14:413-476. Further, the suggestion that

“Emergency” tasks “must be worked continuously (24/7)” does not necessarily imply that

overtime wages must be paid. As the government illustrated in its brief, a contractor might

decide to divide its labor force into three different eight-hour shifts, with each shift handing off

existing work to the next shift. Def.’s Mot. 22. This arrangement would avoid any accrual of

overtime wages without interrupting operations during normal business hours or otherwise. Id.

Therefore, SMR’s argument that overtime wages are required in cost/price proposals is meritless.

Finally, SMR argues that “the Agency awarded the contract to Goldbelt based on price

factors less than the TEP,” claiming that “the Agency excluded the price of the six month

extension in violation of the Solicitation.” Pl.’s Mot. 12 (citing AR 24:684). The record shows

that this contention is meritless. Each offeror’s TEP was calculated based on the proposed costs

for the phase-in work, the base period, two option years, and an optional six-month extension

period. AR 14:473, ¶ 2.4.4.; AR 23:667; AR 24:670-71; AR 25:701.

Further, the solicitation indicates that offerors were not required to include pricing for the

six-month extension period because the Air Force intended to calculate that cost based on the

proposed pricing for the second option year. AR 14:473, ¶ 2.4.4 (“The six-month extension of

services prices will be based on the proposed Option II unit pricing.”). The Air Force did

precisely that, by taking Goldbelt’s second option calculations to plug-in costs for the six-month

extension period. AR 25:692. See generally, AR 24.

9

SMR’s contention that Goldbelt never changed its proposed price likely stems from the fact

that the agency’s price competition memorandum and its proposal analysis report did not include

Goldbelt’s initial proposed price for comparison and only noted Goldbelt’s Pre-Final Proposal

Revision price (or its intermediate price), which already included the price increase for the [. . .].

AR 24:670, 679; AR 25:700-01. The very first page of Goldbelt’s proposal (the cover letter)

states that its final proposed price includes “updated pricing resulting from the Evaluation

Notices (ENs).” AR 71:2509.

14

In fact, the same protocol was followed for SMR’s proposal. SMR also did not provide a

proposed cost for the six-month extension period in its proposal. See generally AR 20:573-620.

The Air Force took SMR’s second option period pricing and calculated the proposed cost for the

six-month extension period, just as the solicitation required. AR 24:670-71; AR 25:692,709. The

agency’s application of its calculation for proposed pricing on the six-month extension period

was consistent with respect to all offerors. AR 24:670-71 (formula to determine proposed costs

for each offeror’s six-month extension period is taking the second option pricing and dividing by

two). SMR’s challenge to this aspect of the agency’s evaluation is, accordingly, rejected.

4. There Is No Merit to SMR’s Argument that the Agency Did Not Follow

Applicable Tradeoff Source Selection Procedures.

Finally, SMR’s argument that the Air Force violated the terms of the solicitation and

applicable regulations by abandoning tradeoff source selection procedures—that is, the tradeoff

between past performance and cost/price—in its award of the contract to Goldbelt, is without

merit. The solicitation explains that “[a]ll offerors rated as Substantial Confidence will be

considered equal for Factor 2 Past Performance.” AR 14:468, ¶ 2.3.1. Goldbelt, like SMR,

received a Substantial Confidence rating. The only material difference between the proposals

was that Goldbelt’s TEP was $[. . .] [. . .] than SMR’s. In a case like this one, where all offerors

are rated as Substantial Confidence, a tradeoff analysis between past performance and cost/price

is not possible. See Tech Sys., Inc. v. United States, 98 Fed. Cl. 228, 265 (2011) (Because two

offers were “essentially equal” the “lowest offered price was the determining factor for the

award.”); Carahsoft Tech. Corp. v. United States, 86 Fed. Cl. 325, 349-50 (2009) (recognizing

that when two proposals are technically equivalent, it is not possible to perform a tradeoff

analysis). The SSA’s decision not to utilize the tradeoff between past performance and

cost/price did not convert the procurement to a lowest price technically acceptable procurement.

Under the circumstances, SMR fails to show how the agency violated applicable regulations or

the terms of the solicitation in making its best value determination.

CONCLUSION

As described above, while SMR’s allegations are sufficient to establish its standing, it has

failed to establish their merit by showing any error, prejudicial or otherwise, in the procurement

process. Accordingly, the government’s motion to dismiss is DENIED, but its cross motion for

judgment on the administrative record is GRANTED. The plaintiff’s motion for judgment on

the administrative record is DENIED. The Clerk of the Court is directed to enter judgment

accordingly.

Pursuant to the Court’s April 30, 2014 Protective Order, this Opinion and Order has been

issued under seal. The parties shall have two weeks to propose redactions and, accordingly, shall

file such proposed redactions on or before Friday, July 11, 2014.

IT IS SO ORDERED.

15

s/ Elaine D. Kaplan

ELAINE D. KAPLAN

Judge

16