22nd Century Technologies, Inc. v. United States

In the United States Court of Federal Claims

No. 21-1137C

(Filed Under Seal: July 21, 2021)

Unsealed: August 30, 2021

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22nd CENTURY TECHNOLOGIES, INC. *

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Plaintiff, *

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v. *

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THE UNITED STATES, *

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Defendant, *

and *

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ADVANCED MANAGEMENT *

TECHNOLOGIES, INC., *

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Defendant-Intervenor. *

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OPINION AND ORDER

DAMICH, Senior Judge

On March 30, 2021, Plaintiff 22nd Century Technologies, Inc. (“Plaintiff”), filed this

post-award bid protest challenging the award of a task order to Advanced Management

Technologies, Inc. (“Defendant-Intervenor ”) 1 in connection with the United States Department

of Labor, Bureau of Labor Statistics, Office of Compensation and Working Conditions ( the

“Agency”) seeking information technology support services under Request for Quotes No. 1625-

OTS-21-NAT-0005 (the “RFQ”). 2 The award provided for a five-year task order, consisting of

1

Defendant-Intervenor was granted leave to intervene on March 31, 2021. ECF No. 12.

2

The Federal Acquisition Streamlining Act’s bar on this Court hearing bid protests "in

connection with the issuance or proposed issuance of a task or delivery order" does not apply,

because this is a protest of a task order valued in excess of $10,000,000 for a civilian agency.

See 41 U.S.C. § 4106(f); AR at 2 (Estimated Contract Value); Tab 16 at 322 (Box 26. Total

Award Amount).

1

one 12-month base period and four 12-month option periods providing the best value to the

Government.

The Court held a status conference on March 31, 2021 and adopted the litigation schedule

provided by the parties and entered the scheduling order. ECF No. 12. On April 19, 2021, the

United States (“Defendant”) filed the Administrative Record. ECF No. 22 (“AR”). On April 27,

2021, Defendant filed a Consent Motion to Amend/Correct the Administrative Record, ECF No.

23, which was subsequently granted. ECF No. 24. The Supplement to the Administrative

Record was filed on April 28, 2021. ECF No. 25.

On May 10, 2021, Plaintiff filed its Motion for Judgment on the Administrative Record

(“MJAR”). ECF No. 26. On that same date, Plaintiff filed a Consent Motion for Leave to File

an Amended and Restated Complaint. ECF No. 27. The Court granted the Motion, ECF No. 28,

and the Amend Complaint was filed on June 2, 2021. ECF No. 31. In its protest, Plaintiff

alleges that the Agency’s evaluation of the proposals and best value determination were arbitrary

and irrational. As a result, Plaintiff requests that the Court permanently enjoin the Agency

from proceeding with performance under the awarded contract, require the Agency to perform

a new evaluation, a new tradeoff, and make a new award decision accordance with law, and for

bid and proposal costs.

The Defendant timely filed its Response in Opposition to Plaintiff’s Motion for Judgment

on the Administrative Record and Cross Motion for Judgment on the Administrative Record on

June 1, 2021. ECF No. 29. Defendant-Intervenor filed its Motion for Judgment on the

Administrative Record on the same date. ECF No. 30. Thereafter briefing continued as

scheduled and was completed on June 29, 2021.

After careful consideration, and for the reasons set forth below, the Court DENIES

Plaintiff’s Motion for Judgment on the Administrative Record and GRANTS Defendant’s Cross

Motion for Judgment on the Administrative Record. The Court further GRANTS Defendant-

Intervenor’s Cross Motion for Judgment on the Administrative Record.

I. Facts

A. The RFQ

On December 3, 2020, the Agency issued the RFQ for a contractor to provide application

development support services for development and implementation of data capture, data review,

and estimation systems. AR at 1, 309. The Agency had an existing information technology

application-development Blanket Purchase Agreements (“BPA”) issued by the General Services

Administration (“GSA”) under the GSA Schedules Program, and therefore, the Agency

determined the task order could fall within the BPA allowing the RFQ to be competed among

the six BPA holders. AR at 309. The RFQ was for a five-year task order, consisting of a one 12-

month base period and four 12-month option periods. AR at 7.

The procurement was conducted under Federal Acquisition Regulation (“FAR”) Subpart

8.4. AR at 10. In particular, the procurement stated:

2

Note: This is a FAR Part 8 procurement. FAR Part 15 procedures do not apply

to evaluation of Schedule BPA quotations and will not be used. A Contractor

may be eliminated from consideration for a task order without further exchanges

if its technical and/or pricing quotes are not among those contractors considered

most advantageous to the Government based on a best value determination.

Id.

Offerors were instructed that “[e]ach quote shall clearly demonstrate that the Contractor

understands both the general and specific technical requirements of the PWS [performance work

statement].” AR 8. Offerors were further instructed that “[f]ailure to explain Contractor’s ability

to meet all requirements may result in the Contractor’s quote not being considered. Clarity and

completeness of quotes are of the utmost importance; therefore, quotes must be written in a

practical, clear, and concise manner.” Id.

The Agency would evaluate the proposals using the following two factors for award: (1)

Technical Capability, and (2) Price. AR at 9-10. With respect to Technical Capability, each

contractor’s response was to address three components: (i) Technical Approach; (ii) Phase-In

Plan; and (iii) Management Plan. Id. Specifically, the contractor’s proposal had to had to

contain the following:

Technical Approach

The Government will evaluate the Contractor’s Technical Approach for the following:

1) The approach has enough detail to provide the Government with confidence

that the Contractor can successfully perform the work described in the PWS.

Phase-In Plan

The Government will evaluate the draft Phase-In Plan for the following:

1) The plan has enough details to provide the Government with confidence that

the Contractor will ensure minimal disruption with operations, meet the

requirements outlined in the BPA for Phase-In, and provide a qualified transition

team; and

2) The schedule and milestones are provided in enough detail to provide the

Government with confidence that the Contractor will be successful.

Management Plan

The Government will evaluate the Management Plan for the following:

1) The Management Plan aligns with the Contractor’s proposed technical

approach in enough detail that the Government has confidence that the Contractor

will successfully meet the requirements of the task order;

2) The Management Plan includes plans for hiring, retaining, and training staff

with enough detail that the Government has confidence the Contractor will be

successful in staffing to the level needed to successfully complete the task order

requirements outlined in [Performance Work Statement].

3

3) The Key Personnel positions and candidates proposed have the required qualifications

and provide the Government with confidence that the task order will be successfully managed.

AR at 11.

The technical capability would then be evaluated using the following evaluation ratings:

AR at 12.

For Factor 2, the Agency would evaluate Price as follows:

Under this evaluation factor, the Government will evaluate price over the

entire task order period of performance, including all option years. The

Government will evaluate price for the following:

a) Completeness and accuracy.

b) One FTE equates to 1,920 hours.

c) Labor categories and hour-mix are consistent with the technical

quote.

d) Labor categories are on the BPA and that the rates submitted are

equal to or less than the agreement rates.

Additionally, the Government may ask for additional information to support

the Contracting Officer’s determination of price reasonableness.

Id.

Technical Capability was more important than price. AR at 11. Therefore, the Agency

advised that it would complete an evaluation of Factor 1, Technical Capability, and then it would

compare Factor 2, Price, against those ratings to determine the combination most advantageous

to the Government. Id. An offeror could be eliminated from consideration if its technical and/or

pricing quotes were not among those contractors considered most advantageous to the

Government based on a best value determination. AR at 10.

4

B. The Agency’s Technical Evaluations as Provided in the RFQ

The Agency received proposals from Plaintiff and Defendant-Intervenor, as well as the

other four BPA holders. AR at 153, AR at 309. A technical evaluation panel (“TEP”) was

formed to evaluate the technical aspects of the proposals.

1. Plaintiff’s Technical Evaluation Reports

On February 10, 2021, the TEP issued an initial evaluation report for Plaintiff’s technical

proposal. The TEP rated Plaintiff’s technical proposal as having a “low” confidence rating. AR

at 284-287. The report identified one aspect of Plaintiff’s proposal that “raised” expectations of

success and three aspects of its proposal that “lowered” expectations of success. AR at 284. The

report also identified 10 other issues in Plaintiff’s technical proposal that needed clarification.

AR 285-86. The TEP explained its overall “low” confidence rating stating:

The Government has low confidence that the Contractor will be

successful in performing the task order even with Government

intervention.

The underestimation of hours for Task 7, the lack of sufficient detail for 508

compliance testing, the lack of sufficient detail for a Phase-In approach, and

the Lead Architect’s lack of experience in primary web application software

including Java and Angular is a significant risk to successful contract

performance across multiple critical tasks.

AR at 286 (bold and italics in original).

On February 24, 2021, the Agency informed Plaintiff that it was unlikely to be a viable

competitor for the acquisition, AR at 291, and that it would not include Plaintiff in the proposal

clarifying questions and answers process based on the TEP’s evaluation. Id. The Agency further

stated:

The intent of this notice is to minimize proposal development costs for

Offerors with little or no chance of receiving an award and assist you in your

timely decision-making. However, if you wish to participate in the proposal

clarification process notwithstanding the advice in this notice[,] [p]lease

provide responses to your clarifying questions by 3:00 PM EST, February 25,

2021. All revised proposals must be received by 3:00 PM EST, February 26,

2021 to be considered for further evaluation and award.

AR at 292. The notice identified six clarifying items. 3 AR at 293.

3

All the offerors, regardless of the initial rating were provided clarifying questions and

allowed to respond. AR at 310. Of the six vendors, four were advised to continue with

submitting a revised proposal and response to clarifying questions and two were advised that

they should continue with submitting a revised proposal but unlikely to be awarded the contract

5

Thereafter, on February 25, 2021, Plaintiff submitted a revised proposal and responses to

the Agency’s clarifying questions. AR 296-99. The Agency then re-evaluated the proposal. In

its re-revaluation, the TEP did not identify any factors that either raised or lowered expectations

of success. AR at 304. However, after re-evaluation, the TEP increased its overall rating of

Plaintiff’s proposal to a rating of “some” confidence explaining:

The Offeror’s quote adequately addressed all the Government’s needs as

outlined in the RFQ. No elements addressed within the proposal raised or

lowered the expectation of success, thus the overall rating is “Some

Confidence.”

AR at 304-305.

2. Defendant-Intervenor’s Technical Evaluation Reports

Unlike Plaintiff’s proposal, the TEP issued its initial evaluation of Defendant-

Intervenor’s technical proposal as having a “high” confidence rating. AR at 288-290. In

particular, the report identified five aspects of Defendant-Intervenor’s proposal that “raised”

expectations of success and one aspect of Defendant-Intervenor’s proposal that “lowered”

expectations of success. Id. The report also identified one other issue in Defendant-Intervenor’s

technical proposal that needed clarification.

In its explanation of its overall “high” confidence rating of Defendant-Intervenor’s

technical proposal, the TEP stated:

The Government has high confidence that the Contractor will be

successful in performing the task order with little or no Government

intervention.

The Offeror’s technical approach would be an advantage to successful

contract performance across multiple critical tasks. The Offeror’s proposed

technical approach was highly detailed and included examples of previous

projects where the approach was successfully implemented. However, the

underestimation of hours for the XXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.

AR at 289 (bold and italics in original).

The Agency then told Defendant-Intervenor that it was likely to be a viable competitor

for the acquisition and that it should participate in the proposal clarifying questions and answers

process. AR at 294. The Agency had two clarifying questions. AR at 295. Defendant-

Intervenor submitted answers to the questions. AR at 300-03.

due to their Technical Capability submission. Id. Plaintiff was one of the two advised that it was

unlikely to be awarded the contract.

6

After re-evaluating Defendant-Intervenor’s revised technical proposal and responses to

the clarifying questions, the TEP’s rating of Defendant-Intervenor’s proposal remained a “high”

confidence that it could successfully perform the task order with little or no Government

intervention. AR at 306-308. In support, the final report identified five factors that raised

expectations of success. AR at 306. In particular to the case at hand, under Factor 1: Technical

Capability, the TEP found that:

The Offeror described their technical approach in extreme attention to detail.

The Offeror’s approach includes micro services which is an innovative

architecture strategy. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXX raises the expectation of successful contract performance on this

significant project. (References: Quote – Page 3; RFQ – Page 3, Technical

Approach, PWS – Page 109, Section 14)

Id. The TEP then explained its overall “high confidence” rating:

[Defendant-Intervenor’s] technical approach would be an advantage to

successful contract performance across multiple critical tasks. [Defendant-

Intervenor’s] proposed technical approach was highly detailed and included

examples of previous projects where the approach was successfully

implemented, thus the overall rating is “High Confidence.”

AR at 307-308.

C. Price Evaluation by the Agency

In accordance with the RFQ Factor 2, the Agency conducted a price analysis of the six

proposals received to determine the fairness and reasonableness of the prices submitted. AR at

315-16. The Agency analyzed two aspects of the offerors’ price quotes: (1) a price comparison

with the Independent Government Cost Estimate (IGCE) 4; and (2) a price comparison among the

offerors’ themselves. Id. at 316-317. The RFQ also “requested discounted rates from previously

submitted BPA prices.” AR at 311. Based on this analysis, the Agency identified three offerors

– Plaintiff, Defendant-Intervenor, and one other – whose price quotes were below the IGCE. Id.

The Agency then did a price comparison among all six offerors, comparing the

percentage between each offeror’s total-evaluated price and the percentage spread between the

lowest-priced offeror and the highest-priced offeror. The Plaintiff’s proposal was the lowest in

price. Defendant-Intervenor was third lowest in price. Id. However, Defendant-Intervenor also

XXXXXXXXXXXXXXXXXXXX, which would result in a cost savings of XXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. Id. Plaintiff did not offer such.

Thereafter, the Agency deemed that all six vendors’ price quotes were fair and reasonable. Id.

4

“The IGCE is based on average labor category rated calculated from the awarded price

schedules of the six BPA holders.” AR at 312.

7

The contracting officer and contract specialist conducted a best-value trade-off analysis

and made a best-value award recommendation based on the two factors: (1) technical capability,

and (2) price, noting that technical capability was the more important factor. AR at 310-12. The

contracting officer and contract specialist evaluated the TEP reports for each offeror and

concluded that three offerors’ technical proposals were rated “High Confidence.” AR at 312.

They included: (1) Defendant-Intervenor, (2) BAE Systems Technology Solutions & Services,

Inc., and (3) Soft Tech Consulting Inc. AR at 310-11. Relying on the TEP reports, the

contracting officer and contract specialist concluded that the other three offerors, including

Plaintiff, provided the Government with “some” level of confidence, but that those offerors did

not provide enough detail in their proposals to warrant “high” confidence ratings. AR at 311.

After performing the price analysis, the contracting officer and contract specialist found

that Defendant-Intervenor’s proposal represented the largest cost savings to the Government

among the three most highly-rated technical proposals. AR at 312, 318.

Accordingly, after considering both the technical and price factors, with the technical

factor being most important, the contracting officer and contract specialist determined that

Defendant-Intervenor’s quotation was in the best interest of the Government and provided the

best value. AR at 312, 319.

On March 24, 2021, and after re-evaluation of the proposal, the TEP informed Plaintiff

that its submission was unsuccessful. AR at 319. On that same date, Plaintiff requested a

debriefing and was advised by the Agency that no additional information was required as the

Agency’s letter complied with FAR 8.405-2(d). AR at 320.

On March 30, 2021, Plaintiff filed its complaint in this Court and on June 2, 2021,

Plaintiff filed its Amended and Restated Complaint.

II. Standard of Review

A. Standard for Motion for Judgment on The Administrative Record

This Court decides a motion for judgment upon the administrative record pursuant to

RCFC 52.1. The Court determines whether “given all the disputed and undisputed facts, a party

has met its burden of proof based on the evidence in the record.” Bannum, Inc. v. United States,

404 F.3d 1346, 1356-57 (Fed. Cir. 2005). “[T]he judgment on an administrative record is

properly understood as intending to provide for an expedited trial on the record.” Id. at 1356.

B. Bid Protest Standard of Review

In a bid protest, the trial court “review[s] the agency’s decision pursuant to the standards

set forth in section 706 of Title 5,” the Administrative Procedure Act (“APA”). 28 U.S.C. §

1491(b)(4); see Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1350 (Fed. Cir.

2004). In reviewing the agency’s procurement decisions, the Court does not substitute its

judgment for that of the agency. Redland Genstar, Inc. v. United States, 39 Fed. Cl. 220 (1997);

8

Cincom Sys., Inc. v. United States, 37 Fed. Cl. 663, 672 (1997); see also M.W. Kellogg Co. v.

United States, 10 Cl. Ct. 17, 23 (1986) (holding that “deference must be afforded to an agency’s .

. . procurement decisions if they have a rational basis and do not violate applicable law or

regulations.”). The disappointed bidder “bears a heavy burden,” and the contracting officer is

“entitled to exercise discretion upon a broad range of issues confronting [her].” Impresa

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

(citations and quotes omitted). This burden “is not met by reliance on [the] pleadings alone, or

by conclusory allegations and generalities.” Bromley Contracting Co. v. United States, 15 Cl. Ct.

100, 105 (1988); see also Campbell v. United States, 2 Cl. Ct. 247, 249 (1983). A procurement

decision is rational if “the contracting agency provided a coherent and reasonable explanation of

its exercise of discretion.” Impresa, 238 F.3d at 1333. But “that explanation need not be

extensive.” Bannum, Inc. v. United States, 91 Fed. Cl. 160, 172 (2009) (citing Camp v. Pitts,

411 U.S. 138, 142-43 (1973)).

The Court’s “highly deferential” review such that “the disappointed offeror bears a

‘heavy burden’ of showing that the award decision ‘had no rational basis’ is particularly the case

with respect to matters requiring technical judgment. See, e.g., Benchmade Knife Co., Inc. v.

United States, 79 Fed. Cl. 731, 740 (2007) (“Agencies are entitled to considerable discretion and

deference in matters requiring exercise of technical judgment.”); Beta Analytics Int’l, Inc. v.

United States, 67 Fed. Cl. 384, 395 (2005) (“the minutiae of the procurement process . . . involve

discretionary determinations of procurement officials that a court will not second guess.”)

(quoting E.W. Bliss Co. v. United States, 77 F.3d 445, 449 (Fed. Cir. 1996)). The protester’s

mere disagreement with the agency’s assessment is not “nearly enough” to demonstrate arbitrary

and capricious agency action. See CRAssociates, Inc. v. United States, 102 Fed. Cl. 698, 717-18

(2012).

Similarly, in the case of FAR Subpart 8.4 procurements have few applicable procedures

because such procurements are meant to be simple and flexible and, importantly, that agencies

need only provide a rational and reasonable basis for award decisions. Holloway & Co., PLLC v.

United States, 87 Fed. Cl. 381, 393-394 (2009) (“[C]onsistent with the simplified and flexible

approach Part 8 takes toward [FSS] procurements, . . . the protester will not be able to prevail on

the theory that the procurement procedure involved a clear and prejudicial violation of applicable

statutes and regulations, because no applicable procedural regulations are contained in [FAR]

Part 8. A protester instead must rely on establishing that the government officials involved in the

procurement process were without a rational and reasonable basis for their decision.”).

And finally, where, as here, the contract award is based upon the “best value,” the agency

has even greater discretion than if the contract were awarded upon the basis of cost alone. Galen

Medical Assoc., Inc. v. United States, 369 F.3d 1324, 1330 (Fed. Cir. 2004); E.W. Bliss Co., v.

United States, 77 F.3d 445, 449 (Fed. Cir. 1996). “[P]rocurement officials have substantial

discretion to determine which proposal represents the best value for the government.” Id. at 449

(citation omitted). A best-value determination should not be disturbed so long as the agency

“documents its final award decision and includes the rationale for any business judgments and

tradeoffs made.” Blackwater Lodge & Training Center, Inc. v. United States, 86 Fed. Cl. 488,

514 (2009). Moreover, “[a]n agency’s contract award is thus least vulnerable to challenge when

9

based upon a best value determination.” Planetspace, Inc. v. United States, 96 Fed. Cl. 119, 125

(2010) (citing Galen, 369 F.3d at 1330).

III. Discussion

In its three-count Amended Complaint, filed to conform with its MJAR, Plaintiff alleges

the following: Count I: The Agency’s technical factor evaluation was arbitrary, capricious;

Count II: The Agency evaluated proposals unequally; and Count III: The Agency’s award

decision was irrational, arbitrary, capricious, and not in accordance with law. With regard to the

Agency’s evaluation of Plaintiff’s technical evaluation, Plaintiff argues that the Agency

disparately evaluated its proposal as compared to Defendant-Intervenor’s proposal in three

respects: (1) treatment of “micro services;”(2) treatment of development and security, and

operations (DevSecOps); and (3) treatment of “new tools.” See ECF No. 31 at 7-9; ECF No. 26

at 8-13. With regard to its best-value analysis, Plaintiff argues that the Agency: (1) failed to

trade off against price; (2) the Agency prioritized proposals rated with “high confidence over

those rated as “some confidence;” and (3) Plaintiff disagrees with the TEP’s evaluations. For

the reasons set forth below, the Court is not persuaded by any of Plaintiff’s arguments.

A. The Agency’s Decision was Rational in its Technical Evaluation

In order to prevail on a disparate treatment claim a protestor must show either “that the

agency unreasonably downgraded its proposal for deficiencies that were ‘substantively

indistinguishable’ or nearly identical from those contained in other proposals” or that “the

agency inconsistently applied objective solicitation requirements between it and other offerors,

such as proposal page limits, formatting requirements, or submission deadlines.” Office Design

Group v. United States 951 F.3d 1366, 1372 (Fed. Cir. 2020). Only if a protester meets one of

these thresholds can the reviewing court “comparatively and appropriately analyze the agency’s

treatment of proposals without interfering with the agency’s broad discretion in these matters.”

Id. at 1373.

Furthermore, the evaluation of proposals for their technical excellence or quality is a

process that often requires the special expertise of procurement officials. Thus, reviewing courts

give the greatest deference possible to these determinations. See E.W. Bliss Co.,77 F.3d 445, 449

(Fed. Cir. 1996). As the Federal Circuit has stated, challenges concerning “the minutiae of the

procurement process in such matters as technical ratings . . . involve discretionary

determinations of procurement officials that a court will not second guess.” Id. at 449; see also

Banknote Corp. of Am. v. United States, 56 Fed. Cl. at 384 (determining that “naked claims” of

disagreement with evaluations “no matter how vigorous, fall far short of meeting the heavy

burden of demonstrating that the findings in question were the product of an irrational process

and hence were arbitrary and capricious”).

10

1. The Agency Rationally Evaluated the Offerors with regard to “Micro

Services” 5

Plaintiff argues that the Agency did not properly evaluate the offerors’ technical

proposals because Plaintiff’s proposal mentions “micro services” three times and contained a

diagram whereas Defendant-Intervenor’s proposal only mentions “micro services” once. Yet,

even with only one mention of “micro services” Defendant-Intervenor was rated a strength under

its proposal for “micro services” and Plaintiff was not. 6 Simply put, it is Plaintiff’s contention

that the Agency should use a quantitative approach to technical evaluations, rather than a

qualitative one. The Court disagrees.

The record shows that indeed Plaintiff mentions “micro services” three times in its

technical proposal as compared to Defendant-Intervenor’s one- time usage of “micro services.”

Plaintiff also provided what appears to be a detailed chart as to how it would intergrate the micro

services. AR at 539. Accordingly, Plaintiff argues that it should have been awarded as

“strength.” However, it is not the job of the Court to second guess the Agency’s decision but

instead to review the record to make sure the Agency’s decision is rational.

The record indicates the reason why the Agency raised the Defendant-Intervenor’s

expectation of success rating:

The Offeror described their technical approach in extreme attention to detail.

The Offeror’s approach includes micro services which is an innovative

architecture strategy. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXX raises the expectation of successful contract performance on this

significant project. (References: Quote – Page 3; RFQ – Page 3, Technical

Approach, PWS – Page 109, Section 14)

5

Microservices - also known as the microservice architecture - is an architectural style

that structures an application as a collection of services that are

• Highly maintainable and testable

• Loosely coupled

• Independently deployable

• Organized around business capabilities

• Owned by a small team

The microservice architecture enables the rapid, frequent and reliable delivery of large, complex

applications. It also enables an organization to evolve its technology stack. Chris Richardson,

https://microservices.io (last visited July 21, 2021).

6

Although Plaintiff refers to ratings as “strengths” or “weaknesses,” the RFQ did not

assign “strengths” or “weaknesses” but instead indicated elements of a quote that “raised[d] or

lower[ed] expectations of success.” AR at 284.

11

The TEP was seemingly impressed by the detailed technical approach taken by

Defendant-Intervenor as a whole and that the technical approach was not limited to “micro

services" architecture alone. See also AR at 615-618. The TEP noted that Defendant-Intervenor

had a comprehensive description of its technical approach in its proposal, and the attention to

detail raised the Government’s confidence in Defendant-Intervenor’s ability to successfully

perform the task order. Thus, the record shows that the TEP reviewed the technical proposal

thoroughly.

In contrast, when the TEP evaluated Plaintiff’s proposal, even though the proposal

mentioned “micro services” three times, the TEP did not find that the Plaintiff’s description of its

technical approach either raised or lowered the Government’s confidence. AR at 304.

Nevertheless, Plaintiff refers this Court to its actual proposal, AR at 539, for the Court to review

and analyze how Plaintiff planned to use “micro services” “in great detail.” ECF No. 26 at 10.

However, “micro services” involves a subjective judgment that is for the Agency to make. The

Agency has supported its decision in a detailed analysis. Therefore, the Court will not second-

guess the Agency’s decision with regard to its application of the “micro services” especially in

light of the fact that it relates to a technical rating. See E.W. Bliss Co.,77 F.3d at 449. As such,

the Agency’s decision was not arbitrary and capricious, or contrary to law.

2. The Agency Rationally Evaluated the Offerors’ Approaches to

“DevSecOps.”

Plaintiff argues that the Agency treated it unequally in its evaluation of DevSecOps.

Specifically, Plaintiff argues that because it addressed DevSecOps in its technical proposal as did

Defendant-Intervenor, Plaintiff should have been rated the same as Defendant-Intervenor under

this section. ECF No. 26 at 10-11. In support, Plaintiff includes its side-by-side accounting of

the three DevSecOps references from its own proposal next to two Defendant-Intervenor

proposal references. Id. Plaintiff concludes that this shows that “[t]here is no substantive

difference between the quotations.” Id.

The TEP found that Defendant-Intervenor’s:

approach on incorporating [DevSecOps] into the task order XXXXX

XXXXXXXXXXXXXXX, will result in immediate problem notification and

remediation, thus creating faster, error-free products and raising the

expectation of successful contract performance.(citing pages 10-11 of

Defendant-Intervenor’s proposal.).

AR at 306. However, according to the Plaintiff, pages 10-11 of Defendant-Intervenor’s

proposal merely states:

[Defendant-Intervenor] has deep expertise in DevSecOps, a continuous

integration pipeline which integrates building and integrating code;

performing unit, integration, functional and security testing; and deploying

into hosting environments.

12

ECF No. 32 at 6; AR at 623. This statement alone, should not have allowed the Agency to deem

it a “strength.” ECF No. 32 at 6.

Defendant, however, cites to other pages within the record that indicate that the Agency

relied on other sections as well as a basis for the Agency to award the higher rating with regard

to Defendant-Intervenor’s DevSecOp proposal. See, eg. AR 622-23. According to Plaintiff,

however, there is absolutely nothing in the record to support that the TEP relied on other sections

of the proposal for the TEP’s conclusion, and, therefore, the Court must disregard that argument

because of post hoc rationalizations in bid protests are disfavored. ECF No. 32 at 6.

Although Plaintiff is correct that post hoc rationalizations in bid protests are disfavored,

Plaintiff fails to appreciate that this procurement is a FAR Subpart 8.4, not FAR Part 15,

procurement for which the Agency is neither expected nor required to document every decision it

makes in rigorous detail. Matt Martin Real Est. Mgmt. LLC v. United States, 96 Fed. Cl. 106,

116-117 (2010) (“The amount of documentation necessary in FAR Subpart 8.4 procurements

does not rise to the level required by FAR Part 15.). Furthermore, as this is a FAR part 8.4

procurement the Agency procurements have few applicable procedures because such

procurements are meant to be simple and flexible and, importantly, that agencies need only

provide a rational and reasonable basis for award decisions. Holloway & Co., PLLC v. United

States, 87 Fed. Cl. 381, 393-394 (2009) (“[C]onsistent with the simplified and flexible approach

Part 8 takes toward [FSS] procurements, . . . the protester will not be able to prevail on the theory

that the procurement procedure involved a clear and prejudicial violation of applicable statutes

and regulations, because no applicable procedural regulations are contained in [FAR] Part 8. A

protester instead must rely on establishing that the government officials involved in the

procurement process were without a rational and reasonable basis for their decision.”). In

addition, consistent with the Court’s substantial evidence inquiry, the Court is required to review

the contemporaneous administrative record that was considered by the Agency.

Since the contemporaneous evaluation record shows that the agency evaluated the

proposals as a whole, it is hard to believe that the TEP limited its entire analysis to those two

pages of the Defendant-Intervenor’s proposal. It is more believable that the TEP report cited

pages 10-11 of that proposal as an example. Additionally, under a FAR Subpart 8.4

procurement, an Agency is not required to write down all its proposal citations, although to

prevent future protests it may wish to.

Again, the Court will not second guess the Agency’s decision where there is support in

the record to uphold its decision. Here, the TEP did its job—it evaluated how each offeror

addressed each factor substantively. Thus, the Agency did not improperly treat Plaintiff’s and

Defendant-Intervenor’s quotes disparately. Furthermore, the Court will not second-guess the

Agency’s decision with regard as it relates to a technical rating. See E.W. Bliss Co.,77 F.3d at

449. As such, the Agency’s decision with regard to DevSecOps was rational.

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3. The Agency was Rational in its Evaluation of the Offerors’ Approaches to

“New Tools”

Plaintiff asserts that the Agency unequally treated its proposal in its evaluation with

respect to “new tools.”

The record shows that the TEP concluded that Defendant-Intervenor’s “approach to

proposing new tools such as Redmine XXXXXXXXXX and JMeter XXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX raises the Government’s expectation of success.” AR at 306-

307. The TEP further found that Defendant-Intervenor’s “incorporation of these tools into XXX

XXXXXXXXXXXXXXXXXXXXXXX will improve accountability and efficiency.” Id.

In support of its evaluation, the TEP identified Redmine and JMeter as two examples of

tools that Defendant-Intervenor’s proposal discussed. AR at 306-307. However, as it turns out,

Redmine itself is not a new tool. Defendant-Intervenor did not indicate that is was, instead its

proposal acknowledged that: “current tools consist of XXXX, Redmine and XXXXXXX.” AR

at 620. With this old tool, Defendant-Intervenor proposed standardizing Redmine for XXXXXX

XXXXXXXXXXXXXXX. AR at 623.

Plaintiff took a different approach. In this section of its bid, Plaintiff relied primarily on

lists and diagrams. See, e.g., AR at 537-38. As stated in the RFQ, the quotes were to be

assessed on the details to demonstrate how its approach would utilize the tools and solutions to

successfully perform the work. AR at 8, 11, and 12. And after evaluation, the TEP did not find

that the description had either raised or lowered the Government’s confidence. Once more, this

argument is one of mere disagreement with the TEP’s evaluation. Plaintiff has not shown that

the evaluation was unreasonable or irrational.

Even though the TEP report mischaracterized Redmine as a “new tool” when it was an

existing tool that Defendant-Intervenor was proposing to use XXXXXXXXXX, Plaintiff must

show that that mischaracterization resulted in significant, prejudicial errors. See Prescient, Inc. v.

United States, 125 Fed. Cl. 475, 485 (2016) (finding that agency’s disparate evaluation did not

result in prejudice to protester); Glenn Defense Marine (ASIA), PTE Ltd. v. United States, 720

F.3d 901 (2013) (“De minimis errors in the procurement process do not justify relief. The

protestor bears the burden of proving that a significant error marred the procurement question.”)

(citations omitted). Plaintiff cannot do so. The TEP found that the integration of RedMine and

XXXXXXXXXXXXXXXXX contributed to its conclusion that the tools expansion raised the

Agency’s expectation of success.

Therefore, the Agency did not improperly treat Plaintiff’s and Defendant-Intervenor’s

quotes disparately. Furthermore, the Court will not second-guess the Agency’s decision with

regard as it relates to a technical rating. See E.W. Bliss Co.,77 F.3d at 449. As such, the

Agency’s decision with regard to “new tools” was rational. 7

7 Plaintiff again raises the issue of post hoc rationalizations. Again, as this is a FAR part

8.4 procurement which are meant to be simple and flexible and, importantly, that agencies need

only provide a rational and reasonable basis for award decisions, which it has done.

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B. The Agency did not act Arbitrarily when it removed a “Strength”

In its original technical evaluation, the TEP flagged three areas of concern in Plaintiff’s

initial proposal, which the Agency concluded “lower[ed] expectation of success.” AR at 284-

285. The TEP also, however, noted one area that “raise[d] expectation of success”:

The Offeror provided a detailed technical approach relating to iterative

software development methodologies that would be utilized. The Offeror

outlined a practical Agile strategy that included a SaFe [] approach which

raises the Government’s confidence. The Offeror’s approach demonstrates

that they have the capability to manage large multi-team development that

will be critical to the successful completion of the New Data Collection

System and SOII Integration projects.

Id. at AR 284.

Thus, the TEP was impressed with Plaintiff’s proposal with regard to three factors: the

detailed technical approach to iterative software development, the practical Agile strategy, and

the proposed SaFe approach.

In its re-evaluation, however, the TEP did not rate this area as “raise[d] expectation of

success” and Plaintiff now complains that “the Agency removed a strength without any

explanation.” ECF No. 26 at 13. Plaintiff further adds that it made no changes to the SaFe

Process (Scaled Agile Framework) portion of Section 1.1.3. Id. (emphasis in the original).

Because it did not make any changes to this section, and the Agency removed the strength

without explanation, Plaintiff argues that the Agency acted arbitrarily. Id.

However, although Plaintiff did not make any changes to its SaFe Process portion of its

proposal, Plaintiff did in fact make other changes to Section 1.1.3 when it resubmitted a redlined

version of its original proposal. AR 534-603. In fact, Plaintiff removed much of the proposal

related to its iterative software approach as well as its Agile strategy, two of three areas

previously found favorable by the TEP. It is probable that this revision changed the TEP’s

assessment under Section 1.1.3. Nothing in the RFQ or FAR mandate that such a re-evaluation

may only result in favorable evaluation changes. Plaintiff’s mere disagreement with the

technical determinations is insufficient to support its claim that the Agency acted irrationally. 8

C. The Agency’s Best Value Determination was Rational

Agencies enjoy broad discretion when conducting best value determinations. See, e.g.,

Banknote Corp., 365 F.3d at 1355 (observing that “[i]t is well-established that contracting

officers have a great deal of discretion in making contract award decisions, particularly, when, as

8 The Court notes that with even the TEP downgrading this “strength” the TEP raised

Plaintiff’s score from “low confidence” to “some confidence.”

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here, the contract is to be awarded to the bidder or bidders that will provide the agency with the

best value.”); E.W. Bliss Co., 77 F.3d at 449 (observing that “[p]rocurement officials have

substantial discretion to determine which proposal represents the best value for the

government.”).

At the heart of Plaintiff’s argument, is its argument that the Agency’s best value

determination was arbitrary and irrational because the Agency failed to conduct the required

price tradeoff, improperly treated ratings of “Some Confidence” as unawardable, and allowed it

misevaluation of technical quotes to “infect” the ultimate award decision. ECF No. 26 at 15-17.

First, Plaintiff’s argument that the Agency lacked a rational basis in its technical

evaluation must fail based on the Court’s opinion above. Second, the Agency did not arbitrarily

treat “Some Confidence” ratings as unawardable or fail to conduct the required price tradeoff.

Rather, the record is clear that the Agency did exactly what it stated it would do in the RFQ.

The RFQ stated that technical capability was more important than price and that the

agency’s objective was to select the quote that offered the best value to the Government, not

necessarily the lowest price. AR at 11. The RFQ further stated that an offeror could be

eliminated from consideration without further exchange if its technical and/or pricing quotes

were not among those considered most advantageous to the Government based on a best value

determination. AR at 10. In addition, the RFQ stated that after the agency evaluated each

offeror’s technical capability, the price to the Government would be compared against the rating

to determine the best value to the Government. AR at 11.

The record shows that, consistent with the RFQ, the Agency conducted technical

evaluations of each offeror and concluded that three of the offerors submitted technically

superior proposals, each rated “high confidence.” AR at 310-311. The Agency further

determined that these three quotes were more advantageous to the Government than the lower-

rated quotes. AR at 311 (“As a result of having (3) vendors equally rated as “High Confidence”

for Factor 1, Technical Capability, pricing became the determining factor.”). Thus, the

contracting officer, exercising his discretion, and consistent with the RFQ, determined that the

three technically superior proposals were more advantageous to the Government.

However, the Agency still conducted a price analysis of all six proposals, consistent with

the RFQ. AR at 311-12. The Agency compared all quotes against the IGCE, ranked vendors in

order of price, and noted each vendor’s percentage deviation from both the IGCE and the next

highest- and lowest-ranked vendor. Id.

The agency also ranked all six offerors in order of price, listing them in order from the

lowest-priced proposal to the highest-priced proposal. AR at 317. In doing so, the agency noted

the percentage difference between each successive offeror and then identified the total difference

between the lowest priced proposal and the highest. Id.

Plaintiff alleges that the price evaluation was deficient because “[t]he moving price

target the Agency used, comparing one company’s price only against the next highest price, but

never the others, was irrational,” and “[a]t no point did the authority make an apples-to-apples

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comparison between bidders.” ECF No. 26 at 16. Nowhere in the RFQ does it state that each

offeror would be evaluated against every other price. Nor did the RFQ require that the Agency

had an obligation to do so. In fact, the RFQ provided only that “[a]fter an evaluation of

Technical Capability has been completed and ratings have been established, the Price to the

Government will be compared against these ratings to determine the combination most

advantageous to the Government.” AR at 86. This is precisely the process followed by the

Agency: it first evaluated the Technical Capability and assigned ratings to each vendor’s quote,

and then compared the ratings against price.

Thereafter, after the Agency completed all of its evaluations, the Agency determined that

Defendant-Intervenor provided the best value to the Government. AR at 312, 318. In support,

the contracting officer wrote:

Award Decision: As a result of this evaluation, there were (3) Vendor’s that

were rated “High Confidence” for Factor 1 – Technical Capability. In this

circumstance, price became the determining factor because the rating of the

non-price factor became equal between the vendors. Based on the above, the

Government has determined that [Defendant-Intervenor] provided the best

value to the government. . . . A comparison of [Defendant-Intervenor’s]

overall price indicates a savings of $1,523,695.36 or 7.4% below the IGCE

to the Government.

AR at 312 (emphasis in the original).

The record demonstrates that the Agency properly evaluated both proposals against the

evaluation criteria set forth in the RFQ and documented a reasonable rationale for its best-value

tradeoff decision. Therefore, the Court holds that the Agency’s determination that Defendant-

Intervenor’s proposal was the best value to the Government was reasonable, in compliance with

the RFQ’s evaluation criteria, and otherwise in accordance with law.

IV. Conclusion

For the reasons set forth above, the Court DENIES Plaintiff’s Motion for Judgment on

the Administrative Record. The Court further GRANTS Defendant’s and Defendant-

Intervenor’s Cross Motion for Judgment on the Administrative Record. In light of this Opinion

and Order the Court DENIES Plaintiff’s request for injunctive and declaratory relief. The Clerk

is directed to enter judgment accordingly.

IT IS SO ORDERED.

Edward J. Damich

EDWARD J. DAMICH

Senior Judge

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