Tetra Tech, Inc. v. United States

In the United States Court of Federal Claims

No. 16-775C

(Filed: March 15, 2017)

(Re-filed: May 9, 2018)1

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TETRA TECH, INC.,

Post-Award Bid Protest;

Technical Evaluation; Unstated

Criteria.

Plaintiff,

v.

THE UNITED STATES,

Defendant,

and

EASTERN RESEARCH GROUP, INC.,

Defendant-Intervenor.

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Holly A. Roth, Washington, DC, with whom were Lawrence P. Block,

Elizabeth G. Leavy, Molly Q. Campbell, and Sarah S. Wronsky, Washington,

DC, for plaintiff.

Kristin B. McGrory, Trial Attorney, Commercial Litigation Branch,

Civil Division, Department of Justice, Washington, DC, for defendant, with

whom were Chad A. Readler, Acting Assistant Attorney General, Robert E.

Kirschman, Jr., Director, Douglas K. Mickle, Assistant Director. Maria S.

Kavouras, Office of General Counsel, United States Environmental Protection

1

This opinion was originally issued under seal. The parties offered joint

proposed redactions. We adopt the parties’ proposed redactions because we

find them to be appropriate. Those redactions are indicated herein with

brackets.

Agency, Cincinnati, Ohio, of counsel.

John G. Horan, Washington, DC, for intervenor.

OPINION

BRUGGINK, Judge.

This is a post-award protest of a solicitation for environmental

consulting support services to assist the United States Environmental

Protection Agency (“EPA”) with implementing the National Pollutant

Discharge Elimination System (“NPDES”) permit program and Clean Water

Act (“CWA”) regulations. Plaintiff, Tetra Tech, Inc., the incumbent contractor,

challenges the EPA’s award of the contract to intervenor, Eastern Research

Group, Inc. (“ERG”). EPA initially awarded the contract to ERG on June 24,

2016, finding that ERG’s proposal offered the best value. Tetra Tech filed the

present action on June 30, 2016.2

The parties filed cross-motions for judgment on the administrative

record in August of 2016. Before briefing was complete, the government filed

a notice of corrective action on September 1, 2016, stating its intention to

reconvene the technical evaluation panel (“TEP”) and have the source

selection official (“SSO”) re-evaluate the best value determination based on

the forthcoming revised consensus TEP report. After the corrective action,

EPA again awarded the contract to ERG, finding that its proposal offered the

best value to the government. Now pending are the parties’ cross-motions for

2

Plaintiff filed a separate bid protest on November 23, 2016. See Tetra Tech

v. United States, Fed. Cl. No. 16-1659. In that complaint, plaintiff challenges

EPA’s issuance of work assignment number 2-10, Long-term Stormwater and

Wastewater Planning Technical Assistance under a different contract held by

ERG. Specifically plaintiff alleges that EPA violated the Competition in

Contracting Act, 41 U.S.C. § 3301 (2012), when it issued the work

assignment. Plaintiff further alleges, in the separate action, that EPA violated

the voluntary stay in place in this case when it issued the work assignment. A

decision in Tetra Tech v. United States, Fed. Cl. No. 16-1659, is being issued

contemporaneously herewith.

2

judgment on the administrative record (“AR”)3 pursuant to Rule 52.1 of the

Rules of the Court of Federal Claims (“RCFC”). The motions are fully briefed,

and we heard oral argument on February 17, 2017. As we stated at the

conclusion of oral argument, because we find that EPA’s technical evaluation

of the proposal was reasonable and supported by the record, we deny

plaintiff’s motion for judgment on the administrative record and grant

defendant’s and intervenor’s cross-motions.

BACKGROUND

Request for Proposal No. SOL-CI-16-00012 (the “RFP” or the

“solicitation”) was released by EPA on March 16, 2016.4 The Performance

Work Statement (“PWS”) for the RFP provided that the solicitation’s purpose

was

to provide environment consulting support services to the

United States Environmental Protection Agency (EPA), Office

of Water (OW), Office of Wastewater Management (OWM),

Water Permits Division (WPD), in amending, developing, and

implementing National Pollutant Discharge Elimination System

3

On August 2, 2016, plaintiff filed a motion to supplement the AR and for

limited discovery. In an order entered on August 11, 2016, we granted in part

and denied in part plaintiff’s motion. Specifically, we directed the government

to produce all documents related to EPA’s evaluation of ERG’s Past

Performance and Corporate Experience as well as individual evaluation

worksheets produced by the technical evaluation panel. We also denied

plaintiff’s request for limited discovery. Defendant filed the supplemental

documents on August 12, 2016. Defendant later filed two motions for leave

to file additional documents responsive to our August 11, 2016 order, which

we granted. Then, on December 30, 2016, defendant filed a supplement to the

AR, including documents relevant to the corrective action and second award

decision. Defendant later filed a motion to amend the record to include six

cost advisory reports relevant to the cost realism and price reasonableness

analyses. Finally, on January 20, 2017, plaintiff moved to supplement the AR

with e-mail correspondence from January 13, 2017 between plaintiff’s and

defendant’s counsel. We denied plaintiff’s motion on January 24, 2017.

4

The RFP was issued in order to re-compete Contract EP-C-11-009, which

was held by Tetra Tech and set to expire prior to the start of the base

performance period proposed in the RFP on July 1, 2016.

3

(NPDES) permits and Clean Water Act (CWA) regulations.

Technical support is expected to include profession program

managers, engineers, scientists, information specialists,

statisticians, and administrative services with experience in

NPDES permitting and CWA regulations, as well as experience

and best practices to help make municipal wastewater treatment

facilities more efficient and sustainable.

AR 167. The RFP contemplated a base performance period from July 1, 2016

through June 30, 2017, and four 12-month option periods.

The offerors were instructed to submit proposals in two volumes: a cost

proposal and a technical proposal. The technical proposals were to be

evaluated based on the following criteria, listed in order of importance: (1)

Qualifications and Availability of Key Personnel; (2) Past Performance; (3)

Corporate Experience; (4) Program Management Plan; and (5) Quality

Management System. The EPA used the following adjectival ratings in its

evaluations of all technical criteria other than Past Performance:

Rating Description

Outstanding Proposal meets requirements and indicates an

exceptional approach and understanding of the

requirements. Strengths far outweigh any weaknesses.

Risk of unsuccessful performance is very low.

Good Proposal meets requirements and indicates a thorough

approach and understanding of the requirements.

Proposal contains strengths which outweigh any

weaknesses. Risk of unsuccessful performance is very

low.

Acceptable Proposal meets requirements and indicates an adequate

approach and understanding of the requirements.

Strengths and weaknesses do not outweigh one another

or will have little or no impact on contract

performance. Risk of unsuccessful performance is no

worse than moderate.

4

Marginal Proposal does not clearly meet requirements and has

not demonstrated an adequate approach and

understanding of the requirements. The proposal has

one or more weaknesses which are not outweighed by

strengths. Risk of unsuccessful performance is high.

Unacceptable Proposal does not meet requirements and contains one

or more deficiencies. Proposal is unacceptable for

purposes of an award.

AR 166. Past Performance was to be evaluated using the following adjectival

ratings:

Rating Description

Substantial Based on the offeror’s recent/relevant performance

Confidence record, the Government has a high expectation that the

offeror will successfully perform the required effort.

Satisfactory Based on the offeror’s recent/relevant performance

Confidence record, the Government has a reasonable expectation

that the offeror will successfully perform the required

effort.

Limited Based on the offeror’s recent/relevant performance

Confidence record, the Government 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 Government has no expectation that the

offeror will successfully perform the required effort.

Unknown No recent/relevant performance record is available or

Confidence the offeror’s performance record is so sparse that no

(Neutral) meaningful confidence assessment can be reasonably

assigned.

AR 166. After evaluating the proposals, the RFP promised that the government

would “make award to the responsible offeror(s) whose offer conforms to the

solicitation and is most advantageous to the Government cost or other factors

considered.” AR 163. The RFP further provided that “all evaluation factors

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other than cost or price when combined are significantly more important than

cost or price.” Id.

For Qualifications and Availability of Key Personnel, the RFP provided

that the Agency would evaluate:

A. Demonstrated qualifications* and availability of the

proposed PL-4 Program Manager

1. Technical Qualifications* of the PL-4 Program

Manager with the type of technical requirements

covered by [the Performance Work Statement

(“PWS”)]

2. Managerial Qualifications* of the PL-4 Program

Manager with managing contracts of similar size,

type, and managerial scope to the PWS

B. Technical Qualifications* and availability of the PL-4

Quality Assurance (QA) manager with the type of

technical requirements covered by PWS

C. Technical Qualifications* and availability of the PL-4

Senior Engineer/Scientist(s) with the type of technical

requirements covered by the PWS (no more than two

Senior Engineer(s)/Scientists shall be evaluated)

*“Qualifications” includes education, expertise, and experience.

AR 164. For Past Performance, EPA was directed to evaluate whether the

offeror had

satisfactory or better performance on all, or at least five (5),

contracts and/or subcontracts completed during the past three

years (including all contracts and subcontracts currently in

progress), which are similar in technical scope and complexity,

size, and type to that which is anticipated in this solicitation.

Factors for consideration include quality of technical work

products and/or service, schedule, cost control, management,

regulatory compliance, and overall performance.

AR 164. If an offeror could not provide a full record of Past Performance, it

would receive a neutral rating for this category.

6

Corporate Experience would be evaluated through two subfactors:

Corporate Technical Experience and Corporate Management Experience. For

Corporate Technical experience, offerors were required to demonstrate

corporate technical experience fulfilling the technical

requirements of contracts of similar size (as measured by dollar

value and level-of-effort), contract type, and technical scope as

that specified in this solicitation. Experience shall be related to

the tasks included in the PWS and shall specifically include

experience in amending, developing, and implementing NPDES

permits and CWA regulations. In addition, the offeror shall

demonstrat[e] its level of experience dealing with outreach and

stakeholder engagement, environmental data collection, and

performing various related audits and inspections. The offeror

shall also demonstrate experience in preparing scientific

technical documents using sound environmental planning,

scientific and engineering principles.

Id. For Corporate Management Experience, offerors were required to

demonstrate

corporate experience in fulfilling the managerial requirements of

contracts of similar size (dollar amount), type (CPFF, multi task), and

technical complexity and scope to that specified in this solicitation.

This experience shall be related to the tasks included in the PWS and

shall specifically include experience in amending, developing, and

implementing NPDES permits and CWA regulations.

Id.

The RFP also provided that the Agency would “perform either cost

analysis or price analysis of the offeror’s cost/business proposal in accordance

with [Federal Acquisition Regulation (“FAR”)] parts 15 and 31” and “evaluate

proposals to determine contract cost or price realism.” AR 163. According to

the RFP, “[c]ost or price realism relates to an offeror’s demonstrating that the

proposed cost or price provides an adequate reflection of the offeror’s

understanding of the requirements of this solicitation, i.e., that the cost or price

is not unrealistically low or unreasonably high.” Id.

The Initial Award Decision

7

Tetra Tech and ERG were the only two offerors. Both timely submitted

their cost and technical proposals in April 2016. Following receipt of the

proposals, the TEP was briefed, via memorandum, by the contracting officer,

Brad Heath (“CO Heath”), regarding the procedures for evaluating the

technical proposals. The memorandum notified the TEP members that they

were to “evaluate proposals solely on the evaluation criteria identified in

Section M and shall not compare one offer to another,” and that “each member

shall identify the strengths, deficiencies, significant weaknesses, and risks

associated with each proposal based upon the evaluation factors and be

prepared to discuss these with the rest of the TEP to determine a consensus

rating.” AR 2205.5 The memorandum further instructed that Past Performance

would be evaluated by CO Heath.

After each TEP member conducted an independent analysis of the

offerors’ proposals, the TEP members participated in a meeting to develop a

consensus rating. The TEP chair was instructed to compile all the strengths

and weaknesses noted by the individual TEP members in order to create a

document that would “serve as the basis for the discussion to be held during

the consensus meeting with the panel members.” AR 2218. The TEP chair

was further instructed to “ensure that the compiled documents for each offeror

are displayed electronically during the meeting for the panel members and can

be modified as the consensus meeting is conducted.” AR 2219. During this

meeting, the individual reports were considered and adjusted to meet a

consensus. CO Heath was responsible for overseeing the meeting to ensure

that the TEP members reviewed the technical proposals in accordance with the

evaluation factors expressed in the solicitation.

After the meeting, the TEP Chair developed a final consensus rating for

the TEP report. On April 28, 2016, the TEP Chair provided the consensus

report to CO Heath. The report contained the following ratings of the offerors’

proposals:

Criteria Title Tetra Tech ERG Rating

Rating

5

The TEP members individually evaluated the proposals and then met to develop a

consensus report. No individual evaluations were presented to the SSO.

8

I.A.1 Demonstrated qualifications Good Good

and availability of the proposed

PL-4 Program Manager

(Technical Qualifications)

I.A.2 Demonstrated Qualifications Outstanding Outstanding

and availability of the proposed

PL-4 Program Manager

(Managerial Qualifications)

I.B Technical Qualifications and Good Outstanding

availability of the PL-4 Quality

Assurance (QA) Manager with

the type of technical

requirements covered in the

PWS

I.C Technical Qualifications and Good Good

availability of the PL-4 Senior

Engineer/Scientist with the type

of technical requirements

covered by the PWS

II Past Performance Outstanding Good

III.A Corporate Technical Experience Outstanding Outstanding

III.B Corporate Management Outstanding Outstanding

Experience

IV.A Program Management Plan- Good Good

Performance Monitoring

IV.B Program Management Plan- Good Good

Organizational Structure

V.A Quality Management System- Acceptable Acceptable

Quality Management Plan

V.B Quality Management Plan- Acceptable Acceptable

Generic QAAP

AR 4766. The presence of a rating for the Past Performance of both offerors

was notable in that it was contrary to the solicitation, which required that the

9

Past Performance rating be determined by the contracting officer and provided

a different adjectival rating system specific to Past Performance.

Although not a member of the TEP, CO Heath later added his Past

Performance analysis to the consensus TEP report and gave both ERG and

Tetra Tech a Past Performance rating of “Satisfactory Confidence.” Because

this addition came after the TEP members signed off on the consensus report

on April 28, 2016, CO Heath decided to transpose those signatures to the final

version that included his Past Performance analysis.6 This action, in part, lead

to EPA’s decision to take corrective action, which is discussed below.

In May 2016, CO Heath developed Cost Advisory Reports for the two

offerors. This review consisted of “a math check of the proposal, a verification

that the [level-of-effort (“LOE”)] hours and Other Direct Costs (ODCs) were

proposed in accordance with RFP specified amounts and a verification of the

direct labor and indirect rates of the contractor and each subcontractor.” AR

2288. Next, the TEP Chairperson conducted a review of the offerors’ cost

proposals and declared that she was “comfortable with the realism of the

submitted [proposals] and the reasonableness of the costs.” AR 2306, 2308.

Following the TEP review, a cost realism analysis was conducted. This

analysis was performed by comparing the cost elements of the proposals with

the independent government cost estimate (“IGCE”) and through an

independent rate verification and analysis. CO Heath compared proposed

direct labor rates, indirect rates, ODCs, and fixed fee for the proposals of the

offerors and any subcontractors. Ultimately, the analysis found that both

proposals were “realistic for the work to be performed; reflect[ed] a clear

understanding of the requirements; and [were] consistent with each offeror’s

technical proposal.” AR 2353. Tetra Tech and ERG both proposed total costs

of slightly more than [ ], with ERG’s proposal being [ ]

than Tetra Tech’s. AR 2382.

On June 24, 2016, the SSO, Noelle Mills (“SSO Mills”), issued her

decision awarding the contract to ERG. The decision was made based on a best

6

CO Heath notified the TEP chair that he was taking this action, saying

everything in the final version of the TEP report was “basically the same with

some minor editing of the reports and I also included the Past Performance

sections so no further action is required on your part as I already have your

signatures of concurrence.” AR4398.

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value analysis, taking into account the evaluated costs of the offer and the

technical evaluation factors set forth in the RFP. SSO Mills noted that she

considered the reports and information provided to her from the TEP, but “the

award decision represents [her] own independent judgment of an assessment

of the technical information, the cost or pricing data and other information

brought out in the offeror’s proposal.” AR 2384. SSO Mills specifically noted

ERG’s higher technical rating and its lower price and proposed fee rate.

Tetra Tech was notified of the award to ERG on June 24, 2016. It filed

its complaint in this court, on June 30, 2016, challenging the award decision.

Plaintiff filed its first motion for judgment on the administrative record on

August 2, 2016, and defendant and ERG filed their cross-motions on August

17, 2016. After further briefing and three supplementations to the AR,

defendant filed a notice of EPA’s intent to take corrective action on September

1, 2016. Defendant indicated that, during the corrective action, “the agency

may review any part of the evaluations and/or analyses as they see fit,” and

that “[o]nce the TEP has issued its final report, the EPA will then submit the

TEP report to the SSO to re-evaluate her best value determination.” Def.’s

Not. of Corrective Action.

Corrective Action And Second Award To ERG

As part of EPA’s corrective action, it assigned a different contracting

officer, Noelle Mills (“CO Mills”), and a different source selection official,

Sandra Licis (“SSO Licis”) to make the new award decision.7 CO Mills sent

a memorandum to the TEP members, informing them that the TEP must

reconvene to re-evaluate the technical proposals of both Tetra Tech and ERG

and issue a revised consensus report. Before they reconvened, CO Mills asked

the TEP members to review, among other documents, the solicitation, their

prior consensus ratings for Tetra Tech and ERG, and Tetra Tech’s second

amended complaint in this protest. For her part, CO Mills issued both a revised

cost realism and price reasonableness analysis and a revised Past Performance

evaluation that was included in the revised consensus TEP report. To assist

with her Past Performance evaluation, the TEP gave input to CO Mills relating

to the scope and complexity of the contracts identified in the proposals.

7

We note that, while new to these particular roles, CO Mills and SSO Licis both

played a part in the initial award decision. CO Mills gave the final approval, as

source selection official, for the June 24, 2016 source selection determination, and

SSO Licis provided CO Heath with review comments to assist in drafting the same.

AR 2385.

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The corrective action yielded no change to the adjectival ratings

assigned by the TEP. When re-evaluated by CO Mills, ERG and Tetra Tech

both saw their Past Performance ratings increase from “Satisfactory

Confidence” to “Substantial Confidence.” Plaintiff alleges that EPA acted

irrationally while evaluating both ERG’s and Tetra Tech’s proposals with

respect to Key Personnel, Past Performance, and Corporate Experience.

Specifically, plaintiff argues that EPA arbitrarily and capriciously assigned

adjectival ratings that did not relate to the strengths and weaknesses identified

in both Tetra Tech’s and ERG’s proposals. Plaintiff further believes that EPA

applied unstated evaluation criteria while evaluating the PL-4 Program

Manager position, ignored the asserted fact that the Past Performance section

of ERG’s proposal did not meet the RFP’s technical requirements, and

otherwise relaxed the stated evaluation criteria to ERG’s benefit. We discuss

in more detail below the technical ratings that Tetra Tech now challenges and

the justification for those ratings provided in the TEP report.

Key Personnel Evaluation

The TEP’s consensus evaluation of Tetra Tech’s technical proposal

explains the ratings assigned to each subfactor. For Qualifications and

Availability of Key Personnel subfactor I.A.1, demonstrated qualifications and

availability of the proposed PL-4 Program Manager (Technical Qualifications),

the evaluation noted that Tetra Tech’s Program Manager, [ ], had “26

years of experience in delivering technical support, both as an employee of and

as a contractor for the EPA, spending more than 20 of those years providing

water quality and wastewater management support for the EPA.” AR 6513.

The TEP’s evaluation further pointed out [ ] “33 years of

experience developing, implementing, and managing water resources

protection programs” as well as his past projects and experience relevant to the

PWS for this solicitation. Id. It went on to identify [ ] strengths in

developing and implementing regulations, outreach and stakeholder

engagement, data collection and management, and developing scientific and

technical documents. The revised consensus evaluation also identified one

weakness: that “[t]he proposal does not demonstrate this individual’s technical

ability for innovation or integration with new ideas or critical issues.” Id.

Overall, the evaluation found that

[t]he proposed program manager has notable management

experience relevant to this PWS. While not specifically

questioning his technical expertise, many of the projects

12

outlined in the proposal to demonstrate his technical expertise

really demonstrated the technical expertise of others. There is

also little there that demonstrates any real energy or innovation

about the NPDES program.

AR 6514. Tetra Tech was given a “Good” rating for the Technical

Qualifications subfactor. Plaintiff asks the court to focus on the criticism

directed to [ ] lack of demonstrated innovation, which it

characterizes as unfair because the desirability of “innovativeness” was not

called out in the solicitation as a requirement.

With regard to Qualifications and Availability of Key Personnel

subfactor I.A.2, demonstrated qualifications and availability of the proposed

PL-4 Program Manager (Managerial Qualifications), the consensus report

noted [ ] “notable amount of contract management experience with

contracts of similar size, type and managerial scope.” AR 6515. The evaluation

identified no weaknesses for this subfactor. Overall, the TEP found that

[t]his individual has experienced managing multiple contracts of

all sizes and scopes, of similar topics, and managing over 100

employees on diverse CWA topics in multiple locations. Under

his management, there is a history of high ratings. He

demonstrates management experience at multiple levels – PM,

DPM, WAM, and Team Leader. He has managed contracts with

multiple clients for diverse activities.

AR 6515-16. Tetra Tech was given an “Outstanding” rating for the Managerial

Qualifications subfactor.

Plaintiff challenges EPA’s evaluation of ERG’s comparable proposed

PL-4 Program Manager, [ ]. In its consensus evaluation of

[ ] under Qualifications and Availability of Key Personnel subfactor

I.A.1, demonstrated qualifications and availability of the proposed PL-4

Program Manager (Technical Qualifications), the agency concluded:

STRENGTHS: . . . [ ] has 28 years of experience

supporting OW in evaluating effective options for improving the

nation’s water quality and has extensive and direct experience

spanning nearly all PWS areas. Throughout her career, she has

supported OW regulatory development and implementation,

13

personally supporting more than 10 OW rulemaking programs

and more than 20 regulatory studies or petitions, including

technically challenging and controversial rulemakings such as

the CAFO effluent limitations guidelines (ELGs) and the recent

steam electric ELGs. She currently serves as Program Manager

for ERG’s technical support to OWM’s NPDES Vessel General

Permit Program. Through this work, she has demonstrated

first-hand experience addressing challenges facing OWM,

including petitions, lawsuits, and regulatory and technological

challenges. She understands the importance of creating legally

defensible regulations, based on sound engineering judgement.

[ ] has been instrumental in developing modern tools

to manage data and information, such as the ERG Comment

Coding and Response System, and the DMR Pollutant Loading

Tool, which manages thousands of records and provides an

interface for EPA and the public to systematically search and

review discharge monitoring report (DMR) data entered into the

Integrated Compliance Information System–National Pollutant

Discharge Elimination System (ICIS-NPDES).

[ ] has impressive skills in the areas of tool

development, data systems management, climate analysis, water

quality trading, and areas of sustainability such as energy and

water efficiency and LEED, that could definitely infuse the

NPDES program with some fresh and improved approaches.

...

WEAKNESSES: While [ ] has demonstrated expertise

in some NPDES program areas, she is lacking knowledge and

expertise in other program specific areas like CSO and pre-

treatment program development and implementation. There is

little demonstration of implementation of regulation programs,

i.e., seems to be involved in rule development and data systems

development, but not so much the delivery and improvement of

programs.

There is a mismatching of title of “Centralized wastewater

Treatment Performance for Nutrients,” with description of

POTWs (page 18). There are inconsistencies in incorrectly

14

naming projects (CWTs versus POTWs for nutrient sampling)

or not quite matching titles to projects, (“DMR [Pollutant]

Loading Tool”). In addition, “centralized wastewater treatment”

in the NPDES program are industrial facilities not POTWs.

These mistakes demonstrate a misunderstanding of some key

terms and a poor understanding of the program.

AR 6489. Overall, the TEP found that

[ ] is impressive in the areas of tool development, data

systems management, climate analysis, water quality trading,

and areas of sustainability such as energy and water efficiency

and LEED. These skills could potentially infuse the NPDES

program with new ideas and approaches that could enhance the

NPDES program. While [ ] has demonstrated

expertise in some NPDES program areas, she is lacking

knowledge and expertise in other program specific areas like

CSO and pre-treatment program development and

implementation. However, her strengths outweigh the cited

weaknesses in these areas.

AR 6490. ERG, like Tetra Tech, was given a “Good” rating for the Technical

Qualifications subfactor. Plaintiff calls the court’s attention to earlier versions

of the consensus TEP report in which [ ] is described as having

“[e]ssentially no relevant NPDES experience.” AR 2863. Plaintiff contends

that the agency’s final assessment of her weaknesses was purposefully diluted

between the earlier versions and the final revised consensus version of the TEP

report.

For [ ] Qualifications and Availability of Key Personnel

subfactor I.A.2, demonstrated qualifications and availability of the proposed

PL-4 Program Manager (Managerial Qualifications), the consensus report

identified “a notable amount of contract management experience with

contracts of similar size, type and managerial scope. She serves as ERG’s Vice

President and Program Manager.” AR 6491. The evaluation further identified

six specific instances of relevant contract management experience. It identified

no weaknesses within this subfactor. Overall, the evaluation found that

[ ] brings extensive managerial qualifications

managing contracts of similar size, type and managerial scope.

15

She is a highly qualified manager, providing EPA with flexible

and responsible leadership with multiple and sometimes

competing priorities. She has demonstrated the required

experience, dedication and corporate responsibility to achieve

the desired results from a managerial standpoint.

AR 6492. ERG was given an “Outstanding” rating for the Managerial

Qualifications subfactor.

Past Performance

Past Performance was evaluated by CO Mills. During the corrective

action period, the TEP gave input to CO Mills regarding the scope and

complexity of the contracts identified in Tetra Tech’s and ERG’s proposals.

For ERG, CO Mills evaluated five contracts using the Contractor Performance

Assessment Report (“CPAR”). These five cost-plus-fixed-fee (“CPFF”)

contracts ranged in value from $11,546,607 to $39,069,420. CO Mills also

used the CPAR database to evaluate two contracts from each [ ] and [

]—ERG’s two subcontractors that were expected to receive a subcontract in

excess of $5,000,000. [

].” AR

6497. Plaintiff contends that this is not fully consistent with the solicitation,

which requires the contracts to be “similar in technical scope and complexity,

size, and type to that which is anticipated in the solicitation.” AR 164.8

The contracts were judged based on five performance elements: quality,

schedule, cost control, management, and regulatory compliance. The revised

TEP consensus report combined the ratings of ERG, [ ] in the

following table, which shows the number of contracts that received a particular

score for each performance element:

8

We note that, at the beginning of the Past Performance section in the revised

consensus TEP report, CO Mills quoted the standard from the solicitation. AR 6496.

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Performance Unsatisfactory Marginal Satisfactory Very Good Exceptional

Elements (1) (2) (3) (4) (5)

Quality [

Schedule

Cost Control

Management

Regulatory ]

Compliance

AR 6499. CO Mills did not find any weaknesses for ERG’s Past Performance.

Overall, ERG received a “Substantial Confidence” rating for Past

Performance.

For Tetra Tech, CO Mills evaluated seven contracts using CPAR.

These seven contracts included five CPFF contracts and two IDIQ contracts

with CPFF task orders and ranged in value from $8,911,751 to $107,800,000.

Like ERG’s contracts, Tetra Tech’s evaluated contracts were selected because

“[

].” AR 6521

The revised TEP consensus report combined Tetra Tech’s contracts in

the following table:

Performance [

Elements

Quality

Schedule

Cost Control

Management ]

17

Regulatory [ ]

Compliance

AR 6522. CO Mills did not find any weaknesses for Tetra Tech’s Past

Performance. Like ERG, Tetra Tech received a “Substantial Confidence”

rating for Past Performance.

Corporate Experience

Corporate Experience was broken down into two components:

Corporate Technical Experience and Corporate Management Experience. For

ERG’s Corporate Technical Experience, the TEP identified numerous

strengths and no weaknesses, finding that

The ERG proposal demonstrates access to firms that not only

provide high-quality technical support across the NPDES

program, including NPDES permit program development,

implementation, and oversight, but who can also support

Agency priorities, such as working toward a sustainable future

(e.g., in areas such a climate, energy, and water efficiency) and

working to make a visible difference in communities (e.g., green

infrastructure, environmental justice). ERG provides a

comprehensive understanding of the NPDES program mission

and program needs and unparalleled technical expertise to meet

those needs.

AR 6501. Overall, the TEP found that ERG’s proposal “is outstanding and

seems to provide some opportunities for the NPDES program to expand and/or

get a fresh perspective on some parts of the program.” AR 6504. ERG was

given an “Outstanding” rating for Corporate Technical Experience.

ERG was also given an “Outstanding” rating for Corporate

Management Experience. The revised consensus TEP report explained that

“ERG has managed multiple contracts of similar size, type, scope and

technical complexity, including amending, developing and implementing

NPDES permits and CWA regulations.” AR 6505. The report found one

weakness in ERG’s proposal: “[e]xperience in amending, developing, and

implementing NPDES permits, other than Vessel General Permit, is limited.”

Id. Overall, the TEP found that

18

The package demonstrates a wide variety of successfully

managed projects, well within the size, scope and complexity of

this PWS. It also suggests the possibility of bringing new

approaches to the program, e.g., better integrating climate

resilience into the program, providing better data management

systems, improving training, and/or developing more effective

tools to support the NPDES program.

Though the contracts are of similar size, scope and complexity,

there is limited corporate management experience with

amending, developing, and implementing traditional NPDES

permits, other than Vessel General Permit and MS4s. Most of

the rulemaking is on effluent guidelines and standards, though

it also includes Sufficiently Sensitive Methods. The ERG team

members complement each other and are very qualified.

AR 6505-06. ERG received a rating of “Outstanding” for both Corporate

Experience components.

With respect to Tetra Tech’s Corporate Technical Experience, the TEP

noted that its “demonstrated corporate technical experience includes an

extensive range of NPDES program development, implementation, and

rulemaking support.” AR 6524. Unlike ERG, the TEP identified one weakness

in Tetra Tech’s proposal for this component, stating that there was “a rather

poor demonstration that they are positioned (or even interested) in supporting

the program to meet the next generation of environmental challenges.” AR

6526. Nevertheless, the TEP gave Tetra Tech a rating of “Outstanding,”

concluding that Tetra Tech had “notable technical competencies across most

fundamental and existing areas of the NPDES program,” and that they were

“well-qualified to support the program to maintain the status quo.” AR 6526.

Tetra Tech was also given an “Outstanding” rating for Corporate

Management Experience. The TEP consensus report noted that “[s]ince 1979,

Tetra Tech has managed numerous large, level-of-effort (LOE), multitask

contracts for EPA’s Office of Water and other federal and local clients” and

that Tetra Tech’s proposal “demonstrates a clear ability to adequately manage

contracts of this size, type, and scope, as they’ve already been doing it.” AR

6527. However, the following weaknesses were identified:

[t]here seems to be minimal use of subcontractors or other

19

technical expertise, even in areas where Tetra Tech does not

have notable technical expertise. It appears that a lot of their

small business efforts are for high dollar, low return efforts like

e-NOI, rather than spreading these resources across small

businesses and/or seeking out fresh expertise for projects that

might benefit from it.

Id.

Tetra Tech and ERG were given identical ratings for the remaining

technical factors, except for I.B, Technical Qualifications and availability of

the PL-4 Quality Assurance (QA) Manager with the type of technical

requirements covered in the PWS. For this factor, ERG was given an

“Outstanding” rating, and Tetra Tech was given a “Good” rating. Tetra Tech

does not protest the TEP’s awarding ERG a higher rating for the PL-4 Quality

Assurance Manager position.

CO Mills issued a revised cost realism and price reasonableness

analysis on December 16, 2016. She determined that both ERG’s and Tetra

Tech’s proposed costs were realistic for the work to be performed and

reflected a clear understanding of the requirements. She further found the

proposed cost-plus-fixed-fee provided by each offeror to be fair and reasonable

to the government. On December 16, 2016, SSO Licis determined that an

award to ERG presented “the best value to the government based on the higher

technical ration of the Quality Assurance Manager and the lower, reasonable

and realistic costs of ERG’s proposal.” AR 6789. That same day, Tetra Tech

was notified that it was again unsuccessful.

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).

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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. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43

(1983). Thus, the agency’s action will be set aside if it lacks a rational basis or

if it involves a prejudicial violation of procedure. Impresa Construzioni Geom.

Domenico Garufi v. United States, 238 F.3d 1324, 1332 (Fed. Cir. 2001).

Because this contract was 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 takes issue with EPA’s evaluations of both ERG’s and Tetra

Tech’s proposals with regard to Key Personnel, Past Performance, and

Corporate Experience. According to plaintiff, EPA’s evaluations of ERG’s and

Tetra Tech’s proposals were arbitrary and capricious because Tetra Tech’s

proposal objectively demonstrated superior technical qualifications for these

three factors, yet EPA evaluated ERG’s proposal as technically superior.

Plaintiff argues that EPA conducted an improper technical evaluation of both

offerors’ proposals by (1) arbitrarily assigning adjectival ratings to ERG and

Tetra Tech that did not correspond to the strengths and weaknesses identified

in the record; (2) applying unstated evaluation criteria for the PL-4 Program

Manager position; (3) relaxing the RFP’s stated evaluation criteria; (4)

ignoring that the Past Performance section of ERG’s proposal did not meet the

RFP’s technical requirements for Past Performance; (5) disregarding ERG’s

lack of Corporate Experience; and (6) unreasonably evaluating ERG for its

21

Corporate Management and Corporate Technical Experience. Plaintiff

contends that the agency’s arbitrary and capricious actions resulted in

prejudice to Tetra Tech because it had a substantial chance of receiving the

award but for the Agency’s flawed evaluation. Plaintiff requests that the court

enter a permanent injunction enjoining the EPA from proceeding with the

award to ERG.

I. Key Personnel

Regarding Key Personnel, plaintiff contends that ERG’s PL-4 Program

Manager was arbitrarily rated “Good” for her technical qualifications and

“Outstanding” for her managerial qualifications. First, Plaintiff argues that

EPA’s evaluation of the Program Manager position lacks a rational basis

because EPA applied unstated evaluation criteria, namely, whether the

offerors’ proposed Program Managers demonstrated an innovative approach.

Plaintiff notes that the word “innovation” is not included in the solicitation’s

evaluation criteria for the Program Manager position. Plaintiff contends that

use of “innovation” could not be inferred from the stated evaluation criteria

and that it was not subsumed within the stated criteria despite multiple

appearances of the phrase within the PWS. Plaintiff notes that four of the six

times that “innovation” appears in the PWS it is not in the context of requiring

the Program Manager to develop innovative approaches, but rather to compile

innovative work done by others for the OWM program’s benefit. Plaintiff

asserts that the remaining two mentions of “innovation” do not support a

reasonable inference that innovation was subsumed within the evaluation

criteria for the technical qualifications of the Program Manager, and that, if it

was, it should be limited to experience relevant to the specific PWS sections

in which “innovation” appears.

Plaintiff further believes that the TEP disparately evaluated the two

offerors’ proposals by giving [ ] credit for being innovative while

overlooking how Tetra Tech demonstrated [ ] ability to innovate in

its proposal. Building off its argument that use of innovation, if allowed,

should be limited, plaintiff asserts that [ ] lacked experience in the

sections of the PWS that expressly require innovation, undermining the TEP’s

use of the criteria to bolster her rating. Plaintiff contends that, unlike ERG, its

Program Manager not only has experience in the sections of the PWS relevant

to innovation but also that its proposal demonstrated [ ] ability to

innovate in those areas while discussing that experience. Specifically, Tetra

Tech’s proposal identifies numerous instances of [ ]

22

innovations—namely, his work as an author of Emerging Technologies for

Wastewater Treatment and In-Plant Wet Weather Management, his role as

project manager for the Water Environment Federation’s Green Infrastructure

Implementation Task Force involving a multi-year effort focusing on the

integration of innovative green infrastructure practices, his management role

in developing regulations to implement section 316(b) of the CWA, and his

participation in developing a new wastewater treatment grant program.

Plaintiff concludes that EPA improperly downgraded [ ] to a “Good”

rating for technical experience based on the unstated criteria and EPA’s

disregard for relevant information in Tetra Tech’s proposal.

Plaintiff further argues that EPA improperly relaxed the solicitation’s

evaluation criteria for the technical qualifications of ERG’s Program Manager.

Specifically, plaintiff asserts that ERG did not demonstrate that it had the

relevant experience and expertise to handle the technical and scientific

requirements of the PWS. Plaintiff also believes that the source selection

determination improperly ignores ERG’s weaknesses and contends—often

relying on notes from individual TEP members—that EPA took part in a

“pattern of whitewashing” throughout the drafting process that aimed to

minimize those weaknesses. Pl.’s Mot. for J. on the AR 23. Plaintiff also

points out that the revised TEP consensus report identified significant

weaknesses in [ ] technical qualifications, including that she

demonstrated “a misunderstanding of some key terms and a poor

understanding of the program.” AR 6490. According to plaintiff, these

weaknesses could not have reasonably resulted in a “Good” rating, which is to

be awarded to proposals that “indicate[] a thorough approach and

understanding of the requirements.” AR 166. Rather, plaintiff claims ERG’s

Program Manager deserved a score of “Marginal” for her technical

qualifications, meaning that the proposal “has not demonstrated an adequate

. . . understanding of the requirements.” Id. In addition, plaintiff argues that

[ ] should have been given a lower score for her managerial

qualifications based on her lack of experience managing contracts of a similar

size, type, and scope as the PWS.

In defendant’s cross-motion, it argues that plaintiff’s arguments

regarding the EPA’s evaluation of the offerors’ Program Managers amount to

nothing more than mere disagreements. Intervenor also argues that Tetra

Tech’s reliance on individual notes and earlier drafts of the consensus TEP

report is inappropriate because the prior evaluations were superseded by the

revised consensus TEP report and that initial individual ratings, in any event,

23

should be given little weight. Throughout their arguments, defendant and

intervenor rely heavily on the highly deferential standard this court applies

when reviewing decisions of procurement officials and argue that the record

demonstrates that the EPA’s decision was thoroughly considered and well-

supported.

Defendant contends that the “Good” rating given to Tetra Tech’s

Program Manager’s technical qualifications is supported by the record. To

begin with, defendant argues that consideration of innovation and integration

with new ideas was both expressly stated in the PWS and reasonably

considered given that innovation is inherently necessary to the work to be

performed. Thus, according to defendant, plaintiff has failed to show that EPA

used a significantly different basis than the stated factors when evaluating

Tetra Tech’s proposal, and therefore innovation was correctly evaluated by the

TEP. Defendant also believes that plaintiff’s highlighting of instances in its

proposal which show its capability for innovation merely constitute

disagreement with the TEP’s findings. Defendant points out that the TEP

ultimately found that many of the projects outlined in the proposal “really

demonstrated the technical expertise of others,” AR 6514, and that “the

proposal does not demonstrate this individual’s technical ability for innovation

or integration with new ideas.” AR 6513. These findings, defendant argues,

support EPA’s decision to give [ ] technical qualifications a “Good”

rating.

Defendant also argues that EPA reasonably assigned ERG’s Program

Manager a “Good” rating for her technical qualifications. According to

defendant, the decision was reasonably made and within the TEP’s discretion

of how weaknesses should be weighed and whether strengths outweigh any

weaknesses. Defendant argues that the TEP also properly found, by citing to

specific portions of the proposal, that [ ] had considerable education,

expertise, and experience related to the technical requirements of the PWS that

would warrant the rating given. Moreover, defendant stands by EPA’s decision

to give [ ] an “Outstanding” rating for her managerial qualifications.

Defendant argues that the solicitation left to the discretion of the TEP the

determination of whether an offerors’ prior contracts sufficiently covered the

technical requirements of the PWS. Defendant goes on to argue that the TEP

properly used this discretion in finding that the managerial experience offered

by [ ] was similar to the size, type, and managerial scope of the

contract contemplated by the PWS.

24

We begin with plaintiff’s contention that EPA arbitrarily evaluated

ERG’s Program Manager because it applied “innovation and integration with

new ideas” as an unstated evaluation criterion. Generally speaking, an agency

must evaluate an offeror’s proposal based on the criteria set out in the

solicitation. That said, we have also recognized that an agency still enjoys

“great discretion in determining the scope of an evaluation factor.” Forestry

Surveys and Data v. United States, 44 Fed. Cl. 493, 499 (1999). “Indeed, it is

well-settled that ‘a solicitation need not identify each element to be considered

by the agency during the course of the evaluation where such element is

intrinsic to the stated factors.’” Banknote Corp. of Am., Inc. v. United States,

56 Fed. Cl. 377, 387 (2003) (quoting Analytical & Research Tech., Inc. v.

United States, 39 Fed. Cl. 34, 45 (1997). Thus, “[w]hen weighing the merits

of a proposal under a specific evaluation factor, an agency ‘may consider all

matters that offerors would reasonably have believed to be within the scope of

the factor.’” Forestry Surveys and Data, 56 Fed. Cl. at 497 (quoting John

Cibinic Jr. & Ralph C. Nash Jr., Formation of Government Contracts 830 (3rd

ed. 1998)).

We hold that EPA properly considered the proposed Program

Managers’ ability to innovate while conducting its evaluation. To begin with,

the solicitation directed the TEP to evaluate the Program Manager’s

demonstrated technical qualifications “with the type of technical requirements

covered by the PWS.” AR 164. The PWS makes no less than six references

to innovation. While plaintiff is correct that several of these references require

that the contractor compile examples of other’s innovative work for the benefit

of the OWM program rather than develop innovative approaches itself, these

instances still show EPA’s focus on innovation as an important consideration

within the PWS. Moreover, the PWS specifically calls for innovative solutions

and ideas from the eventual awardee. Specifically, section 3.3.15 of the PWS

provides that “[t]he contractor shall assess, analyze, and recommend

innovative and efficient solutions for permitting wet weather point sources,”

and section 3.5 provides that “[t]he contractor shall provide support and

technical assistance in the research and development of new, innovative

permitting tools and approaches.” AR 174, 178. Further, we hold that the

consideration of innovation should not be limited as plaintiff argues because

it is inherent to the scientific and technical nature of the work contemplated in

the solicitation. For example, as intervenor points out, supporting the issuance

of new regulations and developing new permits necessarily requires some

element of innovation. We find that a reasonable offeror should have known

25

that EPA would take into account a Program Manager’s capacity for

innovation for the type of work solicited.

We also find plaintiff’s disagreements with EPA’s rating of [

] technical qualifications as “Good” unavailing. The revised

consensus TEP report states that Tetra Tech’s proposal “does not demonstrate

[ ] technical ability for innovation or integration with new ideas

or critical issues.” AR 6513. The report then lists four sections of the PWS as

examples of areas to which its observation applies.9 In essence, plaintiff

responds to the report by pointing to portions of its proposal that it feels show

[ ] ability for innovation. Plaintiff’s arguments are a classic example

of a disagreement with an agency’s evaluation. We hold that plaintiff has not

shown that EPA was unreasonable in assigning [ ] a “Good” rating

for technical qualifications.

Similarly, we are not persuaded that [ ] receiving a “Good”

rating for her technical qualifications was irrational. Plaintiff urges that [

] does not have the requisite NPDES experience to receive such a score.

Plaintiff discusses at great length previous drafts of the revised consensus TEP

report and initial evaluations performed by individual TEP members that spoke

to [ ] limited experience in this area. While not irrelevant, these

earlier reports carry little weight in the face of the revised consensus TEP

report. See DM Petroleum Operations Co. v. United States, 115 Fed. Cl. 305,

314 (2104) (mentioning that “initial individual ratings of [source evaluation

board] members have ‘little bearing on [a] protest’ when the [source

evaluation board] reaches a consensus rating”) (quoting Tech Sys., Inc. v.

United States, 98 Fed. Cl. 228, 247-48 (2011)). Intervenor is correct that a

consensus evaluation process presumes that evaluators can and will change

their minds. In fact, the “TEP procedures” provided to the TEP members on

April 14, 2016, instruct the TEP chair to compile each member’s individual

analysis and ensure that the compiled documents are “displayed electronically

during the meeting for the panel members and can be modified as the

consensus meeting is conducted.” AR 2219. Without more, we reject

plaintiff’s bare assertion that the change in the TEP’s evaluations over time

constituted a whitewash in order to award the contract to ERG.

9

We note that one of the four sections, NPDES Permitting Support (PWS section

3.5), is a section that explicitly seeks the development of “new, innovative permitting

tools and approaches.” AR 178.

26

The revised consensus TEP report noted that [ ] was “lacking

knowledge and expertise in . . . program specific areas.” AR 6490. The TEP

went on to conclude, however, that “her strengths outweighed the cited

weaknesses in these areas.” AR 6490. Plaintiff simply disagrees with the

weight given to [ ] weaknesses by the TEP. Plaintiff has failed to

show that EPA’s evaluation of [ ] technical qualifications was

irrational. Accordingly, we will not set aside EPA’s evaluation.

II. Past Performance

Plaintiff argues that EPA’s past performance evaluation did not comply

with the solicitation because it gave ERG a rating of “Substantial Confidence”

without evaluating five contracts that were “similar in technical scope and

complexity, size, and type to that which is anticipated in this solicitation.” AR

164. In fact, according to plaintiff, none of the contracts identified by ERG in

its proposal were similar in size, type, scope, and complexity to the PWS.

Plaintiff believes that EPA is not owed deference with respect to its

determination of which contracts were appropriate to evaluate because the

contracts chosen “were so dissimilar that they could not reasonably or

rationally be considered as a relevant indicator of successful performance of

the PWS.” Pl.’s Resp. 19. In its motion, plaintiff included a four-page table

that explained the reasons it felt the past performance contracts were not

similar in technical scope and complexity, size and type to the solicitation.

Plaintiff insists that, given ERG’s lack of similar past performance, it should

have been given a score of “Unknown Confidence (Neutral)” rather than the

“Substantial Confidence” score that it received.

Defendant counters that EPA’s Past Performance rating of ERG was

reasonable and within EPA’s discretion. Again, defendant and intervenor cast

plaintiff’s arguments as mere disagreements with EPA’s conclusions and note

that the RFP left it to the discretion of the agency to determine whether the

offered contract references were similar to that contemplated by the RFP.

Intervenor further argues that Tetra Tech cannot show prejudice because its

proposal would also fall victim to the narrow view of “similar” that it

demands. For example, intervenor argues that plaintiff “never explains what

rule of interpretation would require EPA to reject an ERG contract[] worth $11

million as too dissimilar in size, but accept as similar Tetra Tech’s $15 million

reference.” Int.’s Reply 12.

27

Plaintiff’s primary objection with the “Substantial Confidence” rating

given to ERG relates to the contracts that the TEP selected to evaluate in its

revised consensus TEP report. As with other technical factors, “[e]valuation

of past performance is ‘within the discretion of the contracting agency and will

not be disturbed unless it is unreasonable or inconsistent with the terms of the

solicitation or applicable statutes or regulations.’” Fort Carson Support Servs.

v. United States, 71 Fed. Cl. 571 (2006) (quoting Consol. Eng’g Servs. v.

United States, 64 Fed. Cl. 617, 637 (2005)). We agree with defendant and

intervenor that CO Mills acted within her discretion in selecting the contracts

to be evaluated in order to determine Past Performance ratings for both

offerors. CO Mills provided an explanation for the selection of each of the

nine contracts evaluated for ERG. She also received input from the TEP

related to the TEP’s perspective on the scope and complexity of the contracts

identified in ERG’s proposal. Plaintiff asks us to substitute its narrow view of

which contracts are “similar in technical scope and complexity, size, and type

to that which is anticipated in [the] solicitation” for that of CO Mills (as

further informed by the TEP). AR 164. We refuse to do so. Plaintiff has failed

to show that CO Mills abused her discretion in selecting the contracts to be

evaluated or assigning ERG a Past Performance rating of “Substantial

Confidence.”

III. Corporate Experience

Plaintiff takes issue with ERG’s “Outstanding” rating for both

Corporate Technical Experience and Corporate Management Experience.

Specifically, for Corporate Technical Experience, plaintiff argues that the

revised TEP report failed to evaluate or even mention whether contracts

identified in ERG’s proposal were of “similar size (as measured by dollar

value and level-of-effort), contract type, and technical scope as that specified

in [the] solicitation.” AR 164. Plaintiff argues that had EPA done so, it would

not have been able to give ERG an “Outstanding” rating because the contracts

in its proposal were not reasonably similar. Along the same lines, for

Corporate Management Experience, plaintiff argues that EPA failed to

examine individually whether ERG’s proffered prior contracts were “of similar

size (dollar amount), type (CPFF, multi task), and technical complexity and

scope to that specified in [the] solicitation.” AR 164. Rather, plaintiff argues

that EPA simply copied and pasted from ERG’s proposal that it [

] Compare AR 6505

with AR 5122. Again, plaintiff believes that had EPA examined the individual

contracts, it would have found that the contracts were not sufficiently similar

28

and been unable to rate ERG’s Corporate Management Experience as

“Outstanding.”

Plaintiff further argues that it was unreasonably inconsistent for EPA

to give ERG an “Outstanding” rating for Corporate Management Experience,

while also finding that ERG’s one weakness was its limited management

experience with “amending, developing, and implementing NPDES permits,

other than Vessel General Permit.” AR 6505. Plaintiff argues that this is

especially significant because the TEP, while discussing Past Performance,

identified permitting activities as “the cornerstone of the PWS.” AR 6498.

Plaintiff asserts that EPA’s “Outstanding” rating was irrational because the one

identified weakness is such an important aspect of the contract contemplated

in the solicitation.

Defendant again argues that plaintiff’s concerns with respect to the

Corporate Experience ratings are nothing more than plaintiff’s disagreement

with EPA’s evaluation. Defendant asserts that, as with Past Performance, EPA

has discretion to determine what constituted a similar contract. Defendant

further argues that EPA considered ERG’s experience in “fulfilling the

technical requirements of contracts of a similar size, type and scope to that

contemplated by the solicitation because when discussing ERG’s experience

in relation to the PWS categories, the EPA cited to sections in ERG’s proposal

documenting ERG’s work on relevant contracts.” Def.’s Mot. for J. on the AR

46.

We hold that the TEP acted within its discretion when it selected

contracts to evaluate in order to judge both ERG’s and Tetra Tech’s Corporate

Technical and Managerial Experience. We will begin with the similar

arguments plaintiff makes for both Corporate Technical and Corporate

Management Experience—namely, that the TEP failed to properly examine

whether the contracts it was evaluating for these factors conformed to the

description of acceptable contract references from the solicitation. These

arguments, again, amount to nothing more than plaintiff’s disagreement with

EPA’s choice of relevant contract references. Moreover, for the TEP’s

evaluation of ERG’s Corporate Technical Experience, the TEP provided a

lengthy list of strengths, organized by PWS category, that ERG demonstrated.

The TEP ultimately concluded that ERG’s “overall package is outstanding and

seems to provide some opportunities for the NPDES program to expand and/or

get a fresh perspective on some parts of the program.” AR 6504. Plaintiff has

29

not shown the TEP’s evaluation of ERG’s Corporate Technical Experience to

be arbitrary and capricious or an abuse of its discretion.

Similarly, with respect to the contract references chosen by the TEP to

evaluate ERG’s Corporate Management Experience, we hold that EPA acted

within its discretion. Again, the solicitation left the determination of what

contracts were sufficiently similar to the EPA’s discretion. Plaintiff has not

shown that the TEP’s selection of contract references was irrational. In the

revised consensus TEP report, the TEP spoke generally when discussing both

ERG’s and Tetra Tech’s Corporate Management Experience. The TEP found

that ERG’s proposal demonstrated a “wide variety of successfully managed

projects, well within the size, scope and complexity of [the] PWS.” AR 6505-

06.

The TEP acknowledged weaknesses in both offeror’s proposals for this

category and rated both offeror’s Corporate Management Experience as

“Outstanding.” Plaintiff’s argument that the weakness the TEP identified for

ERG does not rationally comport with an “Outstanding” rating for this factor

is unavailing. As discussed above, agency’s have broad discretion to weigh

an offeror’s strengths and weaknesses as it sees fit. While reasonable minds

may differ as to ERG’s Corporate Management Experience rating, plaintiff has

failed to show that EPA acted irrationally. Thus we hold that the TEP’s

“Outstanding” rating for ERG’s Corporate Management Experience was

reasonable and supported by the record. Moreover, as intervenor argues,

plaintiff fails to show how it was prejudiced by the alleged relaxation of the

evaluation criteria because, if such a relaxation occurred, it benefitted along

with ERG.

We have considered plaintiff’s other arguments in support of its motion

for judgment on the administrative record and find them unavailing.

CONCLUSION

Plaintiff has failed to show success on the merits. Thus we need not

consider the other factors for injunctive relief. Accordingly, we deny plaintiff’s

motion for judgment on the administrative record and grant defendant’s and

intervenor’s cross-motions for judgment on the administrative record. The

Clerk’s office is directed to enter judgment for defendant. No costs.

30

s/ Eric G. Bruggink

ERIC G. BRUGGINK

Senior Judge

31