The opinion
No. 21-1394C
(Filed: September 23, 2021)
(Re-Filed: November 10, 2021)1
*********************
INTUITIVE RESEARCH AND
TECHNOLOGY CORPORATION,
Plaintiffs,
v. Bid protest; post-award bid
protest; price realism;
THE UNITED STATES, unstated evaluation
criteria; unequal treatment;
Defendant best value determination
and
BOOZ ALLEN HAMILTON INC.,
Intervenor.
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Jon D. Levin, Huntsville, AL, for plaintiff, with whom was W. Brad
English, Emily J. Chancey, J. Dale Gipson, and Nicholas P. Greer.
Geoffrey M. Long, Trial Attorney, United States Department of
Justice, Civil Division, with whom were Brian M. Boynton, Acting Assistant
Attorney General, Martin F. Hockey, Jr., Acting Director, and Elizabeth M.
Hosford, Assistant Director, for defendant. Philip Aubart and Benjamin H.
Jarrell, United States Army, of counsel.
1
This opinion was originally issued under seal in order to afford the parties
an opportunity to propose redactions of protected material. The parties did
not propose any reductions; thus it appears in full.
Gary J. Campbell, Washington, DC, for intervenor, with whom was
G. Matthew Koehl and Lidiya Kurin, of counsel.
OPINION
This is a bid protest of the Department of the Army’s decision to
award a task order to Booze Allen Hamilton, Inc. (“intervenor” or “Booze
Allen”) for technical support services for its Prototype Integration Facility
(“PIF”), a unit that provides integration of new technology into weapons
systems. The task order was issued on a best value basis pursuant to a
Department of Defense (“DOD”) blanket purchase agreement (“BPA”).
Plaintiff complains that the Army applied unstated evaluation criteria and
failed to perform a sufficient price realism analysis. The matter is fully
briefed on cross-motions for judgment on the administrative record, and oral
argument was held on September 3, 2021. Because we find no error in the
agency’s evaluation, we deny the protest for the reasons set out below.
BACKGROUND
The United States Army Contracting Command (“AMCOM”) issued
the request for quotations (“RFQ”) for the task order at issue on September
25, 2020, which was then twice amended within a month. The RFQ was
issued under AMCOM’s existing professional and engineering services
BPA, known as the EXPRESS BPA. As such, it was subject to the
requirements of Federal Acquisition Regulation (“FAR”) part 8.405-3. The
EXPRESS BPA was between AMCOM and holders of certain General
Services Administration Federal Supply Schedule contractors for support,
technical, and engineering services. See Administrative Record (“AR”) 5-6
(Acquisition Strategy EXPRESS Evergreen (Nov. 9, 2016)). This particular
task order was classified under the North American Industry Classification
System as non-research and development engineering services.
The solicited task order was to be a hybrid of a firm-fixed-price and a
time-and-materials contract. The initial Technical Direction would be
performed for a fixed price, which coincided with the initial 12-month
performance period.2 The five option years would be priced based on time
and materials. In the RFQ, the agency promised to award to the bidder that
represented the best value to the government as outlined in Attachment 4 to
2
The initial Technical Direction is a section of the RFQ that contains the
background, objectives, and work requirements for the first 12-month
performance period of the task order.
2
the solicitation. That document promised that a tradeoff analysis would be
performed by the agency to balance price against technical ratings to arrive
at the best value. As is normally the case in best value procurements, this
meant that the agency might not award to the lowest priced offeror. Price
was the least important factor, but the solicitation warned that its importance
would increase “as the differences between the evaluation results for the
other criteria decrease.” AR 1561.
Attachment 4 to the RFQ promised that award would be based on the
Army’s consideration of three factors: (1) Technical Expertise, (2) Risk
Mitigation and Management, and (3) Price. Technical Expertise and Risk
Mitigation were equally important to the agency and were each individually
more important than Price. About Price, the agency stated that it “is not
expected to be the controlling criterion in the selection, but its importance
will increase as the differences between the evaluation results for the other
criteria decrease.” AR 205.
The RFQ instructed that the first two factors would be rated
adjectively with possible scores of Outstanding, Good, Acceptable, or
Unacceptable. An Outstanding rating in Technical Expertise meant that the
“[q]uotation meets requirements and indicates an exceptional level of
expertise and an understanding of the requirements. Strengths far outweigh
any weaknesses. Risk of unsuccessful performance is very low.” AR 206.
Similarly, an Outstanding rating in Risk Mitigation and Management meant
that the “[q]uotation meets requirements and indicates an exceptional Risk
Mitigation and Management approach. Strengths far outweigh any
weaknesses. Risk of unsuccessful performance is low.” AR 207. Price,
meanwhile, would be evaluated “to assess the level of effort and the mix of
labor proposed to perform the tasks outlined in the PWS.” AR 208. Price
would also be evaluated for price reasonableness (“i.e., a price that a prudent
businessperson would pay for an item or service under competitive market
conditions, given a reasonable knowledge of the marketplace”) and price
realism (“ensur[ing] the proposed pricing is realistic for the work to be
performed, reflects a clear understanding of the requirements, and is
consistent with the various elements of the other parts of the quotation”). Id.
Plaintiff, Intuitive Research and Technology Corporation
(“Intuitive”), and intervenor timely submitted quotations on October 30,
2020. Following their submissions, the government used a five-person
Evaluation Team to examine the quotations. The Evaluation Team rated both
intervenor and plaintiff as Outstanding in both Technical Expertise and Risk
Mitigation and Management. Under Technical Expertise, the Evaluation
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Team found that plaintiff had nine strengths, covering five out of eight
critical PWS requirements, and intervenor had five strengths, covering four
of the eight critical requirements. Under Risk Mitigation and Management,
the Evaluation Team found that plaintiff and intervenor had three strengths
each.
On March 12, 2021, the contracting officer (“CO”) issued a “Best
Value and Fair and Reasonable Determination.” AR 1538. In her
determination, the CO first set forth and then summarized the Evaluation
Team’s analysis of the quotations. She then examined both the plaintiff’s
and intervenor’s proposed pricing schemes, finding them to be reasonable
and realistic.
The CO then began her discussion of which quotation presented the
best value to the government. The CO first noted that she agreed with all of
the Evaluation Team’s analyses. The CO next went through, factor-by-
factor, each of the offeror’s quotations, summarizing their strengths. She
noted, once again, that both plaintiff and intervenor received Outstanding
ratings in both Technical Expertise and Risk Mitigation and Management.
The CO recognized that in the Technical Expertise factor intervenor had five
strengths, “exceeding performance capability requirements in four of the
eight critical areas of the PWS [Performance Work Statement,” while
plaintiff had nine strengths, “exceed[ing] specified performance capability
requirements in five of the eight critical areas of the PWS.” AR 1566. The
CO also noted, however, that plaintiff’s price was $322,901,764.69 while
intervenor’s was $291,450,904,76, a difference of 10.8 percent. Ultimately,
Price was the distinguishing factor for the CO because, “[a]lthough Price is
not the controlling factor, its importance increases as the differences between
competing proposals decreases.” Id. “Despite the differences between
[plaintiff’s] proposed technical solutions versus [intervenor] . . . the variation
in pricing was significant enough in determining [intervenor] as the best
value to the government.” Id. Furthermore, intervenor was “more
advantageous to the Government because it was more collaborative,
distinctive and efficient solution.” Id.
Following the award of the task order to intervenor, plaintiff filed an
unsuccessful agency-level bid protest with the Army on March 31, 2021.
Following the CO’s denial of the protest on May 5, 2021, plaintiff filed the
present bid protest on May 25, 2021. The government filed the administrative
record, and the parties submitted the case on cross-motions for judgment.
Oral argument was held September 3, 2021. We denied plaintiff’s motion
4
and granted defendant’s and intervenor’s motions by short order on
September 7, 2021. Judgment was deferred pending this opinion.
DISCUSSION
We review bid protests using the standards set forth in the
Administrative Procedures Act. Banknote Corp. of Am., Inc. v. United States,
365 F.3d 1345,1350–51 (Fed. Cir. 2004). Unless the agency’s decision was
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law,” it will remain undisturbed. 5 U.S.C. § 706(2)(A) (2018). Put
differently, if the agency’s decision was reasonable and not in violation of
any law or regulation, it will be upheld. This standard is “highly deferential.”
Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1058 (Fed.
Cir. 2000). Furthermore, any agency’s error must have prejudiced the
protestor before relief can be considered. Office Design Grp. v. United
States, 951 F.3d 1366, 1373 (Fed. Cir. 2020) (citing Glenn Def. Marine
(ASIA), PTE Ltd. v. United States, 720 F.3d 901, 907 (Fed. Cir. 2013)). “To
establish prejudicial error, a protestor must show that but for that error, the
protestor had a substantial chance of receiving a contract award.” Id. at
1373–74 (citing Alfa Laval Separation, Inc. v. United States 175 F.3d 1365,
1367 (Fed. Cir. 1999)).
Plaintiff presents multiple bases for its protest. First, plaintiff argues
that the agency improperly conducted its price realism analysis. Next,
plaintiff claims that the agency applied unstated evaluation criteria when
evaluating its quotation. Plaintiff then argues that the agency evaluated the
quotations unequally. Finally, plaintiff claims that the agency unreasonably
failed to assign strengths to its quotation.3 Plaintiff claims that the above
errors prejudiced it, warranting a permanent injunction against performance
of this task order. For the reasons below, we find plaintiff’s arguments
unavailing.
I. The Agency Reasonably Conducted Its Price Realism Analysis
First, plaintiff argues that the CO’s determination showed that the
agency did not perform a price realism analysis. Plaintiff claims that the only
relevant language in the CO’s determination was a “high level comment”
that:
3
Plaintiff also argues that the agency’s tradeoff analysis was arbitrary and
irrational, but this assertion largely comprises arguments made and addressed
in connection with other arguments.
5
The technical evaluation team considered three Offerors’ Basis
of Estimate to reflect a clear understanding of the requirement
and to be consistent with the other parts of the quotations. Upon
review of the price quotations and the IGE basis (historical
rates and escalation), it is determined that three proposals are
realistic for the work to be performed.
AR 1560. Plaintiff asserts that this lone comment shows that the agency did
not perform a price analysis, and if it had, it would have rejected the
intervenor’s proposal due to performance risks.
To the extent that an analysis was done, plaintiff argues that it was
flawed because intervenor’s Technical Direction price was unrealistically
low and proposed labor mix was insufficient. Plaintiff claims that the
Technical Direction, fixed-price section of the RFQ required a contractor to
perform a wide variety of tasks for Configuration Management and Quality
Management services. Under Configuration Management, a contractor
would provide “expertise for the centralized planning, direction, and control
of configuration management and data management of PIF quality data,
documentation, databases, and logs.” AR 181. Under Quality Management,
a contractor would perform a variety of services, including managing
multiple logs, being responsible for customer feedback, and managing PIF
metrics and data. Plaintiff then linked those requirements under the
Technical Direction section to a broader set of requirements under the same
headings in the PWS.
Plaintiff takes issue with intervenor’s proposed division of work
requirements. For the 12,240 firm-fixed-price Technical Direction hours
required by the agency, intervenor proposed that an Administrative Specialist
and Lead Engineer perform the work with a 75 percent and 25 percent labor
hour split at a total price of $970,292.67. Plaintiff argues that an
Administrative Specialist “is not capable of performing [the Technical
Direction] tasks or not likely to perform those tasks at the low price paid for
the position.” Pl.’s Mot. at 17. An Administrative Specialist, according to
plaintiff, is essentially a support role, such as a secretary or a clerk, that only
requires a high school degree or equivalent. Plaintiff claims that, based on
the contractor’s duties under Configuration Management and Quality
Management, an Administrative Specialist would not be able to meet
Technical Direction’s requirements. Plaintiff also argues that the
intervenor’s Lead Engineer would not be able to fulfill the Technical
Direction’s requirements either. Plaintiff claims that the division of labor
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hours between the Administrative Specialist and Lead Engineer at
intervenor’s given price meant that it was not realistic that intervenor could
have performed under the task order and that intervenor did not have a clear
understanding of the work. Therefore, the agency improperly conducted the
price realism analysis, and intervenor should have been eliminated from the
competition, says plaintiff.
Defendant presents multiple rebuttals to plaintiff’s assertions. First,
defendant alleges that plaintiff would not be able to show prejudice from a
faulty price realism analysis. According to defendant, the firm-fixed-price
Technical Direction aspect of the task order only “comprise[d] 12,240 hours
of effort, out of the 3,595,032 total hours of effort proposed by [intervenor].”
Def.’s Mot. at 23. The difference in price in the firm-fixed-price element
between the two offerors is $515,904.50, as plaintiff’s proposal was
$1,672,298.50 and intervenor’s was $1,156,394. Defendant claims that this
difference is far too small to constitute prejudice as it is only 1.6 percent of
the difference between the two proposals and 0.2 percent of intervenor’s total
proposed price. Defendant argues that the 10.8 percent differences in prices
would be reduced to 10.6 percent (if intervenor’s proposal were
hypothetically priced up to match plaintiff’s price), which would not have
affected the CO’s decision and could not have constituted prejudice.
Defendant also argues that the price realism analysis was performed
correctly, and that intervenor’s price was realistic. Defendant contends that
plaintiff misunderstood intervenor’s proposal regarding the initial Technical
Direction. According to defendant, the initial Technical Direction (the first
year of performance under the task order) was to “provide quality
management support for aviation and missile activities.” AR 180. “The
objective was to manage a corrective action log and provide weekly
communication to ensure appropriate responses and follow-up activities are
performed,” and other objectives were to “manage the PIF’s Process
Deviation Log, organize PIF Customer feedback, and manage quality data
using Sharepoint.” Def.’s Mot. at 24. Defendant argues that the initial
Technical Direction did not encompass all the requirements from the PWS,
contrary to plaintiff’s understanding.
As it pertains to the merits, we agree with defendant.4 The initial
Technical Direction subsections of the RFQ containing the requirements for
Quality and Configuration Management are far narrower than the respective
4
Because we are deciding this issue on the merits, we need not decide the
issue of prejudice.
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sections in the PWS. For example, as defendant notes, plaintiff claimed that
a part of Configuration Management under the PWS “mandated that the
contractor designate a single technical authority with program responsibility
to manage all configuration management (including acquisition) and work
directly with the Agency’s senior configuration manager.” AR 166. The
initial Technical Direction contains no such requirement. Instead, as
described in the initial Technical Direction, the firm-fixed-price section
largely consists of simpler tasks, such as managing various logs, organizing
information, and ensuring weekly communications. See AR 181. Intervenor
included in its proposal an explanation detailing how an Administrative
Specialist and Lead Engineer on a 75-25 percent effort split would perform
the initial Technical Direction. The agency reasonably believed, based on
that proposal, that intervenor understood the work and would realistically be
able to perform with that personnel at its given price. Because that
determination was reasonable, we will not interfere with the agency’s
decision.
II. The CO Reasonably Concluded That Intervenor’s Proposal
Represented the Best Value to the Government
Plaintiff next argues that the CO applied unstated evaluation criteria
when making her best value determination. Plaintiff alleges that the CO
awarded the task order to intervenor because she found intervenor’s proposal
to be “more advantageous to the Government because it was more
collaborative, distinctive, and efficient,” factors not found in the RFQ. AR
1566. Plaintiff further alleges that the government doubled down on this
finding, stating in the debrief notice that the intervenor’s proposal was “more
efficient, transparent, and collaborative.” AR 1670. Plaintiff argues that
none of those “loosey-goosey, business-lite terms” appear in any PWS
section and the evaluation board made no findings based on those terms.
Pl.’s Mot. at 9. Instead, the “Source Selection Authority injected these cut-
from-whole-cloth differentiators without mentioning where they came
from.” Id.
Defendant responds that plaintiff myopically focuses on a single
sentence while ignoring the context of the statement and the CO’s overall
analysis. The CO followed the best-value tradeoff approach outlined in the
RFQ. Defendant claims that the CO was presented with two Outstanding
proposals, and according to the RFQ, while Price was the least important
factor, “its importance will increase as the differences between the evaluation
results for the other criteria decrease.” AR 1561. Therefore, although
Plaintiff had more strengths and in more critical areas of the PWS than
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intervenor, “the variation in pricing was significant enough in determining
[intervenor] as the best value to the government.” AR 1566. Defendant
argues that the agency’s methodology and analysis is clear, and the focus on
this single sentence in the CO’s determination is unwarranted. Defendant
claims that the sentence can “simply be disregarded, as there is no evidence
that its inclusion had any impact on the best-value tradeoff analysis.” Def.’s
Mot. at 22.
In substance, we agree with defendant. While we cannot ignore the
CO’s comment, defendant is correct that it appears to be surplusage, which
had no impact on her analysis and no role in her decision. It is clear that the
CO’s decision came down to Price. It is evident throughout the CO’s best
value determination that she was aware of the offerors’ proposals and their
relative strengths. She recounted in great detail the Evaluation Team’s
findings and noted the strengths of each offeror’s proposal, along with how
both plaintiff and intervenor were rated as Outstanding in both Technical
Expertise and Risk Mitigation and Management. The CO agreed with the
Evaluation Team’s findings, and during her best value discussion, she again
went through, factor-by-factor, each offerors’ proposal discussing their
strengths and finding each one Outstanding.
Throughout the CO’s discussion, she repeatedly referenced the
evaluation scheme from the RFQ, stating, “Price is not expected to be the
controlling criterion in the selection, but its importance will increase as the
differences between the evaluation results for the other criteria decrease.”
AR 1561. Although the CO found that, under the Technical Expertise factor
plaintiff had nine strengths covering five of eight critical areas under the
PWS while intervenor only had five strengths covering four of the eight
critical areas, she decided that “[d]espite the differences between [plaintiff]’s
proposed technical solutions versus [intervenor]… the variation in pricing
was significant enough in determining [intervenor] as the best value to the
government.” AR 1566. The CO found that she had two Outstanding,
comparable proposals that both indicated each offeror would succeed in the
given task order. Intervenor’s proposal, however, cost $31,450,859.93 less
than plaintiff’s proposal, a difference of 10.8 percent. While the CO did use
“loosey-goosey” language that had no source in the RFQ and therefore no
place in her best value determination, we cannot conclude that it had any
impact on her decision. As the CO repeatedly stated, price was the
differentiating factor here.
III. The Agency Did Not Engage in Unequal Evaluations
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Plaintiff’s next argument is that the agency did not evaluate the
offerors’ proposals equally. The crux of plaintiff’s argument is that plaintiff
and intervenor both proposed to use the same computer programs, Windchill
and other commercial-off-the-shelf (“COTS”) tools, for the Configuration
Management section of the PWS, but only intervenor received a strength for
them in its proposal. Plaintiff claims that the failure of the agency to assign
it a strength for that aspect of its proposal is arbitrary and irrational.
Defendant responds that, while both plaintiff and intervenor did propose
using the same programs for Configuration Management, the anticipated
uses set out in the two proposals were not “substantively indistinguishable or
nearly identical.” Def.’s Mot. at 27. Intervenor proposed to use Windchill
and the other COTS tools in different ways from plaintiff, meriting the
strength it received.
We agree with defendant. “The Federal Acquisition Regulation
requires an agency to treat offerors fairly and impartially.” Office Design
Grp., 951 F.3d at 1372 (citing 48 C.F.R. § 1.602-2(b)). For a protestor to
succeed on a disparate evaluation claim, the “protestor must show that the
agency unreasonably downgraded its proposal for deficiencies that were
‘substantively indistinguishable’ or nearly identical from those contained in
other proposals.” Id. The proposed use of Windchill and other COTS tools
was not substantively indistinguishable between the two proposals. As
defendant noted, intervenor proposed to use Windchill for the analysis of
equipment failure data, while plaintiff’s proposal contained no such use. The
proposals, therefore, are not substantively indistinguishable. Because the
agency had a rational basis for distinguishing between the proposals, we will
not disturb its decision.
IV. The Agency Did Not Unreasonably Fail to Assign Strengths to
Plaintiff’s Proposal
Lastly, plaintiff argues that it should have been assigned four other
strengths for its proposal. For example, plaintiff claims that it should have
been assigned a strength under the PWS’s Quality Management requirement
that the “contractor… flow all applicable Quality Management System
requirements to all team members and subcontractors” because it had
exceeded the requirements. AR 167. Defendant responds that plaintiff has
not shown how the agency’s assignment of strengths was irrational or
violated the terms of the solicitation.
As stated before, if an agency’s action was reasonable, we cannot
interfere. This reluctance to second guess is particularly appropriate when
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an agency is assigning strengths to proposals. Plaintiff has not shown how
the agency’s assignment of strengths to proposals was irrational; it merely
reflects disagreement with the assignment. We will not disturb the agency’s
decision.
CONCLUSION
Plaintiff argues that the agency erred in multiple ways during the
agency’s evaluation of the proposals and best value determination, however,
it has not shown irrationality or legal error by the agency. Accordingly,
plaintiff’s motion for judgment on the administrative record (ECF No. 21) is
denied. Defendant’s and intervenor’s motions for judgment on the
administrative record (ECF Nos. 23, 24) are granted. The Clerk of the Court
is directed to enter judgment for defendant.
s/Eric G. Bruggink
ERIC G. BRUGGINK
Senior Judge
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