Opinion

People, Technology and Processes, LLC v. United States

Court: United States Court of Federal Claims
Filed: Jan 8, 2021
Status: Published
On the bench: David A. Tapp
Cited by: 0 cases
Authority: More cited than 14.7%

The opinion

In the United States Court of Federal Claims

No. 20-1043C

Filed Under Seal: December 18, 2020

Reissued: January 8, 2021 1

PEOPLE, TECHNOLOGY &

PROCESSES, LLC,

Plaintiff,

THE UNITED STATES,

Defendant.

Craig A. Holman, Lead Attorney, Arnold & Porter Kaye Scholer LLP, Washington, DC, with

whom were Kara L. Daniels, Of Counsel, and Nathaniel E. Castellano, Of Counsel, Arnold &

Porter Kaye Scholer LLP, Washington, DC, for Plaintiff.

Sosun Bae, Senior Trial Counsel, Patricia M. McCarthy, Assistant Director, Robert E.

Kirschman, Jr., Director, Commercial Litigation Branch, Civil Division, U.S. Department of

Justice, Washington, DC, and Jeffrey Bossert Clark, Acting Assistant Attorney General, U.S.

Department of Justice, with whom were Isabelle P. Cutting, Of Counsel, U.S. Air Force, and

Maj. Michelle E. Gregory, Of Counsel, U.S. Air Force, for Defendant.

OPINION AND ORDER ON CROSS-MOTIONS

FOR JUDGMENT ON THE ADMINISTRATIVE RECORD

TAPP, Judge.

Before the Court in this post-award bid protest are the parties’ cross-motions for

judgment on the administrative record. (Pl.’s Mot. for J. on Admin. R., ECF No. 18; Pl.’s Mem.

of Law In Supp. of Mot. for J. on Admin. R., ECF No. 18-1 (“Pl.’s Mem.”). Def.’s Cross-Mot.

for J. on Admin. R., ECF No. 19 (“Def.’s Cross-Mot.”)). On August 19, 2020, Plaintiff, People,

Technology and Processes, LLC (“PTP”), filed a four-count complaint challenging the

evaluation and award decision of U.S. Special Operations Command (“USSOCOM” or the

“Agency”), concerning a multiple award Indefinite Delivery, Indefinite Quantity (“IDIQ”)

procurement for Special Operations Forces (“SOF”) Core Services Support (“SCS”), under

Solicitation No. H92400-19-R-0003 (“Solicitation” or “RFP”). (Compl., ECF No. 1; Redacted

This Opinion and Order was originally filed under seal on December 18, 2020. ECF No. 27. The parties were

given an opportunity to submit proposed redactions, which were filed by Defendant as “Agreed-Upon” redactions

on January 4, 2021. ECF No. 29. The Court hereby adopts those redactions and reissues its Opinion and Order. The

agreed-upon redactions are indicated by three consecutive asterisks within brackets ([* * *]).

Compl., ECF No. 15). Specifically, PTP challenges the Agency’s determination that PTP’s

proposal did not satisfy the Capabilities sub-element of the Factor 1 (Technical) IDIQ

Management criteria, delineated in section M2.2.1 of the Solicitation, as arbitrary, capricious,

and contrary to law. (See generally, Compl.).

Also before the Court is PTP’s November 18, 2020, Motion to Strike Exhibit A to

Defendant’s Reply brief and portions of the reply brief related to Exhibit A, which relates to a

declaration of the Agency’s Contracting Officer. (Pl.’s Mot. to Strike, ECF No. 22; Def.’s Reply,

Ex. A, ECF No. 21). These matters are now fully briefed and ripe for decision.

For the reasons set forth below, the Court DENIES PTP’s Motion for Judgment on the

Administrative Record and request for a permanent injunction, and GRANTS the United States’

Cross-Motion for Judgment on the Administrative Record. In addition, the Court DENIES-AS-

MOOT PTP’s Motion to Strike. The Court will address each issue in turn.

I. Background

PTP is a Service Disabled Veteran Owned Small Business that provides information

technology services, software solutions, and professional development training. (Compl. at 6). A

majority of PTP’s employees, including senior leadership, are former Special Operations Forces

service members. (Id.). PTP and its partners have successfully performed several prior contracts

in support of USSOCOM and other federal agencies. (Id. at 1, 6).

On June 14, 2019, USSOCOM issued a Solicitation for a Special Operations Forces Core

Support Services multiple award IDIQ contract, pursuant to Federal Acquisition Regulation

(FAR) Part 15, Defense FAR Supplement (DFARS) Part 215, and Section 825 of the National

Defense Authorization Act (NDAA) for Fiscal Year 2017 Class Deviation 2018-O0006. (AR

342, 564). 2 The Solicitation’s Statement of Work (SOW) stated that USSOCOM was seeking

support in six areas: Education and Training Services; Management Support Services; Program

Management; Engineering and Technical Services; Professional Services; and Administrative

and Other Services. (AR 522, 522–25).

Offerors were directed to submit proposals in three separate volumes, each of which were

evaluated independently from the other volumes. (See AR 557, 558). The Solicitation provided

that Volume I, Administrative and Responsibility Material, would be evaluated on a “pass/fail”

basis; Volume II, IDIQ Management, would be evaluated on an acceptable/unacceptable basis;

and Volume III, Past Performance, would be assigned a confidence level rating. (AR 564). The

Solicitation stated that awards would be made to all offerors that received a “pass” rating for the

Administrative and Responsibility criteria (Vol. I), an “acceptable” rating for Factor 1 – IDIQ

Management (Vol. II), and a “substantial confidence” rating for Past Performance (Vol. III). (AR

564, 567).

Importantly, the Solicitation set forth several formatting requirements for the proposals.

(See AR 556–57). For example, section L1.9, covering cross-referencing, provided that

2The Agency issued an amended solicitation on August 1, 2019, which did not change any

provisions relevant to this protest. (See AR 342, 477, 482).

“[v]olumes shall not include glossaries, compliance matrices or acronym lists.” (AR 556–57).

Instead, offerors were directed to “submit, as a standalone document marked ‘Cross-Reference’,

a comprehensive glossary, compliance matrix and acronym list.” (AR 558). The provision

explained that “[t]his ‘Cross Reference’ Document shall not be included in any volume and has

no page limit.” (Id.). Further, “[e]ach volume shall be written on a stand-alone basis so that its

contents may be evaluated with a minimum of cross referencing to other volumes in the

proposal. Information required for proposal evaluation which is not found in its designated

volume will be assumed to have been omitted.” (AR 558).

In addition, the Solicitation contained a “General Information” section, which explained

that “[t]he proposal must include all data and information requested and must be submitted in

accordance with [] these instructions. . . . Proposals must be complete, self-sufficient, and

respond directly to the requirements of the solicitation.” (AR 556). The Solicitation further

provided “Do not merely reiterate the SOW or reformulate the requirements specified in

the solicitation.” (Id.) (emphasis in original). Finally, the Solicitation stated: “At a minimum,

each Volume shall be submitted as a separate file.” (AR 557) (emphasis in original).

With respect to Volume II, Factor 1 IDIQ Management, the Solicitation provided general

instructions which stated “Volume II must provide specifics and be complete. All requirements

specified in the solicitation are mandatory.” (AR 559). This portion of the Solicitation instructed

offerors to provide a summation of their team’s capabilities to meet three stated imperatives:

stability, agility, and reach. (See AR 559–60). Specifically, the Solicitation stated:

L3.2.1.1 Capabilities. Summarize the capabilities of your team to meet the

requirements of the SOW that results in your team’s stability, agility, and

reach in accomplishing the overall mission. Include a summary of your

team’s experience in providing services of a similar scope. Stability is

informed by the team’s capability to sustain a technical workforce with

requisite expertise in a dynamic environment. Agility is informed by the

team’s aggregate ability to address all mission areas. Reach is informed by

the team’s organizational capability and processes to effectively execute all

requirements.

(AR 560).

With respect to the evaluation of Volume II, the Solicitation explained that “[e]valuation

of proposals will focus on the offeror’s ability and approach to meet and understand the SCS

SOW requirements. Note that if an offeror’s proposal does not meet a Government requirement,

it will result in an Unacceptable proposal.” (AR 565). For the Program Management portion of

Volume II, “[t]he Government will evaluate the extent to which the offeror’s overall Program

Management Plan demonstrates a sound, practical methodology for satisfying the requirements

stated in the solicitation. The assessment will focus on the offeror’s ability to ensure all resources

are available to successfully execute SCS requirements.” (Id.). With regard to the Capabilities

portion of Volume II, section M2.2.1.1, the Solicitation provided:

M2.2.1.1 Capabilities. The Government will evaluate breadth and depth of

the capabilities of the offeror (including teaming partners and subcontractors)

in providing support of similar scope and size, to similar organizations. The

Government will evaluate the breadth and depth of the offeror’s stability,

agility, and reach in accomplishing the overall mission. Offerors that can

describe the degree to which their team covers ALL required skill-levels,

capabilities, and experience as required by the applicable SOW, will be

viewed as capable of providing stability and agility. An offeror with

redundancy within its team, in a manner that encourages healthy internal

competition, will demonstrate agility and reach. A team construct that ensures

equitable workshare will demonstrate stability. Descriptions of experience

which include empirical summaries of results in transition, staffing, and issue

resolution, as well as organizations that are disposed in multiple (global)

locations, demonstrate all three Imperatives.

(AR 565).

Ultimately, USSOCOM received [* * *] timely offers, including an offer from PTP. (AR

10684). On September 3, 2019, the Source Selection Evaluation Board (“SSEB”) convened for

training as to how the proposals should be evaluated. (See AR 4017–84). The training materials

noted that “Source Selection is a Subjective Process; Government MUST do what we state we

will do in [the “Evaluation Process”] Section M.” (AR 4084) (emphasis in original). In addition,

the training explained that “SSEB evaluates proposals against evaluation criteria NOT proposals

against one another; [the Source Selection Advisory Council (“SSAC”)] (or [Source Selection

Authority (“SSA”)]) conducts the comparative analysis.” (AR 4083) (emphasis in original).

The SSEB conducted an initial evaluation of the timely proposals from September 3,

2019, to March 6, 2020, (AR 8837), and issued a final evaluation report to the SSAC on March

21, 2020. (See AR 8834–9026). In the final evaluation report, the SSEB assigned PTP a [* * *]

rating for the Administrative and Responsibility materials (Vol. I), an “Unacceptable” rating for

the Factor 1 IDIQ Management criteria (Vol. II), and a [* * *] rating for its past performance

proposal (Vol. III). (AR 8956–8964). The SSEB explained the unacceptable rating for the Factor

1 IDIQ Management portion of PTP’s proposal (Vol. II) as follows:

2.2.1 Element 1 – Program Management

[* * *]

2.2.1.1. Sub-Element 1.1 – Capabilities

[* * *]

(AR 8956–57). PTP received [* * *] ratings for all other sub-elements of the IDIQ Management

portion of its proposal. (See id.).

After reviewing the SSEB final evaluation report, the SSAC analyzed the proposals and,

on April 3, 2020, made a recommendation for award to the Source Selection Authority. (AR

9028, 9103). Thereafter, the Source Selection Authority conducted an independent review,

following “the evaluation process described in Section M of the RFP [and] rel[ying] upon the

SSEB’s evaluation findings and the SSAC’s recommendation report.” (AR 9103–04). The

Source Selection Authority ultimately made 46 awards—one to each offeror that satisfied all

qualifying criteria for each of the three volumes. (AR 9107). PTP was not selected for an award.

(See AR 9107–09).

USSOCOM issued a pre-award notice of successful offerors on April 23, 2020, and

award notices on May 1, 2020. (AR 9158–60 (Pre-Award Notice), 9178–9954 (Award Notices)).

In addition, USSOCOM issued PTP a notification that it was not receiving an award on May 1,

2020, which included a written debriefing and PTP’s individual evaluation report. (AR 9974–

94). PTP then submitted follow-up questions within two days of receiving the notification and

written debriefing. (See AR 10024–30). On May 7, 2020, USSOCOM responded to PTP’s

debriefing questions. (See AR 10035–44). Of relevance here, in response to PTP’s question [* *

*] (AR 10038).

On May 11, 2020, PTP filed a timely post-award protest with the Government

Accountability Office (GAO), challenging USSOCOM’s decision to rate as unacceptable the

Factor 1 IDIQ Management portion of PTP’s proposal (Vol. II). (See AR 10345–10568; Pl.’s

Mem. at 12). Specifically, PTP alleged that USSOCOM’s stated rationale “misstates PTP’s

proposal and establishes that the evaluators failed to evaluate PTP’s proposal as required by the

Solicitation and the law.” (AR 10346–47). PTP further argued that “the Agency evaluators

misreported the contents of the tables themselves and ignored the narrative information in PTP’s

Proposal Volume II . . ..” (AR 10347). In addition, PTP alleged that the evaluation of the

technical portion of its proposal (Vol. II) was inconsistent with the evaluation of the past

performance portion of its proposal, and that USSOCOM conducted an unequal evaluation of

PTP’s proposal compared to several awardees, such as [* * *] (AR 10347–48). In response to

PTP’s GAO protest, USSOCOM’s contracting officer filed a “Consolidated Contracting

Officer’s Statement of Facts and Memorandum of Law.” (See AR 10680–10705).

On July 24, 2020, the parties convened for an Alternative Dispute Resolution (ADR)

conference. (See AR 11697). After hearing the parties’ respective positions, the GAO ADR

representative explained that he would recommend the GAO deny PTP’s protest. (Id.). “[W]ith

respect to PTP’s direct challenge to the technical evaluation, [the ADR representative] found the

evaluation reasonable and disagreed with PTP’s evaluation of the Solicitation.” (Id.). The ADR

representative “acknowledged that there are instances where the awardee proposals include the

same content that the Agency Report claimed to have found problematic in PTP’s proposal,” but

“concluded that, when read as a whole, the different evaluation outcomes were the result of

differences in the underlying proposals.” (Id.). Finally, the ADR representative “concluded that

the technical and past performance evaluations were independent” and therefore, “any

discrepancy between the Agency findings with respect to past performance and the Agency’s

capabilities evaluation was not a basis to sustain the protest.” (Id.).

Following the ADR recommendation to deny PTP’s protest, PTP withdrew its GAO

protest on July 31, 2020. (See AR 11698). On August 19, 2020, PTP filed its protest in this

Court. (See ECF No. 1).

II. Discussion

The Tucker Act grants the United States Court of Federal Claims jurisdiction over bid

protests brought 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.” 28 U.S.C. § 1491(b)(1). In bid protest cases, this Court reviews agency actions

under the Administrative Procedure Act’s “arbitrary and capricious” standard. See 28 U.S.C. §

1491(b)(4); 5 U.S.C. § 706(2)(A), (D). Under this standard, an “award may be set aside if either

(1) the procurement official’s decision lacked a rational basis; or (2) the procurement procedure

involved a violation of regulation or procedure.” Impresa Construzioni Geom. Domenico Garufi

v. United States, 238 F.3d 1324, 1332 (Fed. Cir. 2001).

When a challenge is brought on the first ground, the test is whether “the contracting

agency provided a coherent and reasonable explanation of its exercise of discretion, and the

disappointed bidder bears a ‘heavy burden’ of showing that the award decision ‘had no rational

basis.’” Id. at 1332–33 (internal citations omitted). In this regard, “courts have recognized that

contracting officers are ‘entitled to exercise discretion upon a broad range of issues confronting

them’ in the procurement process.” Id. at 1332. “When a challenge is brought on the second

ground, the disappointed bidder must show a clear and prejudicial violation of applicable statutes

or regulations.” Id. at 1333. In addition, when reviewing an agency’s procurement decision, the

Court should recognize that the agency’s decision is entitled to a “presumption of regularity.”

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971), overruled on other

grounds by Califano v. Sanders, 430 U.S. 99 (1977). “The [C]ourt should not substitute its

judgment for that of a procuring agency.” Cincom Sys., Inc. v. United States, 37 Fed. Cl. 663,

672 (1997). And so, “[t]he protestor must show, by a preponderance of the evidence, that the

agency’s actions were either without a reasonable basis or in violation of applicable procurement

law.” Info. Tech. & Applics. Corp. v. United States, 51 Fed. Cl. 340, 346 (2001), aff’d, 316 F.3d

1312 (Fed. Cir. 2003) (citation omitted).

The Court’s standard of review “is highly deferential.” Advanced Data Concepts, Inc. v.

United States, 216 F.3d 1054, 1058 (Fed. Cir. 2000). As long as there is “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.” 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)). Stated differently, “[the Court] will uphold a decision of less than ideal clarity if the

agency’s path may be reasonably discerned.” Bowman Transp., Inc. v. Arkansas-Best Freight

Sys., Inc., 419 U.S. 281, 286 (1974). However, if “the agency ‘entirely fail[s] to consider an

important aspect of the problem [or] offer[s] an explanation for its decision that runs counter to

the evidence before the agency,’” then the resulting action lacks a rational basis and, therefore, is

defined as “arbitrary and capricious.” Ala. 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)).

In its Complaint, PTP alleges: (1) the Agency admits the contemporaneous rationale for

rating PTP technical[ly] unacceptable is flawed, requiring remand; (2) the Agency determination

that PTP is unacceptable under the capabilities sub-element is arbitrary, capricious, and contrary

to law; (3) the Agency conducted an unequal capabilities sub-element evaluation to PTP’s

competitive prejudice; and (4) the Agency’s best value determination is arbitrary, capricious, and

contrary to law. (Compl. at 24–43). Based on these alleged errors, PTP requests that the Court

declare the Agency’s evaluation of PTP arbitrary, capricious, or otherwise contrary to law;

remand the matter back to the Agency for further consideration of PTP’s proposal; and enjoin the

Agency from initiating performance of any contract awarded under this Solicitation. (Compl. at

26–27, 34–35, 41–43).

The United States, on the other hand, argues that “PTP has failed to demonstrate that

[USSOCOM] acted arbitrarily and capriciously when it rated PTP’s Factor 1 (Technical) [IDIQ]

Management Proposal . . . as unacceptable, or that the United States is impermissibly relying on

post hoc rationalizations to explain USSOCOM’s actions.” (Def.’s Cross-Mot. at 1). The United

States further contends that “PTP cannot establish that USSOCOM subjected it to unequal, or

disparate, treatment . . ..” (Id.). Accordingly, the United States argues that PTP is not entitled to

injunctive relief. (Id. at 29–31).

As explained below, the Court agrees with the United States that PTP has failed to

demonstrate that the Agency’s decisions were arbitrary, capricious, or otherwise not in

accordance with law. Thus, the Court denies PTP’s Motion for Judgment on the Administrative

Record and grants the United States’ Cross-Motion for Judgment on the Administrative Record.

Because this protest principally challenges USSOCOM’s contemporaneous evaluation of PTP’s

proposal, the Court will address that issue before turning to PTP’s other challenges.

A. The Agency’s Contemporaneous Evaluation Of PTP’s Proposal Was Not Arbitrary,

Capricious, Or Otherwise Not In Accordance With The Law

PTP’s principal challenge in this protest alleges that USSOCOM’s rating of

“Unacceptable” for the Factor 1 (Technical) IDIQ Management, Capabilities element of PTP’s

proposal was arbitrary, capricious, or otherwise contrary to law. (See generally Compl.; Pl.’s

Mem. at 17–26). According to PTP, “the SSEB’s written evaluation misreported the contents of

the PTP proposal tables to the SSA and shows the Agency ignored the narrative information

demonstrating Team PTP’s capabilities.” (Compl. at 29; Pl.’s Mem. at 18, 23–26; Pl.’s Reply at

13–15, ECF No. 20). PTP argues that USSOCOM deviated from the terms of the solicitation by

“apparently evaluat[ing] PTP’s proposal as though a narrative explanation for every one of the

SOW representative tasks was a precondition to satisfying the Capabilities sub-element,” (Pl.’s

Mem. at 20), and exhaustively explains why it believes its proposal satisfied the Capabilities

element. 3 (Compl. at 29; Pl.’s Mem. at 9–10, 17–26). Additionally, PTP argues that the

Agency’s evaluation of the Capabilities portion of PTP’s proposal is inconsistent with the Past

Performance evaluation. (Pl.’s Mem. at 26–27). These arguments fail to show that USSOCOM’s

contemporaneous evaluation of PTP’s proposal was arbitrary, capricious, or otherwise not in

accordance with law.

3 PTP interweaves other arguments throughout this discussion, namely that the Agency evaluated

PTP’s proposal differently than other offerees and that the Agency allegedly admitted that its

contemporaneous evaluation of PTP was flawed based on statements made during debriefing and

before the GAO. (See Compl. at 27–35). However, because these challenges go beyond the

Agency’s contemporaneous evaluation of PTP and are addressed separately in the parties’ briefs,

the Court addresses those challenges later in this Opinion.

The Solicitation explained that for the Program Management portion of Volume II, which

encompassed the Capabilities element, “[t]he Government will evaluate the extent to which the

offeror’s overall Program Management Plan demonstrates a sound, practical methodology for

satisfying the requirements stated in the solicitation. The assessment will focus on the offeror’s

ability to ensure all resources are available to successfully execute SCS requirements.” (AR

565). With regard to the Capabilities element, the Solicitation explained: