Integral Consulting Services, Inc. v. United States

In the United States Court of Federal Claims

No. 18-977C

(Filed Under Seal: November 28, 2018)

(Reissued for Publication: December 13, 2018)

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

INTEGRAL CONSULTING SERVICES, *

INC., *

*

Plaintiff, *

Postaward Bid Protest; RCFC 52.1; Cross-

*

Motions for Judgment on the

v. *

Administrative Record; Blue & Gold Fleet

*

THE UNITED STATES, *

*

Defendant. *

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

Julie M. Nichols, McLean, VA, for plaintiff.

Sheryl L. Floyd, United States Department of Justice, Washington, DC, for defendant.

OPINION AND ORDER

SWEENEY, Chief Judge

In this postaward bid protest, plaintiff Integral Consulting Services, Inc. (“Integral”)

alleges that its proposal in connection with a solicitation issued by the United States General

Services Administration (“GSA”) for information technology services was improperly evaluated.

Integral argues that the GSA erred by deducting points related to Integral’s relevant experience

without considering all of the information in its proposal. The court is presented with the

parties’ cross-motions for judgment on the administrative record. For the reasons explained

below, the court denies Integral’s motion and grants defendant’s motion.

I. BACKGROUND

A. Solicitation

On June 20, 2016, the GSA issued solicitation QTA0016GBA0002 to procure

information technology services for the government. Administrative R. (“AR”) 4, 270.

Specifically, the GSA sought proposals for the Alliant 2 Small Business Governmentwide

 The reissued Opinion and Order incorporates the agreed-to redactions proposed by the

parties. The redactions are indicated with bracketed ellipses (“[. . .]”).

Acquisition Contract, a multiple-award, indefinite-delivery, indefinite-quantity (“MA/IDIQ”)

contract. Id. at 270. An awardee under the solicitation would become eligible to receive task

orders performed under the contract. Id. at 262-63. The GSA specified that proposals were due

by October 7, 2016. Id. at 258.

1. Proposal Format and Contents

The GSA required offerors to submit their proposals in seven volumes—general;

responsibility; cost-price; past performance; relevant experience; organizational risk assessment;

and systems, certifications and clearances. Id. at 365. Within the general volume, offerors were

required to include, among other items, a completed copy of the Document Verification and Self

Scoring Worksheet (“Scoring Worksheet”). Id. The GSA also instructed offerors to submit a

paper copy of the completed Scoring Worksheet. Id. In the Scoring Worksheet, offerors were

required to claim points for meeting specific criteria in the solicitation. See id. at 372-73. For

every claimed point, offerors were required to include supporting documentation in the proposal

showing that they met the relevant criteria. Id.

Of particular import here, the GSA awarded points for offerors possessing relevant

experience. Id. at 225-26. Offerors could claim points for performing a project that involved

tasks meeting the criteria for a Product or Service Code (“PSC”) specified in the solicitation.1 Id.

at 379; see also id. (explaining that a “project” consists of a contract or task order performed for

a public or private entity). The GSA identified thirty-five PSCs—which were separated into

three groups—that would make a project eligible for points. Id. at 385-87. Offerors could claim

additional points for relevant experience if a project (1) involved cost reimbursement, (2) met

specific size and complexity requirements, (3) was performed for a unique federal government

customer, (4) consisted of a fair opportunity task order awarded against a MA/IDIQ contract, or

(5) required work in a foreign location (collectively, “bonus factors”). Id. at 225. To claim

points for relevant experience, offerors were required to submit a completed relevant experience

project template (“Experience Form”), which contained, among other items, the PSC for which

points were claimed. Id. at 381.

After claiming the points, offerors had to substantiate their experience for each project

using one of two methods. Id. at 381-83. For the first method, offerors were required to submit

the applicable (1) contract statement of work or performance work statement (collectively,

“SOW”); and (2) Federal Procurement Data System – Next Generation report (“FPDS-NG

report” or “report”) that included a PSC applicable to the project. Id. at 381. This method was

acceptable when offerors possessed an “available, complete[,] and accurate” FPDS-NG report

that “provide[d] verification of all information included on the [Experience Form].” Id. For the

second method, the GSA required offerors to submit (1) the FPDS-NG report, if it was available;

(2) an Experience Form signed by the relevant contracting officer for the project; (3) a copy of

the original contract award document; and (4) a copy of the SOW. Id. at 382-83. This method

was provided for offerors who possessed an FPDS-NG report that was “unavailable, incomplete,

or inaccurate.” Id. at 382. Specifically, the GSA explained this method was appropriate when

1

PSCs are codes are established by the government and “represent major products or

services offered by a business.” AR 387.

-2-

the report “does not substantiate all [of the] information on the [Experience Form] (e.g. [the]

PSC being claimed was not the PSC entered in the FPDS-NG) . . . .” Id. (emphasis added).

2. Evaluation Process

The GSA explained in the solicitation that the awardees would be selected based on

which offerors presented the highest technically rated proposals with a fair and reasonable price.

Id. at 402. For evaluating proposals, the GSA set forth a step-by-step review process for each

proposal. This process consisted of the following steps, which the GSA was required to perform

in the order noted below:

• Step One: The GSA preliminarily identifies the top eighty proposals by

sorting all of the submissions from the highest score to the lowest score based

on the offerors’ Scoring Worksheets. Id. at 402-03. The GSA then reviews

the top eighty proposals in accordance with the following steps.

• Step Two: For each proposal, the GSA verifies that a support document exists

for each of the evaluation elements included on the Scoring Worksheet. Id. at

403. Any discrepancies at this stage are treated as clarifications. Id.

• Step Three: The GSA conducts an acceptability review to determine whether

each offeror submitted all of the requested information for the general volume

in the specified manner. Id. If a proposal does not pass the review, the

proposal is replaced by the next highest scoring proposal that passes the

acceptability review. Id.

• Step Four: The GSA determines whether a support document substantiates

each claimed point on the Scoring Worksheet. Id. If the claimed points are

not validated, then (1) those points are deducted, (2) the proposals are resorted

based on the revised score, and (3) the proposal is replaced if its new score is

below the cutoff for the top eighty proposals. Id.

• Step Five: The GSA evaluates whether the offeror proposed fair and

reasonable pricing. Id. An offeror who fails to provide such pricing is

eliminated from the competition. Id.

The GSA explained that the process would continue until the top eighty proposals (or more, in

the case of a tie for the last spot) were identified, at which point evaluations would cease and

contracts would be awarded to the offerors of those proposals. Id. Offerors were also informed

that the GSA did not intend to hold discussions but would conduct clarifications as necessary.

Id. at 402. As explained in the Source Selection Decision Memorandum, the GSA adhered to

above process for evaluating proposals and did not hold discussions. Id. at 466-68.

-3-

B. Integral’s Proposal

In its proposal, Integral claimed [. . .] points. Id. at 499. That total reflects, among other

things, Integral’s claim to points for relevant experience based on six different PSC projects: 1-

1,2 1-3, 1-4, 2-1, 2-2, and 3-1.3 Id. at 497. Integral indicated on the Scoring Worksheet that

those projects involved qualifying PSCs with some of the projects also meeting the requirements

for certain bonus factors. Id. at 497-98. For each project, Integral attempted to substantiate its

experience by relying on the first method: providing a SOW and submitting an FPDS-NG report

that confirmed the information on the Experience Form. E.g., id. at 517 (selecting verification

method); see also id. at 1277 (noting that Integral relied on the report method to verify each

project). But the PSC that Integral claimed on each Experience Form did not match the PSC

identified on the associated report. Id. Furthermore, with the exception of Project 2-2, Integral

submitted reports that identified PSCs that were not eligible for points. Compare id. at 129-30

(documenting authorized PSCs), with id. at 1277-78 (identifying the PSCs on reports).

The GSA reviewed Integral’s proposal in accordance with the procedures noted above.

Id. at 1922-35. The GSA reached the fourth step of the evaluation process: verifying that the

support documents substantiated every claimed point on the Scoring Worksheet. See id. at 1928-

33. At this stage, the GSA deducted points from those claimed in Integral’s proposal because

Integral did not substantiate its claimed experience.4 Id. at 1277-79. The GSA explained that

Integral attempted to use the first method for validating its experience but failed to verify

experience with the claimed PSCs. Id. at 1277-78. Specifically, the GSA stated that Integral

selected PSCs on its Experience Forms that did not match the PSCs on the FPDS-NG reports.

Id. The GSA proceeded to award credit for Project 2-2 after recategorizing it as Project 1-1

because the associated FPDS-NG report validated experience with a qualifying PSC from the

first group rather than (as Integral had claimed) the second group.5 Id. at 1278; see also supra

note 2 (explaining that the first digit in a project number reflects the PSC group). Following its

review and alteration, the GSA deducted [. . .] points from Integral’s claimed score. AR 1454.

2

For each project number, the first digit represents the PSC group, and the second digit

represents the ordinal number of projects the offeror submitted in that group. See AR 225. For

example, Integral’s reference to Project 1-4 refers to the fourth project with a PSC in the first

group. See id. at 497.

3

Integral also claimed points for Project 1-2 and received credit for that project. Those

points are not in dispute.

4

The GSA’s deduction caused Integral to lose the points that it claimed related to the

bonus factors. AR 1279. Specifically, those points were removed because the associated

projects were no longer verified. Id.; see also id. at 383-85 (requiring validated projects to

receive points for bonus factors).

5

The GSA explained that Integral validated its experience with the necessary type of

work because the FPDS-NG report identified PSC D321, which “is a valid PSC code under

Group One.” AR 1278.

-4-

On February 14, 2018, the GSA posted an award notice reflecting that the agency

selected eighty-one awardees.6 Id. at 480-88. Integral was not listed as an awardee. Id. Integral

promptly requested a debriefing. Id. at 1449. In a March 9, 2018 debriefing letter, the GSA

explained why it deducted points and how that deduction placed Integral below the award cutoff.

Id. at 1450-55. After it received the debriefing letter, Integral filed a protest with the United

States Government Accountability Office (“GAO”). Id. at 1795. The GAO dismissed the

protest on May 22, 2018, because protests concerning the same procurement were pending

before this court. Id. at 1852.

C. Procedural History

On July 9, 2018, Integral filed its protest with the court. Integral alleges that the GSA

erred by deducting points when the PSCs on the Experience Forms and FPDS-NG reports did not

match. Specifically, Integral alleges that the deductions are indicative of the GSA’s failure to

conduct a meaningful comparison of the proposals in violation of Federal Acquisition Regulation

(“FAR”) 15.304, comply with the terms of the solicitation, and consider all of the information in

Integral’s proposal. As a remedy, Integral seeks a declaratory judgment requiring that the GSA

consider all of the information in the proposal when evaluating relevant experience and credit

Integral with all the points it claimed for its relevant experience. Integral also requests a

permanent injunction precluding the GSA from deducting points from the total claimed by

Integral in its proposal and relying solely on the report to evaluate whether its experience was

validated. Pursuant to the schedule they proposed, the parties briefed cross-motions for

judgment on the administrative record. Oral argument was not requested, and the court deems it

unnecessary. The motions are now ripe for adjudication.

II. LEGAL STANDARDS

In ruling on motions for judgment on the administrative record pursuant to Rule 52.1(c)

of the Rules of the United States Court of Federal Claims, “the court asks whether, given all the

disputed and undisputed facts, a party has met its burden of proof based on the evidence in the

record.” A & D Fire Prot., Inc. v. United States, 72 Fed. Cl. 126, 131 (2006) (citing Bannum,

Inc. v. United States, 404 F.3d 1346, 1356 (Fed. Cir. 2005)). Because the court makes “factual

findings . . . from the record evidence,” judgment on the administrative record “is properly

understood as intending to provide for an expedited trial on the administrative record.” Bannum,

404 F.3d at 1356.

The court reviews challenged agency actions pursuant to the standards set forth in the

Administrative Procedure Act. 28 U.S.C. § 1491(b)(4) (2012). Specifically, “the proper

standard to be applied in bid protest cases is provided by 5 U.S.C. § 706(2)(A): a reviewing

court shall set aside the agency action if it is ‘arbitrary, capricious, an abuse of discretion, or

6

The agency exceeded its stated target of eighty awardees as a result of a four-way tie

for the seventy-eighth position. AR 1458.

-5-

otherwise not in accordance with law.’” Banknote Corp. of Am. v. United States, 365 F.3d

1345, 1350 (Fed. Cir. 2004). Under this standard, the court

may set aside a procurement action if “(1) the procurement official’s decision

lacked a rational basis; or (2) the procurement procedure involved a violation of

regulation or procedure.” A court reviews a challenge brought on the first ground

“to determine whether the contracting agency provided a coherent and reasonable

explanation of its exercise of discretion, and the disappointed bidder bears a

heavy burden of showing that the award decision had no rational basis.” “When a

challenge is brought on the second ground, the disappointed bidder must show a

clear and prejudicial violation of applicable statutes or regulations.”

Centech Grp., Inc. v. United States, 554 F.3d 1029, 1037 (Fed. Cir. 2009) (citations omitted)

(quoting Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332-

33 (Fed. Cir. 2001)).

Procurement officials “are ‘entitled to exercise discretion upon a broad range of issues

confronting them’ in the procurement process.” Impresa, 238 F.3d at 1332 (quoting Latecoere

Int’l, Inc. v. U.S. Dep’t of the Navy, 19 F.3d 1342, 1356 (11th Cir. 1994)). Thus, the court’s

review of a procuring agency’s decision is “highly deferential.” Advanced Data Concepts, 216

F.3d at 1058; see also Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)

(“The court is not empowered to substitute its judgment for that of the agency.”). Furthermore, a

“protestor’s burden of proving that the award was arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law is greater [in negotiated procurements] than in other types

of bid protests.” Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324, 1330 (Fed. Cir.

2004). And, when a contract is to be awarded on a “best value” basis, procurement officials have

“even greater discretion than if the contract were to have been awarded on the basis of cost

alone.” Id.

III. ANALYSIS

Integral’s thesis is that the GSA improperly deducted points that Integral claimed for

possessing relevant experience. In support of that premise, Integral makes a variety of

arguments, none of which are persuasive.

Integral first argues that the GSA failed to comply with the solicitation when it concluded

that Integral did not validate its relevant experience. Specifically, Integral faults the GSA for

limiting its validation inquiry to whether the PSCs on the FPDS-NG reports were the same PSCs

that Integral claimed credit for on its Experience Forms. Given Integral’s reliance on the first

method for verifying experience, the key consideration here is how offerors using that method

could validate their experience.7 Offerors using the first method needed to submit an FPDS-NG

report that verified all of the information on the Experience Form, and the GSA explained in the

solicitation that the “report does not substantiate all [of the] information” if the “PSC being

claimed was not the PSC entered in [the] FPDS-NG [report] . . . .” AR 382; see also id. at 232

7

Integral does not argue that it validated its experience using the second method.

-6-

(explaining that if “the report does not provide appropriate verification for all claimed scoring

elements,” then “verification may be provided by including verification documents identified in

[method two]”). Because Integral claimed credit for PSCs that were not entered on the reports,

the GSA acted in accordance with the terms of the solicitation when it concluded that Integral

did not validate its experience and then deducted the associated points.

Related to the above argument, Integral asserts that the GSA erred by not considering

whether Integral validated its claimed experience by submitting the SOWs. Although offerors

were required to submit the SOW associated with each project, the SOW was insufficient to

substantiate the experience. The solicitation is clear on this point: Integral’s chosen validation

method was available only “[i]f the FPDS-NG Report provide[d] verification of all [of the]

information on the [Experience Form].” Id. at 382 (emphasis added). The GSA, therefore, was

not obligated to consider whether Integral’s SOWs validated experience that was not

substantiated by an FPDS-NG report.

Integral next argues that the GSA inconsistently evaluated the proposal because it

awarded points for Project 1-1 (originally claimed as Project 2-2) even though the associated

report identified a different PSC than the PSC on the Experience Form. In making this

contention, Integral overlooks that, pursuant to the solicitation offerors were entitled to points for

experience with one of the PSCs specified in the solicitation if that experience was validated by

an FPDS-NG report. Id. Based on that standard, the GSA’s disparate treatment of Project 1-1

was justified because that project was the only one for which Integral submitted a report

verifying experience with an eligible PSC. Simply stated, Integral submitted verification that

made the project eligible for points. In contrast, the GSA appropriately denied points for

Integral’s other projects because it did not establish that those projects involved eligible

experience; unlike Project 1-1, the reports for the remaining projects identified PSCs that were

not listed in the solicitation. The GSA’s treatment of Project 1-1, therefore, is in accord with the

solicitation and not inconsistent with its evaluation of the remainder of Integral’s projects.

Integral’s final argument is that the GSA’s focus on whether the PSCs on the Experience

Forms matched those on the FPDS-NG reports violated the requirement set forth in FAR

15.304(b) that “[e]valuation factors must . . . [s]upport meaningful comparison and

discrimination between proposals.” FAR 15.304(b). The resolution of this argument turns on

the expressed in Blue & Gold Fleet, L.P. v. United States that “[a] party who has the opportunity

to object to the terms of a procurement solicitation containing a patent error and fails to do so

prior to the close of the bidding process waives its ability to raise the same objection

subsequently in a protest action in the Court of Federal Claims.” 492 F.3d 1308, 1313 (Fed. Cir.

2007). That rule is applicable here because Integral disputes an evaluation criterion that, as

explained above, was evident on the face of the solicitation such that a challenge to that factor

needed to be brought before the proposal deadline.8 The conclusion that Integral waived the

8

The waiver rule expressed in Blue & Gold Fleet is also applicable to all of Integral’s

other arguments to the extent that they can be construed as a challenge to the reasonableness of

the solicitation requirements concerning the first verification method. A protest on such grounds

needed to be lodged before proposals were due because, as noted above, the requirement that

-7-

right to bring the noted challenge is buttressed by its reliance FAR 15.304(b), which addresses

the requirements for evaluation procedures and is “more properly raised in the pre-award

context.” FirstLine Transp. Sec., Inc. v. United States, 100 Fed. Cl. 359, 388 (2011); see also id.

(finding no decisions in which FAR 15.304(b) was applied in the postaward bid protest context).

In sum, Integral fails to demonstrate that the GSA erred when it deducted points from

those that Integral claimed for possessing relevant experience. Because Integral does not

succeed on the merits of its protest, it is not entitled to costs or injunctive relief. See ARxIUM,

Inc. v. United States, 136 Fed. Cl. 188, 198 (2018) (“A lack of success on the merits

. . . obviously precludes the possibility of an injunction.”); Q Integrated Cos. v. United States,

132 Fed. Cl. 638, 642-43 (2017) (“A protestor thus must prevail on the merits at least in part

before the court can grant an award of bid preparation and proposal costs.”).

IV. CONCLUSION

For the reasons discussed above, the court DENIES Integral’s motion for judgment on

the administrative record and GRANTS defendant’s cross-motion for judgment on the

administrative record. Integral’s protest is DISMISSED. No costs. The clerk shall enter

judgment accordingly.

The court has filed this ruling under seal. The parties shall confer to determine

proposed redactions to which all the parties agree. Then, by no later than Wednesday,

December 12, 2018, the parties shall file a joint status report indicating their agreement with the

proposed redactions, attaching a copy of those pages of the court’s ruling containing

proposed redactions, with all proposed redactions clearly indicated.

IT IS SO ORDERED.

s/ Margaret M. Sweeney

MARGARET M. SWEENEY

Chief Judge

offerors were required to submit an FPDS-NG report including the necessary PSCs was readily

apparent. See Blue & Gold Fleet, 492 F.3d at 1313.

-8-