The opinion
In the United States Court of Federal Claims
No. 19-892C
(Filed: September 23, 2019)
(Re-Filed: October 7, 2019) 1
*********************
LOC PERFORMANCE PRODUCTS,
INC., Bid protest; post-award bid
protest; 28 U.S.C. §
Plaintiff, 1491(b)(4) (2018); 48 C.F.R.
§ 15.306 (2018); technical
v. evaluation; competitive range
determination; responsibility
THE UNITED STATES, determination; prejudice.
Defendant.
*********************
Christian B. Nagel, Tysons, VA, for plaintiff. Gregory R. Hallmark
and Amy L. Fuentes, of counsel.
Eric E. Laufgraben, Trial Attorney, United States Department of
Justice, Civil Division, Commercial Litigation Branch, Washington, DC,
with whom were Joseph H. Hunt, Assistant Attorney General, Robert E.
Kirschman, Jr., Director, Douglas K. Mickle, Assistant Director, for
defendant. Robert B. Nelson, Lieutenant Colonel, U.S. Army, Chief, Trial
Team II, Contract & Fiscal Law Division, U.S. Army Legal Services
Agency, of counsel.
OPINION
BRUGGINK, Judge.
This is a post-award bid protest by Loc Performance Products, Inc.
(“Loc”), of an award by the Army of contracts for armor and turret system
hardware and platform integration kits, which are parts of weapons systems
on military tactical vehicles. The Army awarded contracts to two companies,
1
This opinion was originally issued under seal to permit the parties an
opportunity to propose redactions on or before October 4, 2019. The parties
proposed redactions on October 4, and we adopt their redactions.
O’Gara-Hess & Eisenhardt Armoring Company LLC (“O’Gara”) and Ibis
Tek, Inc. (“Ibis Tek”), neither of which intervened in this protest.
The parties filed cross-motions for judgment on the administrative
record. The matter is fully briefed, and we held oral argument on September
17, 2019. Because the Army rationally evaluated Loc’s proposal and
excluded it from the properly-constructed competitive range, we deny
plaintiff’s motion for judgment on the administrative record and grant the
government’s motion.
BACKGROUND
The Army published a request for proposals (“RFP”) on October 25,
2017, seeking parts of military tactical vehicles’ weapons systems: armor and
turret system hardware and platform integration kits. 2 The Army would
award up to three indefinite delivery, indefinite quantity contracts based on
which proposals offered the best value to the Army. It planned to award
contracts without discussions, but reserved the right to engage in discussions
and to allow offerors to revise their proposals. The solicitation stated that the
Army could set a competitive range and limit it to the greatest number of
offers that would permit efficient competition among the most highly rated
proposals.
The solicitation also repeatedly advised offerors that they were
responsible for providing sufficient detail and evidence to allow the Army to
perform its evaluation. Administrative Record (“AR”) 183-85. The Army
first stated its expected production rates for the solicited products in the
Delivery or Performance section: “Up to 50 kits per month for each of the
Armor Hardware, turret systems and [platform integration kits]
configurations and related spares along with the capability to ramp up within
6 months to a minimum of 300 kits per month of each configuration related
spares.” AR 155.
2
Armor hardware is “Gunner Protection Panels and Kits,” which include
“mechanical, electrical and electromechanical components such as cables,
gunner accessory package, turret drive motors, controllers and transparent
armor.” Administrative Record 138. A turret system is “hatch assembly, slew
bearing and gear ring for tactical vehicles,” which will interface with Gunner
Protection Kits. Id. Platform integration kits “provide the unique mechanical
and electrical interfaces to integrate Remote Weapon Systems [] to a variety
of U.S. Government [] platforms.” Id.
2
A Source Selection Evaluation Board (“SSEB”) would evaluate
proposals on three factors: Technical, Past Performance, and Price. The
Technical factor was most important, and the Technical and Past
Performance factors combined were more important than Price. The Army
could award a contract to other than the lowest-priced offeror or the highest
technically rated offeror.
The Technical factor includes three subfactors: Manufacturing Plan,
Quality Assurance Plan, and Management Plan. The Manufacturing Plan and
Quality Assurance Plan were equally important, and each was more
important than the Management Plan. The Army would evaluate each
subfactor for strengths, weaknesses, and uncertainties. It would assign an
adjectival rating (Outstanding, Good, Acceptable, Marginal, or
Unacceptable) to each subfactor and a cumulative rating for the Technical
factor. Relevant here are the ratings “Acceptable” and “Marginal.” A
“Marginal” Technical rating means that the “[p]roposal has not demonstrated
an adequate approach and understanding of the requirements, and/or risk of
unsuccessful performance is high.” AR 191. An “Acceptable” Technical
rating means that the “[p]roposal meets requirements and indicates an
adequate approach and understanding of the requirements, and risk of
unsuccessful performance is no worse than moderate.” Id. Loc challenges its
overall rating on the Technical factor and its ratings on subfactors 1 and 3.
Under Technical Subfactor 1: Manufacturing Plan, the Army required
a detailed, realistic, supportable plan for producing and testing armor
hardware, turret systems, and platform integration kits. The Army directed
offerors to describe “the complete Armor Hardware, Turret Systems and
[platform integration kits], including cable harness assemblies, gunner
accessory package [], turret drive motors, controllers and transparent armor”
as well as “essential manufacturing facilities and equipment.” AR 263.
The Army also instructed offerors to “[p]rovide a complete flow
diagram of the proposed assembly line, including test, inspection, and build.”
Id. The Army repeated here that offerors must indicate “capability to meet
production rates of a minimum of 50 kits per month as a minimum along with
the capability to ramp up within 6 months to a minimum of 300 kits per
month for each of the configurations.” Id. It also directed offerors to propose
subcontractors and describe their involvement.
Under Technical Subfactor 2: Quality Assurance Plan, the Army
required offerors to describe their Quality Management System and how the
3
offeror would address quality requirements with subcontractors and
suppliers.
Under Technical Subfactor 3: Management Plan, the Army required
offerors to detail how manufacturing would meet the solicitation
requirements. This included a detailed Integrated Master Schedule (“IMS”),
which is a multilayered schedule of tasks for completing the target effort.
The Army explained: “The IMS should include all events to be
accomplished and support each task achievement criteria. Include a
breakdown of the Armor Hardware, Turret Systems and [platform integration
kits] in substantial detail showing specific piece-parts, sub-assemblies and
components required. Include/discuss parts and assemblies that have lead
times in excess of 120 days.” Id.
The Army further required a description of the offeror’s Configuration
Management System, addressing “how engineering changes, deviations and
waivers to drawings and specifications are processed, reviewed, and acted
upon.” Id. The description needed to include the organization of the
Configuration Management System, a chart of individuals involved, and a
plan to address configurations changes with subcontractors.
The solicitation requirements included Sections C.3.4 Start of Work
Meeting, C.3.5 Accident/Incident Report, C.3.6 Warranty, and C.5 OPSEC
Requirements. Each section stated the agency’s basic expectation. For
instance, the start of work meeting would occur within thirty days after
contract award and the minimum warranty was 12 months. The solicitation
also required offerors to propose a first article test plan, which would allow
the Army to respond to the first article test report “[w]ithin 30 calendar days
after receiving the test report.” AR 149.
To satisfy Factor 2 Past Performance, the Army required offerors to
“identify pertinent past history, which indicates that similar efforts of equal
or greater complexity have been performed using the [offeror’s] existing
plant capability and demonstrate satisfaction of customer requirements.” AR
264. It requested a list of contracts in performance or awarded within the past
three years. The Army would evaluate Past Performance for relevance and
quality, assigning a rating of Substantial Confidence, Satisfactory
Confidence, Neutral Confidence, Limited Confidence, or No Confidence.
Loc does not challenge its rating on Past Performance.
Regarding Factor 3 Price, the Army directed offerors to submit pricing
according to the RFP’s Pricing Matrix, which covered pricing for all
4
production and spares line items. The Army would calculate a “total
evaluated price” for each offer and review the contract line items for
unbalanced pricing. The Army would evaluate prices for reasonableness and
use that determination in its best value tradeoff analysis.
Fourteen offerors submitted proposals, which the SSEB evaluated
according to the three factors. It rated Loc “Marginal” on the Technical factor
overall and “Substantial Confidence” on Past Performance. Loc’s total
evaluated price was [ ].
Loc’s Manufacturing Plan, Technical subfactor 1, proposed [
] for manufacturing the armor hardware, turret systems, and platform
integration kits. “Loc’s overarching plan for the production, procurement,
and inspection of the GPK System kits will utilize [
], as well as leverage Loc’s robust supply base.” AR 859.
Loc explained that two kits would be manufactured [ ] whereas
manufacturing the turret system kit required [
]. Loc represented that [
]. Loc provided layouts of its manufacturing capacity in [
].
Loc explained that [ ] had the capacity to produce fifty
gunner protection kit systems per month. It “had identified constraints and
developed plans to meet the demands for ramping up to 300 kits per month.”
AR 876. Loc concluded that, although the [ ] could produce
300 kits per month, the [ ] “would need to [
] or [ ]” to produce 300
kits per month. AR 879. Loc provided some explanation of what [ ]
it would need and stated that “Loc is prepared to [
] or [ ],” but it did not offer a specific
timeline or plan for [ ]. Id.
Loc also included a flow diagram of its assembly line. Its Figure 20
was “a sample production flow diagram that will be utilized for the GPK
System Program at the [ ] facility.” AR 873. That diagram listed four
parts above a diagram of “Example Assembly Flow for four PN’s at the
[ ] Plant.” Id. Loc included a paragraph explaining its assembly line.
On Technical subfactor 1, the SSEB rated Loc’s Manufacturing Plan
“Marginal.” It found a significant weakness regarding the ramp up plan and
a weakness regarding the assembly line flow diagram. A significant
weakness existed because “the offeror [did] not provid[e] a plan or timeline
5
for [ ]
to meet the 300 kits per month production rate.” AR 1756. The SSEB found
“no indication that the rate of 300 kits per month could be reached within a
6 month period.” Id. The SSEB also assigned a moderate risk weakness
because “the offeror did not provide adequate and complete flow diagram of
the proposed assembly line.” Id. Overall, the SSEB concluded that Loc’s
Manufacturing Plan presented a high risk of unsuccessful performance. Loc
protests its Manufacturing Plan rating.
Loc’s Quality Assurance Plan, Technical subfactor 2, provided
narrative and visual explanations of its quality assurance processes. The
SSEB found that Loc’s Quality Assurance Plan was thorough, rating it
“Good.” It assigned Loc a strength for exceeding its expectations and found
no weaknesses. The SSEB concluded that the Loc’s Quality Assurance Plan
presented a low risk of unsuccessful performance. Loc does not protest its
Quality Assurance Plan rating.
Loc’s Management Plan, Technical subfactor 3, provided its IMS, the
multilayered schedule showing how tasks will come together to complete
manufacture, but Loc’s IMS addressed only one part, the [
]. Loc reasoned that the solicitation only instructed offerors to
address parts with particularly long lead times when it stated: “The IMS
should include all events to be accomplished and support each task
achievement criteria. Include a breakdown of the Armor Hardware, Turret
Systems and [platform integration kits] in substantial detail showing specific
piece-parts, sub-assemblies and components required. Include/discuss parts
and assemblies that have lead times in excess of 120 days.” AR 263
(emphasis added). Because only the [ ] had a more than
120-day lead time, Loc limited its discussion to that part in its IMS.
Loc also provided a narrative explanation and flow chart of its
Configuration Management System. That system addressed Engineering
Change Notices and how those notices move through Loc’s management
system. Loc did not use the term “Engineering Change Proposal” or the
acronym “ECP,” but it did discuss Engineering Change Notices.
Loc listed RFP Sections C.3.4 Start of Work Meeting, C.3.5
Accident/Incident Report, C.3.6 Warranty, and C.5 OPSEC Requirements in
its “Responsibility Assignment Matrix,” which was a chart marking who was
responsible for each section. Regarding Section C.3.4 Start of Work Meeting,
Loc stated in its Project Integration Management paragraph that “Loc will
hold a Start of Work [] meeting with Government to establish the baseline
6
requirements and stakeholders’ expectations along with identifying the
[ ] [] to manage the program.” AR 898. Loc also
mentioned the start of work meeting in its Project Communication
Management paragraph, stating that Loc and the government would develop
a[ ] at the start of work meeting. Regarding Section C.5
OPSEC Requirements, in its Project Communication Management paragraph
Loc stated, “Loc has an [ ] to complete annual
OPSEC training for the personnel assigned to the program.” AR 900. Loc did
not provide a dedicated section of its proposal addressing Sections C.3.5
Accident/Incident Report or C.3.6 Warranty.
Regarding the first article test approval process and its relationship to
the production schedule, Loc proposed to deliver the first article test report
on [ ], and begin first month production on [ ].
The SSEB found one significant weakness, two other weaknesses, and
a point of uncertainty in Loc’s Management Plan and rated it “Marginal.” It
determined that Loc’s IMS presented a significant weakness because its
schedule did not include “piece-parts, subassemblies, or components but
instead gave a very high and general overview of the schedule.” AR 1757-
58. The SSEB found that “insufficient detail in the IMS appreciably increases
the risk of unsuccessful contract performance.” AR 1758.
Furthermore, Loc’s Management Plan presented a moderate risk
weakness because it failed to provide an adequate description of the process
for reviewing and acting on engineering changes, specifically how an “ECN
becomes an ECP.” AR 1758. Loc’s Management Plan also presented a
moderate risk weakness because it failed to address the solicitation
requirements for Sections C.3.4 Start of Work Meeting, C.3.5
Accident/Incident Report, C.3.6 Warranty, and C.5 OPSEC Requirements.
Finally, the Army was uncertain regarding the start of production
pending first article test approval because Loc proposed starting production
during the Army’s 30-day approval period. Based on these three weaknesses
and the perceived uncertainty, the Army considered Loc a high risk of
unsuccessful performance. Loc protests its Management Plan rating.
To satisfy the Past Performance factor, Loc provided eight
questionnaire responses, all of which the Army found relevant. Four
responses indicated substantial confidence, three indicated satisfactory
confidence, and one indicated that Loc at least met contractual minimums.
7
The SSEB assigned “Substantial Confidence” to Loc’s ability to perform the
contract based on its past experience. Loc does not protest this assessment.
On Price, the SSEB found that Loc had a total evaluated price of
[ ]. Loc properly proposed unit prices for all line item numbers and
quantity ranges as required by the RFP. The SSEB found, however, that
Loc’s pricing “appears to be unbalanced from quantity range to quantity
range for the [
] . . . .” AR 2237. The
SSEB found that “[
].” Id. The SSEB also compared Loc’s total evaluated price to the
Independent Government Cost Estimate evaluated price, [ ] million,
concluding that Loc’s price was [ ].
Thirteen other offerors submitted proposals. The SSEB rated four
offers “Unacceptable” overall on the Technical factor, meaning they were
ineligible for award. We list the other ten offerors’ ratings below (including
Loc’s ratings for context):
Technical Price Past
Offerors Subfactor 1 Subfactor 2 Subfactor 3
Overall (Millions) Performance
Awardees
Substantial
O’Gara Acceptable Acceptable Good Acceptable [ ]
Confidence
Satisfactory
Ibis Tek Acceptable Acceptable Marginal Acceptable [ ]
Confidence
Also Included in the Competitive Range
[
[ ] [ ] [ ] [ ] [ ] [ ]
]
[
[ ] [ ] [ ] [ ] [ ] [ ]
]
[
[ ] [ ] [ ] [ ] [ ] [ ]
]
Excluded from the Competitive Range
[
[ ] [ ] [ ] [ ] [ ] [ ]
]
Substantial
Loc Marginal Good Marginal Marginal [ ]
Confidence
[ ] [ ] [ ] [ ] [ ] [ ] [ ]
[
[ ] [ ] [ ] [ ] [ ] [ ]
]
8
[
[ ] [ ] [ ] [ ] [ ] [ ]
]
After the SSEB completed the evaluation of each factor for each offer,
it “identified several areas of concern.” AR 2183. The SSEB chairperson and
contracting officer briefed the Source Selection Authority (“SSA”), and “[a]t
the conclusion of the briefing, as a result of varying evaluation results and a
range of prices,” the SSA determined that it would be beneficial to enter into
discussions for revision of certain technical points and prices. Id. The SSA
decided to set a competitive range of less than all of the most highly rated
proposals for efficiency.
The Pre-Negotiation Objective memorandum, signed by the
contracting officer after briefing the SSA, provided context for why the
Army decided not to enter into discussions with certain offerors. Regarding
Loc, the Army stated that the combination of Loc’s Technical weaknesses
“increases the risk of unsuccessful contract performance to an unacceptable
level.” AR 2185. The Army concluded that “going into discussions with this
offeror would result in a proposal re-write and therefore, [Loc] will not be
included in the competitive range.” Id.
The competitive range determination began with a summary of what
the Army considered in setting the range:
The Government evaluated proposals and determined which
were the most highly rated and eligible for inclusion in the
competitive range relying on the merits of each offer. The
merits of each offer were determined on the basis of (1) [t]he
quality of the technical proposal based on the ratings of each
proposal against all evaluation Criteria[;] (2) [t]he past
performance rating[; and] (3) [t]he proposed cost/prices.
AR 2207.
Before setting out the “supporting rationale for the factor ratings” for
all offers, the SSA summarized that the competitive range would include
O’Gara, Ibis Tek, [ ] “whose overall initial technical
factor ratings were Acceptable or higher.” AR 2208. The Army planned to
conduct discussions with those five offerors because the Army had identified
weaknesses in all of their Technical proposals and because it had price
concerns about [ ].
9
The SSA repeated the rationale for each offeror’s ratings before
returning to the five offerors in the range. He summarized salient information
for each offeror: the Technical rating (“Good” for [ ] and “Acceptable”
for the other four offerors), the Past Performance rating, and the total
evaluated price of each. The SSA concluded that the Technical and Past
Performance ratings “coupled with their total proposed prices establishes
these Offerors with enough merits to be included in the competitive range as
their proposals offer the best value to the Government.” AR 2268.
The Army allowed offerors in the competitive range to engage in
discussions and revise their proposals. The offerors submitted final proposals
on September 28, 2018. The SSA then completed a source selection decision,
performing a best value tradeoff and finding that O’Gara and Ibis Tek offered
the most benefit to the Army. The contracting officer also completed a price
negotiation memorandum, finding both awardees’ prices reasonable.
In the source selection decision, the SSA compared the Technical,
Past Performance, and Price rankings for each of the five offerors in the
competitive range. The SSA found that O’Gara’s “Acceptable” Technical
rating (the most important factor) coupled with its [ ] evaluated
price in the competitive range made O’Gara “the most advantageous
proposal.” AR 2787. The SSA also noted that O’Gara offered [
].
The Army had the flexibility to award up to three contracts. After it
concluded that O’Gara offered the best value proposal, the SSA found that
“[t]o enhance the production capability and competition during the life of the
contract, it is in the Government’s best interest to secure a second source.”
Id. The SSA decided that, because Ibis Tek also had an “Acceptable”
Technical score, “Satisfactory Confidence” Past Performance score, and the
[ ] evaluated price, Ibis Tek was the next best proposal. The
SSA decided it was worthwhile to award a contract to Ibis Tek, because
“[t]he minimum guarantee for each multiple award contract is low enough
that it makes it beneficial for the Government to pay $100,000.00 to have a
second source available to meet the requirements.” Id. Making two contract
awards increased competition for delivery orders and flexibility for meeting
demand during high demand periods.
The SSA considered [ ] next, due to its highest overall Technical
rating (“[ ]”) paired with a [ ] both awardees. The SSA
determined that it would not be beneficial to the Army to award a third
contract to [ ], because its [ ] proposal meant that it would not
10
offer “realistic competition” to O’Gara and Ibis Tek during contract
performance. AR 2788. The SSA noted that the Army had anticipated that a
third contract might result in an “idle award” and decided to forego awarding
a third contract to [ ]. Id.
Likewise, the SSA weighed the benefits of awarding a contract to
[ ], but concluded that “the best possible mix of production capacity versus
current and future requirements is best satisfied by two contractors.” Id.
Making a third award “would represent disproportionate excess production
capacity in relationship to the anticipated fieldings, resulting in production
capacity and labor force, and thus a detriment rather than a benefit, to all
three contract awardees.” Id. The SSA concluded that “O’Gara and [Ibis Tek]
provide the best overall value to the Government” and would be awarded
contracts. AR 2789.
The contracting officer made a responsibility determination for both
O’Gara and Ibis Tek. Regarding [ ], the contracting officer relied on
review of the System for Award Management and the exclusions recorded
there; the Past Performance Information Retrieval System; the Federal
Awardee Performance and Integrity Information System; and the
information in the pre-award survey prepared by the Defense Contract
Management Agency. The contracting officer determined, among other
responsibility findings, that as of January 2019 [ ] had a satisfactory
performance record and a satisfactory record of integrity and business ethics.
After the Army provided Loc with its post-award briefing, Loc
protested at GAO and GAO dismissed its protest as untimely. Loc filed its
complaint here on June 18, 2019.
DISCUSSION
Plaintiff advances three arguments: (1) that the Army arbitrarily
assigned weaknesses to Loc’s Technical proposal; (2) that the Army
contravened the solicitation by only considering the Technical factor in its
competitive range determination; and (3) that the Army abused its discretion
in assigning “[ ]” to [ ] Past
Performance and improperly determined that it was a responsible contractor.
Our review of the Army’s decisions considers whether they were “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.”
5 U.S.C. § 706 (2018); 28 U.S.C. §1491(b)(4) (2018). In other words, the
court’s “task is to determine whether the procurement official’s decision
lacked a rational basis or the procurement procedure involved a violation of
11
a regulation or procedure.” Tinton Falls Lodging Realty, LLC v. United
States, 800 F.3d 1353, 1358 (Fed. Cir. 2015) (citation omitted). If the Army’s
decisions fail to meet this standard of review, the protestor must also show
that it was prejudiced by the Army’s conduct, specifically whether, absent
the error, it would have had a substantial chance of receiving the contract.
Bannum, Inc. v. United States, 404 F.3d 1346, 1351-53 (Fed. Cir. 2005).
For the reasons discussed below, Loc has not demonstrated that the
Army’s ratings and competitive range determination lacked a rational basis
or violated the law. Because Loc would not have a substantial chance of
award even if [ ] were excluded, we do not reach the question of [
] representations and responsibility. We therefore deny plaintiff’s
motion for judgment on the administrative record and grant the government’s
motion.
I. The Army Rationally Rated Loc’s Technical Proposal “Marginal.”
Loc disagrees with the Army’s evaluation of its Technical proposal,
arguing that the Army should have rated Loc “Acceptable” and included it in
the competitive range. We disagree. Loc has not shown that the Army’s
rating of Loc as “Marginal” was arbitrary, capricious, or an abuse of
discretion.
An agency is entitled to discretion in its evaluation of offers.
Grumman Data Sys. Corp. v. Widnall, 15 F.3d 1044, 1046 (Fed. Cir. 1994).
Technical evaluations, in particular, are “the minutiae of the procurement
process . . . which involve discretionary determinations of procurement
officials that a court will not second guess.” E.W. Bliss Co. v. United States,
77 F.3d 445, 449 (Fed. Cir. 1996). When a protestor challenges the agency’s
evaluation as arbitrary or capricious, the court looks at whether the agency’s
decision “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 v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
Here, Loc disputes the “Marginal” rating it received on two
subfactors, and on Technical overall, instead of “Acceptable” ratings. The
difference between the ratings is that “Marginal” indicates a belief that the
offer presents a less than adequate approach and understanding or a high risk
of unsuccessful performance, whereas “Acceptable,” one step higher,
12
indicates an adequate approach and understanding or no worse than moderate
risk of unsuccessful performance. AR 191.
Regarding Loc’s “Marginal” Manufacturing Plan, plaintiff has not
demonstrated that the Army failed to consider all of the information Loc
provided or that it implausibly evaluated Loc’s proposal. The Army assigned
Loc a significant weakness because it did not sufficiently explain how it
would ramp up to 300 kits per month in a six-month timeframe using [
] and potentially subcontractors. Although Loc represented that its
[ ] had 300-kit-per-month capacity at the time of the proposal,
Loc also represented that the [ ] would be involved in the
manufacturing process. For the [ ], Loc “would need to [
] or [ ]” to
produce 300 kits per month. AR 879.
The agency’s confusion is completely understandable. Loc’s proposal
regarding production rates was made unclear by its explanation that [
] would be needed to reach peak production rates and that the [
] would require [ ] or [ ] to reach the 300
unit level, but it neglected to give a solid commitment as to when that would
happen. Loc was responsible for presenting information in a detailed, clear
fashion, and the agency acted within its discretion when it determined that
Loc’s Manufacturing Plan did not provide sufficient assurance that Loc was
able to ramp up to a higher production rate within the time required.
The Army also assigned Loc a weakness for failing to provide a
complete flow diagram of its assembly line. Loc provided a flow diagram
depicting the assembly line for four parts, by way of an example. This
diagram left room for reasonable minds to differ on whether the example
[ ] facility assembly line provided a complete picture of Loc’s process
to test, inspect, and build. The Army was not required to read into the
proposal the explanation that the same flow diagram applied to all parts and
was within its discretion to rate Loc “Marginal” on its Manufacturing Plan.
Regarding Loc’s “Marginal” Management Plan, the SSEB assigned
Loc a significant weakness for failing to provide a thorough IMS. The
solicitation stated, “The IMS should include all events to be accomplished
and support each task achievement criteria. Include a breakdown of the
Armor Hardware, Turret Systems and [platform integration kits] in
substantial detail showing specific piece-parts, sub-assemblies and
components required. Include/discuss parts and assemblies that have lead
times in excess of 120 days.” AR 263.
13
Loc read this section to mean that it was only required to address parts
and assemblies with long lead times; in other words, Loc did not believe it
needed to provide “substantial detail showing specific piece-parts, sub-
assemblies and components required.” Id. Loc chose to address only one part
because it was the only part with a lead time of more than 120 days. The
Army understood this section to mean that offerors should address all events
to be accomplished; piece-parts, sub-assemblies, and components required;
and parts and assemblies with long lead times. The Army found Loc’s
approach wanting because it did not cover piece-parts, sub-assemblies, and
components, and it assigned Loc a significant weakness.
We agree with defendant that the last sentence of the section should
not be read to negate the prior two sentences. The IMS section
unambiguously communicates that the Army wanted a detailed, multilayered
schedule, comprehensively reviewing the tasks and all parts involved. The
Army rationally concluded that Loc’s Management Plan presented a
significant weakness. If Loc was confused regarding the amount of detail the
IMS should provide, it had the opportunity to question how the Army would
apply the section prior to submitting its proposal.
The Army also assigned two moderate risk weaknesses and an
uncertainty to Loc’s proposal. The Army found gaps in the information Loc
presented regarding how Loc addressed engineering changes, how Loc
addressed various solicitation sections such as warranty and OPSEC
requirements, and how production would proceed after the first article test.
The SSEB was perhaps ungenerous in filling gaps in Loc’s descriptions, but
Loc did in fact fail to fully address at least two solicitation requirements—
warranty and the accident/incident report—in its proposal. Loc has not
shown that the agency ignored relevant information or reached contradictory
conclusions; instead, the Army exercised its discretion when it found these
to constitute moderate weaknesses.
Even if the Army was incorrect on the moderate risk weaknesses in
Loc’s Management Plan, Loc’s Technical proposal still contained the two
other significant weaknesses we discussed above. Loc failed to show that the
Army improperly rated its Technical proposal “Marginal” overall. As such,
Loc cannot demonstrate that it had a substantial chance of award unless it
can show that the Army was required to include it in the competitive range,
which we address below.
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II. The Army Properly Set the Competitive Range.
Loc argues that the agency improperly set the competitive range by
using the Technical rating “Acceptable” as the exclusive demarcation line,
while failing to consider the Past Performance and Price factors. We
disagree. The Army considered all factors and was within its discretion to
rely on the Technical factor to determine which offers should be included in
the competitive range.
After an agency evaluates proposals according to the factors stated in
the solicitation, if the agency intends to conduct discussions, it will establish
a competitive range. FAR 15.306(c)(1). “Based on the ratings of each
proposal against all evaluation criteria, the contracting officer shall establish
a competitive range comprised of all of the most highly rated proposals,
unless the range is further reduced for purposes of efficiency . . . .” Id. If the
contracting officer determines that “the number of most highly rated
proposals . . . exceeds the number at which an efficient competition can be
conducted,” and the solicitation notified offerors, “the contracting officer
may limit the number of proposals in the competitive range to the greatest
number that will permit an efficient competition . . . .” FAR 15.306(c)(2).
FAR 15.306(c) notably does not require the agency to perform any
tradeoff between price and other non-cost factors when establishing a
competitive range. Comp. FAR 15.101, 15.101-1 (best value tradeoff), with
FAR 15.306(c) (competitive range). The contracting officer likewise is not
required to redo the technical evaluators’ work in setting the range; instead
the range is based on “the ratings of each proposal against all evaluation
criteria.” FAR 15.306(c)(1). The agency is authorized to limit the range
beyond the most highly rated proposals to “the greatest number that will
permit an efficient competition.” FAR 15.306(c)(2). The FAR does not
specify how the agency must decide how many proposals will create efficient
competition.
Contracting officers have “broad discretion in determining
competitive range,” and the court will not disturb that determination “unless
clearly unreasonable.” Birch & Davis Int’l, Inc. v. Christopher, 4 F.3d 970,
973 (Fed. Cir. 1993). It is not this court’s role to substitute our judgment for
that of the agency, and “the agency does not have to include all technically
acceptable proposals that have a low price in the competitive range.” Red
River Computer Co., Inc. v. United States, 120 Fed. Cl. 227, 239 (2015). The
court is concerned with whether the agency took proposals’ ratings into
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account in setting the range and explained the reasoning underlying which
proposals were included and excluded.
First, there is no dispute that the Army thoroughly evaluated all three
factors—Technical, Past Performance, and Price—before setting the
competitive range. It assigned ratings on the Technical and Past Performance
factors. As to Price, it determined the total evaluated price of each offer and
compared it to the Independent Government Cost Estimate. The only step the
Army saved for after discussions was the price reasonableness analysis,
which would be used as part of the best value tradeoff.
Second, the Army considered the ratings on all three factors when
deciding how to set the competitive range. At the beginning of the
competitive range determination, the SSA stated that the competitive range
was based on the “merits of each offer” and “the merits of each offer were
determined on the basis of” all three evaluation components. AR 2207. The
competitive range determination incorporated the SSEB’s evaluation of all
offerors on each of the three factors. Furthermore, in the analysis following
the repetition of the SSEB’s ratings, the SSA stated that, except [ ], the
agency planned to address price concerns for each offeror in the competitive
range, showing that the Army in fact accounted for prices when deciding how
to shape the competitive range. The Army likewise acknowledged that one
offeror in the range, [ ], had a lower Past Performance rating than others,
but because it had an “Acceptable” Technical rating coupled with its price,
the Army chose to include it in the range. The Army also stated that the
offerors included in the range were included based on Technical and Past
Performance “coupled with” price. AR 2268. Even if the Army could have
been more detailed, the competitive range determination reflects
consideration of all three factors.
Finally, to winnow the number of most highly rated proposals for
efficient competition, the SSA prioritized the most important factor:
Technical. This was the part of the proposals that told the Army how the
offerors would produce parts of military vehicle weapons systems. The SSA
chose to include not only the one offer that had a “Good” Technical rating
but to expand the range to include those four offers rated “Acceptable” on
Technical. He excluded only those offerors whose Technical rating meant
they had a high risk of unsuccessful performance. The SSA explained the
reasoning behind why each offeror would be included or excluded based on
the Army’s understanding of its ability to manufacture the needed parts.
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We find that the Army reasonably decided to prioritize the Technical
factor in creating the competitive range. The Army was not clearly
unreasonable in deciding that discussions should be reserved for those
offerors who either had a low or moderate risk of unsuccessful performance.
It was not required to include all low-priced offerors in the competitive range,
particularly not at the expense of lowering its expectations for the Technical
proposal. The SSA had the authority to limit the range for efficient
competition and chose a perfectly logical cutoff point for inclusion or
exclusion.
Loc ultimately argues that the SSA should have included a lengthier
discussion of specifically how Past Performance and Price entered into the
SSA’s decision to exclude Loc. See AR 2267. The agency could have
included more detail in its discussion of why it excluded five offerors from
the competitive range. The comparison that Loc demands, however, goes
beyond what was required of the Army. Even if the SSA had included more
explanation discussing Loc’s Past Performance and Price evaluation, Loc has
not demonstrated that the outcome would be different given its technical
inferiority. We need not disturb the competitive range determination.
III. Even if the Army’s Evaluation of [ ] was Flawed, Loc is not
Prejudiced.
Loc also argues that [ ] was not eligible for award because it is
not a responsible contractor and its Past Performance rating was inflated due
to misrepresentations. Loc seeks to supplement the administrative record
with a Department of Justice press release that may call into question [
] representations and the responsibility determination.
We do not need to consider the issue. Even if [
], Loc’s position would not be improved and the Army
would not be required to redo the procurement. The solicitation stated that
the Army could award up to three contracts. It awarded two. [
] and the Army only awarded an additional
contract for increased competition and production capacity. Alternatively,
even if the Army needed to select a second contractor, it properly excluded
Loc from the competitive range and, thus, Loc would not have a chance of
being awarded a contract. Because Loc would not have a substantial chance
of being awarded a contract if we found the Army’s responsibility
determination was made in error or that [
], we need not address that argument further. The court denies Loc’s
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motion to supplement the administrative record because the submitted press
release is not necessary to effective judicial review.
CONCLUSION
In sum, because the Army rationally evaluated Loc’s proposal and
excluded it from the competitive range, we deny plaintiff’s motion for
judgment on the administrative record and grant the government’s motion.
The Clerk is directed to enter judgment for defendant. No costs.
s/Eric G. Bruggink
ERIC G. BRUGGINK
Senior Judge
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