The opinion
In the United States Court of Federal Claims
No. 14-1092C
(Re-filed: February 27, 2015)1
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RED RIVER COMPUTER CO., INC.,
Bid protest; Competitive range
Plaintiff,
determination; Past
Performance; Prejudice.
v.
THE UNITED STATES,
Defendant.
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H. Todd Whay, Sterling, VA, for plaintiff.
Robert C. Bigler, Civil Division, Department of Justice, Washington,
DC, with whom were Joyce R. Branda, Acting Assistant Attorney General,
Robert E. Kirschman, Jr., Director, and Allison Kidd-Miller, Assistant
Director, for defendant. Cameron R. Edlefson, Major, United States Army
Legal Services Agency, of counsel.
OPINION
BRUGGINK, Judge.
This action is brought pursuant to the court’s bid protest jurisdiction.
Plaintiff, Red River Computer Co., Inc., an unsuccessful offeror for an
information technology (“IT”) supply contract, alleges that the United States
Department of the Army (hereinafter the “agency,” or “army”), through its
1. The materials submitted in this case were subject to a protective order. We
directed the parties to confer and propose any redactions to chambers by
February 17, 2015. The parties did not propose any redactions. The opinion
thus appears as in the original.
Rock Island Contracting Center, acted arbitrarily when it excluded plaintiff
from the competitive range. The parties have filed cross-motions for judgment
on the administrative record. Those motions are fully briefed. Oral argument
was held on February 3, 2015. Because defendant did not act arbitrarily,
capriciously, or otherwise in violation of the law, we deny plaintiff’s motion
and grant defendant’s motion.
BACKGROUND
On September 25, 2012, the agency issued the “Information
Technology Enterprise Solutions-3 Hardware” (“ITES-3H”) Solicitation
W52P1J-11-R-0171 (hereinafter the “Solicitation” or “RFP”) to furnish the
agency with IT equipment and solutions at a reasonable price. Administrative
Record (“AR”) 72-74. The agency plans to award to at least eight offerors
under an indefinite delivery/indefinite quantity (“IDIQ”) contract with up to
four awards reserved for small businesses. It reserves the right to make no
awards or more than eight awards.
The ceiling cost for the ITES-3H project is $5 billion over a five-year
period of performance, which consists of a base period of three years and two
one-year agency options. Each offeror is guaranteed a minimum of $10,700 in
orders under the IDIQ contract.
The army is utilizing a two-phase evaluation process for the acquisition.
The first phase has been completed, and the agency is currently conducting the
second phase. Phase I required bidders to demonstrate their capabilities in
supplying commercial IT hardware in compliance with the operating
environment. The agency evaluated the Phase I proposals on an
acceptable/unacceptable basis and eliminated any offerors that failed to receive
an acceptable rating. As a result of the Phase I evaluation, 39 out of 50 initial
offerors were invited to submit a Phase II proposal. Phase II proposals consist
of information regarding managerial and technical capability, track record of
handling similar projects, and the price proposed for the work. Eight of the
offerors that moved on to Phase II were large businesses, and the remaining 31
offerors, including plaintiff, were small businesses.
Phase II is a best value tradeoff process in which offerors with
proposals that are determined to be the most beneficial to the agency are
awarded a contract. The agency’s decision is made based on its assessment of
a set of factors and subfactors set forth in the solicitation. The first factor,
Mission Support, is the most important of the three main factors. The second
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factor, Past Performance, is more important than the last, Price. Price is
important, the solicitation states, but the non-price factors combined are
significantly more important than Price. The solicitation provides that Price
will be evaluated but not rated.
The Mission Support factor has three subfactors. Subfactor 1,
Management, is more important than Subfactor 2, Technology; and
Technology is more important than Subfactor 3, Small Business Participation.
The solicitation provides that the Mission Support factor and the three
subfactors would be rated using one of the following adjectives: (1)
“Outstanding;” (2) “Good;” (3) “Acceptable;” (4) “Marginal;” and (5)
“Unacceptable.” AR 186. In order to be considered for an award, an offeror
must receive a rating of no less than “Acceptable” for the Mission Support
factor and all of its subfactors. “Acceptable” is defined as follows: “Proposal
meets requirements and indicates an adequate approach and understanding of
the requirements. Strengths and weaknesses are offsetting or will have little or
no impact on contract performance. Risk of unsuccessful performance is no
worse than moderate.” Id.
When evaluating the Past Performance factor, the agency inquired of
offerors’ recent track record in performing similar contracts in order to satisfy
the agency’s minimum confidence requirement that the work could be
performed by a particular offeror. The solicitation calls for a bidder to submit
no more than five previous contracts with an annual minimum dollar value of
$5 million for equipment and related incidental services that would represent
the offeror’s recent and relevant performance of similar government (federal,
state, or local) and/or commercial contracts.2 Each reference was required to
2. A “recent contract” is defined by the solicitation as “prime contracts,
delivery orders, or subcontracts where services or deliverables were
performed, or are still being performed within approximately three years of
issuance of” the solicitation. AR 178. “Relevant performance” means
“performance that demonstrates the offeror, as a prime and/or first tier
subcontractor, has successfully performed or is currently performing on
contracts/delivery orders that encompass commercial IT equipment and
incidental services that are the same or similar in complexity as described in”
the solicitation. Id.
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contain a specific narrative explaining how the effort was relevant to the
requirements of the present solicitation.3
The relevance of an offeror’s past performance was rated using one of
the following terms:
Very Relevant Present/past performance effort involved
essentially the same scope and magnitude of effort
and complexities this solicitation requires.
Relevant Present/past performance effort involved similar
scope and magnitude of effort and complexities
this solicitation requires.
Somewhat Relevant Present/past performance effort involved some of
the scope and magnitude of effort and
complexities this solicitation requires.
Not Relevant Present/past performance effort involved little or
none of the scope and magnitude of effort and
complexities this solicitation requires.
AR 187.
In addition to the recent relevant contract references, the solicitation
requires offerors to also identify and report any contract in which the offeror
“experienced any performance problems related to deliverables, warranties, or
services” and any recent contracts that were terminated or cancelled in whole
or in part for any reason within the past three years. AR 179.
The solicitation further provides that the agency reserves the right to
use both data provided in the offerors’ proposals and data obtained by the
agency from other sources. The burden of providing “thorough and complete
past performance information” rests with the offeror. Id.
The Past Performance factor was rated using the following adjective
ratings:
3. The requirements include aspects of schedule and performance in areas such
as: program management; delivery of products; warranties; related incidental
services; problem resolution; compliance and conformance to contract
requirements; personal management; and cost controls. AR 187.
4
Substantial Confidence Based on the offeror’s recent/relevant
performance record, the agency has a high
expectation that the offeror will successfully
perform the required effort.
Satisfactory Confidence Based on the offeror’s recent/relevant
performance record, the agency has a
reasonable expectation that the offeror will
successfully perform the required effort.
Limited Confidence Based on the recent/relevant performance
record, the agency has a low expectation that
the offeror will successfully perform the
required effort.
No Confidence Based on the offeror’s recent/relevant
performance record, the agency has no
expectation that the offeror will be able to
successfully perform the required effort.
Unknown Confidence No recent/relevant performance record is
(Neutral) available or the offeror’s performance record
is so sparse that no meaningful confidence
assessment rating can be reasonably assigned.
AR 187-88.
The solicitation states that Price is an evaluation factor but is not
adjectively scored. The solicitation adheres to the Federal Acquisition
Regulation’s (“FAR”) requirement that contracts be awarded at prices that are
fair and reasonable. See 48 C.F.R. § 15.402(a) (2014). The solicitation
provides that the agency reserves the right to make an award to other than the
lowest priced offeror.
Plaintiff submitted its Phase II proposal on May 14, 2013. In the
proposal, plaintiff included five projects which it had previously undertaken
as recent and relevant contract references. Additionally, plaintiff submitted
two contract references reflecting adverse performance. The initial Phase II
evaluation was performed by the agency’s Source Selection Evaluation Board
(“SSEB”), which presented its ratings on May 29, 2014, to the Source
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Selection Advisory Council (“SSAC”), and on June 4, 2014, to the Source
Selection Authority (“SSA”), the ultimate decision maker.
On July 11, 2014, the agency established a competitive range under 48
C.F.R. § 15.306(c)(2), as contemplated in the RFP, to allow the Contracting
Officer (“CO”) to “limit the number of proposals in the competitive range to
the greatest number that will permit an efficient competition among the most
highly rated proposals.” AR 890. The solicitation states that the agency would
engage in discussions only with offerors within the competitive range and ask
them to submit a final proposal revision before awarding contracts. AR 171.
In order to be included in the competitive range, an offeror had to
achieve, at minimum, the following ratings: A Mission Support factor rating
of “Good;” a Past Performance factor rating of “Satisfactory Confidence;” and
a price among the twelve lowest offerors meeting the technical and past
performance criteria. AR 938. As a result, the agency initially included 12
offerors in the competitive range.4 Plaintiff was not one of them.
Plaintiff’s proposal garnered an overall rating of “Good” for the
Mission Support factor, scoring the same rating for all three subfactors. In
assigning the “Good” rating to all three subfactors, the agency identified four
strengths for the Management subfactor and no weaknesses, two strengths and
no weaknesses for the Technology subfactor, and five strengths that
outweighed two weaknesses and one significant weakness for the Small
Business Participation subfactor. AR 918.
For the Past Performance factor, the agency rated three of the five
contract references plaintiff submitted in its proposal as “Relevant” and the
remaining two as “Somewhat Relevant.” AR 957. Plaintiff self-reported two
previous contracts with adverse performance issues.5 The agency also found
4. The total number of offerors in the competitive range now stands at 16 after
the agency took corrective action and added four offerors, all of whom
protested their initial exclusions with the Government Accountability Office.
5. See AR 711-15. The first contract reference that plaintiff reported as having
an adverse performance issue was with the United States Department of State,
in which it missed the original shipment date. Plaintiff explained that the delay
was beyond its control due to a shortage of raw materials and a supply chain
(continued...)
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five previous federal contracts for which plaintiff did not report performance
related issues. See AR 744-45. The SSEB stated in its evaluation for the Past
Performance factor that these five unreported contract references “had a
significant negative influence in assigning the past performance rating.” AR
746. As a result of the SSEB’s assessment, plaintiff initially received a rating
of “Limited Confidence” with respect to past performance from the SSEB. AR
918. When the recommendations reached the SSA, however, she downgraded
the rating to “No Confidence” based on the five adverse contract references
that the agency independently “found for the last twelve months.” AR 936.
Plaintiff’s proposed price was ranked tenth lowest among all 39 offerors. AR
919. As a result of its poor past performance rating, the SSA did not include
plaintiff in the competitive range.
Plaintiff received a debriefing from the agency on July 29, 2014. The
agency stated in its presentation that “[a]dverse performance information
found in a few recent [contract references] that were not self-reported by the
Offeror illustrated a trend of concern.” AR 957 (Debriefing presentation
slides). Furthermore, the agency stated in the slides that “[t]he five [contract
references] found within the last year revealed negative performance issues .
. . . These recent negative performance issues definitely had a negative impact
on the Offeror’s performance rating.” Id.
Plaintiff filed a protest with the Government Accountability Office
(“GAO”) on August 8, 2014, making two arguments: (1) The agency
unreasonably evaluated plaintiff under the Past Performance factor;6 and (2)
5(...continued)
disruption caused by the 2011 earthquake and tsunami in Japan. The second
adverse contract reference plaintiff reported was with the Air Force, in which
the contract was terminated as a result of corrective action in response to
protests filed against the Air Force. Plaintiff emphasized that “all contract
awards were terminated for the same reason.” AR 713. The SSEB reported
that it was unconcerned with the two negative references supplied by Red
River because it accepted Red River’s explanation of events beyond its
control.
6. See AR 28-36. Plaintiff made two sub-arguments under the first main
argument. First, it asserted that the agency’s “No Confidence” rating under the
Past Performance factor was unreasonable. Second, plaintiff contended that the
(continued...)
7
The agency unreasonably evaluated plaintiff under the Small Business
Participation technical subfactor. On September 18, 2014, plaintiff filed a
supplemental protest with the GAO, contending that the agency: (1) failed to
properly consider price in establishing the competitive range; (2) failed to
properly document its evaluations; (3) disparately treated information when
evaluating plaintiff’s past performance; and (4) evaluated offerors’ proposals
in an unreasonable and unequal manner. See AR 1110-19. In a consolidated
decision, GAO denied plaintiff’s protests, finding that the “agency reasonably
determined that [plaintiff’s] past performance merited a rating of no more than
limited confidence (in the view of the evaluators), or even no confidence (in
the SSA’s view) and reasonably excluded [plaintiff] from the competitive
range.” AR 3421.
Plaintiff then filed its complaint here on November 10, 2014, making
four allegations: (1) defendant’s assignment of a “No Confidence” rating to
plaintiff’s past performance was improper; (2) defendant utilized unstated
evaluation criteria in evaluating plaintiff’s past performance; (3) defendant
treated plaintiff unequally; and (4) defendant failed to consider plaintiff’s price
when it established the competitive range. Compl. ¶¶ 7-11. Plaintiff did not
request a preliminary injunction. Subsequently, plaintiff filed a motion for
judgment on the administrative record and defendant filed a cross-motion.
DISCUSSION
The Tucker Act, as amended by the Administrative Dispute Resolution
Act, confers jurisdiction upon this court “to render judgment on an action 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)(1) (2012). An
“interested party” is “an actual or prospective bidder or offeror whose direct
economic interest would be affected by the award of the contract or by failure
to award the contract.” Am. Fed’n of Gov’t Emps. Local 1482 v. United States,
258 F.3d 1294, 1302 (Fed. Cir. 2001).
6(...continued)
agency’s rating of “Relevant” for one of the five contract references it
submitted in its proposal was unreasonable.
8
In exercising our bid protest jurisdiction, we adhere to the standards set
forth in section 706 of the Administrative Procedure Act (“APA”), which
means that we will vacate an agency’s decision only if it is “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with the
law.” 5 U.S.C. § 706(2)(A) (2012). An agency’s action would be considered
“arbitrary and capricious if the agency has relied on factors which Congress
has not intended it to consider, 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 is so implausible that it could not be ascribed
to a difference in view or the product of agency expertise.” Motor Vehicle
Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983). Thus, the agency’s action will be set aside if it lacked a rational basis
or if it involved a prejudicial violation of procedure. Impresa Construzioni
Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332 (Fed. Cir.
2001). Because the IDIQ contract will be awarded based on “best value,” the
agency has greater discretion than if the contract were to be awarded on the
basis of price alone. Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324,
1330 (Fed. Cir. 2004) (citing E.W. Bliss Co. v. United States, 77 F.3d 445, 449
(Fed. Cir. 1996)). “The greater the discretion granted to a contracting officer,
the more difficult it will be to prove the decision was arbitrary and capricious.”
Burroughs Corp. v. United States, 617 F.2d 590, 597 (Ct. Cl. 1980).
Accordingly, this court’s review should be “highly deferential” to the agency’s
determination. Femme Comp Inc. v. United States, 83 Fed. Cl. 704, 726 (2008)
(citing Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1058
(Fed. Cir. 2000)).
Plaintiff protests that the agency acted in an arbitrary, capricious, or
unlawful manner and raises the following issues for disposition: (1) whether
the “No Confidence” rating under the Past Performance factor was improperly
given to plaintiff; (2) whether the evaluation resulted in the unequal treatment
of offerors; (3) whether the agency improperly failed to consider plaintiff’s
proposed price when it established the competitive range; and (4) whether the
agency’s assigned rating of “Relevant” rather than “Very Relevant” to one of
five contract references plaintiff submitted in its proposal was improper.7
I. “No Confidence” Rating On Plaintiff’s Past Performance
7. Plaintiff made an additional argument–that the agency failed to adequately
document its evaluations–which is related to its third and fourth arguments and
will be considered in connection with those arguments.
9
Plaintiff’s primary argument is that the agency’s “No Confidence”
rating for plaintiff’s past performance was irrational because it was based on
a mistake of fact and reflects the application of an unstated evaluation
criterion. Specifically, plaintiff argues that the agency (1) was mistaken in its
belief that the five unreported references were performed in the year 2013,
rather than earlier, and (2) utilized an unstated evaluation criterion–that
plaintiff failed to self-report the five adverse references–to rate plaintiff lower
than it deserved.
A. The Army’s Evaluation Comments
We begin with the agency’s statements regarding plaintiff’s past
performance. The SSEB, in its Past Performance Report, examined the five
positive and two negative contract references submitted by Red River. The
report also includes review of five Contract Performance Assessment Reports
(“CPAR”) that the SSEB’s Past Performance Team independently located:
“The Past Performance team found other less than favorable performance that
was found in the PPIRS database. The offeror did not self-report the following
CPARs.” AR 744. The SSEB considered all the references, reported and
unreported, and concluded, based primarily on the five unreported references,
that it had “Limited Confidence” in Red River’s ability to successfully perform
the work in light of its past performance. AR 747. It concluded that,“the
performance found on the CPARs that reported less [than] favorable
performance . . . and was not self-reported by the Offeror, had a significant
negative influence in assigning the past performance rating.” Id.
The SSAC reviewed the SSEB’s reports and generated a slide show
summarizing Red River’s past performance in this way: “The five CPAR
reports found within the last year, revealed negative performance issues
concerning quality, scheduling, late deliveries, damaged equipment,
inconsistent communications with the government and management of key
personnel. These recent negative performance issues definitely had a negative
impact on the Offeror’s performance rating.” AR 846.
The SSA, in her Memorandum For Record regarding the competitive
range determination, summarized the SSEB’s findings as follows:
The five CPAR reports found within the last year revealed
negative performance issues concerning quality, scheduling, late
deliveries, damaged equipment, inconsistent communications
with the Government and management of key personnel. These
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recent negative performance issues definitely had a negative
impact on the Offeror’s performance rating. Of the references
submitted, the performance information that was received or
found revealed that the Offeror received some favorable
performance ratings and comments. However, based on the
Offerors recent/relevant performance record, the Government
has a low expectation that the Offeror will successfully perform
the required effort. No strengths, weaknesses or deficiencies
were found. The Offeror was given an opportunity to respond to
an IFC regarding the issues of less than favorable quality and
delivery performance that were not self-reported by the Offeror.
The IFC was responded to, but the response did not affect the
Offeror’s initial past performance rating.
AR 918-19.
The SSA conducted her own review of Red River’s contract references
and downgraded plaintiff to a rating of “No Confidence” based on “the five
CPARs found for the last twelve months (which revealed negative
performance issues concerning quality, scheduling, late deliveries, damaged
equipment, inconsistent communications with the Government and
management of key personnel) and my having no expectation that the Offeror
will be able to successfully perform the required effort.” AR 936.
The subsequent protests by plaintiff and others at GAO generated two
agency reports authored by the CO.8 The first report contains a statement as
to one of the negative references that this “information was not self-reported
by Red River (as required by the Solicitation), and this fact was taken into
consideration as well in assessing the negative rating.” AR 9. On the next
page of the first report, she summarized the SSA’s rating of “No Confidence”
as based on the five negative contract references “found for the last twelve
months,” AR 9, which reflected a “trend of recent activity in the last year [that]
was especially concerning, and reflected poorly on expectations for Red
River’s performance if it had received an ITES-3H award.” AR 10. In the
second report, the CO stated generally that “it was reasonable for the Army to
8. Plaintiff filed a supplemental protest at GAO, which prompted a second
agency report authored by the CO. Although none of the evaluations at issue
were performed by the CO, she was the author of the reports to GAO per
GAO’s governing regulations.
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consider the nature of this information itself, along with the fact that it was not
self-reported, when assigning Red River a poor rating under the Past
Performance factor.” AR 1099. As to the timing of performance, she stated
that the “SSA also considered the fact these elements of negative performance
all occurred in the last 12 months. . . . This could be seen as a trend of poor
management and control. . . . Red River appeared to have a trend of negative
performance that was not outweighed by other positive information in its
record.” AR 1100.
B. The Timing of the Five Adverse Contract References
Plaintiff asserts that statements by the SSEB, SSA, and CO demonstrate
that the agency’s assessment of Red River’s past performance was based on
a misunderstanding of the facts, because, contrary to the agency’s
understanding, the performance of four of the five contracts did not occur
within the twelve months prior to the evaluation. Plaintiff argues that the
agency gave greater weight to those adverse references due to a mistaken
understanding of how recent the performance was and gave insufficient weight
to the positive references supplied by plaintiff. Plaintiff points out that four
out of the five additional contract references were, in fact, performed in 2011,
and only one was performed in 2013.9 Plaintiff does not dispute that it was
proper for the agency to consider the five negative references–they were
within the period deemed relevant by the solicitation–but urges that the army
acted arbitrarily by finding the additional references to be particularly relevant
based on a mistake as to the timing of performance of those contracts and to
have relied on this mistake in downgrading plaintiff.
Defendant’s principal response is that, even if the SSA and CO were
operating under a false impression, which it does not concede, plaintiff was not
prejudiced by it. The SSEB, defendant points out, rated plaintiff “Limited
Confidence” for Past Performance, a failing grade. Plaintiff thus would have
been excluded from the competitive range regardless of the SSA’s further
downgrade of plaintiff’s past performance rating. The critical assumption
behind defendant’s argument is that the SSEB was not also wrong about when
four of the five unreported contracts were performed.
9. Four out of the five contracts were IT equipment orders by the Department
of State, three of which were filled in 2011 and the fourth in 2013. The fifth
was an order by the Department of Justice and was performed in 2011.
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We agree. We do not read the record to establish that the SSEB was
operating under the misconception that plaintiff’s performance of all five of
the unreported contracts occurred in 2013. The SSEB’s statement, quoted
below, is factually accurate:
The five [contract references] found within the last year,
revealed negative performance issues concerning quality,
scheduling late deliveries, damaged equipment, inconsistent
communications the the Government and management of key
personnel. These recent negative performance issues definitely
had a negative impact on the Offeror’s performance rating.
AR 846. The five references were, indeed, “found” by the agency within the
last year. This explains why they were unreported by plaintiff, at least as to
four of the references. The Department of State did not submit its CPARs for
its four orders to the multi-agency past performance database where the army
found them until after the date for submission of proposals in this acquisition.10
We also have no grounds to read into the word “recent” a reference solely to
the year 2013. Plaintiff does not question the agency’s right to consider
performance going back to 2009; the contracts in question were performed in
2011 and 2013. Other references to statements by the SSEB are equally
unavailing. See, e.g., AR 918 (“found within the last year” and “recent
negative performance issues”). In short, plaintiff has not established that the
SSEB was operating on a mistaken assumption with respect to when the
deficient performance occurred.
That leaves us, however, with the decision of the SSA. In further
downgrading Red River’s past performance rating to “No Confidence,” she
wrote that “this Offeror’s Past Performance rating should be No Confidence,
based on the five [contract references] found for the last twelve months.”
(Emphasis added). AR 936. If the word used instead had been “in,” then the
government could argue that the SSA was literally correct. But “for” is
different than “in,” and words matter. We read the SSA’s statement for its
natural meaning, and we conclude that she was therefore incorrect in her
10. Plaintiff did not offer an explanation as to why it neglected to report the
CPAR from the Department of Justice, which was submitted in 2012. It did,
however, provide a narrative explanation, as it did to the agency after the army
inquired, as to why the performance problems encountered in that effort were
the agency’s fault, not its own.
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assumption. The question remains whether that matters given the SSEB’s
view that plaintiff should have been rated “Limited Confidence.” The
government contends that plaintiff was not prejudiced because it cannot
demonstrate that it should have received a “Satisfactory Confidence” rating,
which is what it would have taken to place plaintiff in the competitive range.
Before considering that question, we want to address plaintiff’s other
primary argument with respect to past performance, which is that the agency
erred in taking into account an unexpressed evaluation factor, namely, that
offerors could be criticized for not reporting post-solicitation bad performance
reports.
C. The Unstated Evaluation Criteria
Plaintiff argues that both the SSEB and the SSA relied on the fact that
plaintiff did not report the five negative contract references in rating Red River
as poorly as they did. Plaintiff correctly points out that it did not fail to report
four of the five of these negative references because it did not receive them
until after the closing date for proposal submission. The army’s error was
compounded, according to plaintiff, because, although the solicitation required
offerors to self-report recent negative performance, the lack thereof was not a
stated criteria for evaluation of past performance.
There is nothing in the analysis of the SSEB, however, which clearly
establishes that it penalized plaintiff for not reporting the results of the five
more recent contracts. Defendant concedes that it would have been improper
if it had done so. Plaintiff did not receive the negative reports, at least for four
of the disputed contracts,11 until after the deadline for submission of proposals.
The agency’s consideration of the newly discovered information, on the other
hand, was also not improper. The agency reserved “the right to use data
provided in the offerors proposal and data obtained from other sources.” AR
180. In addition, the solicitation states that the agency may consider “general
trends in performances and demonstrated corrective actions.” AR 187. The
army, in fact, gave plaintiff an opportunity to comment on those later negative
evaluations by making it an item for clarification (“IFC”). Plaintiff did so, and
the army considered its explanation but found it insufficient to upgrade Red
11. Four references issued by the Department of State were dated November,
2013, and the remaining reference, issued by the Department of Justice, was
dated February, 2012.
14
River’s rating. See AR 747-50. (SSEB Past Performance Report); AR 918-19
(“The IFC was responded to, but the response did not affect the Offeror’s
initial past performance rating.”)
Plaintiff points to a statement in the agency’s debriefing after it had
been told of its exclusion from the competitive range. Notes from that
discussion, authored by a Contract Specialist, not the SSEB, SSA or CO, state
that, when Red River asked, “How do you get No Confidence from two
client’s CPARs? Does Past Performance completely outweigh the other
factors?”, the agency’s response is summarized as: “No. DESCRIBED THE
RELATIVE IMPORTANCE OF EVALUATION FACTORS. Also
12
considered was the fact that the CPARs were not reported.” AR 964.
Moreover, when plaintiff protested at GAO, the agency’s report in response
to the protest, written by the CO, states that “Another CPAR reference
contained negative information and had a ‘marginal’ rating from the assessing
official. This information was not self-reported by Red River (as required by
the Solicitation), and this fact was taken into consideration as well in assessing
the negative rating.” AR 9.
In sum, the most direct evidence of the SSEB’s thinking in coming up
with a rating of “Limited Confidence” reflects no markdown because plaintiff
did not self-report the later-discovered poor performance references. The
debriefing and the report at GAO, however, suggest that the SSA improperly
took that factor into account. This is consistent with her decision to lower Red
River’s past performance score to “No Confidence.”
D. Plaintiff Was Not Prejudiced By The SSA’s Mistakes
Plaintiff has thus established at least one and probably two mistakes by
the SSA in her final decision. This leaves us with the question of whether this
entitles plaintiff to the remedy of being reintroduced into the competitive range
or reevaluated. We think not. Given the broad discretion given to the agency
in evaluating past performance, in the final analysis, the question is whether
the assignment of a past performance rating was reasonable in light of the
record and consistent with the stated evaluation criteria. See Todd Constr.,
12. Powerpoint slides authored by the CO and presented during the debriefing
do not mention the lack of reporting as a factor in the SSA’s “No Confidence”
rating for Red River’s Past Performance factor. See AR 957.
15
L.P. v. United States, 88 Fed. Cl. 235, 247 (2009); see also E.W. Bliss Co., 77
F.3d at 449.
The SSA reasonably determined that, “[g]iven the large number of
Offerors that had a Past Performance rating better than Limited Confidence or
No Confidence, there was no reason to consider Offerors with a rating of
Limited Confidence or No Confidence, regardless of how low those Offeror’s
proposed prices may be.” AR 940. Plaintiff was eliminated from the Phase II
consideration because it did not achieve a “Satisfactory Confidence” rating.
Plaintiff has to be able to demonstrate, not only that there was a mistake, but
also that, but for the mistake, it would have had a high likelihood of getting
into the competitive range. See Labatt Food Serv., Inc. v. United States, 577
F.3d 1375, 1380 (Fed. Cir. 2009); Galen Med. Assocs., 369 F.3d at 1331.
We believe it is appropriate to answer this question mindful of the
general context of how this sort of large procurement is often conducted by
federal agencies, and more particularly, how this particular evaluation was
conducted. It is common for an agency to assign the detailed fact gathering
and analysis to an entity like the SSEB and for that entity to present its work
to a final decision maker, like the SSA in this case. There is no clear reason
here to question the work of the SSEB. The SSEB found, as memorialized in
the SSAC slides, that the evaluation of Red River “revealed negative
performance issues concerning quality, scheduling, late deliveries, damaged
equipment, inconsistent communications with the government and
management of key personnel.” AR 846; see also AR 747 (SSEB Past
Performance Report listing problematic elements of plaintiff’s past
performance record). It came to the conclusion it did in a reasonable and non-
arbitrary way, and, as we conclude below, there would no basis for us to
second guess the substance of its past performance analysis, including its
considered judgments regarding how relevant plaintiff’s prior contracts were
or how bad deficiencies in performance really were.
Although plaintiff understandably makes the argument that we should
be focusing on the final decision maker, the SSA, who probably was operating
under a false assumption or two, plaintiff is still obligated to persuade us that,
given the entire record, there is a reason to think the outcome would have been
different if the SSA had not erred. It has not done so. The SSA further
downgraded plaintiff’s past performance rating. She did not question any of
the SSEB’s analysis. There is no reason to speculate that, on remand, the SSA
would disagree with the SSEB and upgrade the rating. The SSEB’s own rating
of “Limited Confidence” was not enough to give plaintiff entry to the
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competitive range. Under these circumstances, it would be futile to remand for
reconsideration, and there certainly would be no basis for inserting plaintiff
into the competitive range. Plaintiff therefore has not established that it was
prejudiced by the SSA’s mistake.
II. Unequal Treatment of Offerors
Plaintiff also alleges that the agency’s evaluation of proposals resulted
in unequal treatment of offerors. Specifically, it argues that compared to
plaintiff, other offerors that received the same rating (“Limited Confidence”)
under the Past Performance factor had more severe performance issues, and
that the agency held plaintiff to a different evaluation standard under the Past
Performance factor.
Plaintiff first argues that it was treated unequally because the two other
offerors also assigned a “No Confidence” rating under the Past Performance
factor had “catastrophic issues.” It attributes one offeror’s “No Confidence”
rating to that offeror’s failure to submit any past performance information its
proposal,13 and the other to the agency’s discovery of multiple contract
terminations.14 Plaintiff contends that it is unlike those two offerors because
it submitted all the required information in its proposal and had no
terminations for default. Plaintiff also directs our attention to several offerors
which arguably had past performance issues similar to plaintiff but had been
rated higher and included in the competitive range.
Defendant counters that plaintiff’s claims simply demonstrate a mere
disagreement with the rating it received. It points out that past performance
is not an assessment of the severity of plaintiff’s prior performance issues but
is instead an assessment of “the degree of confidence the Government has with
the probability an offeror will successfully perform the solicitation
requirements as based on the offerors record of recent and relevant contract
performance.” AR 178. “The fact that other offerors’ proposals may have
13. The agency assigned a rating of “No Confidence” for one offeror for “not
submitting a Volume IV Past Performance proposal . . . and not complying
with the instructions.” AR 915.
14. Another offeror initially received a rating of “Unknown Confidence,”
which was later downgraded by the SSA to “No Confidence.” See AR 924,
938.
17
deficiencies similar to the protester’s, but were not excluded from the
competitive range, does not, in and of itself, demonstrate unequal treatment.”
Hamilton Sundstrand Power Sys. v. United States, 75 Fed. Cl. 512, 519 (2007).
Contracting officers are merely required to ensure that offerors “receive
impartial, fair, and equitable treatment.” 48 C.F.R. § 1.602-2(b) (2014). All
the offerors’ proposals, however, “need not be treated the same.” 48 C.F.R. §
1.102-2(c)(3) (2014). The inclusion in or exclusion from the competitive range
is based, not on comparison of the magnitude of deficiencies in offerors’
proposals, but on evaluation of the overall proposal. See Hamilton
Sundstrand, 75 Fed. Cl. at 519.
We have carefully examined the numerous particular instances plaintiff
points to of alleged disparate treatment and conclude that we are in no position
to criticize the agency’s analysis. Perhaps in the abstract there would be room,
for example, to argue that identical performance on the same work was rated
differently, but there are no such clear examples here. Plaintiff’s critique
amounts to a request that we undertake a complete, subjective reevaluation of
plaintiff’s proposal, and, in doing so, compare Red River’s past performance
to each other offerors’ for a magnitude of error analysis. The agency was not
required to do that, and we are certainly in no position to do so.
III. The Agency’s Failure To Consider Plaintiff’s Price
Next, we consider plaintiff’s argument that the agency did not properly
consider its price when it established the competitive range. Plaintiff contends
that the SSA excluded its proposal from the competitive range because it was
below a breakpoint that the SSA established without first giving any
meaningful consideration to price. Defendant responds that the administrative
record demonstrates that the agency did consider price and that plaintiff was
not irrationally eliminated from the competitive range. We agree with
defendant.
Generally, an agency is required to consider price before eliminating a
technically acceptable proposal from the competitive range. Femme Comp
Inc., 83 Fed. Cl. at 731. An agency is not required, however, to accept all
technically sound proposals in the competitive range, even if they have a low
price, because “[s]uch a requirement would be contrary to the discretion
afforded to the agency.” Id. As we stated before, an agency has a broad
discretion to choose among qualified offerors in doing a best-value
determination. In making the competitive range determination based on best-
value, the agency must document “the rationale for any business judgments
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and tradeoffs made or relied on by the SSA, including benefits associated with
additional costs.” 48 C.F.R.§ 15.308 (2014). The agency must avoid making
any “[c]onclusory statements, devoid of any substantive content.” Serco Inc.
v. United States, 81 Fed. Cl. 463, 497 (2008). It must “explain the reasons for
that conclusion.” Bahr. Mar. & Mercantile Int’l BSC (C) v. United States, 118
Fed. Cl. 462, 481 (2014) (citing FirstLine Transp. Sec., Inc. v. United States,
100 Fed. Cl. 359, 381 (2011)).
In her competitive range determination, the SSA considered the
offerors’ Mission Support and Past Performance factors in conjunction with
their proposed prices. The SSA eliminated offerors with a rating of “Limited
Confidence” and “No Confidence” regardless of how low their proposed prices
were because there were a large number of offerors with a rating better than
“Limited Confidence.” She rationalized her decision. stating, “[e]ven though
some of these offerors have relatively low prices, I would be willing to pay a
significant premium for offerors who do not have such negative Past
Performance ratings.” AR 940. Her rationale with respect to the Mission
Support factor is similar: “Given the large number of Offerors with Mission
Support ratings of Good, and with prices which are relatively low, I do not
consider any Offerors with a Mission Support rating of Acceptable to be
among the most highly rated proposals.” Id.
As we explain above, the agency does not have to include all
technically acceptable proposals that have a low price in the competitive range.
As the administrative record clearly shows, plaintiff’s proposal failed to
advance to Phase II, not because its proposed price was not taken into account,
but because the agency lacked confidence in plaintiff’s ability to perform the
contract work given its past performance and because the agency had many
other better-rated proposals.
IV. Not Assigning A “Very Relevant” Rating To The SEWP IV Contract
Finally, plaintiff argues that the agency’s rating of “Relevant” with
respect to one of its positive contract references, SEWP IV,15 was improper
and that the rating should have been “Very Relevant.” Plaintiff provides its
own comparison between that particular contract and ITES-3H. The agency
15. Under Contract NNG07DA25B, NASA, for its Solutions for Enterprise-
Wide Procurement (“SEWP”) IV acquisition, made an IDIQ contract award
to plaintiff in May 2007. AR 739.
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responds that its rating was rational and that plaintiff has not demonstrated that
it lacked a rational basis. Defendant also argues that, in any event, upgrading
the rating to “Very Relevant” would be insufficient to insert plaintiff into the
competitive range.
We agree with the agency on both points. When evaluating the
relevance of an offeror’s past performance, the agency is entrusted “with broad
discretion in determining what information is relevant for consideration.” Linc
Govt. Servs., LLC v. United States, 96 Fed. Cl. 672, 718 (2010). Accordingly,
we are not “empowered to substitute (our) judgment for that of the agency.”
Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971). For
us to conclude that the rating should have been “Very Relevant” instead of
“Relevant,” plaintiff must demonstrate “a significant error in the procurement
process,” and “that the error prejudiced” plaintiff. Data Gen. Corp. v. Johnson,
78 F.3d 1556, 1562 (Fed. Cir. 1996).
We are not convinced that plaintiff’s challenge has met this burden. In
finding the contract reference in question as “Relevant,” the agency
commented that it “involves [the] similar scope, magnitude of effort and
complexities [as] this solicitation requires.” AR 739. The detailed description
of the nature of that contract, along with a lengthy assessment of plaintiff’s
performance, suggests that the agency was fully aware of what it entailed.
Plaintiff’s assurances that it amounts to the same work as the contract being
bid and thus was “very” relevant is a matter of subjective judgment which the
court is in no position to critique. Additionally, even if the characterization is
too measured, we would have no basis for saying that the mistake merits
advancing plaintiff to a “Satisfactory Confidence” rating.16
16. In connection with its allegations regarding price and the SWEP IV
contract, plaintiff also argued that the agency failed to adequately document
its evaluation: in the case of the price issue, failed to document that it
considered price in its exclusion of Red River from the competitive range; and
with respect to the SWEP IV contract, failed to document why plaintiff
received only a rating of “Relevant” for that contract. This ancillary argument
is as unavailing as plaintiff’s principal arguments regarding these issues. As
detailed above, we were able to discern how and why the agency made its
ratings and competitive range determination as it did. This is all that the law
requires. That plaintiff fundamentally disagrees with the underlying decisions
is not a reason to find them inadequately documented.
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CONCLUSION
The errors plaintiff has demonstrated in the agency’s evaluation of
plaintiff’s proposal do not warrant reversal. Plaintiff’s motion for judgment
on the administrative record is therefore denied. Defendant’s cross motion is
granted. The clerk is directed to dismiss the complaint with prejudice and
enter judgment accordingly. No costs.
s/Eric G. Bruggink
ERIC G. BRUGGINK
Judge
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