Metropolitan Interpreters and Translators, Inc. v. United States

In the United States Court of Federal Claims

No. 19-748C

(E-filed: October 16, 2019) 1

)

METROPOLITAN INTERPRETERS )

AND TRANSLATORS, INC., )

)

Plaintiff, )

) Motion to Strike; Supplementing the

v. ) Administrative Record; Fed. R. Evid.

) 1006; Compliance with Formatting

THE UNITED STATES, ) Requirements; Technical Evaluation;

) Past Performance Evaluation; FAR

Defendant, ) 8.404(d) (2018); FAR 8.405-2(d)

) (2018); Denying Permanent Injunctive

and ) Relief.

)

MVM, INC., )

)

Intervenor-defendant. )

)

Holly A. Roth, McLean, VA, for plaintiff.

Veronica N. Onyema, Trial Attorney, with whom appeared Joseph H. Hunt, Assistant

Attorney General, Robert E. Kirschman, Jr., Director, and Douglas K. Mickle, Assistant

Director, Commercial Litigation Branch, Civil Division, United States Department of

Justice, Washington, DC, for defendant. Douglas J. Becker, United States Immigration

and Customs Enforcement, of counsel.

Meghan F. Leemon, Washington, DC, for intervenor-defendant.

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This opinion was issued under seal on September 26, 2019. Pursuant to ¶ 6 of the

ordering language, the parties were invited to identify proprietary or confidential material

subject to deletion on the basis that the material was protected/privileged. The parties’

agreed-upon redactions are acceptable to the court. All redactions are indicated by

brackets ([ ]).

OPINION

CAMPBELL-SMITH, Judge.

Plaintiff Metropolitan Interpreters and Translators, Inc. (also referred to as Metro

or MIT), filed this bid protest to challenge the award of a contract for the provision of

translation services to the United States Immigration and Customs Enforcement agency

(the agency or ICE). The parties’ cross-motions for judgment on the administrative

record (AR) and defendant’s motion to strike are now before the court. The motions are

fully briefed and ripe for decision. In ruling on these motions, the court has considered

the following: (1) plaintiff’s second amended complaint, ECF No. 34 (complaint); (2)

the AR, ECF Nos. 26, 30; (3) plaintiff’s motion for judgment on the AR, ECF No. 32; (4)

defendant’s response to plaintiff’s motion for judgment on the AR, cross-motion for

judgment on the AR, and motion to strike, ECF No. 35; (5) intervenor-defendant’s

response to plaintiff’s motion for judgment on the AR, and its cross-motion for judgment

on the AR, ECF No. 36; (6) plaintiff’s reply in support of its motion for judgment on the

AR, and its response to defendant’s and intervenor-defendant’s cross-motions for

judgment on the AR, ECF No. 37; (7) defendant’s reply in support of its cross-motion for

judgment on the AR and motion to strike, ECF No. 38; and (8) intervenor-defendant’s

reply in support of its cross-motion for judgment on the AR, ECF No. 40.

For the reasons set forth below: (1) plaintiff’s motion for judgment on the AR,

ECF No. 32, is DENIED; (2) defendant’s cross-motion for judgment on the AR and

motion to strike, ECF No. 35, are GRANTED; and (3) intervenor-defendant’s cross-

motion for judgment on the AR, ECF No. 36, is GRANTED.

I. Background

A. The RFQ and Amendments

On May 1, 2017, the agency issued Request for Quotation No. HSCEMS-17-Q-

00010 (RFQ) seeking “General Translation, Transcription, and Interpretation Services,”

under its Title III, Monitoring and General Translation & Transcription Services

program. ECF No. 26-2 at 530. As explained in the AR,

Title III of the Omnibus Crime Control and Safe Street Act of 1968 (Wiretap

Act) as amended provides the statutory framework that governs real-time

electronic surveillance of the contents of communications. The Title III act

establishes procedures agencies must follow to obtain a federal court order

to authorize the interception of oral, wire and electronic communications

(known as Title III or wiretap). This act regulates how law enforcement

agents can use and further disclose information obtained under a Title III

order.

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Id. at 205. These services are presently provided by multiple vendors, but the agency

now intends to consolidate the services with one vendor to increase efficiency. See id. at

206. Both plaintiff and intervenor-defendant (MVM) are incumbent contractors. ECF

No. 26-3 at 282.

The agency issued Amendment 1 to the RFQ on May 23, 2017, see ECF No. 26-2

at 603, and awarded the contract to MVM on August 4, 2017, see id. at 36. In response

to four bid protests filed with the Government Accountability Office (GAO), the agency

took corrective action, see id. at 207, and the GAO dismissed the protests as moot, see

ECF No. 26-1 at 177. As part of the corrective action, the agency issued two additional

amendments—Amendment 2 and Amendment 3—to the RFQ. Amendment 3, “for all

intents and purposes, replaced the original RFQ.” ECF No. 35 at 11 (citing ECF No. 26-

1 at 233). Amendment 3, in several respects, reduced the scope of the procurement. For

example, it removed braille from the list of languages and eliminated the request for

interpretation services generally. See ECF No. 26-1 at 236, 239-43, 263.

The performance work statement (PWS) that accompanied Amendment 3 stated

that “[t]he contractor shall furnish all personnel and all necessary equipment, materials

and supplies, transportation, security clearance, and background investigation verification

necessary to perform Title III Monitoring and General Translation and Transcription

Services.” Id. at 239. The PWS also stated that “ICE will require local

linguists/translators for Tier I and Tier II languages in certain areas of the [United States].

This will be determined at the case assignment level.” Id. at 247. It also noted that “[a]ll

services required in support of Title III wiretap intercepts will take place in a Government

controlled facility.” Id. at 248.

Amendment 3 further required that each submission conform to the following

format:

The Technical submission shall not exceed 35 pages on 8.5 X 11 paper in

Times New Roman 12 pt. Font and 1 inch margins (excluding resumes, Key

Personnel Certification, and Past Performance Questionnaires). Vendors are

permitted to use different fonts and sizes for graphs, illustrations, tables, etc.

permitted they remain legible.

Id. at 261 (emphasis in original).

B. The Evaluation Criteria

The RFQ stated that the task order would be awarded “to the responsible GSA

Schedule Holder . . . whose quote for the services described herein conforms to the

solicitation and represents [the] best overall value to the Government.” Id. at 260. The

evaluation factors include: Technical Approach, Management Approach, Past

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Performance & Experience, and Price. Id. Under the terms of the RFQ, “[n]on-price

factors, when combined, are significantly more important than Price,” but “[a]s the

technical evaluations become more equal, price becomes more important in making the

award determination.” Id. In addition, the RFQ stated that “[i]n the event that two or

more quotes are determined to have received the same technical rating, award may be

made to the lower priced [offeror].” Id.

1. Technical Approach and Management Approach

The agency began its evaluation of each offeror’s technical approach by

determining “the extent to which the Offeror conveys its understanding of the tasks

identified in the Performance Work Statement (PWS).” Id. at 261. The agency also

evaluated “whether the proposed approach is sound, practical, and feasible to accomplish

the requirements, and the Offeror’s demonstrated ability to staff the ICE Title III

Monitoring and General Translation and Transcription Services program.” Id. The

technical approach factor included a review of two sub-factors: an offeror’s technical

capabilities, and its quality control plan. See id.

With regard to each offeror’s management approach, the agency “assess[ed] the

extent to which the Offeror’s approach provides a thorough and relevant plan for

managing, overseeing, and accomplishing performance as required in the RFQ and

PWS.” Id. at 262. In addition, the agency “evaluate[d] the Offeror’s approach for

obtaining, allocating, monitoring, and controlling all resources required to ensure

successful performance.” Id. The management approach also addressed four sub-factors:

transition plan, organizational structure and staffing plan, invoicing, and capability and

experience of key personnel. Id. at 262-63.

Both the technical approach and the management approach of each offeror was

rated as Excellent, Good, Acceptable, Marginal, or Unacceptable. Id. at 265.

2. Past Performance and Experience

The agency evaluated offerors’ past performance based on responses to a past

performance questionnaire. Id. at 263. The RFQ described relevant experience to

include the successful provision of translation and transcription services of “similar size,

scope and complexity as described in the PWS,” within the preceding five years. Id.

Sources of information for evaluation under this factor included: “information provided

by the Offeror, information obtained from past performance questionnaires, and

information from any other sources available to the Government.” Id. The agency rated

offerors under this factor as: Substantial Confidence (Outstanding), Satisfactory

Confidence (Satisfactory), Limited Confidence (Marginal), No Confidence

(Unsatisfactory), and Unknown Confidence (Neutral). Id. at 266.

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3. Price

Offerors were required, under the terms of the RFQ to present proposed prices in a

specified format, and to clearly indicate any assumptions included in their calculations.

See id. at 263. The agency instructed offerors to include a list of forms and attachments

as part of its price quote, including “Attachment D – Pricing Evaluation Spreadsheet,”

which would “be used solely for evaluation of price for award purposes only.” Id. at 264.

Attachment D addresses rates for Tier I and Tier II languages, and states on the top of

each page that “[o]nly languages in Tier I & II will be used in calculating a vendor’s total

evaluated price for award purposes.” Id. at 286-90. The RFQ also specifies that “[p]rice

quotations will be evaluated in accordance with FAR 8.404(d),” and that “[e]ach

Offeror’s Total Evaluated Price will be evaluated utilizing Attachment D – Pricing

Evaluation Spreadsheet.” Id. at 264. Prices for Tier III languages were “evaluated for

reasonableness separately from the evaluation of price for award purposes.” Id.

C. Award Decision Following Amendment 3

Both plaintiff and MVM submitted revised quotes based on Amendment 3. Id. at

236; ECF No. 26-2 at 246-369 (plaintiff’s revised quote); id. at 370-467 (MVM’s revised

quote). Two additional offerors submitted quotes, but the agency deemed both ineligible

for award. ECF No. 26-1 at 177. Two teams reviewed the quotes and issued reports to

the Source Selection Authority (SSA). The Technical Evaluation Team (TET) issued its

report on April 11, 2018. 2 See ECF No. 26-2 at 153-174. The Price Evaluation Team

(PET) issued its report on June 15, 2018. See id. at 175-77. The SSA then reviewed the

TET and PET reports and recommended selecting MVM for award. See id. at 178-203

(award decision memorandum).

1. Technical Evaluation Team Report

In its report, the TET assigned both plaintiff and MVM the highest rating for each

of the non-price evaluation factors. The report included a table summarizing the TET’s

conclusions, as reproduced here:

Vendor Technical Management Past Performance

Approach Approach & Experience

Metropolitan Excellent Excellent Substantial

Interpreters and Confidence

Translators, Inc.

(Metro)

2

The first page of the TET report records the date as March 12, 2018, but the final

page, which includes signatures from the team members, indicates the report was

finalized on April 11, 2018. See ECF No. 26-2 at 153, 174.

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MVM, Inc. Excellent Excellent Substantial

Confidence

Id. at 155. The TET identified no weaknesses, deficiencies, or risks in either plaintiff’s

or MVM’s quote. See id. at 157, 160, 162 (evaluation of plaintiff’s quote); id. at 166,

170, 172 (evaluation of MVM’s quote).

The TET’s analysis of plaintiff’s quote was detailed and notably positive. With

regard to plaintiff’s technical approach, the TET stated that plaintiff demonstrated both

“exceptional understanding of the Government’s goals and objectives,” and “significant

strengths within their proposal regarding their Technical Capability and Quality Control

Plan that would benefit the Government if selected for award.” Id. at 155. The TET

found that plaintiff’s proposed management approach “established a thorough and

exceptional understanding of the requirements defined in the PWS for the Transition

Plan, Staffing, Invoicing capability and experience of Key personnel.” Id. at 157. And

after reviewing Contractor Performance Assessment Reports (CPARs) and the nature and

scope of plaintiff’s past performance submissions, the TET concluded that plaintiff’s

“past performance and experience appear[ ] to be exceptional.” Id. at 160.

The TET’s evaluation of MVM was similarly detailed and positive. The TET’s

conclusions with regard to MVM’s quote were nearly identical to its conclusions with

regard to plaintiff’s quote. The TET found that: MVM’s technical approach

“demonstrate[d] an exceptional understanding of the Government’s goals and

objectives,” id. at 162; MVM’s management approach “demonstrate[d] a thorough and

exceptional understanding of the requirements in the PWS for the Transition Plan,

Staffing, Invoicing capability and experience of Personnel,” id. at 166; and MVM’s “past

performance and experience appear[ ] to be exceptional,” id. at 170.

The TET concluded its report as follows:

Based on the results of the technical evaluation, TET recommends award of

the single Task Order to either MVM or Metro as both vendors provided a

proposal with a clear and concise direction on how they would transition

from a multi-vendor BPA [Blanket Purchase Agreement] system down to a

single provider. [Each] vendor[’]s proposal methodically details its approach

in ensuring quality control and demonstrated a clear understanding of its

importance to ICE/HIS’s [Homeland Security Investigations] mission

success. . . . In conclusion, the TET team is fully confident that either MVM

or Metro can perform the tasks required for this contract.

Id. at 173.

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2. Price Evaluation Team Report

In accordance with the RFQ, the PET compared specific price proposals for Tier I

& Tier II languages based on responses to a pricing spreadsheet, while making a “fair &

reasonableness determination” for Tier III languages, which were not included on the

spreadsheet. Id. at 175. The PET stated that “MVM submitted the lower price quote

with a total evaluated price of $205,803,583.85.” Id. at 176. Plaintiff’s price quote was

3.28% higher, “with a total evaluated price of $212,957,791.38.” Id. The PET further

stated that the prices quoted by both plaintiff and MVM were within the guidelines

previously determined by the General Services Administration (GSA) to be “fair and

reasonable,” and that “[e]ach of the contractors further discounted their GSA Schedule

rates.” Id.

On June 15, 2018, the SSA determined that it was in the government’s best

interest to select MVM, and awarded MVM the contract. See id. at 178-203.

D. Fifth and Sixth GAO Protests

Following the initial award decision, plaintiff filed two bid protests before the

GAO. The first protest was filed on June 25, 2018. See ECF No. 26-1 at 7. The agency

acknowledged an administrative error and took corrective action, and the GAO dismissed

the protest as moot. See id. at 28-30, 34. Following corrective action, the agency again

awarded the contract to MVM. See id. at 304. On July 27, 2018, plaintiff filed a second

protest challenging the agency’s technical and price evaluations, and its best value

determination. See id. at 35. Upon discovery of another administrative error, the agency

took corrective action for a second time, and the GAO dismissed the protest as moot. See

id. at 60-61, 64-65; ECF No. 30-1 at 15.

E. Final Award Decision

The SSA made its final award decision on December 21, 2018. See ECF No. 26-2

at 204-45. After a lengthy comparison of plaintiff’s and MVM’s proposals, the SSA

determined that “the technically excellent-rated and lower-priced offeror, MVM presents

the best value to the Government.” Id. at 244. In reaching this conclusion, the SSA

reviewed the two corrective actions, along with the TET report and the PET report. Id. at

214-30, 231-33.

1. Evaluation of Plaintiff’s Non-Price Factors

The SSA found that plaintiff’s quote “proposed features that exceed the

government’s requirements,” “contains more than one strength,” and “[n]o weaknesses.”

Id. at 214. The SSA identified “numerous features and strengths” in plaintiff’s technical

approach, including: (1) plaintiff’s “13 years of extensive history and experience

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performing monitoring, analysis, translation and transcription services with ICE”; (2)

plaintiff’s [ ]; (3) plaintiff’s “nationwide network of secure transcription centers,” and

“large linguistic pool”; and (4) plaintiff’s [ ]. Id. at 215-16.

The SSA assessed that plaintiff’s management approach “demonstrate[d] an

exceptional understanding of the Government’s goals and objectives through their

transition, organization and proposed staffing, invoicing, and key personnel.” Id. at 219.

In particular, the SSA identified as benefits the “expertise and knowledge” of plaintiff’s

personnel, the employees at various locations, and plaintiff’s ability to recruit in a manner

that would reduce costs and allow for rapid vetting. Id. at 218.

And plaintiff’s past performance and experience gave the SSA “substantial

confidence that they can perform the services required.” Id. at 221. Specifically, the

SSA considered the “scope and complexity” of the services performed under the

referenced contracts as relevant, and reviewed plaintiff’s successful performance of the

same. See id. at 219-20.

2. Evaluation of MVM’s Non-Price Factors

As with plaintiff’s quote, the SSA found that MVM’s technical approach

“proposed features that exceed the government’s requirements,” and “identified several

strengths and no weaknesses.” Id. at 221-22. The SSA highlighted both MVM’s [ ] as a

means of facilitating efficient performance, and the systems in place for recruiting

qualified linguists. Id. at 224. In addition, the SSA was impressed by MVM personnel’s

depth of experience, its efforts to “create cost efficiencies,” its plans to add personnel and

translation centers, its process for determining appropriate staffing levels, and its quality

control process. Id.

According to the SSA, MVM’s management approach “proposes features that

exceed the government’s requirements and its quote demonstrates an exceptional

understanding of the goals and objectives of this acquisition including requirements in the

PWS for the transition plan, staffing, invoicing, as well as capability and experience of

Key Personnel.” Id. at 225. The evaluation “identified several strengths and no

weaknesses” with regard to the proposed management approach. Id. Of particular note

was the strength of MVM’s transition plan, organization structure, recruiting efforts, and

invoicing procedures. Id. at 227.

The SSA determined that, with regard to past performance and experience, the

“scope and complexity of services performed” under each of the referenced contracts

made those contracts relevant. Id. at 228-29. The SSA also determined that each

contract was performed successfully. Id. As a result, the SSA had “substantial

confidence that [MVM] [could] perform the services required.” Id. at 230.

8

Following this award decision, plaintiff filed another GAO protest on December

31, 2018, see ECF No. 26-1 at 66-173, which was denied on May 14, 2019, see ECF No.

26-3 at 265. Plaintiff then filed this case on May 20, 2019. See ECF No. 1 (complaint).

II. Legal Standards

A. Bid Protest Standard of Review

As the United States Court of Appeals for the Federal Circuit has stated, “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 otherwise not in accordance with law.’” Banknote Corp. of Am. v. United

States, 365 F.3d 1345, 1350-51 (Fed. Cir. 2004) (citing Advanced Data Concepts, Inc. v.

United States, 216 F.3d 1054, 1057-58 (Fed. Cir. 2000)). The court’s analysis of a “bid

protest proceeds in two steps.” Bannum, Inc. v. United States, 404 F.3d 1346, 1351 (Fed.

Cir. 2005). First, the court determines, pursuant to the Administrative Procedure Act

standard of review, whether the “agency’s action was arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with [the] law.” Glenn Def. Marine (ASIA),

PTE Ltd. v. United States, 720 F.3d 901, 907-08 (Fed. Cir. 2013) (citing 28 U.S.C. §

1491(b)(4) (adopting the standard of 5 U.S.C. § 706)). If the court finds that the agency

acted in error, the court then must determine whether the error was prejudicial. See

Bannum, 404 F.3d at 1351.

To establish prejudice, “a protester must show ‘that there was a substantial chance

it would have received the contract award but for that error.’” Alfa Laval Separation, Inc.

v. United States, 175 F.3d 1365, 1367 (Fed. Cir. 1999) (quoting Statistica, Inc. v.

Christopher, 102 F.3d 1577, 1582 (Fed. Cir. 1996)). “In other words, the protestor’s

chance of securing the award must not have been insubstantial.” Info. Tech. &

Applications Corp. v. United States, 316 F.3d 1312, 1319 (Fed. Cir. 2003). The

substantial chance requirement does not mean that plaintiff must prove it was next in line

for the award but for the government’s errors. See Sci. & Mgmt. Res., Inc. v. United

States, 117 Fed. Cl. 54, 62 (2014); see also Data Gen. Corp. v. Johnson, 78 F.3d 1556,

1562 (Fed. Cir. 1996) (“To establish prejudice, a protester is not required to show that but

for the alleged error, the protester would have been awarded the contract.”).

Demonstrating prejudice does require, however, that the plaintiff show more than a bare

possibility of receiving the award. See Bannum, 404 F.3d at 1358 (affirming the trial

court’s determination that the plaintiff had not demonstrated a substantial chance of

award when its “argument rest[ed] on mere numerical possibility, not evidence”).

Given the considerable discretion allowed contracting officers, the standard of

review is “highly deferential.” Advanced Data Concepts, 216 F.3d at 1058. De minimis

errors in the procurement process do not justify relief. Grumman Data Sys. Corp. v.

Dalton, 88 F.3d 990, 1000 (Fed. Cir. 1996) (citing Andersen Consulting v. United States,

10

959 F.2d 929, 932-33, 935 (Fed. Cir. 1992)). The bid protest plaintiff bears the burden of

proving that a significant error marred the procurement in question. Id. (citing CACI

Field Servs., Inc. v. United States, 854 F.2d 464, 466 (Fed. Cir. 1988)). Examples of

arbitrary and capricious agency action include “when the agency ‘entirely failed to

consider an important aspect of the problem, offered an explanation for its decision that

runs counter to the evidence before the agency, or [the decision] is so implausible that it

could not be ascribed to a difference in view or the product of agency expertise.’”

Alabama Aircraft Indus., Inc.-Birmingham v. United States, 586 F.3d 1372, 1375 (Fed.

Cir. 2009) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463

U.S. 29, 43 (1983)) (alteration in original). The court will, however, “uphold a decision

of less than ideal clarity if the agency’s path may reasonably be discerned.” Bowman

Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974) (citation

omitted).

The agency’s technical evaluation of proposals is reviewed with considerable

deference because “technical ratings . . . 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) (citations omitted). Indeed, the Federal Circuit

describes an agency’s technical evaluation of proposals as “an inherently judgmental

process requiring deference.” Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324,

1339 (Fed. Cir. 2004). “‘If the court finds a reasonable basis for the agency’s action, the

court should stay its hand even though it might, as an original proposition, have reached a

different conclusion as to the proper administration and application of the procurement

regulations.’” Honeywell, Inc. v. United States, 870 F.2d 644, 648 (Fed. Cir. 1989)

(quoting M. Steinthal & Co. v. Seamans, 455 F.2d 1289, 1301 (D.C. Cir. 1971)).

B. Permanent Injunctive Relief

As the Federal Circuit has held:

In deciding whether a permanent injunction should issue, a court considers:

(1) whether, as it must, the plaintiff has succeeded on the merits of the case;

(2) whether the plaintiff will suffer irreparable harm if the court withholds

injunctive relief; (3) whether the balance of hardships to the respective

parties favors the grant of injunctive relief; and (4) whether it is in the public

interest to grant injunctive relief.

PGBA, LLC v. United States, 389 F.3d 1219, 1228-29 (Fed. Cir. 2004) (citing Amoco

Prod. Co. v. Vill. of Gambell, Alaska, 480 U.S. 531, 546 n.12 (1987)).

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III. Analysis

A. Defendant’s Motion to Strike

Plaintiff filed two exhibits along with its motion for judgment on the AR: (1) the

declaration of Ariel H. Collis, a consultant who was “asked by [plaintiff’s counsel] to

estimate the total cost to the [agency] for Translation and Transcription Services for Tier

III languages for [plaintiff] and MVM, Inc. using pricing given in their proposals for the

[RFQ],” ECF No. 32-2 at 2-24; and (2) a table, apparently created by plaintiff, purporting

to illustrate inconsistencies in the technical evaluations at issue, ECF No. 32-3 at 2-5.

Defendant has moved to strike the exhibits because “these documents are not part of the

administrative record.” ECF No. 35 at 53. In response, plaintiff argues that Ms. Collis’s

declaration is necessary for effective judicial review, see ECF No. 37 at 31-33; and that

plaintiff’s chart is admissible as a summary pursuant to Federal Rule of Evidence 1006,

see id. at 33-34.

The Federal Circuit has established that supplementation is only appropriate when

the auxiliary materials are necessary to allow the court to conduct “meaningful judicial

review.” Axiom Res. Mgmt. v. United States, 564 F.3d 1374, 1379-80 (Fed. Cir. 2009).

In this case, Ms. Collis’s calculations do not serve that end. The proper standard of

judicial review in this case is the “highly deferential” inquiry as to whether the agency’s

action was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with law. Advanced Data Concepts, 216 F.3d at 1058. The court must not second guess

the agency’s technical judgments. See E.W. Bliss, 77 F.3d at 445; Galen, 369 F.3d at

1339. “‘If the court finds a reasonable basis for the agency’s action, the court should stay

its hand even though it might, as an original proposition, have reached a different

conclusion as to the proper administration and application of the procurement

regulations.’” Honeywell, 870 F.2d at 648 (quoting M. Steinthal, 455 F.2d at 1301). The

court has no need for independent calculations in order to determine whether the agency

acted arbitrarily or capriciously, or abused its discretion in awarding the contract to

MVM.

The court likewise rejects plaintiff’s argument that its chart—which summarizes

alleged inconsistencies in the evaluation process—is necessary due to the volume of

material that it synthesizes. Federal Rule of Evidence 1006 states, in its entirety:

The proponent may use a summary, chart, or calculation to prove the content

of voluminous writings, recordings, or photographs that cannot be

conveniently examined in court. The proponent must make the originals or

duplicates available for examination or copying, or both, by other parties at

a reasonable time and place. And the court may order the proponent to

produce them in court.

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The court does not accept plaintiff’s argument that “the AR is too voluminous for Metro”

to have addressed its contents in its motion for judgment on the administrative record.

ECF No. 37 at 34. Plaintiff’s chart is five pages long, and cites a total of only eight pages

in the AR. See id. (citing ECF No. 26-2 at 163-64, 252-53, 272-75). If plaintiff needed

additional space to address these matters as part of its written argument, it should have

sought leave to exceed the page limit set by the rules of this court.

Accordingly, defendant’s motion to strike is GRANTED.

B. The Agency Did Not Err in Accepting MVM’s Proposal

The RFQ required offerors to submit their technical proposals in accordance with

the following format:

The Technical submission shall not exceed 35 pages on 8.5 X 11 paper in

Times New Roman 12 pt. Font and 1 inch margins (excluding resumes, Key

Personnel Certification, and Past Performance Questionnaires). Vendors are

permitted to use different fonts and sizes for graphs, illustrations, tables, etc.

permitted they remain legible.

ECF No. 26-1 at 261 (emphasis in original). Plaintiff argues that “MVM’s quote

circumvented the RFQ’s page limitation by using smaller font sizes than permitted by the

RFQ for narrative text, i.e., anything that was not a graph, illustration, table, etc.” ECF

No. 32-1 at 14.

According to plaintiff’s calculations, “39% of the text used in MVM’s technical

quote is 9 point Arial Narrow font or smaller.” Id. at 15. Plaintiff claims that “[m]any of

the sections of MVM’s technical quote that are in a smaller font size have no identifying

label such as ‘table’ nor are they graphs or illustrations.” Id. (citing ECF No. 26-2 at 382,

384-85). In addition, plaintiff argues that MVM “interspersed boxes filed with narrative

text into its technical quote.” Id. Plaintiff posits that “[h]ad MVM complied with the

RFQ’s instructions and used the 12-point font required for narrative text, its technical

quote would have surpassed the page limitation of 35 pages.” Id.

Plaintiff claims that the agency should have rejected MVM’s quote on this basis.

See id. As support for this position, plaintiff cites to a number of cases affirming an

agency’s decision to exclude proposals when the offeror failed to comply with formatting

requirements. See id. at 14-15 (citing Leader Commc’ns, Inc. v. Fed. Aviation Admin.,

757 F. App’x 763 (10th Cir. 2019); Tetra Tech AMT v. Dell Servs. Fed. Gov’t, 128 Fed.

Cl. 169 (2016); Navarro Research & Eng’g, Inc. v. United States, 106 Fed. Cl. 386, 411

(2012)).

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Defendant argues that the technical evaluators appropriately used their broad

discretion to determine whether MVM’s quote met the formatting requirements. ECF

No. 35 at 28. The court agrees. The RFQ expressly permitted vendors “to use different

fonts and sizes for graphs, illustrations, tables, etc. permitted they remain legible.” ECF

No. 26-1 at 261. The pages cited to by defendant as examples of MVM’s alleged

misconduct, ECF No. 26-2 at 382, 384-385, include sections that both could reasonably

be interpreted as tables and are legible. Moreover, as defendant correctly notes, the

permissible deviations from the font-size requirement ends with “etc.,” a term that is, by

definition, flexible. As such, MVM did not clearly violate the stated formatting

requirements, and the agency did not err in accepting MVM’s quote.

C. The Agency’s Technical Evaluation Was Not Irrational, Arbitrary, or

Capricious

1. Technical Approach Evaluation

According to plaintiff, the technical approach section of its quote was unfairly

evaluated in three respects: (1) plaintiff’s “nationwide service locations” should have

been considered a strength as compared to MVM’s more limited locations, specifically

with regard to plaintiff’s ability to reduce temporary duty (TDY) costs, ECF No. 32-1 at

18-20; (2) the SSA disparately treated plaintiff’s and MVM’s technical approaches with

regard to TDY costs, see id. at 20-21; and (3) plaintiff should have been given more

credit for its ability to provide staff for the agency’s assignments, see id. at 21-22. Each

of these arguments lacks merit.

a. Evaluation of Plaintiff’s Nationwide Service Locations

First, plaintiff insists that the SSA “ignored the TET’s findings that Metro’s

existing translation service centers throughout the country exceeded the RFQ

requirements.” Id. at 18. The record contradicts plaintiff’s assertion. The SSA noted

plaintiff’s “nationwide network of secure transcription centers located in [ ],” as well as

the fact that its “subcontractors have four additional secure locations in [ ].” ECF No. 26-

2 at 215. Moreover, the SSA explained why it did not value these multiple locations

more highly:

The benefit of this feature for both offerors is limited by the nature of the

workflow between ICE and is vendors. Live Title III intercept work is only

performed at law enforcement locations, not offsite contractor facilities.

Typically, translation/transcription requirements are either shipped or

commonly e-mailed to the vendors for completion. Multiple secure centers

are not necessary to perform that requirement. The requirement is for a

vendor to provide services 24 hours per day, 7 days per week, regardless of

14

the number, location or time-zone of secure locations. What is important is

that work is timely completed in a secure facility.

Id. at 237. The SSA did not fail to consider the issue, nor is the SSA’s explanation

implausible or counter to the evidence in the record. See Alabama Aircraft, 586 F.3d at

1375. Although plaintiff clearly disagrees with the manner in which the SSA evaluated

this aspect of the technical approach, the court will not second-guess the agency’s

discretionary determinations. See E.W. Bliss, 77 F.3d at 449; Honeywell, 870 F.2d at

648.

Plaintiff also argues that the SSA irrationally disregarded the impact of its multiple

locations on TDY costs. But the record does not support plaintiff’s claim. The SSA

discussed plaintiff’s ability to reduce TDY costs at several points in its analysis. See,

e.g., ECF No. 26-2 at 215 (noting that plaintiff’s “large linguistic work pool . . . reduce[s]

the number of temporary duty (TDY) linguists and associated costs”); id. at 218 (“This

would allow [plaintiff] to reduce potential TDY costs”); id. at 241 (“The Government

anticipates that [plaintiff’s] organizational and staffing structure, concentrated in high-

usage markets would enable [plaintiff] to reduce personnel and TDY expenses”). The

SSA simply disagreed that the potential reduction in TDY costs was worth paying

plaintiff’s premium price. See id. at 242 (“Both [organizational and staffing] approaches

are expected to provide substantial benefit to the Government; however, considered in

total, MVM’s proposed features compared to MIT’s features at a $7 Million lower price

constitutes a better value to the Government.”). The SSA reached a conclusion that the

court does not find to be irrational. Again, the court will not second-guess the SSA’s

judgment.

b. SSA’s Treatment of Plaintiff’s Current Locations Compared

with Its Treatment of MVM’s Potential Future Locations

Next, plaintiff claims “the arbitrary and capricious nature of the SSA’s conclusion

is amplified by its disparate treatment of plaintiff with respect to MVM’s proposal.” ECF

No. 32-1 at 20. According to plaintiff, the technical approach evaluation was unfair

because, despite the SSA’s failure to properly credit plaintiff for its network of locations,

“the agency” at the same time considered MVM’s potential future locations to be a

strength. Id. at 21 (citing ECF No. 26-2 at 164). The portion of the record to which

plaintiff cites in support of its argument, however, is the TET report, not the SSA award

decision. The SSA, for its part, noted that the effect of multiple transcription centers on

both proposals was the same: “The benefit of this feature for both offerors is limited by

the nature of the workflow between ICE and its vendors.” ECF No. 26-2 at 237

(emphasis added). As such, the record demonstrates that the agency treated plaintiff and

MVM equally, not disparately, as to the effect of multiple service locations on the

strength of their respective quotes. The court does not credit plaintiff’s claim to the

contrary.

15

c. MVM’s Ability to Perform

Finally, plaintiff claims that the SSA’s technical approach evaluation was

irrational because it “did not assess MVM’s ability to staff and provide all required

services.” ECF No. 32-1 at 21. Pursuant to the RFQ, the agency was required to

evaluate whether “the Offeror’s demonstrated ability to staff the ICE Title III Monitoring

and General Translation and Transcription Services program,” and “the extent to which

the Offeror . . . has the capability to provide all required services at all required

locations.” ECF No. 26-1 at 261. As defendant points out, “[a]lthough the TET and SSA

may not have parroted back this exact language from the RFQ in their evaluations, the

administrative record makes clear that ICE determined that MVM did, in fact, have the

technical ‘capability to provide all required services at all required locations.’” ECF No.

35 at 33-34. See, e.g., ECF No. 26-2 at 162 (TET stating that “MVM’s Technical

Approach indicates the offeror exceeds the minimum requirements”); id. at 164 (TET

stating that “MVM has developed a [ ] to ensure the appropriate number of linguists with

the right skill sets are used to efficiently execute all tasks and meet all performance

requirements in a timely manner”); id. at 221 (SSA stating that “MVM proposed features

that exceed the government’s requirements”); id. at 224 (SSA stating that “MVM has

developed a [ ] to ensure the appropriate number of linguists with the right skill sets are

used to efficiently execute all tasks and meet all performance requirements in a timely

manner”); id. at 237 (SSA stating that “MVM proposes its secure facility in [ ],” and

“[m]ultiple secure centers are not necessary to perform the requirement”).

Plaintiff concludes its argument on this point as follows: “ICE’s failure to

recognize the technical superiority of Metro’s ability to presently meet Factor 1’s

requirement for a demonstrated ability to staff the ICE Title III program and capability to

provide all required services at all required locations was irrational and arbitrary and

capricious as a result.” ECF No. 32-1 at 22. This statement is revealing in several

respects. First, plaintiff misrepresents the applicable standard of review—the court does

not review an agency’s award decision to determine whether the agency chose the

“technically superior” quote. The court is, in fact, prohibited from substituting its own

judgment for that of the agency. See Honeywell, 870 F.2d at 648 (“‘If the court finds a

reasonable basis for the agency’s action, the court should stay its hand even though it

might, as an original proposition, have reached a different conclusion as to the proper

administration and application of the procurement regulations.’”) (quoting M. Steinthal,

455 F.2d at 1301). In addition, plaintiff equates the agency’s failure to “recognize the

technical superiority” of its proposal with an irrational or arbitrary decision. See ECF

No. 32-1 at 22. Plaintiff’s strong disagreement with the agency’s discretionary judgment

does not make the award to MVM an irrational one; nor does the record support

plaintiff’s position.

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2. Management Approach Evaluation

Plaintiff next argues that “ICE did not conduct a fair consideration of Metro’s and

MVM’s technical quotes under Factor 2, Management Approach, as ICE’s evaluation

expressly departed from the stated criteria and overlooked indisputable strengths in

Metro’s quote while recognizing the same features as strengths in MVM’s quote to

Metro’s prejudice.” Id. Specifically, plaintiff claims that the agency: (1) “departed from

the RFQ’s stated evaluation criteria by refusing to consider TDY costs savings offered by

Metro’s proposal,” id.; and (2) improperly “disregarded and/or otherwise minimized, the

strengths in Metro’s proposal acknowledged by the TET related to Metro’s already-

cleared ICE employees,” id. at 24.

a. Consideration of TDY Cost Savings

The RFQ required the agency to evaluate each offeror’s quote for “the

geographical locations of linguists and its ability to minimize travel costs.” ECF No. 26-

1 at 262. Consideration of this criteria was included as part of the agency’s review of the

non-rated sub-factor titled “Organizational Structure and Staffing Plan.” Id. Plaintiff

does not argue that the SSA failed to consider the potential that plaintiff’s quote would

allow for TDY cost savings; instead, plaintiff disagrees with the contracting officer’s

characterization of those costs as “speculative,” and argues that the SSA did not properly

value its potential to minimize such costs. ECF No. 32-1 at 23 (quoting ECF No. 26-2 at

136). Defendant argues that the RFQ did not require the SSA to consider actual TDY

savings, but rather was required to consider the more general “ability” of each offeror to

minimize TDY expenses. ECF No. 35 at 35; see also ECF No. 26-1 at 261-64. In its

reply, plaintiff characterizes defendant’s response as “semantic, but ultimately

implausible and illogical.” ECF No. 37 at 23.

Plaintiff does not clearly articulate, however, what it believes the SSA should have

done differently other than to value plaintiff’s purported TDY cost savings more highly

than it did. The SSA clearly considered plaintiff’s ability to minimize travel costs, as

required by the RFQ. See, e.g., ECF No. 26-2 at 218 (“MIT operates and has employees

at various locations where nearly [ ] of ICE Title III work originates. This would allow

MIT to reduce potential TDY costs and make it easier to recruit local linguists.”).

Ultimately, the SSA found that any TDY cost savings were too uncertain to dramatically

impact the award decision. The SSA concluded that “each vendor proposed features

designed/intended to save the Government money,” but “due to the nature of this work

(unknown labor hours, TDY, cancellation), an exact estimate of potential cost saving is

impossible to determine here.” Id. at 242. The SSA also found that “[b]ecause each

vendor proposes significant staffing where approximately [ ] of ICE’s Title III cases

originate, the government does not expect that [plaintiff] will be able to reduce TDY

expenses under its staffing and technical approach significantly more than MVM,

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especially considering [plaintiff’s] approximately $7 Million higher price over MVM.”

Id.

The court understands that plaintiff vehemently disagrees with the SSA’s analysis,

but such disagreement does not render the evaluation arbitrary, capricious, or irrational,

and the court will not substitute its judgment for the SSA’s on this point. See Honeywell,

870 F.2d at 648 (“‘If the court finds a reasonable basis for the agency’s action, the court

should stay its hand even though it might, as an original proposition, have reached a

different conclusion as to the proper administration and application of the procurement

regulations.’”) (quoting M. Steinthal, 455 F.2d at 1301).

b. Employees Previously Cleared by ICE

Plaintiff also challenges the evaluation of its management approach because, it

argues, the SSA “disregarded and/or otherwise minimized, the strengths in Metro’s

proposal acknowledged by the TET related to Metro’s already-cleared ICE employees.”

ECF No. 32-1 at 24. Plaintiff claims the SSA did not properly evaluate the following:

(1) the large number of trained, already vetted linguists who work for plaintiff in “high

usage markets,” id.; (2) the fact that some of the linguists to whom MVM claims access

for staffing are actually employed by a subcontractor, id. at 25-26; (3) the relative merits

of plaintiff’s and MVM’s staffing proposals, id. at 27-28; and (4) MVM’s restriction on

allowing employees to work double-shifts, id. at 28.

Each of these arguments is fundamentally rooted, again, in plaintiff’s

disagreement with the SSA’s discretionary judgments. According to plaintiff, the SSA

failed to take into consideration the various strengths reflected in plaintiff’s management

approach, particularly as compared to MVM’s. See, e.g., id. at 25 (stating that the TET

discussed the number of linguists that plaintiff has in relevant markets as a strength, but

the SSA did not); id. at 26 (faulting the TET for failing to note the strength of its quote

with regard to vetted linguists with sufficient specificity, while overstating MVM’s

strength on this point); id. (criticizing the agency for considering linguists available to

MVM [ ] as a strength); id. at 27 (stating that the agency failed to “give Metro a strength

for its unique strategies for identifying and obtaining Tier III linguists,” while giving

MVM a strength for its proposed recruitment strategy); id. at 28 (claiming that the SSA

improperly assigned MVM a strength for its policy of [ ] when the RFQ required the

same).

The record clearly establishes that the SSA took the TET report into consideration.

See ECF No. 26-2 at 218 (noting the “evaluation team[’s]” conclusions regarding

plaintiff’s management approach). Moreover, the SSA acknowledged the value of

plaintiff’s experienced workforce. See id. at 216 (“MIT’s Management Approach

provides a thorough and exceptional understanding of the requirements in the PWS as

evidenced in its proposed transition plan, staffing, invoicing, and capability and

18

experience of Key Personnel, which include features that exceed the government’s

requirements.”); id. at 218 (“MIT maintains an additional pool of [ ] [who] are not

currently vetted for ICE [but] who can be rapidly vetted by ICE to meet any time

sensitive language needs and rapidly deployed.”).

The fact that the SSA did not treat every detail of its proposal in the manner the

plaintiff considers most advantageous to its evaluation does not justify the court’s

intervention. Challenges involving “the minutiae of the procurement process in such

matters as technical ratings . . . involve discretionary determinations of procurement

officials that a court will not second guess.” E.W. Bliss, 77 F.3d at 449. “[N]aked

claims” of disagreement with evaluations, “no matter how vigorous, fall far short of

meeting the heavy burden of demonstrating that the findings in question were the product

of an irrational process and hence were arbitrary and capricious.” Banknote Corp. of

Am. v. United States, 56 Fed. Cl. 377, 384 (2003), aff’d, 365 F.3d 1345 (Fed. Cir. 2004).

Plaintiff’s challenges to the SSA’s judgment in assigning—or not assigning—various

strengths to its proposal fall squarely within the realm of minutiae into which the court

must not intrude.

D. Plaintiff Has Failed to Demonstrate that the Agency Unfairly Conducted Its

Technical Evaluation

Plaintiff accuses the agency of failing to evaluate the quotes “fairly and even-

handedly.” ECF No. 32-1 at 28. Specifically, plaintiff claims that “ICE ascribed

strengths to features of MVM’s quote while ignoring the similar, if not identical, features

of Metro’s quote.” Id. at 29. There are no examples of unequal treatment in this section

of plaintiff’s brief; instead plaintiff cites to a chart attached thereto as an exhibit. See id.

The court, however, has already determined that this chart is not properly part of the

record in this case. While the court agrees that the SSA was required to treat the offerors

equally, plaintiff does not support its claim that the SSA did otherwise by referring to

evidence that is in the record. The court will not supply argument that plaintiff itself did

not make on this point, and therefore, declines to credit this claim by plaintiff. See

Grumman Data, 88 F.3d at 1000 (“A protestor bears the burden of proving error in the

procurement process sufficient to justify relief.”) (citing CACI, 854 F.2d at 466).

E. The Agency’s Past Performance Evaluation Was Not Irrational, Arbitrary,

or Capricious

Plaintiff claims that the SSA acted irrationally by assigning MVM a “Substantial

Confidence” rating for its past performance, despite the fact that MVM had a history of

receiving lower ratings. See ECF No. 32-1 at 30. For example, the SSA noted that

“MVM was rated ‘Marginal’ on Business Relations and Utilization of Small Business”

on a past contract. ECF No. 26-2 at 229. The SSA noted, however, that the “Business

Relations” factor “is no longer used in the current version of the system,” id., and

19

“consider[ed] MVM’s Marginal ratings for Small Business Utilization irrelevant to the

current requirement, because the current requirement does not involve any small business

component, and Small Business Utilization does not reflect on components of prior

performance relative here, such as Quality.” Id. at 230. The SSA further noted that

“[n]either vendors’ [Past Performance Retrieval System (PPIRS)] ratings for Small

Business Utilization were considered relevant under this evaluation.” Id. Plaintiff

persists, however, and takes issue with the fact that the TET noted improvement on the

past Business Relations factor, which it claims is contradictory to the SSA’s decision not

to consider the criterion. See ECF No. 32-1 at 33 (citing ECF No. 26-2 at 173, 230).

Unless plaintiff can carry the “onerous” burden of demonstrating that the agency’s

performance rating “lacked any rational basis,” the court “must defer to the SSA’s

decision.” Overstreet Elec. Co., Inc. v. United States, 59 Fed. Cl. 99, 117 (2003) (citing,

inter alia, Info. Tech., 316 F.3d at 1319; E.W. Bliss, 77 F.3d at 449). Plaintiff cannot

meet this standard. First, to the extent that any conflict exists between the TET report

and the SSA’s award decision, the SSA’s decision is authoritative. Coastal Int’l Sec.,

Inc. v. United States, 93 Fed. Cl. 502, 536 (2010) (stating that, as a matter of law, the

SSA is required to exercise independent judgment and is not bound by the findings of

lower-level evaluators). In any event, here, the SSA specifically explained the

inconsistency between the two reports: “At the time of the evaluation, the TET utilized

‘legacy’ PPIRS reports which contained the area of importance ‘Business Relations’.

Business Relations is no longer used in the current version of the system.” ECF No. 26-2

at 229.

More importantly, however, the SSA clearly articulated a rational basis both for

disregarding the Small Business Utilization criteria and for assigning MVM a

“Substantial Confidence” rating. See id. at 228-30. The SSA discussed MVM’s staffing,

the number of languages covered by its linguists, the professional comportment of MVM

employees, and MVM’s professional reputation. See id. It also acknowledged that

MVM’s ratings ranged from “Marginal” to “Exceptional.” See id. After reviewing the

details of MVM’s three past performance references, the SSA concluded that “MVM’s

Past Performance submissions demonstrated successful performance on contracts

relevant in size, scope, and complexity within the past five (5) years,” which, in its view,

justified its “Substantial Confidence” rating. Id. at 243. Plaintiff has failed to show that

the agency’s decision with regard to MVM’s past performance lacked any rational basis;

accordingly, the court defers to the SSA’s decision and will not sustain plaintiff’s protest

on this basis.

F. The Agency’s Price Evaluation Was Not Irrational, Arbitrary, or Capricious

Plaintiff alleges two errors with regard to the agency’s price evaluation: (1)

plaintiff argues that the agency “did not fairly consider offerors’ total price as ICE’s

evaluation did not comply with FAR § 8.405-2(d),” ECF No. 32-1 at 34; and (2) plaintiff

20

claims that “ICE failed to fairly consider Metro’s price quote assumptions regarding TDY

cost savings,” id. at 38.

1. Total Price Evaluation

The RFQ stated that the agency would evaluate price quotes in accordance with

Federal Acquisition Regulation (FAR) 8.404(d), which directs the agency to conduct “a

price evaluation as required by 8.405-2(d).” See ECF No. 26-1 at 264 (RFQ provision);

48 C.F.R. § 8.404(d) (2018). The price evaluation outlined in FAR 8.405-2(d) requires,

in relevant part, as follows:

The ordering activity shall evaluate all responses received using the

evaluation criteria provided to the schedule contractors. The ordering

activity is responsible for considering the level of effort and the mix of labor

proposed to perform a specific task being ordered, and for determining that

the total price is reasonable.

48 C.F.R. § 8.405-2(d) (2018). The RFQ also explicitly stated that:

3. Vendors must also complete Attachment D – Pricing Evaluation

Spreadsheet and return it with their price quote submission. Attachment D –

Pricing Evaluation Spreadsheet will be used solely for evaluation of price for

award purposes only.

4. Proposed Tier III rates will be evaluated for reasonableness separately

from the evaluation of price for award purposes.

ECF No. 26-1 at 264. Attachment D, in turn, included the following language at the top

of each of its five pages: “Only languages in Tier I & Tier II will be used in calculating a

vendor’s total evaluated price for award purposes. Tier III languages will be evaluated

separately for price reasonabl[e]ness.” 3 See id. at 286-90.

According to plaintiff, the agency’s decision to include only Tier I and Tier II

languages as part of its total evaluated price violated the requirements of FAR 8.405-2(d).

“[T]he RFQ required offerors to price linguist and supervisor rates for all three Tiers I-III

of the language categories offered by the offerors. Thus, pursuant to FAR § 8.405-2(d),

ICE was required to evaluate the ‘Total Price’ for reasonableness—not just a subset.”

ECF No. 32-1 at 36. And, plaintiff contends, if the agency had included the pricing for

3

The record indicates that the agency intentionally excluded Tier III pricing in the

total evaluated price because “[t]he estimated labor hours required for Tier III languages

case assignments could not be estimated and therefore were not included in Attachment –

D for this reason.” ECF No. 26-2 at 143.

21

all three tiers in its total evaluated price, it “would have necessarily realized that MVM’s

Tier, I, II and III supervisor rates were higher than [plaintiff’s] and that MVM’s Tier III

linguist and supervisor rates were also significantly higher than Metro’s rates.” Id. at 36-

37.

Plaintiff’s argument that the agency’s price evaluation was improper hinges on its

contention that the text of FAR 8.405-2(d), stating that the agency is “responsible . . . for

determining that the total price is reasonable,” is fundamentally at odds with the agency’s

decision to consider only Tier I and II languages in its total evaluated price. The court

sees no such conflict. As an initial matter, FAR 8.405-2(d) instructs the agency to

“evaluate all responses received using the evaluation criteria provided to the schedule

contractors.” The RFQ clearly indicated that the agency intended to include only Tier I

and II languages in its “total evaluated price for award purposes,” and that Tier III

languages would be evaluated separately for reasonableness. ECF No. 26-1 at 264, 286-

90. FAR 8.405-2(d) required the agency to abide by these terms. 4

FAR 8.405-2(d) then vests the agency with the authority to “determin[e] that the

total price is reasonable.” The agency, as promised, conducted a reasonableness analysis

for all three tiers of languages. The PET report explained that it evaluated the Tier I and

II languages based on the “pricing evaluation spreadsheet” submitted by each offeror, and

that it separately made a “fair & reasonableness determination . . . for all Tier III

languages not included on the pricing evaluation spreadsheet.” ECF No. 26-2 at 175.

The PET concluded that all prices submitted by both plaintiff and MVM were reasonable.

Id. at 176. The SSA followed the same evaluation structure, analyzing Tiers I and II

based on the offerors’ spreadsheets, and separately considering the reasonableness of Tier

III pricing. The SSA concurred that all proposed prices were reasonable. See id. at 232-

33.

Neither the record nor the law cited by plaintiff support its assertion that the

agency was required to combine all three tiers of languages in its total evaluated price for

4

To the extent that plaintiff challenges the terms of the RFQ, its protest is untimely.

See Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1315 (Fed. Cir. 2007)

(holding that “a party who has the opportunity to object to the terms of a government

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 afterwards in a § 1491(b) action in

the Court of Federal Claims.”); id. at 1314 (“‘Vendors cannot sit on their rights to

challenge what they believe is an unfair solicitation, roll the dice and see if they receive

award [sic] and then, if unsuccessful, claim the solicitation was infirm.’”) (quoting

Argencord Mach. & Equip., Inc. v. United States, 68 Fed. Cl. 167, 175 n.14 (2005)).

22

award purposes. And the court has found no error in the agency’s price evaluation

process. As such, the court cannot sustain plaintiff’s protest on this basis.

2. Assumptions Regarding TDY Cost Savings

Plaintiff next claims that the agency should have considered its expected TDY cost

savings as part of its “total price evaluation.” See ECF No. 32-1 at 38. According to

plaintiff, the cost savings were an “assumption” that it was required to include—and the

agency was required to consider—under the terms of the RFQ. Id. The RFQ stated, in

the section titled “Factor 4: Pricing,” that “Vendors shall indicate, in this section only if

any price related assumptions have been made.” ECF No. 26-1 at 263. And plaintiff did,

in fact, explain its expected TDY cost savings as part of its announced price assumptions,

as directed. See ECF No. 26-2 at 28-84.

This argument, however, fails for the same reason plaintiff’s argument with regard

to Tier III pricing failed. The terms of the RFQ clearly indicated that the agency intended

to include only Tier I and II languages in its “total evaluated price for award purposes.”

ECF No. 26-1 at 264, 286-90. Plaintiff has not identified any part of the record or any

legal authority that would require the agency to include expected TDY cost savings as

part of that calculation. 5

G. The Agency’s Best Value Determination Was Not Irrational

Finally, plaintiff argues that the agency’s best value determination was arbitrary,

capricious, and irrational because it “was based off a flawed technical and price

evaluation.” ECF No. 32-1 at 40. As support for this argument, plaintiff simply refers

back to the substance of its previous arguments. Because the court has rejected the

arguments on which plaintiff relies, this final challenge likewise fails.

H. Permanent Injunctive Relief Not Warranted

Plaintiff has not succeeded on the merits of its protest. “Because proving success

on the merits is a necessary element for a permanent injunction,” Dell Fed. Sys., L.P. v.

United States, 906 F.3d 982, 999 (Fed. Cir. 2018) (footnote omitted), no injunctive relief

is warranted in this case. This protest must be dismissed.

5

Here again, if plaintiff means to challenge the terms of the solicitation, its

challenge is untimely. See id.

23

IV. Conclusion

Accordingly:

(1) Plaintiff’s motion for judgment on the administrative record, ECF No. 32,

is DENIED;

(2) Defendant’s motion to strike, ECF No. 35, is GRANTED; the clerk’s

office is directed to STRIKE the declaration of Ariel H. Collis, ECF No.

32-2, and plaintiff’s table, ECF No. 32-3;

(3) Defendant’s cross-motion for judgment on the AR, ECF No. 35, is

GRANTED;

(4) Intervenor-defendant’s cross-motion for judgment on the AR, ECF No. 36,

is GRANTED;

(5) The clerk’s office is directed to ENTER final judgment DISMISSING

plaintiff’s complaint, with prejudice; and

(6) On or before October 15, 2019, counsel for the parties shall CONFER

and FILE a notice of filing, attaching a proposed redacted version of this

opinion, with any material deemed proprietary blacked out, so that a copy

of the opinion can then be made available in the public record of this

matter.

IT IS SO ORDERED.

s/Patricia E. Campbell-Smith

PATRICIA E. CAMPBELL-SMITH

Judge

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