Summit Technologies, LLC v. United States

In the United States Court of Federal Claims

No. 20-946C

(E-filed: November 20, 2020) 1

)

SUMMIT TECHNOLOGIES, LLC, )

)

Plaintiff, ) Pre-Award Bid Protest; Motion for

)

Judgment on the Administrative

v. )

)

Record; Agency Discretion; Unstated

) Evaluation Criteria.

THE UNITED STATES,

)

Defendant. )

)

Theodore P. Watson, Aurora, CO, for plaintiff.

Evan Wisser, Trial Attorney, with whom appeared Jeffrey Bossert Clark, Acting

Assistant Attorney General, Robert E. Kirschman, Jr., Director, and Reginald T. Blades,

Jr., Assistant Director, Commercial Litigation Branch, Civil Division, United States

Department of Justice, Washington, DC, for defendant. Frank V. DiNicola, Desiree A.

DiCorcia, and Tara Nash, Department of Veterans Affairs, of counsel.

OPINION

CAMPBELL-SMITH, Judge.

On July 31, 2020, plaintiff filed its complaint in this pre-award bid protest, which

challenges the Department of Veterans Affairs’ (VA) decision to exclude plaintiff from

the competitive range in a procurement for information technology (IT) services. 2 See

1

This opinion was issued under seal on November 18, 2020. See ECF No. 36. The parties

were invited to identify any competition-sensitive or otherwise protectable information subject to

redaction. The parties’ proposed redactions were acceptable to the court. See ECF No. 37. All

redactions are indicated by brackets ([ ]).

2

Barbaricum, LLC, a second unsuccessful offeror, filed a protest action that was

consolidated with this case on August 12, 2020. See ECF No. 12 (consolidation order).

Barbaricum, however, filed a notice of voluntary dismissal on September 1, 2020. See ECF No.

25.

ECF No. 1 (complaint). On September 2, 2020, plaintiff filed a motion for judgment on

the administrative record (AR), ECF No. 26; and on September 23, 2020, defendant filed

a cross-motion for judgment on the AR, ECF No. 27.

In ruling on the motions, the court has considered: (1) plaintiff’s complaint, ECF

No. 1; (2) the AR, ECF No. 14; 3 (3) plaintiff’s motion for judgment on the AR, ECF No.

26; (4) defendant’s cross-motion for judgment on the AR and response to plaintiff’s

motion, ECF No. 27; (5) plaintiff’s reply in support of its motion and response to

defendant’s cross-motion, ECF No. 28; and (6) defendant’s reply in support of its cross-

motion, ECF No. 29.

For the following reasons, plaintiff’s motion for judgment on the AR is DENIED,

and defendant’s cross-motion for judgment on the AR is GRANTED.

I. Background

A. The Solicitation

On November 12, 2019, the VA issued solicitation number 36C10B19R0046, for

IT services as part of the Transformation Twenty-One Total Technology Next Generation

(T4NG) On-ramp program (the solicitation). 4 See ECF No. 14-2 at 260. The

solicitation explained the scope of the procurement, as follows:

The Contractor shall provide total IT services solutions including the

following functional areas: program management, strategy, enterprise

architecture and planning; systems/software engineering; software

technology demonstration and transition; test and evaluation; independent

verification and validation; enterprise network; enterprise management

framework; operations and maintenance; cybersecurity; training; IT

facilities; and other solutions encompassing the entire range of IT and Health

IT requirements, to include software and hardware incidental to the solution.

3

When defendant initially filed the administrative record (AR), the certification from the

contracting officer was not signed. See ECF No. 14-1 at 16. Upon discovering this error,

defendant filed a consent motion to correct the AR, ECF No. 17, and attached a corrected

certification with the proper signature, ECF No. 17-1. The court granted the motion to correct

the AR, and directed defendant to file a supplement to the AR “attaching the digitally signed

contracting officer’s certification.” ECF No. 19 at 1 (order). Defendant filed the supplement

with the properly signed certificate on August 17, 2020. See ECF No. 23.

4

The copy of the solicitation included in the AR is not dated, but the index filed by

defendant, see ECF No. 14-1 at 2, and presentation slides from the Source Selection Advisory

Counsel’s May 27, 2020 initial evaluation briefing, see ECF No. 14-7 at 418, indicate that the

solicitation was issued on November 12, 2019.

2

Accordingly, Task Orders may include acquisitions of software and IT

products . . . . These services, as well as related IT products, may encompass

the entire life-cycle of a system. Moreover, services and related products

covered under this contract shall be global in reach and the Contractors must

be prepared to provide services and deliverables worldwide.

Id. at 271.

The procurement provides for a five-year contract base period and one five-year

option period, with a maximum value of $22.3 billion. See id. at 2, 266, 275. Under the

solicitation, the “VA assigns contract tasks to the prime contractors through

competitively awarded task orders including some task orders set aside for the [Service-

Disabled Veteran-Owned Small Businesses (SDVOSBs)].” ECF No. 27 at 7 (citing ECF

No. 14-2 at 303-08, 341). The solicitation was intended to “replenish the pool of

SDVOSB prime contractors under the contract, anticipating that several incumbent

SDVOSBs would no longer qualify at the end of the five-year base period.” Id. at 8

(citing ECF No. 14-2 at 16).

The solicitation also explains that “[t]his competition is being conducted pursuant

to the on-ramp clause of the T4NG basic contract. The Government intends to award

seven (7) contracts to verified [SDVOSBs].” ECF No. 14-2 at 391. The VA, however,

reserves the right to adjust that number in its discretion. See id. Awards will be made on

a best-value basis, considering five evaluation factors, including “Technical, Past

Performance, Veterans Employment, Small Business Participation Commitment Factor

(SBPC), and Price.” Id. Those factors will be valued as follows:

The Technical Factor is significantly more important than the Past

Performance Factor, which is slightly more important than the Veterans

Employment Factor which is slightly more important than the SBPC Factor,

which is slightly more important that the Price Factor. The Technical Factor

has two (2) Sub-factors: Sample Task Sub-Factor and Management Sub-

factor. Within the Sample Task Sub-factor, Sample Task 1 and Sample Task

2 are equally important. The Sample Task Sub-factor is significantly more

important than the Management Sub-factor. All non-price factors, when

combined, are significantly more important than the Price Factor. To receive

consideration for award, a rating of no less than “Acceptable” must be

achieved for the Technical Factor, all Technical Sub-factors, and the SBPC

Factor. Offerors are cautioned that the awards may not necessarily be made

to the lowest Price offered or the most highly rated technical proposals.

Id.

3

In order to promote an efficient evaluation process, “the evaluation will be

conducted in two phases, Step One and Step Two.” Id. For Step One, the offerors were

directed to submit a technical proposal and price proposal responding to Sample Task 1.

See id. at 391-92. Following an evaluation of the Sample Task 1 response, the VA would

establish a competitive range, and select the offerors eligible to proceed to Step Two.

See id. at 391. Offerors that do not advance to Step Two are excluded from the

competition. See id. at 392.

The sample tasks were intended to test the “Offeror’s expertise and innovative

capabilities to respond to the types of situations that may be encountered in performance

of a contract resulting from this solicitation.” Id. at 393. For this reason, “the Offerors

[were not] given an opportunity to correct or revise a sample task response.” Id.

Responses to the sample tasks were evaluated in accord with the following:

(1) Understanding of Problems—The proposal will be evaluated to

determine the extent to which the Offeror demonstrates a clear understanding

of all features involved in solving the problems and meeting the requirements

presented by the Sample Task; and the extent to which uncertainties are

identified and resolutions proposed.

(2) Feasibility of Approach—The proposal will be evaluated to determine

whether the Offeror’s methods and approach to meeting the Sample Task

requirements provides the Government with a high level of confidence of

successful completion.

Id. And, considering the foregoing criteria, each sample task response was assigned one

of the following overall adjectival ratings:

a. Outstanding—A proposal that meets or exceeds all of the

Government’s requirements, contains extensive detail, demonstrates a

thorough understanding of the problems, and is highly feasible (low risk).

b. Good—A proposal that meets or exceeds all of the Government’s

requirements, contains at least adequate detail, demonstrates at least an

understanding of the problems, and is at least feasible (low to moderate

degree of risk).

c. Acceptable—A proposal that at least meets all of the Government’s

requirements, contains at least minimal detail, demonstrates at least a

minimal understanding of the problems, and is at least minimally feasible

(moderate to high degree of risk).

....

4

e. Unacceptable—A proposal that contains a major error(s),

omission(s), or deficiency(ies) that indicates a lack of understanding of the

problems or an approach that cannot be expected to meet requirements or

involves a very high risk; and none of these conditions can be corrected

without a major rewrite or revision of the proposal. A proposal that fails to

meet any of the Government’s requirements after the final evaluation shall

be ineligible for award regardless of whether it can be corrected without a

major rewrite or revision of the proposal.

ECF No. 14-6 at 435 (subsection d is omitted because it is inapplicable to evaluations of

Sample Tasks); ECF No. 14-7 at 422. With regard to the price proposals, the VA

intended to verify each offeror’s calculations and “evaluate each proposed labor rate to

determine whether it is unrealistically low in order to measure performance risk.” ECF

No. 14-2 at 395.

B. Sample Task 1

In Sample Task 1, the VA sought responses to the following hypothetical scenario:

The U.S. Department of Veterans Affairs (VA) signed a multi-year contract

to modernize its electronic health record (EHR) system and to replace its

legacy Veterans Information Systems and Technology Architecture (VISTA)

system. VA’s infrastructure/Information Technology (IT) components will

need to be analyzed, reported, prioritized, remediated, and tracked to prepare

VA for the new EHR system. Using the T4NG Performance Work

Statement, describe in detail your approach to analyze, remediate, and report

VA infrastructure/IT deficiencies across the organization to prepare VA

facilities for the new EHR system.

Id. at 458. The language of Sample Task 1 incorporated by reference the requirements

included in the performance work statement (PWS), which is part of the solicitation. See

id. at 267-313. The VA gave offerors seven business days to submit their responses,

which were limited to a maximum of twenty-five pages. See id. at 382.

To assist in evaluating the Sample Task 1 responses, the VA “prepared a

‘Government developed solution’ as a benchmark against which to evaluate offerors’

understanding of the problem and feasibility of their approach.” ECF No. 27 at 10 (citing

ECF No. 14-7 at 170). In developing this evaluation tool, the VA:

identified five relevant high level focus areas that a competent offeror should

understand would need to be addressed, based upon the contractor

responsibilities described in the PWS: (1) enterprise high level planning ([ ]

5

ECF No. 14-2 at 285-88); (2) analyze/remediate network deficiencies ([ ]

ECF No. 14-2 at 292-93); (3) analyze/remediate infrastructure deficiencies

([ ], ECF No. 14-2 at 297-98); (4) analyze/remediate IT component

deficiencies ([ ], ECF No. 14-2 at 296-97; [ ], ECF No. 14-2 at 290); and (5)

reporting ([ ] ECF No. 14-2 at 285-88; [ ] ECF No. 14-2 at 308-12).

ECF No. 27 at 10-11 (citing ECF No. 14-7 at 170; ECF No. 14-7 at 424). The VA also

identified secondary, or lower level, areas of focus “drawn from the PWS.” Id.

The Sample Task 1 responses were assigned strengths, weaknesses, or deficiencies

in each of the five high level focus areas, according to the following criteria:

Strength: Any aspect of a proposal that, when judged against a stated

evaluation criterion, enhances the merit of the proposal or increases the

probability of successful performance of the contract.

Significant Strength: Appreciably enhances the merit of a proposal or

appreciably increases the probability of successful contract performance.

Weakness: A flaw in a proposal that increases the risk of unsuccessful

contract performance.

Significant Weakness: A flaw that appreciably increases the risk of

unsuccessful contract performance.

Deficiency: A material failure of a proposal to meet a Government

requirement, or a combination of significant weaknesses in a proposal that

increases the risk of unsuccessful contract performance to an unacceptable

level.

ECF No. 14-7 at 425. Strengths and weaknesses were assigned only for the high level

focus areas. See id. at 424.

Plaintiff’s response to Sample Task 1 was twelve pages long. See ECF No. 14-4

at 296-310. The source selection evaluation board (SSEB) assigned the technical

proposal two [ ] and three [ ], but no [ ]. See ECF No. 14-7 at 172-75. The SSEB

discussed each high level focus area in detail when evaluating plaintiff’s response, but its

concerns with the response related, in large part, to [ ] provided by plaintiff with regard to

a considerable number of issues. See id. For example, the [ ] lead the SSEB to conclude

that plaintiff’s response relating to [ ] presented a [ ] which could lead to [ ]. Id. at 172-

73.

6

The SSEB concluded its evaluation of plaintiff’s response to Sample Task 1 by

addressing whether it demonstrated plaintiff’s understanding of the problem presented,

and the feasibility of its proposed approach:

Understanding of problem: Overall, the Offeror’s proposal demonstrated

[ ] of the features involved in solving the problems and meeting the

requirements, as well as identifying uncertainties and proposing resolutions,

presented by the sample task.

Feasibility of approach: Overall the Offeror demonstrated an approach that

[ ]. The Offeror’s methods and approach provided the Government with [ ]

in the Offeror’s ability to execute the sample task.

Rating Rationale: Unacceptable—A proposal that contains a major

error(s), omission(s) or deficiency(ies) that indicates a lack of understanding

of the problems or an approach that cannot be expected to meet requirements

or involves a very high risk; and none of these conditions can be corrected

without a major rewrite or revision of the proposal.

Id. at 175.

With regard to plaintiff’s price proposal, the SSEB found no mathematical errors,

and concluded that the proposed labor rates were not unrealistically low. See id. at 352-

54. Plaintiff’s evaluated price was [ ]. See id. at 352.

C. Competitive Range Determination

Of the [ ] evaluated proposals received by the VA, “[ ] proposals were rated

‘Unacceptable;’ [ ] proposals were rated ‘Acceptable;’ [ ] proposals were rated ‘Good;’

and [ ] proposals were rated ‘Outstanding.’ The evaluated prices of the [ ] offerors

ranged from a low of [ ] to a high of [ ].” Id. at 553. In determining the competitive

range, the source selection authority (SSA) excluded all offerors with “Unacceptable”

Sample Task 1 ratings, which included plaintiff. Id. The SSA determined that excluding

the [ ] unacceptable proposals was appropriate because “Sample Task 1 was significantly

more important than Price.” The SSA also noted that “there was ample competition

among Offerors with ‘Acceptable’ or better technical proposals with low evaluated

prices.” Id. at 554. The contracting officer concurred with the SSA’s conclusion. See id.

II. Legal Standards

A. Bid Protests

7

In its complaint, plaintiff invokes this court’s bid protest jurisdiction. See ECF

No. 1 at 15-16. This court’s bid protest jurisdiction is based on the Tucker Act, which

gives the court 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. . . . without regard to whether suit is instituted before or after

the contract is awarded.

28 U.S.C. § 1491(b)(1). The Tucker Act also states that the court may grant “any relief

the court considers proper . . . including injunctive relief.” 28 U.S.C. § 1491(b)(2).

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, 5 U.S.C. § 706, 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 (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.”). But plaintiff

must, at minimum, show that “had the alleged errors been cured, . . . ‘its chances of

securing the contract [would have] increased.’” Precision Asset Mgmt. Corp. v. United

States, 125 Fed. Cl. 228, 233 (2016) (quoting Info Tech., 316 F.3d at 1319).

Given the considerable discretion allowed contracting officers, the standard of

review is “highly deferential.” Advanced Data Concepts, Inc. v. United States, 216 F.3d

1054, 1058 (Fed. Cir. 2000). As the Supreme Court of the United States has explained,

the scope of review under the “arbitrary and capricious” standard is narrow. See

Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285 (1974). “A

8

reviewing court must ‘consider whether the decision was based on a consideration of the

relevant factors and whether there has been a clear error of judgment,” and “[t]he court is

not empowered to substitute its judgment for that of the agency.’” Id. (quoting Citizens

to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971)); see also Weeks Marine,

Inc. v. United States, 575 F.3d 1352, 1368-69 (Fed. Cir. 2009) (stating that under a highly

deferential rational basis review, the court will “sustain an agency action ‘evincing

rational reasoning and consideration of relevant factors’”) (citing Advanced Data

Concepts, 216 F.3d at 1058).

B. Permanent Injunctive Relief

As the United States Court of Appeals for 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)).

III. Analysis

According to plaintiff, “the VA’s decision to exclude it from competition is flawed

and unreasonable,” because the VA evaluated offerors “based on criteria that [were] not

stated in the [s]oliciation,” and it “failed to consider [plaintiff’s] price.” ECF No. 26 at

22. Specifically, plaintiff claims that the solution and evaluation framework developed

by the VA for Sample Task 1 “conflicts with its published [s]olicitation,” and amounted

to “undisclosed criteria [that] used pre-determined focus areas or criteria to rate on

several select key areas.” Id. (citation omitted). As a result, plaintiff argues that the

VA’s evaluation “denied [plaintiff] the opportunity to be fairly evaluated[, and] violated

the fundamental procurement principle of full and open competition under the

Competition in Contracting Act of 1984.” Id. (citing 41 U.S.C. § 3301). The court will

address each of plaintiff’s arguments, in turn.

A. The VA’s Evaluation Was Consistent with the Solicitation Terms

Plaintiff argues that the VA departed from the solicitation terms in five respects

when evaluating plaintiff’s proposal: (1) by concluding that plaintiff’s response was

unacceptable under the applicable adjectival rating definitions; (2) by using the term

9

“Enterprise High Level Planning” in the evaluation documents; (3) by not crediting

plaintiff’s proposal on the issue of “analyzing and remediating the [Heating, Ventilation,

and Air Conditioning (HVAC)] infrastructure deficiencies of a VA facility;” (4) by

requiring the use of specific keywords in evaluating the IT infrastructure proposal; and

(5) by expecting plaintiff to discuss labor mix, which was not explicitly required by

Sample Task 1. 5 See id. at 25-30; 34-36.

1. The VA Did Not Abuse Its Discretion in Rating Plaintiff’s Response

as Unacceptable

As an initial matter, plaintiff claims in argument throughout its briefs that the VA

failed to properly apply the solicitation’s evaluation criteria when it rated plaintiff’s

proposal as unacceptable. Plaintiff argues that had the VA properly applied the ratings

set out in the solicitation, it would have been rated as acceptable, and therefore, included

in the competitive range. See, e.g., ECF No. 26 at 31-32; ECF No. 28 at 19-26, 29.

Acceptable and unacceptable proposals are defined, as follows:

c. Acceptable—A proposal that at least meets all of the Government’s

requirements, contains at least minimal detail, demonstrates at least a

minimal understanding of the problems, and is at least minimally feasible

(moderate to high risk).

....

e. Unacceptable—A proposal that contains a major error(s),

omission(s), or deficiency(ies) that indicates a lack of understanding of the

problems or an approach that cannot be expected to meet requirements or

involves a very high risk; and none of these conditions can be corrected

without a major rewrite or revision of the proposal. A proposal that fails to

meet any of the Government’s requirements after the final evaluation shall

5

Plaintiff’s motion includes two sections that are not separately addressed in the court’s

analysis. First, in section VI.A., plaintiff argues that the VA was wrong to evaluate plaintiff’s

Sample Task 1 response as lacking detail, and that the VA improperly assessed the risk of

plaintiff’s response. See, e.g., ECF No. 26 at 30-33. In this section, plaintiff admittedly

reiterates or repackages arguments it makes elsewhere. See id. at 31 (plaintiff citing to the first

three sections of its own argument). Because the court addresses such criticisms of the VA’s

exercise of discretion at multiple points in its analysis, it need not repeat that analysis for the

purpose of following the structure of plaintiff’s argument. And second, in section VI.C., plaintiff

argues that the VA’s use of unstated evaluation criteria prejudiced offerors not currently working

with the agency. See id. at 36-38. As discussed below, however, the court concludes that the

VA did not use unstated criteria in its evaluation. Accordingly, no discussion about the affect of

unstated evaluation criteria is necessary.

10

be ineligible for award regardless of whether it can be corrected without a

major rewrite or revision of the proposal.

ECF No. 14-6 at 435; ECF No. 14-7 at 422.

Plaintiff’s argument is not a model of clarity. But to the extent a cogent argument

can be discerned, it appears to be this: “The definition of ‘acceptable’ specifically allows

for the very lack of detail that the VA continues to argue about in its motion.” ECF No.

28 at 21 (citation omitted). As a result, plaintiff’s logic suggests, the VA could not

properly base its unacceptable rating on the fact that plaintiff included minimal detail in

its proposal. See id. at 23, 26.

In taking this position, however, plaintiff overlooks three important points. First,

the definition of acceptable requires “at least minimal detail,” but does not guarantee that

all responses that include minimal detail will be deemed acceptable. ECF No. 14-7 at

422 (emphasis added). Put another way, minimal detail is necessary, but not clearly

sufficient, to reach the acceptable level. In addition, the VA repeatedly found that

plaintiff’s response “[ ].” See ECF No. 14-7 at 172-75. The fact that the VA assessed the

response to [ ] is consistent with the conclusion that it “contains . . . [ ]. See ECF No. 14-

7 at 422. And finally, the VA determined that plaintiff’s response presented a [ ] or a [ ]

to successful performance. Id. at 172-75. Very high risk proposals are deemed, under

the plain language of the adjectival rating definitions, to be unacceptable. See ECF No.

14-7 at 422. Accordingly, the court does not credit plaintiff’s argument on this point.

2. The VA’s Use of the Term “Enterprise High Level Planning” Is Not

Contrary to the Solicitation

In order to assist in the evaluation process, the VA developed a government

solution to Sample Task 1. In the initial evaluation report, the VA explained:

The Government solution to Sample Task 1 included necessary analysis,

remediation, and reporting efforts in the areas of Enterprise High Level

Planning; Analyze/Remediate Network Deficiencies; Analyze/Remediate

Infrastructure Deficiencies; Analyze/Remediate IT Component Deficiencies;

and Reporting.

ECF No. 14-7 at 170. Plaintiff contends that because the phrase “Enterprise High Level

Planning” does not appear in the solicitation, the use of the phrase in the evaluation

documents amounts to an unstated evaluation criterion. See ECF No. 26 at 25-27.

Plaintiff acknowledges that other related terms appear in the solicitation, such as

“Enterprise and IT Framework” and “Enterprise Management Framework,” but argues

that the concept of “Enterprise High Level Planning” introduces an entirely new

11

requirement and that “there was no way [plaintiff] was on notice to meet the VA’s

expectations.” Id. at 26.

In response, defendant explains that the “PWS informed offerors that they would

be required to provide enterprise planning services as part of their contract performance.”

ECF No. 27 at 21. Defendant cites directly to the PWS in support of this assertion. The

PWS identifies “Program Management, Strategy, Enterprise Architecture and Planning

Support” as the first functional area requirement that any task order issued under the

contract may encompass. See ECF No. 14-2 at 285. The PWS further states that offerors

may be required to provide “enterprise architecture and planning support on an enterprise

or individual project level.” Id. As examples of the functions a successful offeror may

be expected to perform, the PWS lists: project planning, schedule management, financial

management, earned value management, quality management, resource management,

requirements management, communications management, project change management,

organization change management, risk management, performance management, and

knowledge management. See id. at 287. According to defendant, these responsibilities

are “enterprise planning elements [that] were disclosed in the PWS.” ECF No. 27 at 21.

Defendant also points out that, while it titled one of the high level focus areas

“Enterprise High Level Planning,” that was an umbrella term for the explicit

requirements of the PWS, and it did not “fault offerors for failing to use this exact

language, and rationally focused on the extent to which offerors demonstrated an

understanding of the requirements and proposed a feasible approach related to enterprise

high level planning.” Id. (citing ECF No. 14-2 at 651-77; ECF No. 14-7 at 26-27

(awarding an offeror a “significant strength” for enterprise high level planning even

though offeror did not use that phrase in its response)).

Plaintiff argues, in its reply, that while it “is well aware that the [VA] is not

required to present its entire Source Selection Plan to the public, . . . the issue in this case

is that the VA used a significantly different basis in evaluating the proposals than was

disclosed in the solicitation.” ECF No. 28 at 23. According to plaintiff, “the VA used

one paragraph to cast an incredibly wide net, requesting offer[or]s to decide for

themselves what issues they would address that may arise from performing the entire

PWS.” Id. Plaintiff suggests that this approach was unfair, but as defendant notes in its

reply, this was the stated purpose of the sample task—“to ‘test the Offeror’s expertise,’”

and their “ability to determine which PWS elements were relevant to the sample task.”

ECF No. 29 at 3-4 (citing ECF No. 14-2 at 189, 393).

It is, of course, true that an agency cannot evaluate proposals on the basis of

unstated criteria. See Banknote Corp. of Am., Inc. v. United States, 56 Fed. Cl. 377, 386

(2003), aff’d, 365 F.3d 1345 (Fed. Cir. 2004) (stating that “agencies must evaluate

proposals and make awards based on the criteria stated in the solicitation”). It is equally

true, however, that “a solicitation need not identify criteria intrinsic to the stated

12

evaluation factors, and agencies retain great discretion in determining the scope of a

given evaluation factor.” PlanetSpace, Inc. v. United States, 92 Fed. Cl. 520, 536 (2010)

(quotation marks and citation omitted). To prevail on its claim that the VA

impermissibly used unstated evaluation criteria, plaintiff must show that: (1) “the

procuring agency used a significantly different basis in evaluating the proposals than was

disclosed,” and (2) “the protester was prejudiced as a result—that it had a substantial

chance to receive the contract award but for that error.” NEQ, LLC v. United States, 88

Fed. Cl. 38, 48 (2009) (quoting Banknote, 56 Fed. Cl. at 387).

Here, plaintiff fails on the first part of the analysis. A fair reading of the AR

indicates that the VA’s substantive evaluation criteria reviewed under the heading

“Enterprise High Level Planning” were included in the description of Sample Task 1 or

in the PWS, which was incorporated by reference. See ECF No. 14-2 at 458. The VA’s

evaluation of plaintiff’s Sample Task 1 noted that plaintiff’s response [ ] in its approach

to [ ].” ECF No. 14-7 at 173. More specifically, the VA found that plaintiff’s response

[ ] on [ ],” [ ] to [ ]” “[ ] and [ ] in its approach to [].” Id. at 173-74.

Each of these areas identified by the VA as weaknesses in plaintiff’s response

logically correlate to the list of examples in the PWS of responsibilities a successful

offeror would need to perform. See ECF No. 14-2 at 287. For example, the PWS

specifically states that offerors should be prepared to perform project planning, schedule

management, resource management and performance management. Id. In the court’s

view the terms by which the VA evaluated plaintiff’s Sample Task 1 response are not

“significantly different” from the disclosed criteria, and therefore, are not undisclosed.

NEQ, 88 Fed. Cl. at 48.

3. The VA Reasonably Addressed the HVAC Requirements in

Evaluating Plaintiff’s Sample Task 1 Response

Plaintiff next argues that the VA was wrong to assign it a weakness for “‘[ ].’”

ECF No. 26 at 28 (quoting ECF No. 14-7 at 171). Plaintiff claims that it addressed

“additional temperature control and air handlers to cool hardware,” but should not have

been expected to address the HVAC system needs more broadly. Id. The PWS,

however, clearly indicates that contractors may be responsible for “air-conditioning

equipment, building [HVAC],” and data center “power and cooling analysis.” ECF No.

14-2 at 296. The language of the PWS is broad, and can fairly be read to encompass

more than plaintiff suggests.

Considering the foregoing, it appears to the court that plaintiff’s challenge on this

point amounts to a disagreement with the VA’s conclusion about plaintiff’s Sample Task

1 response. A review of the evaluation document indicates that the VA considered the

relevant factors—the terms of the solicitation and plaintiff’s Sample Task 1 response—in

assigning plaintiff a weakness for this aspect of its response. See ECF No. 14-7 at 172-

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73. The VA’s discussion is detailed and reasoned. As such, “‘[t]he court is not

empowered to substitute its judgment for that of the agency.’” Bowman Transp., 419

U.S. at 285 (quoting Citizens to Preserve Overton Park, 401 U.S. at 402); see also Weeks

Marine, 575 F.3d at 1368-69 (stating that under a highly deferential rational basis review,

the court will “sustain an agency action ‘evincing rational reasoning and consideration of

relevant factors’”) (citing Advanced Data Concepts, 216 F.3d at 1058).

4. The VA Did Not Perform Its Evaluation Based on Keywords

Plaintiff next argues that the VA’s evaluation of its response relating to testing IT

infrastructure was improper. Plaintiff claims that its “proposal provided extensive detail

on how it would [ ].” ECF No. 26 at 29 (citation omitted). According to plaintiff, “the

VA determined that there was a lack of detail [in plaintiff’s Sample Task 1 response]

because the proposal did not use keywords such as ‘wiring and racks’ and ‘LAN

connected end user devices (EUDs).’” Id. (citation omitted).

The record does not support plaintiff’s position. The court will quote the

evaluation document at length to demonstrate this point. In the evaluation document, the

VA states:

[ ].

....

[ ].

ECF No. 14-7 at 172-73. The court sees no indication in this passage that the VA was

looking for specific keywords as a basis for its evaluation. The VA does use the terms

highlighted by plaintiff, but those terms appear as part of a reasoned explanation of why

plaintiff’s proposal was assigned a weakness in this area. Moreover, those terms are

included in the PWS. See, e.g., ECF No. 14-2 at 297-98 (requiring design, installation

and modification services including the installation of “fiber optic cabling [and] racks”);

id. at 293 (requiring “services related to . . . LAN and WAN systems and components,”

including routers and switches); id. at 290 (requiring EUD services).

The court again concludes that plaintiff’s challenge on this point amounts to a

disagreement with the VA’s conclusion that plaintiff’s Sample Task 1 response was

unacceptable. Because the VA considered the relevant factors and provided a reasoned

basis for its conclusion, the court will not substitute its judgment for the agency’s. See

Bowman Transp., 419 U.S. at 285 (quoting Citizens to Preserve Overton Park, 401 U.S.

at 402); see also Weeks Marine, 575 F.3d at 1368-69 (stating that under a highly

deferential rational basis review, the court will “sustain an agency action ‘evincing

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rational reasoning and consideration of relevant factors’”) (citing Advanced Data

Concepts, 216 F.3d at 1058).

5. The VA Did Not Evaluate Plaintiff’s Proposed Labor Mix in Its

Sample Task 1 Response

Plaintiff claims the VA improperly criticized its failure to address its proposed

labor mix in its Sample Task 1 response. See ECF No. 26 at 34. Plaintiff cites the

following statements from the VA’s evaluation of its response in support of its argument:

[ ].

ECF No. 14-7 at 173. According to plaintiff, this evaluation was improper because

“[n]either the sample task, nor the solicitation provide any instructions calling for

offerors to discuss the labor mix it plans to use in response to [Sample Task 1].” ECF

No. 26 at 34.

In response, defendant explains that the “VA did not evaluate [plaintiff’s] labor

mix, but faulted [plaintiff] for its failure to [ ].” ECF No. 27 at 24-25. This criticism was

based on plaintiff’s failure to address the PWS requirement for “offerors to provide

appropriate personnel for specific tasks.” Id. at 25. The PWS states: “The Contractor

shall provide the personnel, . . . necessary to model, simulate, and/or analyze IT services,

systems, networks and other infrastructure or IT components in operation in the

computing environment or under development.” ECF No. 14-2 at 290.

Plaintiff insists in its reply that “the VA did in fact assess the labor mix and types

of personnel proposed, . . . an assessment [that] was actually required in step two and not

[Sample Task 1].” ECF No. 28 at 32 (citation omitted). Defendant counters, however,

that “‘[l]abor mix’ is an invention of [plaintiff’s] brief, not an evaluation criterion

identified anywhere in the solicitation.” ECF No. 29 at 6 (citing ECF No. 14-2 at 260-

395). Defendant then explains that in step two the VA will not evaluate labor mix, but

will evaluate the way in which offerors proposed to divide work “among the offeror and

its subcontractors and how the offeror would intend to retain its workforce.” Id. (citing

ECF No. 14-2 at 386).

The court finds that the VA’s decision to assign plaintiff a weakness for [ ] is

fairly based on language in the PWS requiring offerors to “provide appropriate personnel

for specific tasks.” ECF No. 14-2 at 290. The VA did not base its assessment on

plaintiff’s plans for subcontractor employment or workforce retention, the subjects

addressed in Step Two of the evaluation process. Plaintiff is simply incorrect to suggest

otherwise.

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B. The VA Considered Plaintiff’s Proposed Price as Required by the

Solicitation

Finally, plaintiff argues that the VA “failed to consider price in accordance with

the stated evaluation criteria as set forth in the solicitation, and instead substituted [its]

own undisclosed evaluation criteria.” ECF No. 26 at 42.

The relevant portion of the solicitation states that the VA “will verify the Offeror’s

calculation of the total evaluated price,” and “will adjust the Offeror’s proposed total

evaluated price if mathematical errors are identified.” ECF No. 14-2 at 395. In addition,

the VA “will evaluate each proposed labor rate to determine whether it is unrealistically

low in order to measure performance risk. The [VA] will not accept any unrealistically

low labor rates on contract.” Id. The record demonstrates that the VA adhered to these

criteria, verifying that: (1) plaintiff “priced all of the [VA’s] provided labor hours,” (2)

plaintiff’s “labor dollars and calculations [included] no mathematical errors,” and (3)

plaintiff’s labor rates were not “unrealistically low.” ECF No. 14-7 at 352-54. As a

result, plaintiff’s total proposed price was not changed. See id.

Particularly given the fact that the VA found no errors in, and made no changes to,

plaintiff’s proposed price, the nature of plaintiff’s complaint on this point is unclear. The

record demonstrates that the VA evaluated plaintiff’s price for accuracy and

reasonableness, precisely as stated in the solicitation. Plaintiff’s suggestion to the

contrary is unavailing.

It appears to the court that plaintiff may mean to argue that the VA should have

considered whether plaintiff’s price proposal was sufficiently low that it would outweigh

the fact that its offer was deemed unacceptable, but failed to do so. See ECF No. 26 at

43. This assertion, however, is belied by the record. In making the competitive range

determination, the SSA:

considered the detailed findings of the SSEB as presented to her on May 27,

2020 for Step One (i.e. Sample Task 1 and price), . . . [and] determined to

exclude Offerors who received a rating of “Unacceptable” for Sample Task

1 from the competitive range, as they are not among the most highly rated

proposals. . . . As set forth in the solicitation, Sample Task 1 was

significantly more important than Price, and revisions are not permitted for

sample task proposals. In addition, the SSA considered the fact that while

some of the “Unacceptable” Offerors proposed lower evaluated prices than

other Offerors with superior technical proposals, the SSA determined that

none of these Offerors proposed a price low enough to outweigh the

“Acceptable” or better ratings received for Sample Task 1 by the Offerors

remaining in the competitive range. . . . Therefore, the SSA determined that

no Offeror that received a rating of “Unacceptable” for Sample Task 1 had

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an evaluated price low enough to consider the Offeror amongst the most

highly rated proposals.

ECF No. 14-7 at 553-54. Plaintiff’s proposal was, in fact, considered together with the

group of proposals deemed “Unacceptable” in the process of determining the competitive

range. Thus, the facts in the record do not support plaintiff’s argument that the VA failed

to include its price when determining the competitive range.

C. Plaintiff Is Not Entitled to Injunctive Relief

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

on the merits is a necessary element for a permanent injunction,” no injunctive relief is

warranted in this case. Dell Fed. Sys., L.P. v. United States, 906 F.3d 982, 999 (Fed. Cir.

2018) (footnote omitted). This protest must be dismissed.

IV. Conclusion

Accordingly, for the foregoing reasons:

(1) Plaintiff’s motion for judgment on the AR, ECF No. 26, is DENIED;

(2) Defendant’s cross-motion for judgment on the AR, ECF No. 27, is

GRANTED;

(3) The clerk’s office is directed to DISMISS plaintiff’s complaint, and

ENTER judgment, with prejudice, in defendant’s favor; and

(4) On or before December 18, 2020, the parties are directed to CONFER and

FILE a notice informing the court as to whether any redactions are

required before the court makes this opinion publicly available, and if so,

attaching an agreed-upon proposed redacted version of the opinion.

IT IS SO ORDERED.

s/Patricia E. Campbell-Smith

PATRICIA E. CAMPBELL-SMITH

Judge

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