Opinion

Pae-Parsons Global Logistics Services, LLC v. United States

Court: United States Court of Federal Claims
Filed: Mar 11, 2020
Status: Published
Cited by: 0 cases
Authority: More cited than 11.2%

acknowledging that the Tucker Act confers on this Court jurisdiction over bid protests concerning Multiple Award Task Order Contracts

How later courts described this case

acknowledging that the Tucker Act confers on this Court jurisdiction over bid protests concerning Multiple Award Task Order Contracts

Written by the judges who cited it.

The opinion

In the United States Court of Federal Claims

Nos. 19-1205, 19-1515 (consolidated)

Filed: February 20, 2020

Reissued: March 11, 20201

)

PAE-PARSONS GLOBAL LOGISTICS )

SERVICES, LLC, )

)

Plaintiffs, )

)

v. )

)

THE UNITED STATES, )

)

Defendant )

)

and ) Post-Award Bid Protest; Judgment on

) the Administrative Record; RCFC 52.1;

FLUOR INTERCONTINENTAL, INC., ) Motion to Dismiss; RCFC 12(b)(1);

) Tucker Act; Jurisdiction; Multiple

Defendant-Intervenor. ) Award Task Order Contract;

) Indefinite-Delivery Indefinite-Quantity

) Contract; Task Order Contract; Task

) Order; Federal Acquisition

PAE-PARSONS GLOBAL LOGISTICS

) Streamlining Act; Administrative

SERVICES, LLC,

) Procedure Act; Technical/Management

) Approach; Labor Staffing Model;

Plaintiff,

) Disparate Treatment.

)

THE UNITED STATES,

)

Defendant

)

and

)

VECTRUS SYSTEMS CORPORATION,

)

Defendant-Intervenor.

)

An unredacted version of this opinion was issued under seal on February 20, 2020. The

parties were given an opportunity to propose redactions, but no such proposals were made.

Anuj Vohra, Crowell & Moring LLP, Washington, DC, counsel for plaintiff.

Robert Ralph Kiepura, U.S. Department of Justice, Civil Division, Washington, DC, counsel for

defendant.

Andrew Emil Shipley, Wilmer Cutler, et al., LLP, Washington, DC, counsel for

defendant-intervenor, Fluor Intercontinental. Kevin Mullen, Morrison & Foerster, LLP,

Washington, DC, counsel for defendant-intervenor, Vectrus Systems Corporation.

OPINION AND ORDER

SMITH, Senior Judge

The central purpose of federal procurement law is to ensure that competition for

government contracts, which are funded by tax payer dollars, is fair to both the government and

to contractors. Only when competition is fair and open can the government get what it pays for,

and can the contractor receive fair value for the work and goods it provides. If the system is not

fair, the tax payer will be cheated, and honest contractors will be unwilling to contract with the

government. Accordingly, procurement law is designed to insure against corruption of the

process, be it through bribery, government favoritism, or poor management of the procurement

processes. The law in turn provides disappointed bidders with an avenue through which they can

challenge arbitrary and irrational government decisions, where disappointed bidders effectively

act as “private attorney generals,” keeping the system under perpetual scrutiny, ferreting out

mistakes, and bringing to light bad government practices that impact their chances of receiving

contract awards. This the creates an effective system by which disappointed bidders keep in

check the natural human tendency to award contracts based on favoritism. So far, the system has

worked rather effectively, though of course, any effectively run system has its associated costs.

Congress has, however, decided that the cost of expensive bid protest litigation is less than the

cost of a corrupt or irrational decision-making process dealing with tens of billions of dollars.

As such, the Court must understand the broad purposes behind procurement law to effectively

handle procurement cases. The close scrutiny of disappointed bidders is balanced out by the

deference afforded to Agencies. We must remember that it is the agencies that have the

authority, bestowed upon them by Congress and the President, to manage the procurement

system. The Court’s role is to ensure fair and rational review by the agency in following the law

in its decision-making processes.

In this case, as well as the other cases related to Request for Proposal No.

W52P1J-16-R-0001 (“RFP” or “Solicitation”), the six offerors spent many months and a large

amount of money developing their proposals. In general, the evaluation process worked well.

However, perhaps as a result of the inherent subjectivity and discretion in government

contracting, a number of procurement ambiguities led to this extensive and expensive litigation.

The weight afforded by the United States Department of the Army (“Agency” or “Army”) to

each of the four evaluation factors led to many of the alleged issues currently in dispute. The

Solicitation prescribed the following evaluation factors, listed in descending order of priority: (1)

Technical/Management Approach; (2) Past Performance; (3) Small Business Participation; and

(4) Cost/Price. Administrative Record (hereinafter “AR”) 2624. The ultimate award decisions

confirm what the Solicitation stated—that the Technical/Management Approach was not just the

most important factor, but that it was overwhelmingly more important than the other three

factors. While the Agency’s emphasis on the Technical/Management Approach was neither

arbitrary nor capricious, the Court believes the uncertain level of priority afforded that factor

played a significant role in each offeror’s decision to litigate this procurement, as did, of course,

the huge amount of money at stake.

A final point. This litigation involves contracts worth up to $82 billion for work to be

performed over the next decade. While the Court detailed the reasons it has jurisdiction over

these protests in PAE-Parsons Global Logistics Services, LLC v. United States, 145 Fed. Cl. 194

(2019), and in a later section of this Opinion, the Court finds that each of the protests related to

this procurement concern disputes over the evaluation of offerors for the award of

Indefinite-Delivery Indefinite-Quantity (“IDIQ”) contracts, not disputes related to future task

orders. To hold that this Court lacks jurisdiction over this massive IDIQ procurement would

effectively gut a significant part of federal procurement law by using the Federal Acquisition

Streamlining Act of 1994 (“FASA”), 10 U.S.C. § 2304c(e)(1) (2018), to nullify a broad area of

contract scrutiny. This misuse of FASA would not streamline the procurement and protest

process, but, rather, would eliminate a significant part of it, directly contradicting the legislative

intent behind both FASA and the Competition in Contracting Act.

This post-award bid protest comes before the Court on the parties’ Cross-Motions for

Judgment on the Administrative Record. Plaintiff, PAE-Parsons Global Logistics Services, LLC

(“P2GLS”), challenges the decision of the Army to award IDIQ contracts to

defendant-intervenors, Fluor Intercontinental, Inc. (“Fluor”) and Vectrus Systems Corporation

(“Vectrus”). See generally Plaintiff’s Motion for Judgment on the Administrative Record

(hereinafter “Pl.’s MJAR”).2 Plaintiff asks the Court to determine the following: (1) “[w]hether

the Army’s evaluation was inconsistent with the RFP’s express terms where the Army assigned

elevated risk to P2GLS’[s] proposal despite assigning no weaknesses”; (2) “[w]hether the Army

erred by treating its concern with P2GLS’[s] [Labor Staffing Model (“LSM”)] as a de facto

weakness that it failed to raise in discussions, rendering discussions misleading and not

meaningful”; (3) “[w]hether the Army’s criticism of P2GLS’[s] LSM was arbitrary and

unsupported, and disparate as compared to the Army’s treatment of Vectrus’[s] LSM”; (4)

“[w]hether the [Source Selection Authority (“SSA”)]’s AFRICOM and PACOM award decisions

were arbitrary and capricious where [she] placed an inordinate amount of weight on offerors’

LSMs while ignoring nearly every other evaluation factor, and in the case of AFRICOM,

rejecting the [Source Selection Advisory Committee (“SSAC”)]’s award recommendation

without explanation.” Id. at 4–5. For the reasons set forth below, plaintiff’s Motion for

As the cases have been consolidated, citations to filings on behalf of the parties or to the

docket in this Opinion and Order refer to filings or docket entries under PAE-Parsons Global

Logistics Services, LLC v. United States, No. 19-1205, unless the Court indicates otherwise.

Judgment on the Administrative Record is denied, and defendant and defendant-intervenors’

Cross-Motions for Judgment on the Administrative Record are granted.

I. Background

A. Solicitation

On November 20, 2017, the Army issued the Solicitation for the Logistics Civil

Augmentation Program (“LOGCAP”) V contract for logistics support services. Administrative

Record (hereinafter “AR”) 2510–11.3 These support services include “supply operations,

transportation services, engineering services, base camp services, and other logistics and

sustainment support services.” AR 130447. The Solicitation contemplated the award of four to

six IDIQ contracts and associated task orders for LOGCAP V services covering the six

Geographic Combatant Commands (“COCOMs”) and Afghanistan. AR 2511–12. The

Solicitation further separated the COCOMs into the following three “Operational Priority

Groupings”: (1) European Command (“EUCOM”) and Pacific Command (“PACOM”) regions;

(2) Central Command (“CENTCOM”), Northern Command (“NORTHCOM”), African

Command (“AFRICOM”), and Southern Command (“SOUTHCOM”) regions; and (3) the

Afghanistan region. AR 2511, 2624. Contracts and corresponding task orders would be

awarded in descending order of priority according to which offeror was determined to provide

the best value for a particular COCOM region, and an awardee could only receive one award in

each Operational Priority Grouping. AR 2624–25. The Afghanistan task order could not be

awarded independently, but instead was awarded as a task order to one of the LOGCAP V

awardees that did not receive the CENTCOM award. Id.

The Solicitation provided that the regional task orders for each COCOM and Afghanistan

were to be awarded simultaneously with the IDIQ contracts. AR 2511, 2624. The Solicitation

further stipulated that the awards would be made on a best-value basis according to the following

four factors, listed in descending order of importance: (1) Technical/Management; (2) Past

Performance; (3) Small Business Participation; and (4) Cost/Price. AR 2624. Under the

Technical/Management Factor, offerors were evaluated based on their respective “Regional

Capabilities in Support of Setting and Surging the Theater and Initial Service Support of Army

Deployment,” and “Management Approach, Key Initiatives, and [LSM].” AR 2614–15.

The Administrative Record in Case No. 19-1205 was filed on October 2, 2019, and was

limited to protest issues concerning the Agency’s contract award to Fluor. PAE-Parsons Glob.

Logistics Servs., LLC v. United States, No. 19-1205 (hereinafter “PAE I”). The Administrative

Record in Case No. 19-1515 was filed on October 7, 2019, and was limited to protest issues

related to the Agency’s contract award to Vectrus. PAE-Parsons Glob. Logistics Servs., LLC, v.

United States, No. 19-1515 (hereinafter “PAE II”). The Court consolidated both cases under

Case No. 19-1205 on October 8, 2019. See PAE I, Order Consolidating Case, ECF No. 54. As

the Court received both portions of the Administrative Record prior to its Orders consolidating

these cases, citations to the Administrative Record in this Opinion are to the integrated and

contiguous Administrative Records pulled from both cases, which mirror one another except for

certain case-specific Administrative Record Tabs and page ranges.

For the Technical/Management Factor, offerors received separate adjectival ratings for

each COCOM and Afghanistan based on LOGCAP risk areas, including responsiveness,

affordability, transparency, predictability, capability, accountability, and flexibility. AR 2614.

Relevant here, the Army outlined the requirements for an “Outstanding” or a “Good” adjectival

rating. AR 2627. A proposal would be deemed “Outstanding” when it “indicates an exceptional

approach and understanding of the requirements and contains multiple strengths, and risk of

unsuccessful performance is low.” Id. A proposal would be considered “Good” when it

“indicates a thorough approach and understanding of the requirements and contains at least one

strength, and risk of unsuccessful performance is low to moderate.” Id.

While the Army did not officially issue independent risk ratings, it could consider the risk

of unsuccessful performance when assigning adjectival ratings. Id. A “Low” risk of

unsuccessful performance existed for proposals that “may contain weakness(es) which have little

potential to cause disruption of schedule, increased cost or degradation of performance. Normal

contractor effort and normal Government monitoring will likely be able to overcome any

difficulties.” Id. A “Moderate” risk of unsuccessful performance existed when a proposal

“contains a significant weakness or combination of weaknesses which may potentially cause

disruption of schedule, increased cost or degradation of performance. Special contractor

emphasis and close Government monitoring will likely be able to overcome difficulties.” Id.

The Army evaluated LSMs for “consistency, scalability, and adjustability” across the

“broad range of requirements” of the LOGCAP V contracts and considered the “quality and

soundness of the supporting rationale utilized to develop the [LSM].” AR 2627. The LSM

served as a baseline proposal for the offeror’s “labor staffing mix (supervision, skilled trade,

laborer, etc.), types (job description, labor category, etc. [sic]), and quantities.” AR 2616.

Utilizing the LSM, offerors developed separate Labor Staffing Approaches, specific to the

unique requirements of each COCOM and Afghanistan. Id. The Solicitation also required that

offerors provide a Labor Staffing Model Supporting Rationale, which included the identification

of the source of data, formulas, and reasoning behind any adjustments made to the proposed

LSM. Id. The Solicitation mandated that justifications “should not be so general that it isnt [sic]

possible to determine how the proposed types or quantities were developed” and required that,

when resource estimates were based on past experience, offerors must identify those experiences

and explain the formula for and rationale behind any adjustments. Id.

In evaluating Past Performance, the Agency analyzed an offeror’s previous completion of

projects with similar requirements to those of the LOGCAP V procurement. Id. Past

Performance was rated adjectively, ranging from “Substantial Confidence” to “No Confidence.”

AR 2628. In analyzing Small Business Participation, the Army looked at the extent to which

each proposal demonstrated a commitment to providing opportunities for small business

involvement. Id. Offerors received one adjectival rating for their Past Performance Factor, and a

single rating for their Small Business Participation. AR 2624. The Army would evaluate the

Cost/Price Factor by analyzing each proposal’s Cost-Plus-Fixed-Fee Contract Line Item

Numbers (“CLINs”) for reasonableness and realism and each proposal’s Firm-Fixed Price

CLINs for reasonableness. AR 2629. Each COCOM and Afghanistan received its own

Cost/Price evaluation. Id.

B. Evaluation

The Army evaluated the Technical/Management factor in accordance with Section

M.8.4.a(i–ii) of the RFP. AR 2626–27. The Solicitation instructed each offeror to “describe its

processes or procedures through the use of any tools, reports, communications, or other unique

approaches in meeting LOGCAP objectives” in their LSM rationale. AR 2626. Further, the RFP

noted that emphasis

will be placed on [the] Offerors[’] ability, based on the uniqueness of approach, to

collect, package, and deliver actionable information to the Government, resulting

in deliverables under this contract. The approach will be evaluated on how it

addresses complexities of providing services during all phases: start-up operations;

adjustment of services (i.e., adding/removing services, adding/removing

workload); and drawdown of operations.

Id. The Army would also evaluate “the feasibility and confidence in the Offerors[’] [LSM] and

Approach.” AR 2627. Moreover, “[t]he confidence evaluation will consider the quality and

soundness of the supporting rationale utilized to develop the [LSM] and Approach.” Id.

In its comparative analysis, the SSAC recommended P2GLS over Fluor for the

AFRICOM award because the Agency determined P2GLS was less expensive, and because the

SSAC found “P2GLS’[s] non-price proposal equalized with that of Fluor when considering

P2GLS’[s] superior confidence rating in Past Performance and superior adjectival rating in

Small-Business Participation compared to Fluor’s superior adjectival rating [for its]

Technical/Management [Approach].” AR 70477. Though the SSAC assigned Fluor’s proposal

strengths for its LSM, it determined that P2GLS’s proposal did not contain the same strengths.

AR 70476–77. The SSAC recommended Vectrus receive PACOM because its LSM contained a

strength for its Final Proposal Revision (“FPR”), while P2GLS’s FPR was absent that same

strength. AR 70472–73.

The Agency assigned P2GLS and Fluor the following ratings for the AFRICOM region:

AFRICOM Technical/ Past Small Business Total Evaluated

Management Performance Participation Price

P2GLS Good Substantial Outstanding $126,507,558.85

Fluor Outstanding Satisfactory Good $137,222,537.90

See AR 70627. For the PACOM region, the Agency assigned P2GLS and Vectrus the following

ratings:

PACOM Technical/ Past Small Business Total Evaluated

Management Performance Participation Price

P2GLS Good Substantial Outstanding $304,425,024.86

Vectrus Outstanding Substantial Good $349,187,574.26

See AR 70620. Based on its best value analysis, on April 12, 2019, the Army awarded four IDIQ

contracts, one each to KBR, Vectrus, Fluor, and P2GLS. See generally AR 70776–82. Of

relevance, the Army awarded AFRICOM to Fluor and PACOM to Vectrus. AR 70777

(PACOM), AR 70780 (AFRICOM).

C. Procedural History

On August 14, 2019, plaintiff filed its first Complaint with this Court, claiming that the

Army improperly awarded Fluor the AFRICOM IDIQ contract. See generally Plaintiff’s

Complaint (hereinafter “Compl.”), PAE-Parsons Glob. Logistics Servs., LLC v. United States,

No. 19-1205 (hereinafter “PAE I”). On August 21, 2019, defendant filed a motion to dismiss

that Complaint for lack of subject matter jurisdiction and for failure to state a claim upon which

relief can be granted. See generally PAE I, Defendant’s Motion to Dismiss, ECF No. 31. On

September 24, 2019, the Court denied defendant’s Motion to Dismiss. PAE-Parsons Glob.

Logistics Servs., LLC v. United States, 145 Fed. Cl. 194, 200 (2019). On October 1, 2019,

P2GLS filed a second complaint, alleging that the Army improperly awarded PACOM to

Vectrus. See generally Compl., PAE-Parsons Glob. Logistics Servs. v. United States, No. 19-

1515 (hereinafter “PAE II”). On October 8, 2019, this Court ordered the consolidation of both

cases due to the closely related nature of the issues. See PAE I, Order Consolidating Case, ECF

No. 54.

On October 17, 2019, plaintiff filed its Motion for Judgment on the Administrative

Record. See generally Pl.’s MJAR. On October 29, 2019, defendant and defendant-intervenors

filed their respective Cross-Motions for Judgment on the Administrative Record. See generally

Defendant’s Partial Motion to Dismiss, Cross-Motion for Judgment upon the Administrative

Record, and Opposition to Plaintiff’s Motion for Judgment upon the Administrative Record

(hereinafter “Def.’s CMJAR”); Vectrus Systems Corporation’s Cross-Motion for Judgment on

the Administrative Record; Fluor Intercontinental, Inc.’s Cross-Motion for Judgment on the

Administrative Record and Response to P2GLS’ Motion for Judgment on the Administrative

Record (hereinafter “Fluor’s CMJAR”). Plaintiff filed its Reply in Support of its Motion for

Judgment on the Administrative Record and Response to defendant and defendant-intervenors’

Cross-Motions for Judgment on the Administrative Record on November 4, 2019. See generally

Plaintiff’s Reply in Support of Its Motion for Judgment on the Administrative Record and

Response to Defendants’ Cross-Motions for Judgment on the Administrative Record. Defendant

and defendant-intervenors filed their respective Replies in Support of their Cross-Motions for

Judgment on the Administrative Record on November 8, 2019. See generally Defendant’s Reply

in Support of Its Motion to Dismiss and Cross-Motion for Judgment upon the Administrative

Record; Vectrus Systems Corporation’s Reply in Support of Its Cross-Motion for Judgment on

the Administrative Record; Fluor Intercontinental, Inc.’s Reply in Support of Cross-Motion for

Judgment on the Administrative Record. The Court held oral argument on November 13, 2019.

This case is fully briefed and ripe for review.

II. Standard of Review

This Court has jurisdiction over bid protests in accordance with the Tucker Act. See 28

U.S.C. § 1491(b) (2018). Specifically, this Court has the authority

to render judgment on an action by an interested party objecting to a solicitation by

a Federal agency for bids or proposals for a proposed contract or to a proposed

award or the award of a contract or any alleged violation of statute or regulation in

connection with a procurement or a proposed procurement.

Id. This authority exists “without regard to whether suit is instituted before or after the contract

is awarded.” Id.

Pursuant to Rule 52.1 of the Rules of the Court of Federal Claims (“RCFC”), a party may

file a motion for judgment on the administrative record for the Court to determine whether an

administrative body, given all disputed and undisputed facts in the record, acted in compliance

with the legal standards governing the decision under review. RCFC 52.1; see also Supreme

Foodservice GmbH v. United States, 109 Fed. Cl. 369, 382 (2013) (citing Fort Carson Support

Servs. v. United States, 71 Fed. Cl. 571, 585 (2006)). On a motion for judgment on the

administrative record, the parties are limited to the Administrative Record, and the Court must

make findings of fact as if it were conducting a trial on a paper record. RCFC 52.1; Bannum,

Inc. v. United States, 404 F.3d 1346, 1354 (Fed. Cir. 2005). The Court will then determine

whether a party has met its burden of proof based on the evidence in that record. Bannum, 404

F.3d at 1355.

To succeed on a claim that an agency’s decision violates a statute, regulation, or

procedure, the protestor must show that such alleged violation was “clear and prejudicial.”

Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1333 (Fed. Cir.

2001) (quoting Kentron Hawaii, Ltd. v. Warner, 480 F.2d 1166, 1169 (D.C. Cir. 1973)). In

reviewing a protestor’s claims, the Court cannot substitute its judgment for that of an agency,

even if reasonable minds could reach differing conclusions. Bowman Transp., Inc. v. Ark.-Best

Freight Sys., Inc., 419 U.S. 281, 285–86 (1974); 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)) (Where the Court “finds a reasonable basis for [an] agency’s action, the [C]ourt 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.”). Accordingly,

the Court will “interfere with the government procurement process ‘only in extremely limited

circumstances.’” EP Prods., Inc. v. United States, 63 Fed. Cl. 220, 223 (2004) (quoting CACI,

Inc.-Fed. v. United States, 719 F.2d 1567, 1581 (Fed. Cir. 1983)).

This Court reviews bid protests in accordance with the standards set forth in the

Administrative Procedure Act (“APA”). 5 U.S.C. § 706 (2018); Axiom Res. Mgmt. v. United

States, 564 F.3d 1374, 1381 (Fed. Cir. 2009) (citing Impresa, 238 F.3d at 1332). Agency

procurement actions may be set aside only if they are “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with the law.” 28 U.S.C. § 1491(b)(4). That highly

deferential standard exists in large part because agencies, and contracting officers in particular,

are “entitled to exercise discretion upon a broad range of issues confronting them in the

procurement process.” See Savantage Fin. Servs. v. United States, 595 F.3d 1282, 1286 (Fed.

Cir. 2010) (quoting Impresa, 238 F.3d at 1332); see also Advanced Data Concepts, Inc. v. United

States, 216 F.3d 1054, 1058 (Fed. Cir. 2000).

III. Discussion

A. Jurisdiction

As an initial matter, defendant reiterates its jurisdictional arguments in its Cross-Motion

for Judgment on the Administrative Record. See generally Def.’s CMJAR. Specifically,

defendant states that “[b]ecause the PACOM protest was subsequently filed and consolidated

into the instant case, the Government respectfully moves to dismiss the PACOM portion of this

protest” for lack of subject-matter jurisdiction and for failure to state a claim upon which relief

can be granted. Id. at 16. While defendant notes that it is “cognizant of the Court’s September

24, 2019” ruling on dismissal, it “respectfully disagree[s].” Id. In reiterating its jurisdictional

arguments, defendant contends that plaintiff’s Complaint is barred by FASA, as “FASA provides

that a ‘protest is not authorized in connection with the issuance or proposed issuance of a task or

delivery order.’” Id. (quoting 10 U.S.C. § 2304c(e)(1)). The Court finds that such an argument

fails.

Though the Court already determined that it has jurisdiction over plaintiff’s claims,

PAE-Parsons, 145 Fed. Cl. 194, the Court finds it prudent to elaborate on its initial holding. In

this procurement, the Agency ultimately awarded four Multiple Award Task Order Contracts

pursuant to the award scheme contemplated in the Solicitation. See, e.g., AR 289048. A “task

order contract” is defined as “a contract for services that does not procure or specify a firm

quantity of services (other than a minimum or maximum quantity) and that provides for the

issuance of orders for the performance of tasks during the period of the contract.” 10 U.S.C. §

2304d(1). Federal Acquisition Regulation 16.501-2(a) explains that, “[p]ursuant to 10 U.S.C.

2304d and 41 U.S.C. 4101, requirements contracts and indefinite-quantity contracts are also

known as delivery-order contracts or task-order contracts.” Thus, a task order contract “may

take the form of . . . indefinite-quantity (IDIQ) contracts” based on FAR Part 16.5. JOHN

CIBINIC, JR., RALPH C. NASH JR. & CHRISTOPHER R. YUKINS, FORMATION OF GOVERNMENT

CONTRACTS 327 (4th ed. 2011). FAR 52.216-27 further provides that these types of contracts

can be either single award or multiple award contracts,4 such as the Multiple Award Task Order

Contracts at issue in this procurement. It is undisputed that this Court has jurisdiction over the

“award of a contract or any alleged violation of statute or regulation in connection with a

procurement” pursuant to the Tucker Act, 28 U.S.C. § 1491(b)(1). Given the language of the

Tucker Act and this Court’s routine exercise of jurisdiction over protests contesting IDIQ

contract awards, the Court once again concludes that the FASA jurisdictional bar does not apply

to the case at bar. See 28 U.S.C. § 1491(b)(1); 10 U.S.C. § 2304d(1); 10 U.S.C. § 2304c(e); see,

e.g., Tele-Consultants, Inc. v. United States, 142 Fed. Cl. 686 (2019) (resolving a protest

challenging an agency’s IDIQ contract awards); see also Weeks Marine, Inc. v. United States,

575 F.3d 1352, 1359–60, 1362 (Fed. Cir. 2009) (acknowledging that the Tucker Act confers on

this Court jurisdiction over bid protests concerning Multiple Award Task Order Contracts).

FAR 52.216-27, titled Single or Multiple Awards, provides the following:

The Government may elect to award a single delivery order contract or task order

contract or to award multiple delivery order contracts or task order contracts for the

same or similar supplies or services to two or more sources under this solicitation.

Moreover, as more fully explained below, the Court’s careful review of the legislative history of

FASA, the full text of 10 U.S.C. § 2304c, and the Administrative Record confirms that the

FASA bar does not apply.

Congress specifically tailored FASA to ensure that its “objectives would be accomplished

without undermining the key features of the current procurement statutes, such as full and open

competition and an effective bid protest process, that have been established over the years to

safeguard the acquisition system and prevent abuse.” S. REP. NO. 103-258, at 3 (1994)

(emphasis added). Anticipating that agencies might attempt to abuse FASA’s jurisdictional bar,

Congress further cautioned that task order contracts “must be structured carefully to ensure that

they are not abused to avoid competition and funnel money to favored contractors.” 140 CONG.

REC. 12369 (1994) (emphasis added). Accordingly, the courts have interpreted FASA to mean

that “once the task or delivery order contract itself has been obtained through full and open

competition, orders made pursuant to that contract are immune from [the Competition in

Contracting Act]’s full and open competition requirement.” Glob. Comput. Enter. v. United

States, 88 Fed. Cl. 350, 414 (2009) (quoting Corel Corp. v. United States, 165 F. Supp. 2d 12, 16

(D.D.C. 2001)). That interpretation and the Court’s conclusion that task order contracts are

different from pure task orders is bolstered by the language of 10 U.S.C. § 2304c(a), which

semantically crystalizes the distinction between a task order contract and a task order awarded

under that contract as follows: “[t]he following actions are not required for issuance of a task or

delivery order under a task or delivery order contract.” (emphasis added). Additionally, the

language in § 2304c(e)—the FASA bar—specifically focuses on task orders as opposed to task

order contracts, as it states that “[a] protest is not authorized in connection with the issuance or

proposed issuance of a task or delivery order except for . . .” (emphasis added). Thus, should

the Court permit the Agency to entirely avoid judicial review of its contract awards by

intentionally linking the task order awards to the task order contracts at issue, such a decision

would directly violate the distinctions drawn in 10 U.S.C. § 2304a between task order contracts

and task order awards as well as Congress’s clearly documented intent to prevent such a result

from occurring. See, e.g., 140 CONG. REC. 12369 (1994).

Additionally, the Administrative Record reveals that the IDIQ contract and the “orders

made pursuant to that contract” were obtained through the exact same procurement vessel. See

AR 2624; see also Glob. Comput., 88 Fed. Cl. at 414. If the Court were to extend the FASA bar

to this procurement simply because the IDIQ contract and the task orders were simultaneously

awarded, it would effectively be “undermining the key features of the current procurement

statutes, such as full and open competition,” in direct contravention of the legislative intent

behind FASA. See S. REP. NO. 103-258, at 3 (emphasis added). Such an application of FASA

would create a loophole in which an agency could award underlying IDIQ contracts that were

judicially impregnable, effectively obliterating the requirement that contracts be awarded

through free and open competition and breeding agency abuse of procurement law and

regulation.

Finally, the Court’s review of the Administrative Record likewise confirms that the

FASA bar does not apply. The Solicitation stipulated that the Agency would award a minimum

of four and up to six IDIQ contract awards that cover the six COCOMs and Afghanistan. AR

2511–12. The Agency deliberately made award determinations for each of the COCOM regions

in descending order of priority, beginning with EUCOM and ending with SOUTHCOM. See id.

The six COCOMs could have been awarded to six different offerors, each with a different

minimum dollar guarantee. See id. Therefore, each COCOM “task order” could have been an

offeror’s first IDIQ contract award. Such a scheme clearly indicates both that the IDIQ awards

were so intrinsically linked with the task order awards as to be practicably a single award, and

that the Army functionally issued separate and distinctly different IDIQ contract awards.

This conclusion is further bolstered by language in the Solicitation itself, which dictates

that the “minimum guarantee for each LOGCAP V contract is the base year of the setting the

theater requirement . . . [for] each [COCOM].” AR 2512 (emphases added). As the setting the

theater task orders provide the entire value for the IDIQ contracts, bifurcating the task orders

from the contracts would result in contracts with no consideration. As a contract cannot exist

without consideration, and as the value of the setting the theater task order provides the only

consideration for the contracts at issue, clearly the task orders and the contracts are one and the

same. See Bank of Guam v. United States, 578 F.3d 1318, 1326 (Fed. Cir. 2009) (quoting

Trauma Servs. Grp. v. United States, 104 F.3d 1321, 1325 (Fed. Cir. 1997)) (“A party alleging

either an express or implied-in-fact contract with the government ‘must show a mutual intent to

contract including an offer, an acceptance, and consideration.’”); see also AR 2512. Therefore,

any offeror protesting the outcome of this procurement is necessarily protesting the contract

itself, not simply a task order.

In addition to its jurisdictional arguments, defendant also renews its arguments related to

standing. See generally Def.’s CMJAR. Specifically, defendant contends that “the Court must

still dismiss P2GLS’s complaint because, as a fellow LOGCAP V IDIQ contract awardee,

P2GLS is not an interested party with standing to challenge Vectrus’s IDIQ contract.” Id. at 17

(citations omitted). The Court turns again to its prior decision in PAE-Parsons, which held that,

as a disappointed bidder, P2GLS has standing to bring this protest based on the Agency’s unique

award scheme. 145 Fed. Cl. at 200.

This Court has previously held that “status as a contract awardee does not by itself

deprive this court of bid protest jurisdiction.” Nat’l Air Cargo Grp., Inc. v. United States, 126

Fed. Cl. 281, 295 (2016); cf. Sys. Appl. & Techs. Inc. v. United States, 691 F.3d 1374, 1381–82

(Fed. Cir. 2012). As the Court stated in its earlier opinion in PAE-Parsons, “[t]he nature of this

Solicitation essentially resulted in four concurrently awarded—but very different—IDIQ

contracts.” 145 Fed. Cl. at 200. The Court’s determination that these awards were separate and

distinct is only bolstered by the fact that each IDIQ contract had a different minimum guarantee,

which directly reflected the base year of the setting the theater requirement for the COCOM

region an awardee received. See AR 2512. Thus, the “task orders were so intrinsically linked to

the IDIQ awards as to be indistinguishable from the IDIQ contract awards themselves.”

PAE-Parsons, 145 Fed. Cl. at 200. Therefore, each awardee’s resulting IDIQ contract was

clearly different than any other offeror’s award such that each offeror, regardless of whether it is

an awardee, has a demonstrable “direct economic interest . . . affected by the award of the

contract.” See Weeks Marine, Inc., 575 F.3d at 1359 (citing Am. Fed’n of Gov’t Emps. v. United

States, 258 F.3d 1294, 1302 (Fed. Cir. 2001)). Accordingly, plaintiff has adequately

demonstrated it is a disappointed bidder with respect to both the AFRICOM and PACOM

awards.

B. Labor Staffing Model

In its Motion for Judgment on the Administrative Record, plaintiff alleges that the Army

did not evaluate P2GLS’s proposal consistent with the Solicitation’s requirements for analyzing

the Technical/Management Factor. Pl.’s MJAR at 23. Specifically, plaintiff argues that the

Army deviated from the Technical/Management Factor criteria set forth in the Solicitation by

assigning P2GLS an elevated risk description, despite not explicitly assessing any weaknesses.

Id. at 9. Plaintiff further contends that, because no weakness was assigned by the

Technical/Management Evaluation Team (“TMET”) or the SSAC, the SSA erred in assigning “a

risk rating of anything higher than ‘Low.’” Id. at 13. But for the allegedly erroneous “moderate”

risk description, plaintiff argues that it would have received an “Outstanding” adjectival rating

for the Technical/Management Factor, putting it on equal footing with Fluor and Vectrus for the

AFRICOM and PACOM awards. Id. at 15, 18. Finally, plaintiff asserts that “nothing in the

evaluation record justifies or supports the risk rating.” Id. at 14 (emphasis omitted). In

promulgating its arguments, plaintiff contends that “[w]here an evaluation record is devoid of

any explanation for its evaluation ratings or action, an agency’s award decision must be set

aside.” Id. While plaintiff correctly cites the standard for setting aside an award decision, the

Court does not believe the awards need to be set aside.

In response, the Army contends that P2GLS’s claim is predicated on the false premise

that “the Army’s rating of ‘Good’ in the Technical/Management factor was entirely predicated

upon its risk assessment of P2GLS’s staffing model.” Def.’s CMJAR at 20. Defendant further

argues that, while the Solicitation provided for risk descriptions, those descriptions were not

ratings, but, rather, were used in “furtherance of [the Army’s] analysis in assigning the overall

Technical/Management factor.” Id. at 21 (citing AR 2627).

In analyzing whether the Agency’s award decision should be set aside, the Court looks to

whether “the contracting agency provided a coherent and reasonable explanation of its exercise

of discretion.” FFL Pro LLC v. United States, 124 Fed. Cl. 536, 551 (2015) (citing Impresa, 238

F.3d at 1332–33). Under the Solicitation in the case at bar, offerors did not receive risk ratings,

but rather, they received adjectival ratings for each factor based upon “the degree to which the

proposed approach meets or does not meet the requirements as identified under each factor

through an assessment of the strengths, weaknesses, deficiencies, and risks.” AR 2624.

Therefore, whether the contract should be set aside turns on whether the Army sufficiently

explained its reasoning in making awards. 48 C.F.R. § 15.306.

The TMET determined that P2GLS’s final proposed LSM “use[d] a logical and

systematic approach for each of the requirements identified in the RFP” with “an explanation of

sources and estimating calculations used for determining its labor staffing performance factors.”

AR 68494. The TMET further explained that plaintiff’s proposal provided “a labor staffing

model and resulting approach that is consistent, scalable and adjustable across the broad range of

requirements identified in the RFP.” Id. However, the TMET also expressed concern over

plaintiff’s proposal because P2GLS made subjective adjustments to performance factors, which

the TMET believed would limit “the ability to employ effective measures to control cost and

ensure costs can be traceable to execution.” Id. Despite this, the TMET ultimately rated

plaintiff’s Technical/Management Factor as “Good” for both the AFRICOM and PACOM

regions. AR 68496 (PACOM), 68498 (AFRICOM).

Plaintiff further posits that, because it was only assigned a “Good” adjectival rating, the

Army necessarily assessed plaintiff a significant weakness, which inflated its “risk rating” from

“Low” to “Moderate.” Pl.’s MJAR at 11. The Court does not agree with plaintiff’s

understanding. The TMET consistently described P2GLS’s Technical/Management approach

using descriptive language for a “Good” rating. AR 68495–98. Moreover, the TMET

consistently described P2GLS’s Technical/Management Factor in each COCOM as containing “a

thorough approach and understanding of the requirements.” See generally AR 68495–98.

Additionally, the TMET described each of Vectrus and Fluor’s Technical/Management

approaches as having an “exceptional approach and understanding of the requirements,”

consistent with the language for an “Outstanding” rating. AR 2627; see AR 68571–76 (Vectrus);