Rocky Mountain Mobile Medical v. United States

In the United States Court of Federal Claims

No. 20-1936C

(Filed: March 18, 2021)

(Re-Filed: April 6, 2021) 1

*********************

ROCKY MOUNTAIN MOBILE MEDICAL,

Plaintiff,

v.

Bid protest; pre-award bid

THE UNITED STATES,

protest; FAR 13.106-3(a)

(2008); exchanges; best value

Defendant,

determination.

and

MEDEXPRESS AMBULANCE SERVICES, INC.,

Intervenor.

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Shaun C. Kennedy, Denver, CO, for plaintiff, with whom was Thomas

A. Morales and Hannah E. Armentrout, of counsel.

Geoffrey M. Long, Trial Attorney, United States Department of

Justice, Civil Division, with whom were Brian M. Boynton, Acting Assistant

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

Mickle, Assistant Director, for defendant. Maj. Laura B. Bauza, United

States Air Force, of counsel.

Bradley L. Drell, Alexandria, LA, for intervenor.

1

This opinion was originally issued under seal in order to afford the parties

an opportunity to propose redactions of protected material. The parties filed

a joint document with proposed redactions on April 1, 2021 (ECF No. 49).

We thus reissue this opinion with the proposed redactions.

OPINION

BRUGGINK, Judge.

In this post-award bid protest, Rocky Mountain Mobile Medical

(“RMMM”), alleges that the U.S. Department of the Air Force, U.S. Space

Force (the “Air Force”) failed to conduct a fair and rational evaluation of

each offeror’s quotation in accordance with the solicitation and the Federal

Acquisition Regulation (“FAR”), resulting in a flawed contract award

decision. Plaintiff filed a motion for judgment on the administrative record

on January 22, 2021. Plaintiff seeks a permanent injunction preventing the

agency and intervenor, MedExpress Ambulance Services, Inc.

(“MedExpress”) from commencing performance on the contract, requiring

the agency to conduct a reevaluation of quotations in accordance with the

solicitation, and requiring the agency to create a new award determination.

The government and intervenor filed their respective responses and the

government also filed a cross-motion for judgment on the administrative

record, all of which are fully briefed.

Oral argument was held on March 12, 2021. Because the agency

properly documented its decision and its analysis was reasonable, we grant

defendant’s motion for judgment on the administrative record and deny

plaintiff’s motion.

BACKGROUND 2

On May 8, 2020, the Air Force issued a solicitation seeking quotations

from contractors to perform ambulance services at two military installations

in Colorado Springs, Colorado, Peterson Air Force Base (“PAFB”) and

Schriever Air Force Base (“SAFB”). The contract was for a twelve-month

base year and four twelve-month option years, including a pre-priced 6-

month extension of services. The agency set aside the solicitation as “100%

For Small Business.” Solicitation, AR 43 (ECF No. 34 at 43).

According to the representations made by the parties during the status

conference held on December 23, 2020, it is apparent that plaintiff formerly

served as the incumbent on the SAFB military installation contract.

Following the agency’s award of this contract to MedExpress and plaintiff’s

subsequent GAO protest, however, the agency elected to utilize a third-party

bridge contract to service that base during the pendency of this protest.

2

The facts in the background are derived from the administrative record

(ECF No. 34).

2

Additionally, the second location, the PAFB military installation contract, is

currently being serviced by another contractor.

The solicitation stated that the agency would select the quote

providing the best value to the government considering technical capability,

past performance, and price. The solicitation also allowed the government

to perform a tradeoff between past performance and price, if it determined

that to be justifiable and if it would result in providing the best value to the

government. AR 256.

The Air Force indicated in the solicitation that this would be “a

competitive selection conducted in accordance with [FAR] 13.106-2(b)(3).”

AR 258. There was no indication in the solicitation that FAR Part 15

procedures would be used. Though not included in the solicitation, the Air

Force checked boxes in the streamlined acquisition strategy summary

(“SASS”) indicating that it would use the procedures of FAR Part 13 entitled,

“Simplified Acquisition Procedures (“SAP”),” but did not check the box that

would indicate that it was using FAR 15 procedures. AR 458. In the SASS,

the agency gave its reasoning for selecting FAR 13 procedures and stated

that because the “acquisition is less than $7M,” it would be able to utilize the

SAP described in FAR Part 13. AR 458. Although, as plaintiff points out,

the solicitation notified bidders that “exchanges” might be “conducted with

one, some, or all offerors,” the term exchanges does not appear in FAR Part

13, but it does appear in FAR Part 15. AR 258.

Offerors were required to submit proposals in three separate

volumes—technical capability, past performance, and price. The evaluation

was based upon the ratings of these three factors. Technical capability was

evaluated on a pass/fail basis. It was comprised of two subfactors, staffing

and response time. To receive a “pass” rating for the technical capability

factor, both of its subfactors had to receive a “pass” rating. If a proposal

received a “fail” rating for either subfactor, then the proposal was not

considered for award. A proposal’s technical capability had to receive a

“pass” rating to proceed to the past performance and price evaluation. This

volume was not to exceed six pages double-spaced, excluding a table

depicting the staffing plan.

Past performance was assessed on an overall performance confidence

rating including “substantial confidence,” “satisfactory confidence,” “neutral

confidence,” “limited confidence,” or “no confidence.” AR 257. The

solicitation required offerors to submit two recent past performance reference

citations. For each past performance reference citation, the agency assigned

recency, relevancy and quality ratings. The solicitation defined recency as

3

“work completed or ongoing during the 3 years prior to the solicitation

issuance of 08 May 2020.” AR 255. After evaluating the recency of a past

performance, the agency would then assign a “recent” or “not recent” rating.

If a past performance reference received a “not recent” rating, then it would

not be evaluated for relevancy or quality, and the reference would not receive

an overall performance confidence rating.

The solicitation defined relevancy “as a present or past performance

effort involving similar scope, magnitude, and complexity of effort as this

solicitation.” AR 256. If a past performance reference received a “not

relevant” rating, then the evaluation process was to end at that point, and the

reference would not be evaluated for quality or given an overall performance

confidence rating.

The quality assessment was based upon past performance reference

citations, the quality assessment definitions listed in table one of the

solicitation, and information independently obtained by the Contracting

Officer (“CO”). The agency then assigned an overall performance

confidence rating based upon the definitions listed on Table two of the

solicitation. AR 257.

Price was evaluated in accordance with FAR 13.106-3(a) (2008), after

the technical and past performance evaluations, to determine if the proposed

price was reasonable and balanced. The solicitation required offerors to

submit a firm-fixed price quote and detailed pricing data specifying the unit

price and the extended amount for each contract line item number.

A. Evaluation

On July 7, 2020, the submission deadline, the agency received six

proposals from six different offerors: Contractor A, RMMM, MedExpress,

Contractor D, Contractor E, and Contractor F.

The agency completed a preliminary review of all six offers for

compliance with the solicitation instructions and initially found that three of

the six were “non-compliant,” including Contractor D, Contractor F, and

Contractor A. 3 AR 491. “Exchange notices” were sent to these three

3

Contractor D had pricing inconsistencies (essentially rounding errors) that

were resolved. Contractor F did not submit any past performance references

and stated they did not have DoD experience, but submitted two (2) non-

DoD references as a result of the exchanges. Contractor A had rounding

issues with pricing and technical volume was more than six (6), which

4

offerors, however, and all six offers were considered compliant after the

issues were resolved. RMMM argues that these exchanges were an

indication that the agency elected to use elements of FAR Part 15.

MedExpress also included a three-page introduction letter along with

its technical submission. Because the package collectively exceeded the six

page limit, the Contracting Officer, Ms. Sheri L. Burks (“ CO”) removed the

introductory material before forwarding the technical capability volume for

evaluation. RMMM contends that MedExpress’s inclusion of the three-page

introductory letter rendered its submission non-compliant and that its

submission should have been excluded; that it was error for the CO to simply

remove the introductory letter.

The agency convened a Technical Evaluation Team (“TET”) to

evaluate the technical capability of each quotation on a “pass/fail” basis.

With the exception of Contractor A, all the offerors received an overall rating

for both subfactors of “pass.” Contractor A received a “fail” rating for not

meeting the response time requirements, making it ineligible for award.

The CO then evaluated the remaining five quotes for past performance

and price. Both Contractor D and MedExpress received an overall

“substantial confidence” rating. RMMM received an overall “satisfactory

confidence” rating. Contractor E received an overall “neutral confidence”

rating, and Contractor F was not rated because the references it provided

were not deemed relevant in accordance with the solicitation’s definition for

relevancy. The CO’s evaluation of each offeror’s past performance is

depicted in table one below:

Table 1: Past Performance Evaluation

Offeror Recency Per Relevancy Per Quality Rating Overall

Citation Citation Per Citation Confidence

Rating

Ref 1 Yes Ref 1 Yes Marginal Satisfactory

RMMM

Ref 2 Yes Ref 2 Yes Satisfactory Confidence

CPAR Yes CPAR Yes Satisfactory

S S

CPAR Yes CPAR Yes Satisfactory

S S

Ref 1 Yes Ref 1 Yes Exceptional Substantial

Contractor D Confidence

Ref 2 Yes Ref 2 No Not Rated

exceeded the page limit per the instructions in 52.212-1 but corrected the

pricing and technical volume to six (6) pages after exchanges.” AR 491.

5

Ref 1 Yes Ref 1 Yes Exceptional

MedExpress Ref 2 Yes Ref 2 Yes Satisfactory Substantial

Confidence

CPAR Yes CPAR Yes Exceptional

S S

Ref 1 Yes Ref 1 Yes Satisfactory Neutral

Contractor E Ref 2 Non- Ref 2 Non- Non-Rated Confidence

Respon Respon (Non-

sive sive Responsive

)

Ref 1 Yes Ref 1 No Not Rated Not Rated

Contractor

Ref 2 Yes Ref 2 No Not Rated

F

AR 498.

MedExpress received an overall “substantial confidence” rating based

on information provided by the references and/or information available in

the Contractor Performance Assessment Reporting System (“CPARS”)

reports or the Past Performance Information Retrieval System (“PPIRS”)

reports as part of an independent Government assessment. The CO found

that MedExpress had “exceptional” and “satisfactory” quality ratings,

allowing the government to have confidence in the contractor’s ability to

successfully perform the contract. MedExpress submitted two references,

both of which the CO determined were “recent” and “relevant” reference

citations. Both references stated that MedExpress was an excellent partner

and that they would award another contract to MedExpress. Additionally,

the CO found that the contractor never provided services using expired

vehicle permits, nor experienced staffing issues or delays. The CO also

found that all of MedExpress’s quality ratings were “satisfactory” or

“exceptional,” resulting in an overall “substantial confidence” rating.

RMMM takes issue with the overall confidence rating assigned to

MedExpress, contending that it should have been no higher than “neutral.”

MedExpress’s first reference was for an ambulance services contract

at Creech Air Force Base in Nevada. The reference for this contract was [

], the CO for the contract at Creech Air Force Base, who gave the following

response to the question, “Has there ever been a time when the contractor did

not have current employee certifications or vehicle permits?”: “No; there has

not been anytime that contractor did not have current employee certifications

or vehicle permits.” AR 495. She also gave the following response to the

question, “Would you award another contract to this contractor? Why/why

not?”: “Yes; Definitely would award another contract to this contractor.

Their support to Creech EMS has been an outstanding partner.” AR 495.

6

MedExpress’s second reference was for its contract for ambulance

services with the Louisiana Rural Ambulance Alliance, Inc. (“LRAA”), in

which it provided “emergency medical response in the form of ambulance

and/or personnel in times of disaster and in cooperation with Federal, State,

and Local Governments.” AR 489. MedExpress further explained that it had

performed “[m]ost recently to respond to the COVID pandemic in the New

Orleans, Louisiana area.” AR 489. The contract type was indicated as firm-

fixed-price at [ ] per day, and the contract was awarded competitively in

2017 with performance ongoing. AR 489. MedExpress also submitted

information that the LRAA contract’s annual dollar amount was “[to be

determined], 2020 [year to date]: [ ].” AR 831.

The Air Force solicited further information about the LRAA contract

from [ ], the CEO of LRAA. [ ] gave the following response

to the question, “Did the contractor exhibit/experience staffing issues or

delays during performance?”: “Med Express has never experienced staffing

issues or delays during performance. Med Express has consistently

performed above expectations and provided leadership for not only Med

Express crews but for other services responding.” AR 495.

[ ] also gave the following response for MedExpress to the

question, “Has there ever been a time when the contractor did not have

current employee certifications or vehicle permits?”: “We have activated our

contract with Med Express over seven times in the last 3 years; for every

response/event MedExpress has always had current employee certifications

and vehicle permits.” AR 495. Additionally, the CPARS report for

MedExpress from September 2018 to September 2019 reflected

“exceptional” ratings in quality, schedule, and management.

Contractor D received an overall “substantial confidence” rating

based on information provided by the references and/or information available

in CPARS/PPIRS reports as part of an independent Government assessment.

Similar to the past performance citations that MedExpress received,

Contractor D also received high praise in responses from its three references.

Although only one of the references cited was considered “relevant,” overall

the quality rating provided for the recent and relevant reference citation was

exceptional, leading to a “substantial confidence” rating overall. RMMM

argues that this was error; that Contractor D should have been excluded

because only one of its references was found to be relevant.

RMMM received an overall “satisfactory confidence” rating based

upon information provided by the references and information available in

CPARS/PPIRS reports as part of an independent Government assessment.

7

RMMM received a “marginal” quality rating for its services at SAFB

because the contractor provided these services using ambulance vehicles

with expired permits and unpermitted vehicles. Additionally, after an

inspection that occurred in May 2020, the government found that RMMM

used “expired supplies, medications, and missing equipment vital to

emergency services.” AR 499. Although these deficiencies were corrected

in about three weeks during RMMM’s contract with SAFB, these issues

lowered the government’s confidence that RMMM could successfully

perform medical services according to solicitation requirements. RMMM

argues that it should have been afforded the opportunity through “exchanges”

to provide ameliorating information and that not receiving that opportunity

was prejudicial error.

RMMM offered two reference citations, the first reference was from

its contract at the SAFB, and was submitted by [ ], a CO at this Air

Force Base. He gave the following response to the question, “Would you

award another contract to this contractor? Why/why not?”:

No, after an anonymous tip from a former employee a thorough

inspection was conducted for the contract. That inspection

showed that the contractor had been using expired medical

equipment to perform services on Schriever AFB. Attached is

a copy of the cure notice that was provided to the contractor.

Due to the contractor’s previous discrepancies, Schriever AFB

has been conducting more thorough and frequent inspections

to ensure the contractor is continuing to perform contractually.

The contractor did cure their deficiencies, but the confidence

that we had in their ability to protect Schriever was greatly

diminished.

AR 496. A response by the same reference to the question, “Has there

ever been a time when the contractor did not have current employee

certifications or vehicle permits?” was as follows: “Yes; there was an

ambulance that expired April 2019, Feb 2019, and an ambulance that was

never permitted.” AR 496. Although RMMM had been given the

opportunity to address the negative past performance references and cured

the discrepancies noted while completing its contract at SAFB, the Air

Force’s confidence in the contractor’s ability to successfully perform was

impacted according to the reference citation. The quality rating assigned for

that reference citation was “marginal.”

The second reference was from its contract at the United States Air

Force Academy (“USAFA”) in Colorado Springs, CO, and was submitted by

8

[ ], a contracting specialist at this location. [ ] gave the

following response to the question, “Would you award another contract to

this contractor? Why/why not?”: “Yes, they have proven to perform in an

environment that is not without risk and demands customer satisfaction.

While I would always encourage competition to check the market conditions,

they have in previous acquisitions for USAFA presented economical and

satisfactory performance over time.” AR 496. A response by the same

reference to the question, “Did the contractor exhibit/experience staffing

issues or delays during performance?” was as follows: “Never to the point of

jeopardizing the mission, had few to no corrective action reports over

previous and current contract which were immediately addressed. Appears

to be normal management/staff turnover and associated learning curve that

comes with this turnover.” AR 496. The quality rating assigned for that

reference citation was “satisfactory.”

Additionally, the CPARS assessed for contract FA700014C0009 for

the period Oct 2018-Mar 2019 reflected a “satisfactory” in quality, a

“marginal” in schedule, and a “satisfactory” in management for a satisfactory

quality rating for that citation. The CPARS assessed for contract

FA255016C0001 for the period Oct 2018-Sept 2019 reflected a

“satisfactory” in quality, a “satisfactory” in schedule, and a “satisfactory” in

management, with an overall “satisfactory” quality rating for that citation.

Finally, the CO evaluated price in accordance with FAR 13.106-3(a)

to determine if the offeror’s quoted price was reasonable and balanced.

Because the solicitation states that price will only be assessed on quotes that

received a “pass” rating for both technical subfactors, only the five quotes

which received a “pass” in technical capability were evaluated for price:

Table 2: Price Evaluation

Offeror Technical Quality Overall Total Price Difference in

Capabilit Rating Per Confidence Price compared

y Citation Assessment to the IGE

Rating

[ ] [ ] [ ] [ ] [ ] [ ]

RMMM PASS Marginal, Sat, Satisfactory $4,677,600.00 [ ]

Sat, & Sat Confidence

PASS Exceptional & Substantial [ ] [ ]

Contractor Not Rated Confidence

D

MedExpre PASS Exceptional, Substantial $5,282,100.00 [ ]

ss Sat, & Confidence

Exceptional

9

Contractor PASS Sat & Non- Neutral [ ] [ ]

E Rated (Non- Confidence

Responsive)

PASS Not Rated & Not Rated [ ] [ ]

Contractor

Not Rated

F

AR 500.

The CO conducted a price analysis comparing MedExpress’s quoted

priced to the Independent Government Estimate (“IGE”) for the base period

and all option years, which also included the pre-priced 6-month extension.

She found that MedExpress’s prices for the base period was [ ] than the

IGE of [ ] and [ ] for the option years. In conclusion, the CO

determined that MedExpress’s evaluated price of $5,282,100.00 was fair and

reasonable in accordance with FAR 13.103-3(a)(1).

The CO stated that the solicitation allows the government to select an

offer providing the best value considering all three factors. In her best value

analysis, the CO stated that although the technical and past performance

factors, when combined, are approximately equal to price, the solicitation

allows the government to perform a tradeoff between past performance and

price, if it determines that it is justifiable and will result in the best value for

the government. Here, the CO found that although MedExpress’s price was

higher than RMMM’s total price, MedExpress provided a higher overall

performance confidence rating warranting a tradeoff with RMMM, which

provided a lower overall performance confidence rating.

The CO determined that significant value for the agency in terms of

quality, schedule, and management exists between the past performance

“satisfactory” and “substantial confidence” ratings, and thus, she found that

paying slightly more for higher past performance ratings constituted the best

value for the government. 4 The CO concluded that paying an additional

4

The CO explained that a contractor receiving a “substantial confidence”

rating, with documented excellent past performance, gives the government

confidence that “there is little to low risk in operations, compliance, legal,

quality, and unsuccessful performance of these vital, life-saving, mission

essential, emergency services.” AR 499. She also stated that a “satisfactory

confidence” rating gives the government “a reasonable expectation that [the

contractor] can perform these critical lifesaving services, however,” because

issues exist with the contract, the government has questions regarding

whether the contractor would be successful in executing the contract. AR

499.

10

$604,500.00 over the course of five years of performance on the contract (the

difference between $4,677,600.00 and $5,282,100.00), an additional

$120,900 per year, was justifiable in view of the appreciable difference in

past performance ratings. This represented less than a 13% difference over

the contract’s lifetime. The CO found, however, that performing a similar

tradeoff between RMMM and Contractor D was not necessary. Contractor

D’s quoted price was $1,404,312.00 more than RMMM’s, while both

Contractor D and MedExpress received the same “substantial confidence”

rating.

MedExpress’s past performance evaluation showed that it filled all

required positions on time with the “necessary education, experience and all

required certifications/licensing in accordance with the contract requirement

and specifications 97% of the time during performance.” AR 498.

MedExpress was evaluated as “very responsive when it comes to responding

to any issues or concerns 95% of the time as well as very professional and

adheres to what is required to provide continued mission support.” AR 498.

The CO noted that the contractor was reported as actively responding to

concerns with personnel to prevent any service issues within its control 98%

of the time, and that MedExpress complied with regulations and proactively

communicated regarding questions and concerns during performance.

Because MedExpress’s past performance was exceptional, she concluded

that the government could be confident that it would meet and exceed the

contract requirements concerning quality, schedule, and management.

B. Exchanges Prior to Award

The solicitation stated that the agency was not required to conduct

exchanges with all offerors, but that exchanges might be conducted with

“one, some, or all offerors.” AR 258. The Air Force did in fact conduct what

it characterized as exchanges prior to award, but only with Contractor F and

Contractor A, regarding discrepancies with their respective quotes. The Air

Force advised Contractor F that its quote failed to comply with the

solicitation in that it did not submit past performance references as required

by solicitation Addendum 52.212-1, section 1.4. AR 526. Although

Contractor F submitted a past performance narrative, it failed to include the

required references. Contractor F responded to the exchange notice that

same day and provided the two past performance references. On July 16,

2020, the agency sent Contractor F a second exchange notice asking it to

address the technical acceptability requirement by providing a single-page

explanation of how it would ensure employee compliance with certifications

and licenses during contract performance. Contractor F furnished a single-

page response.

11

On July 17, 2020, the Air Force sent a third exchange notice to

Contractor F, concerning the technical acceptability of Contractor F’s quote.

The agency notified Contractor F that its quote was deficient because it

“restate[d] the requirement(s), [and] mention[ed] training, but [did] not

include a clear approach for meeting the 8-minute response time.” AR 539.

Contractor F was permitted to submit a single-page response to correct this

discrepancy, which it did on July 20, 2020.

On July 7, 2020, the agency notified Contractor A that its technical

capability volume exceeded the six-page limit and that its prices were not

rounded to the nearest dollar. Contractor A submitted a revised technical

capability volume and corrected its pricing. The agency sent a second

exchange notice to Contractor A on July 16, 2020, stating that its quote was

deficient because it failed to provide a plan to meet the eight-minute response

time requirement. Contractor A responded the next day. Contractor A’s

revised approach still did not meet the response time requirements and it later

withdrew from the competition.

RMMM contends that, like Contractor F and Contractor A, it should

have been notified of the agency’s concerns about its own past performance

references. If it had been, it argues, RMMM could have explained or

corrected the problems.

C. RMMM’s Protest at GAO

On September 17, 2020, the Air Force notified RMMM that its quote

was not selected for award. RMMM filed a protest with the Government

Accountability Office (“GAO”) on September 24, 2020. The basis for its

challenge was that the agency allowed MedExpress’s technical volume to

exceed the page limit and because its evaluation of past performance was

unreasonable. RMMM argued that the agency should have ignored

everything after the first six pages of the technical proposal, including the

three-page introduction letter, effectively proposing that half the technical

proposal be ignored. GAO dismissed the protest on December 16, 2020,

concluding that the agency could and did sever MedExpress’s introductory

letter from the technical capability volume; it was not necessary to consider

only the three-page letter of introduction and the first three pages of the

awardee’s technical quotation. Rocky Mountain Mobile Med., B-418788.2,

2020 WL 7698817 (Comp. Gen. Dec. 23, 2020). The GAO also found that

the Air Force was reasonable in its evaluation of RMMM’s past performance

references. Id.

12

On September 17, 2020, the Air Force notified MedExpress that it

would be the awardee. Rocky Mountain filed its bid protest here on

December 21, 2020. Award has not yet occurred, pending resolution of this

protest.

DISCUSSION

Our review is deferential in accordance with the standard set forth in

the Administrative Procedures Act, 5 U.S.C. § 706, which is to say that we

review agency action in a procurement for illegality and a lack of rationality.

Impressa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d

1324, 1332-33 (Fed. Cir. 2001). So long as the agency’s decision was not

irrational or otherwise illegal, we will leave it undisturbed.

RMMM brings four challenges: (1) the agency was required to, but

did not, conduct discussions with RMMM to address adverse past

performance information; (2) MedExpress’s technical capability volume

should have been excluded as noncompliant; (3) the agency’s overall

performance confidence rating was irrational because it incorrectly

concluded that MedExpress’s LRAA past performance reference was

“relevant”; (4) the agency treated RMMM unequally by relaxing its past

performance evaluation of Contractor D and assigning it an overall past

performance assessment of “substantial confidence,” rather than “neutral

confidence,” despite the fact that Contractor D only had one relevant past

performance reference. Plaintiff seeks permanent injunctive relief to enjoin

the Air Force from continuing its award to MedExpress.

When considering whether to grant a permanent injunction, the court

must consider whether “(1) the plaintiff has succeeded on the merits, (2) the

plaintiff will suffer irreparable harm if the court withholds injunctive relief,

(3) the balance of hardships to the respective parties favors the grant of

injunctive relief, and (4) the public interest is served by a grant of injunctive

relief.” Centech Grp., Inc. v. United States, 554 F.3d 1029, 1037 (Fed. Cir.

2009). Although an award of injunctive relief is based on consideration of

this four-factor test, failure to achieve success on the merits is dispositive.

See Career Training Concepts, Inc. v. United States, 83 Fed. Cl. 215, 219

(2008) (“[A] permanent injunction requires actual success on the merits.”).

For the reasons below, we find that all four of plaintiff’s challenges lack merit

and it is therefore unnecessary to consider the last three factors. We consider

each of plaintiff’s arguments in turn.

A. The Air Force Reasonably Conducted Exchanges with Offerors by

Following the Simplified Acquisition Procedures of FAR Part 13

13

RMMM argues that the Air Force failed to conduct discussions in

accordance with FAR 15.306 and FAR 15.307, and thus, the agency’s

evaluation was arbitrary and capricious. Although plaintiff acknowledges

that the solicitation was issued under FAR Part 13 procedures, and that these

procedures provided the agency more flexibility than FAR Part 15, it argues

that by conducting exchanges with some offerors, the agency signaled its

intent to incorporate elements of FAR Part 15 generally. Thus, once the

agency elected to exercise its right to conduct discussions under the SAP of

FAR Part 13, the agency was obligated to comply with both the procedural

requirements of FAR 15.306 and FAR 15.307.

There is no question that the agency engaged in what it termed

exchanges with two of the offerors, and that such exchanges are more

typically associated with FAR Part 15 procedures. Indeed, there is no

reference to them in FAR Part 13. As plaintiff points out, FAR Part 13 gives

the contracting officer broad discretion in fashioning suitable evaluation

procedures, including the possibility of incorporating procedures prescribed

in Parts 14 and 15. FAR 13.106-2(b)(1). RMMM’s argument is that, having

chosen, in effect to exercise this option, the agency did not go far enough and

failed to apply the exchange process to plaintiff.

RMMM argues that what the agency did was conduct discussions

under FAR 15.306(d)(3) which requires the CO to “indicate to, or discuss

with, each offeror still being considered for award, deficiencies, significant

weaknesses, and adverse past performance information to which the offeror

has not yet had an opportunity to respond.” FAR 15.306(d)(3). Having done

so, it argues that the agency’s communications were unequal because the

agency did not disclose adverse past performance deficiencies to RMMM

and did not permit it to explain the deficiencies. 5 RMMM also argues that

the discussions violated FAR 15.307(b) which requires that each contractor

5

RMMM claims that, contrary to [ ] response, it maintained the Colorado

Department of Revenue Emergency Vehicle Equipment Authorization and

El Paso County Board of County Commissioners Ambulance Service

License without lapse. RMMM states that it would have “further explained

that the local El Paso County permit referenced by [ ] did not even

apply to Rocky Mountain’s performance of the SAFB contract.” Pl’s Mem.

at 34. Plaintiff adds that it would have also explained mitigating information,

that the expired medical supplies referred to in [ ] response are included

on the U.S. Federal Drug Administration’s Drug Shortage List because of a

supply chain shortage caused by the COVID pandemic.

14

“be given an opportunity to submit a final proposal revision” at the

conclusion of discussions. FAR 15.307(b).

The most basic difficulty with plaintiff’s argument is that the agency

did precisely what it advertised it would do: have exchanges with some but

not all bidders. There is a clear warning in the solicitation that the agency

reserved the right to conduct “exchanges” with some, all, or none of the

bidders. RMMM thus got precisely what it gambled on. 6 If, as plaintiff

argues, the possibility of exchanges would seem to be a reference to FAR

Part 15, the agency simultaneously disavowed such an intent by stating that

such communications could be with a limited number of bidders, which, as

plaintiff currently argues, was something the agency did not have the option

of doing. Plaintiff contends that the exchanges actually held were conducted

pursuant to 15.306(d), which specifically requires access by all bidders to the

exchange process.

In addition, if RMMM thought that the agency’s description of

potential exchanges was inconsistent with FAR Part 15, the time to complain

of that was prior to bidding. 7 While it argues that it was fooled into thinking

that perhaps the agency had in mind the more selective, benign

communications offered by 15.306(a) or (b), the solicitation is not so limited.

The potential for mischief should have been apparent. In any event, the

solicitation did not contemplate use of a competitive range, which is

presumed under section 15.306(b) and (d), another dissonance which

RMMM should have picked up on.

Plaintiff responds that Dubinsky v. United States, 43 Fed. Cl. 243

(1999), stands for the proposition that a solicitation conducted pursuant to

FAR Part 13, must also comply with the procedural requirements of FAR

15.306 and FAR 15.307, as “it is not ‘appropriate’ for an agency to cherry-

pick which FAR Part 15 procedures to apply.” Pl. Mem. at 22-23 (citing

Dubinsky, 43 Fed. Cl. at 264). The facts of Dubinsky are distinguishable,

however. The agency in that case did not inform offerors that the agency

was using SAP under FAR Part 13, nor did the solicitation specifically warn

bidders of the possibility of exchanges with some bidders. As a result, the

6

The GAO has found that it was “not legally objectionable” for a CO to

follow a provision of a solicitation that reserved the right to conduct

discussions with any or all offerors, even where that solicitation was issued

pursuant to FAR 13. Oregon Innovative Products, B- 231767, 1988 WL

227585 (Comp. Gen. Aug. 2, 1988). We agree.

7

Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1313 (Fed. Cir.

2007).

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Dubinsky court was “obligated to analyze the agency’s conduct under the

rubric of Part 15.” Id. The court noted that “[i]f simplified procedures under

Part 13 had been utilized, then many of plaintiff’s concerns about the conduct

of discussions in this procurement would be irrelevant,” because “[t]he

simplified acquisition procedures in Part 13 allow contracting officers

considerable flexibility in the contract award process.” Id. at 254. 8 Of course

such simplified procedures were called out in this procurement.

In short, the agency may have announced the creation of a platypus of

a procurement, drawing bits and pieces from various practices, but RMMM

cannot legitimately complain that it had reason to be surprised at what

actually happened. Alternatively, RMMM was on notice that the agency had

created what it argues now is a potentially illegal syncretism of processes.

B. The Agency Rationally Evaluated MedExpress’s Technical

Capability Volume

RMMM argues that because the solicitation limited the technical

volume to six pages and warned that quotes not meeting the solicitation

requirements “may be considered non-compliant,” the agency should have

considered MedExpress’s proposal as non-compliant for exceeding the page

limit. AR 245. While the CO removed MedExpress’s introductory letter

before referring the technical proposal to the TET, RMMM argues that the

proper response should have been to disqualify the entire proposal or

evaluate only the first six pages of the total submission. Pl’s Mem. at 39

(citing Board of Regents of Nev. Sys. of Higher Educ. on Behalf of Desert

Res. Inst. v. United States, 132 Fed. Cl. 435, 452 (2017)). RMMM asserts

that it was prejudiced because MedExpress’s introduction letter provided a

description of MedExpress’s experience with similar projects, its technical

capabilities, and approaches to ambulance service performance.

The government responds that the agency enforced the page

requirement for the technical capability volume because the CO submitted

8

In its reply, plaintiff argues that the court’s alternative holding in Dubinsky

supports its argument that the Air Force was required to follow FAR Part 15.

We disagree. In Dubinsky, the court alternatively found that even if that

procurement was conducted under FAR Part 13, FAR 15.307(b) would apply

because “defendant conceded that FAR 15.306 applied.” Dubinsky, 43 Fed.

Cl. at 263. The court held that, having conceded that FAR 15.306 applied to

that procurement, the agency could not sever the applicability of FAR

15.307(b). Here there was no such concession.

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the copy of MedExpress’s technical capability volume, but not the

introductory letter. Indeed, plaintiff concedes that there is no indication in

the record that the agency ever reviewed the introduction letter. Pl’s Mem.

at 38. The government also argues that there is no authority limiting the Air

Force to either rejecting the proposal or lopping the last three pages off.

We agree with the government. The CO was reasonable in enforcing

the page-limit requirement by discarding MedExpress’s introductory letter

prior to sending the balance to the evaluators. 9 In the absence of any

evidence that the introductory letter impacted the evaluation, the letter of

introduction did not give MedExpress any advantage over the others. 10

C. The Air Force Rationally Found MedExpress’s Past Performance

Relevant

RMMM asserts that the Air Force irrationally found that the past

performance reference for MedExpress’s LRAA contract was relevant,

resulting in an irrational overall performance confidence assessment rating

for MedExpress. RMMM argues that the agency failed to show adequate

justification for its decision that MedExpress’s LRAA past performance

reference satisfied the relevancy requirement. RMMM also asserts that the

agency relied on MedExpress’s description of its work performed under the

LRAA contract, without conducting its own investigation to verify its

relevancy.

RMMM contends that MedExpress’s LRAA contract was not relevant

under the solicitation’s definition, which defined relevancy as “a past or

present past performance effort involving similar scope, magnitude, and

complexity of effort as this solicitation.” AR 256. RMMM argues that there

are several issues with MedExpress’s LRAA contract, causing the past

9

Plaintiff’s argues in its reply that the Air Force’s “acceptance of

MedExpress’s noncompliant proposal,” constituted an inconsistent

application of the solicitation requirements because the Air Force required

Contractor A to revise its noncompliant proposal. Pl’s Reply at 18. (ECF

No. 40 at 18). By disregarding the introductory letter, however, the Air Force

enforced the page-limit requirement.

10

In Board of Regents, the CO’s decision to include the preliminary materials

in the page limit rather than excluding them, was in accordance with the

solicitation and the decision thus does not represent a controlling rule of

procurement law. Board of Regents, 132 Fed. Cl. at 452.

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performance to fall short of the solicitation’s definition requirement that the

contract be similar in magnitude and complexity.

First, RMMM argues that although MedExpress’s past performance

volume indicated that the price of the LRAA contract was “[ ] per day,”

the volume lacked detail on the number of days included in the contract

performance. AR 489. It points out that the LRAA contract reference, [

], stated that the LRAA “activated [its] contract with Med Express over seven

times in the last 3 years,” without, however, providing any further

information on the total number of days of contract performance. AR 320.

Plaintiff argues that the agency did not explain how it came to the conclusion

that the contract’s total dollar value was over [ ]. Thus, RMMM

contends that there was no basis to conclude that the LRAA contract was

similar in magnitude to the solicitation.

RMMM also argues that MedExpress’s LRAA contract lacks the

same “complexity of effort” required by the solicitation’s relevancy

definition. RMMM states that the only similarity between the two contracts

is that they are both for ambulance services. RMMM argues that the LRAA

contract and the current solicitation are dissimilar, as the LRAA was for as

services as needed and was an augmentation to the services of other entities,

whereas the present solicitation requires the contractor to be the sole provider

of services 24 hour per day services, every day of the year. Additionally, the

LRAA contract was not providing services at a federal facility, while this

solicitation requires services to be provided at a military installation. Thus,

plaintiff argues that the agency’s relevancy assessment of the LRAA contract

was arbitrary and capricious.

RMMM thus concludes that MedExpress’s past performance volume

only provided one relevant reference, disqualifying it from receiving a

“substantial confidence” rating. Instead, because MedExpress’s LRAA past

performance reference was not relevant to the solicitation, it should have

been assessed a “neutral confidence” rating.

We disagree. The agency’s evaluation of MedExpress’s past

performance LRAA contract reference was rational. First, the solicitation

points out that “The past performance assessment [is] subjective.” AR 255.

While the determination is subject to a review for reasonableness, the Federal

Circuit has held that an agency’s “determination of relevance is owed

deference as it is among ‘the minutiae of the procurement process,’” which

this court “‘will not second guess.’” Glenn Def. Marine (ASIA), PTE Ltd. v.

United States, 720 F.3d 901, 911 (Fed. Cir. 2013) (quoting E.W. Bliss Co. v.

United States, 77 F.3d 445, 449 (Fed. Cir. 1996)).

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RMMM’s claim that the agency’s determination of the LRAA

contract’s total dollar value was not supported by the record is refuted, as it

conceded during oral argument, by the amended record which includes

MedExpress’s statement that the LRAA contract’s total dollar value was [

] as of August 27, 2020. AR 831. As to RMMM’s assertion that the LRAA

effort is not similar in complexity to this solicitation, this solicitation does

not define complexity, and the agency’s relevancy assessment was within its

discretion and not unreasonable. In the CO’s view, MedExpress’s LRAA

contract was relevant because the LRAA’s description of work and dollar

value matched the solicitation’s requirements of complexity of effort,

magnitude, and scope:

[T]he primary services of both efforts is the provision of

medical transportation and support services. It is apparent that

[MedExpress’s] reference involves the very type of medical

services contemplated by the [solicitation]. Additionally, both

efforts require the awardee to provide qualified personnel and

to comply with applicable professional standards and license

requirements.

AR 448. We have no basis for overturning this assessment.

While RMMM argues that the record “contains no explanation,

contemporaneous or otherwise” of the agency’s decision for evaluating

MedExpress’s past performance for relevancy, the record documents the

pertinent facts leading to the agency’s decision. Pl.’s Mem. at 34. The

agency developed a chart to evaluate the recency of each offeror’s past

performance. The chart had two columns detailing factors that the agency

used to determine whether each past performance reference was relevant, the

citation’s description of work and total dollar value. For the description of

work column, the agency noted that the LRAA contract required MedExpress

to provide emergency medical services “in the form of Ambulance Services

and personnel in the time of a disaster and in corporation with Federal, State,

and Local Government,” and the most recent emergency was a “response to

COVID pandemic in New Orleans.” AR 503. For the total dollar value

column, the agency noted that the LRAA contract’s value was “[ ]

YTD 2020/ [ ] per unit, per day, as required for disaster relief efforts.”

AR 503. After reviewing all of the pertinent information provided by

MedExpress including the responses from the LRAA reference, [ ],

the agency determined that the LRAA contract was relevant because the

LRAA’s description of work and total dollar value matched the solicitation’s

requirements of complexity of effort, magnitude, and scope.

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There is no legal support for RMMM’s argument that the agency

should have conducted an independent verification of the LRAA contract for

relevancy, rather than relying solely on MedExpress’s past performance

volume and [ ] responses. Even if the solicitation did require an

independent investigation, which it does not, RMMM fails to acknowledge

that the agency did conduct independent research; the past performance

evaluation was based on the responses of the past performance reference

citations that each offeror submitted, and any other information that the

government obtained independently, including the government’s

CPARS/PPIRS reports. In fact, MedExpress’s “substantial confidence” past

performance rating was “based on information assessed as provided by the

references and/or information available in CPARS/PPIRS reports as part of

an independent Government assessment.” AR 495.

Plaintiff concedes that the government correctly recognized that the

solicitation did not only define “relevant,” but also provided a definition for

“not relevant.” The solicitation defined “not relevant” as a “present or past

performance effort involving little or none of the scope and magnitude of

effort as this solicitation.” AR 256. The binary nature of the relevance

determination means that only those past performance efforts involving

“little or none” of the scope and magnitude of effort of the solicitation are

not relevant. Thus, the agency’s relevancy assessment was rational, as the

agency could not conclude that the LRAA reference involved “little or none

of the scope and magnitude of effort” as compared to the solicitation, such

that the effort was “not relevant.” AR 256.

D. The Agency’s Evaluation of Contractor D’s Past Performance

Assessment did not Prejudice RMMM

We will assume for argument’s sake that the agency’s past

performance evaluation of Contractor D was contrary to the solicitation,

which required each contractor to submit two references, and that both

references had to be “recent” and “relevant.” AR 249. Contractor D

remained in the competition despite the agency’s rejection of one of its past

performance references as, among other things, irrelevant. RMMM states

that if RMMM knew that the agency would deviate from the evaluation

criteria, RMMM would have prepared its past performance volume

differently by omitting the reference for the SAFB contract which resulted in

an adverse rating and argues that it would have received a higher overall

performance confidence rating if the agency only evaluated its USAFA

contract past performance reference.

20

Plaintiff’s argument would have more traction if Contractor D had

been selected for award. But it was not. At the end of the day, plaintiff was

not competing against Contractor D, it was competing against MedExpress,

which did submit two relevant past performance references. For a protestor

to prevail in a bid protest, it must show that, absent the alleged error, there

would be a reasonable likelihood of the protestor receiving the contract. Linc

Gov’t Servs., LLC v. United States, 96 Fed. Cl. 672, 695 (2010). Even if

Contractor D received a “neutral confidence” rating, it would not affect the

agency’s decision that MedExpress’s proposal presented a better value to the

government than RMMM’s proposal. We therefore fail to see the prejudice

to plaintiff nor any basis for taking the award away from intervenor.

Trying to reconstruct the procurement in light of the agency’s

apparently erroneous treatment of Contractor D would be highly unfair to

MedExpress and would necessarily involve accepting a contrived and highly

speculative scenario. It involves an assumption that, if RMMM had known

that it could get by with one reference, it would have deleted the problematic

one, and that the agency would treat that one reference as so superior that,

like Contractor D, it would vault RMMM’s assessment to “outstanding.”

Presumably others would have had the same opportunity, however, further

muddying a conclusion that the result would have been different. It is much

simpler to deal with the undisputed facts: MedExpress and RMMM were the

two finalists; both were given the opportunity and obligation to furnish two

past performance references; the agency was impressed with intervenor’s

prior performances and justifiably concerned about plaintiff’s. Even

assuming a foul up with respect to Contractor D, that fact was an irrelevant

sideshow.

CONCLUSION

Plaintiff asserts that the agency erred in several ways, and that

collectively, these mistakes warrant the court’s intervention on a theory that

the whole (a general verdict of unfairness) is greater than the sum of its parts.

We are not permitted to take a gestalt approach to bid protests, however. To

overturn an agency action, we must find a discrete, prejudicial error. This

may not have been a textbook procurement, but none of the alleged errors

individually or collectively permit the court to reverse. Therefore, no relief

is warranted, and we deny plaintiff’s motion for judgment on the

administrative record and grant defendant’s cross-motion. The Clerk of

Court is directed to enter judgment for defendant. No costs.

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s/Eric G. Bruggink

ERIC G. BRUGGINK

Senior Judge

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